Narayan v Autoworld Trading (Fiji) Ltd [2019] FJHC 559; HBA8.2019 (31 May 2019)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

HBA No. 08 of 2019
(On Appeal from the Magistrate’s Court of Fiji at Suva, Civil Action No.184 of 2013).

BETWEEN: SANGEETA NARAYAN

1^ST APPELLANT

Original 1^st Defendant

AND: RAJENDRA NARAYAN

2^ND APPELLANT

Original 2^nd Defendant

AND: AUTOWORLD TRADING (FIJI) LTD

RESPONDENT

Original Plaintiff

JUDGMENT

[Respondent’s Summons for Striking Out Of Appeal pursuant to Order 37 of the Magistrate’s Court Rules and High Court Rules 1988 and Order 18(1) (d) and the Inherent Jurisdiction of this Hon. Court]

BEFORE: Hon. Justice Vishwa Datt Sharma

COUNSELS: Mr. Filipe - for the Appellants [Original Defendants]

Mr Singh S. - for the Respondent [Original Plaintiff]

Date of Decision: 31^st May, 2019 @ 9.30 am

INTRODUCTION

[1] Before court is Respondent’s (Original Plaintiff’s) striking out of Appeal Application seeking for the following Orders-

• (i) The Notice of Intention to Appeal and Grounds of Appeal filed herein by the Appellants be struck out.
• (ii) Costs for this Application is to be paid by the Appellants on an indemnity basis.

[2] This Application is made pursuant to Order 37 of the Magistrates’ Court Rules and Order 18 Rule 18(1)(d) of the High Court Rules 1988 and the inherent jurisdiction of this honourable court. It is supported by an Affidavit deposed by Ravindra Lal.
[3] The Respondent opposes the application.
[4] Both parties to this proceeding furnished court with their written submissions coupled with case authorities and relevant laws, in particular, Sections 38 and 39 of Magistrates’ Court Act and Order 37 of the Magistrates’ Court Rules and argued the matter herein accordingly.

Some of the case authorities furnished to court did not directly relate to the current issue before court, instead dealt with leave application to extend time to file Notice of Intention to Appeal and Grounds of Appeal.

THE LAWS

[5] Order 37 of the Magistrates’ Court Rules provides as follows-

Civil Appeals
Notice of Intention to Appeal

(1) Every appellant shall within 7 days after the day on which the decision appealed against was given, give to the respondent and to the court by which such decision was given (hereinafter in this Order called “the court below”) notice in writing of his or her intention to appeal, provided that such notice may be given verbally to the court in the presence of the opposite party immediately after judgment is pronounced.

[6] Order 18 Rule 18(1)(d) of the High Court Rules 1988 reads as follows-

18 (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that—

(d) it is otherwise an abuse of the process of the Court.

Respondent’s Submissions

[7] The Respondent’s contention is that the Appellant’s Notice of Intention to Appeal and the Grounds of Appeal should be struck out since the Notice of Intention to Appeal was not served or given to the Respondent within 7 days timeframe as was required by Order 37 Rule I of the Magistrate’s Court Rules.
[8] That the Appellants are not clear on their Affidavit in Reply where they seem to be accepting the late service of the Notice of Intention to Appeal, but they say they have a meritorious appeal.
[9] The Appellants filed a Notice of Intention to Appeal on 31^st January 2019 and served it on the Respondent on 28^th February 2019.
[10] That no application has been made to court for its exercise of discretion to extend time to appeal or for the court to deal with the appeal under Section 39 of the Magistrates’ Court Rules.
[11] The service of the Notice of Intention to Appeal is mandatory.
[12] This delay remains unexplained by the Appellants.
[13] That this Appeal should be dismissed.

Appellant’s Submissions

[14] On the other hand, in summary, the Appellants concede that the Notice of Intention to Appeal and Grounds of Appeal were filed in time.
[15] Appellant’s contention is that any issues of non-compliance that the Respondent is raising can be addressed by the court as it sees fit as per case authority of Pillay v Bano [2017] FJHC 934; HBA18.2017 (11 December 2017).
[16] That the Grounds of Appeal are meritorious.
[17] That the main argument here is that the Magistrate erred in finding that the Appellants had executed the purported security documents.
[18] The Appellants case was that it did not sign the purported security documents as per its pleadings.
[19] The Respondent during the Hearing failed to call any of the Witnessing Officers to give testimonies of the security documents.
[20] In the contrary, the Second Appellant in his evidence maintained and denied the execution of the purported security documents.
[21] The Appellants main contention in its Appeal is that the evidence by the Respondent during the Hearing did not prove the case on the balance of probabilities, that the Appellants had in fact signed the documents.
[22] That there is no prejudice to the Respondent if this honourable court dismisses this application and the Appeal proper take its course and the Appeal be heard and determined by this honourable court.
[23] That the Respondent’s Application be accordingly dismissed.

