Pillai v Madhwan [2023] FJHC 567; HBA01.2023 (11 August 2023)

IN THE HIGH OURT OF FIJI AT LAUTOKA

APPELLATE JURISDICTION

Civil Appeal No. HBA 01 0f 2023

Magistrates’ Court Civil Action No. 22 of 2022

IN THE MATTER of an appeal from the ruling of the

RESIDENT MAGISTRATE SENIKAVIKA JUITA on

2^nd November 2022 in Lautoka

Civil Action No. 22 of 2022.

BETWEEN

SHANDAM PILLAI of Velovelo, Lautoka.

DEFENDANT-APPELLANT

AND

MADHWAN of Lomolomo, Lautoka.

PLAINTIFF-RESPONDENT

Counsel : Mr Cabemaiwai T. for the Appellant

Mr Pillay W. for the Respondent

Date of Hearing : 14^th July 2023

Date of Ruling : 11^th August 2023

RULING

(On the Preliminary Objection)

[1] The plaintiff-respondent (the respondent) filed this action in the Magistrates’ Court against the defendant seeking the following reliefs:

1. Special damaged in the sum of FJD21,600.00;
2. General damages;
3. Interest of General and/or special damages;
4. Costs of this action on solicitor and client full and complete indemnity basis;
5. Such further or other relief or orders that the Honourable Court may deem fit, just expedient or necessary in the circumstances provided however that the same is within the jurisdiction of this Honourable Court.

[2] In the judgment of the Magistrates’ Court the learned Magistrate has stated that on 18^th May 2022 the defendant-appellant (the appellant) was present in court and sought time to file notice and statement of defence and 21 days was granted. When he appeared on the 29^th June 2022 he had sought more time to file the notice and statement of defence and final 14 day was granted. On 27^th July 2022 he was absent and did not file the notice and statement of defence. On 5^th October 2022 the matter was set for formal proof and the appellant had informed court that he had sought assistance from the Legal Aid and his application was still pending. On the same day a counsel from the Legal Aid had appeared as a friend of court and had informed the court that the appellant’s application was still pending.

[4] However, the learned Magistrate proceeded with the matter and made the following orders:

1. Judgment against the defendant in the sum of $21,000.00 as special damages;
2. Further the plaintiff is entitled to $6000.00 cost of litigation including Court fee and Bailiff fee by the defendant;
3. Pursuant to Order 32 rule 8 of the Magistrates Court Rules, the defendant is awarded legal interest at the rate of 5%, from the date of this judgment until the full sum is paid by the defendant to the plaintiff, but total sum is limited to $50,000.00.

[5] Being aggrieved by the judgment of the learned Magistrate the appellant appealed to this court on the following grounds:

1. The learned Magistrate erred in law and in fact in delivering judgment based on an Acknowledgment of Debt which is not stamped pursuant to section 41 and 100 of the Stamp Duties Act.
2. The learned Magistrate erred in law and in fact in delivering judgment without examining witnesses’ viva vice in order to determine whether the defendant/appellant made any payments to the plaintiff/respondent.
3. The learned Magistrate erred in law and in fact by obtaining judgment before assessing the actual balance to be paid by the plaintiff/respondent amounting to unjust enrichment.
4. The learned Magistrate erred in law and in fact in not assessing the plaintiff/respondent solicitors cost by way of examination of invoices or receipts.
5. The appellant reserves the right to amend, revise and add to the grounds of appeal upon receipt of the court record.

[6] The learned counsel for the respondent raised an objection to the appeal on the ground that the Notice of Intention to Appeal was not filed and served as required by Order 37 rule 1 of the Magistrates Court Rules 1945.

[7] Order 37 rule 1 of the Magistrates Court Rules provides:

Every appellant shall within seven 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 intention to appeal:

Provided that such notice may be given verbally to the court in the presence of the 0pposite party immediately after judgment is pronounced.

[7] These Rules are made by the legislature to facilitate the proper administration of justice and therefore strict adherence of such rules is in my view mandatory.

[8] In the case of Crest Chicken Ltd. vs. Central Enterprises Ltd [2005] FJHC 87; HBA0013j.2003s (19 April 2005) it was held that Order 37 is a mandatory rule and it does not give the Magistrate the power to extend time.

[9] In this matter, as per the judgment, it has been signed and delivered on 02^nd November 2022. The Notice of Intention to Appeal dated 9^th November 2022 was filed on 10^th November 2022 and was served on the respondent on 16^th November 2022 after two weeks from the date of the judgment.

[10] It is absolutely clear that the Notice of Intention to Appeal should be filed and served within seven days from the date of the Judgment and in this matter the there is no doubt that the Notice of Intention to appeal had been served on the respondent’s solicitors after the lapse of 7 days prescribed by Order 37 rule 1.

[11] The learned counsel for the appellant submitted that although the judgment was delivered by the learned Magistrate on 02^nd November 2022, the registry of the Magistrates’ Court informed the appellant that the judgment was not ready. However, there is no evidence on that allegation and also no evidence, if it was so, when the judgment was ready. The court cannot make any comments on that without any evidence.

[12] Since the appellant has failed to file and serve the Notice of Intention to Appeal within prescribed time, his appeal is deemed abandoned.

ORDERS

1. The preliminary objection is upheld.
2. The appeal is struck out.
3. The appellant is ordered to pay $1,000.00 to the respondent as costs of this appeal
   

Lyone Seneviratne

JUDGE

11^th August 2023