Mayotri v Director of Lands [2008] FJMC 8; Workmen's Compensation Action No 01 of 2005 (7 July 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT BA
IN THE WESTERN DIVISION

WORKMEN’S COMPENSATION ACTION NO.: 01 OF 2005

BETWEEN:

MAYOTRI d/o Sachida Nand
APPLICANT

AND:

DIRECTOR OF LANDS
1ST RESPONDENT

AND:

ATTORNEY GENERAL OF FIJI
2ND RESPONDENT

Counsel for the Applicant: Mr Chandra Singh
Counsel for the Respondent: Mr Jeremaia Lewarau

Date of Hearing: 09/06/08 & 30/06/08
Date of Ruling: 07/07/08

RULING

[1] This is the respondent’s motion to seek leave to file appeal out of time.

[2] Judgment in this case was delivered on 03/03/08. It was a written judgment and I had taken the file to Lautoka Magistrates’ Court for corrections and subsequently I had a copy of the judgment delivered to the office of the Attorney General, Lautoka but unfortunately I was told that it was delivered at the Lands Department office and not at the office of the Attorney General and as such the office of the Attorney General only received a copy on 28/04/08.

[3] The application for leave to file appeal out of time is opposed by the applicant and the applicant submits that the decision to appeal was only came about when the applicant demanded for the payment of the judgment sum.

[4] When this matter first came up for hearing on 09/06/08 I asked both counsels as to whether they are aware of the case of Crest Chicken Limited –v- Central Enterprises Limited (2005) FJHC 87 HBA0013J. 2003 a judgment of Pathik J and I was informed by both of them that they were not aware of this case and the matter was stood down for them to get a copy of this case and subsequently the matter was adjourned to 30/06/08 for continuation of the hearing.

[5] On 30/06/08 counsel for the respondents submitted that he was relying on Section 22 (4) of the Workmen’s Compensation Act which reads as follows:

"No appeal shall lie after the expiration of 30 days from the date of the order of the Court:

Provided that the Supreme Court may, if it thinks fit, extend the time for hearing under the provisions of this Section notwithstanding that the time for appeal has elapsed."

He further submitted that the application was made within 12 to 13 days after the judgment was received. He also submitted that in case of Crest Chicken Limited –v- Central Enterprises Limited Supra does not apply and the appeal is under Section 22 (4) of the Workmen’s Compensation Act and the seven days period to file notice of intention to appeal does not apply to this case.

[6] Mr Singh in reply referred me to the Workmen’s Compensation (Rules of the Court) Regulation and in particular to Regulation 25 which has the heading ‘Appeals’ and which reads as follows:

"Appeals under the provision of Section 22 of the Act shall be made in accordance with the rules relating to appeals from Magistrates in Civil matters and the fees chargeable shall be the same."

[7] Order 37 Rule 1 of the Magistrates’ Court Rule was discussed in the case of Crest Chicken Limited –v- Central Enterprises Limited Supra at page 4 of the cyclostyle judgment it is stated as follows:

"Statutory provisions for time to file Notice of Intention of appeal

It is Order 37 Rule 1 of the Magistrates’ Courts Rules which sets out the time within which Notice of Intention to Appeal shall be given. The Order reads as follows:

1. 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 opposite party immediately after judgment is pronounced. (Substituted by Rules 20th November, 1946, and amended by Rules 06th November, 1950).

This is mandatory Rule and it does not give the Magistrate power to extend time. Even if he had, no application was made by the appellant for extension for it was already late in filing or giving Notice of Intention to appeal within the seven days after judgment was pronounced."

[8] The respondents should have filed the notice of intention to appeal on 03/03/08 itself and even if they are given the benefit of doubt that they did not receive written judgment by 12/04/08 then the notice of intention to appeal should have been filed within 7 days thereof but in both instances they are well out of time and in accordance with the case of Crest Chicken the 7 days period is mandatory and I do not have any powers to extend that period.

CONCLUSION

[9] In the circumstances the application is refused and I order that the respondents shall pay the applicant costs to be taxed if not agreed.

[Mohammed S. Khan]
Resident Magistrate

07th July, 2008