ANALYSIS AND DETERMINATION

[24] The issue for this court to determine is whether the Appellants [Original Defendants]-

• (i) Notice of Intention to Appeal, AND

(ii) Grounds of Appeal

Should be struck out since the Appellants Appeal is out of time as the Respondent was not notified of their Intention to Appeal within the prescribed time of 7 days.

[25] This court notes from the court records that the Appeal filed in the within matter is from a final judgment of the Magistrates Court.
[26] Order 37 of the Magistrates’ Court Rules deals with Civil Appeals.

[27] Rule 1 deals with Notice of Intention to Appeal.
[28] A careful read and perusal of Order 37 Rule 1 clearly reveals that there is a two-limb procedural requirement to this particular provision of the law that the appellants are required to carry out herein-

Firstly, the Appellants within 7 days after the day on which the decision appealed against was given, is required to give to the Respondent; and

Secondly to the court, notice in writing of their Intention to Appeal.

[29] In short, the Appellants were required to file into court and serve to the Respondent the Notice of Intention to Appeal within a 7 days’ timeframe.
[30] It is not in dispute by the parties to the proceedings that both the Notice of Intention to Appeal and Grounds of Appeal were filed within time in terms of Order 37 Rule 1 of the Magistrates Court Rules.
[31] The contention of the Respondent is that he was never served with a Notice of Intention to Appeal filed on 31^st of January 2019 within 7 days timeframe as was required of him in terms of the Rule. However, the Respondent was served subsequently after a lapse of about a month on 28^th February 2019.
[32] The Respondent further appraised court that due to the non-compliance of the Rules by the Appellants, the Appellants appeal is now out of time as the Respondent was not notified of their Intention to Appeal within the prescribed timeframe.
[33] However, on the other hand, the Appellants contention all along has been that the Notice of Intention to Appeal and Grounds of Appeal was filed in time. Any issues of non-compliance that the Respondent is raising, can be addressed by the court as it sees fit as per case of Pillay v Bano [2017] FJHC 934; HBA18.2017 (11 December 2017) and referred court to annexure at Tab 1 of his written submissions.
[34] I reproduce hereunder the extract from the case of Pillay v Bano (supra)-

8. ‘The Notice of Intention to Appeal was undated but the stamp on that indicates that filing fees were paid on 7.10.2016. This is outside the time period set in Order XXXVII rule 1 of the Magistrates’ Court Rules. This provision allows Notice of Intension to Appeal to be filed within 7 days from the date the decision appealed against was delivered and the exception found in the proviso to the said Rule also allows verbal notice immediately after the decision was pronounced, which had not happened in this case.’

[35] After a careful perusal of the above case authority in Pillay v Bano, I find that the case deals with the issue of the Notice of Intention to Appeal and the Grounds of Appeal being filed out of time. The court on that very issue therein did find that the High Court in its Appellate Jurisdiction had the authority to deal with the matter as it sees fit and just even if there is non-compliance.
[36] However, the current case before this court is slightly different from the above case authority of Pillay v Bano and therefore does not have any relevance to the current issue.
[37] In the present case, I reiterate that the parties to the proceedings have conceded that the Notice of Intention to Appeal and the Grounds of Appeal were filed on time.
[38] However, the current issue before this court is that there is a non-compliance of the Rules by the Appellants as was required of them to carry out and comply in terms of Order 37 Rule 1 of the Magistrates Court Rules. The Appellants herein have failed to give to the Respondent (serve) it’s Notice of Intention to Appeal within 7 days timeframe and therefore the Respondent is seeking Orders from this court to strike out the Appellants Notice of Intention Appeal and the Grounds of Appeal with costs.
[39] I now make reference to Order 37 Rules 1, 2, 3 and 4 of the Magistrates Court Rules and Sections 38 and 39 of the Magistrates Court Act which deals with Civil Appeals and the Appellants are required to carry out the following; [Case reference Jan's Rental Cars (Fiji) Ltd v Nand [2016] FJHC 73; HBM147.2014 (27 January 2016)]-

• (i) Rule 1 requires appellant to give notice of intention to appeal in writing to court and Respondent within seven (7) days after the date decision is given;

(ii) Rule 2 gives Magistrates Court discretion to Order appellant to provide security for costs;
(iii) Rule 3 requires appellant to file in Magistrates Court and serve grounds of appeal within one month from the date decision is given by Magistrates Court;

• (iv) Rule 4 states that if appellant fails to comply with Rule 3 then it shall be deemed that appellant has abandoned the appeal, unless Magistrates Court or High Court shall see fit to extend time for filing grounds of appeal.

[40] Section 38 of Magistrates Court Act provides as follows-

“38. Subject to the provision of Section 39, the High Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal imposed by the magistrates’ court or by the Supreme Court, as prescribed by rules of Court” (emphasis added).

[41] Under Section 38, Appeals will be entertained if appellants give Notice of Intention to Appeal, files Grounds of Appeal within the prescribed time and gives Security for costs if ordered by Magistrates Court.
[42] Section 39 gives the High Court discretion to “entertain any Appeal from Magistrates Court, on any terms which it thinks just” when the Appellant has failed to comply with the Rules of Magistrates court in relation to Civil Appeals.
[43] Take for instance, where the Appellant files Notice and Grounds of Appeal without giving Notice of Intention to Appeal within the prescribed time, the High Court may hear the Appeal “on terms which it thinks just”.
[44] In the current case before this court, the Appellants have not taken any effort whatsoever to explain to the court of their procedural non-compliance of the Rule failing to give (serve) to the Respondent of their Notice of Intention to Appeal within the stipulated timeframe of 7days. However, the Notice of intention to Appeal was served subsequently, after a lapse of almost a month’s time. This would justify a finding that the present appeal before this court is therefore an abuse of process of the Court.
[45] The appellants became very much aware of their failure to carry out this procedural aspect of the Rules in terms of service and or giving to the Respondent their Notice of Intention to Appeal the Decision of the Magistrate’s Court when the Respondent’s Counsel appraised via correspondence inviting the Appellant’s to withdraw the Appeal, but without success. It was at this juncture that the appellants should have encountered the Respondent’s striking out Application and instead filed an immediate Leave application seeking an extension of time to give (serve) to the Respondent their Notice of Intention to Appeal the said decision, but they had also failed to do this as well. If the leave application was before the court then, this would have given the court discretionary power to deal with the Leave application in terms of the provisions of section 39 of the magistrate’s Court accordingly, unfortunately, the Appellants failed in its bid to do the same.
[46] I find as a fact that the Appellants have failed to give to the Respondent Notice in writing of their Intention to Appeal the Magistrates Court decision of 24^th January 2019 within the prescribed timeframe of 7 days as was required of them in terms of Order 37 Rule 1 of the Magistrates Court Rules.
[47] Failure to the non-compliance of Order 37 Rule 1 of the Magistrates Court Rules in terms of failing to give to the Respondent Notice in writing of their intention to appeal the decision, leaves me with no alternative but to strike out the Appellants Notice of Intention to Appeal coupled with the Grounds of Appeal accordingly.
[48] It should be noted that the Rules stated hereinabove are not discretionary, rather mandatory in nature, and therefore, needs to be adhered to and fully complied with when filing Civil Appeals from the Magistrates Court.
[49] Further, the Rules therein have a purpose, and its purpose must not be seen to be defeated and any non-compliance of the Rules will result in appropriate Orders being made against the party failing to comply with the Rules accordingly.

IN CONCLUSION

[50] For the aforesaid rational, the Respondent’s Application seeking striking out of the Notice of Intention to Appeal and the Grounds of Appeal is hereby acceded to and is accordingly struck out.
[51] In terms of costs of the application; it is only appropriate that I grant costs to the Respondent summarily assessed at $650.

FINAL ORDERS

(a) The Appellants Notice of Intention to Appeal and Grounds of Appeal are hereby struck out accordingly.
(b) Costs of the Application is summarily assessed at $650 against the Appellants.

DATED at SUVA this 31^st DAY of MAY, 2019

VISHWA DATT SHARMA
JUDGE
SUVA
31^st Day of May, 2019

cc. Haniff Tuitoga, Suva

Shelvin Singh Lawyers, Suva.