EILR v KB [2014] FJMC 193; File No 02.2014 (8 August 2014)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 02 of 2014

BETWEEN:

E I L R

Applicant

AND:

K B

Respondent

AND:

SOCIAL WELFARE OFFICER, SUVA
Guardian Ad-Litem

AND:

AK

Infant

____________________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms. Shantel Hazelman (Haniff Tuitoga) for the Applicant.

The Respondent- Absent and unrepresented.

___________________________________________________________________________

DECISION OF THE COURT

BACKGROUND

1. The Appellant filed in a Motion and Affidavit on Thursday, 12 June 2014,seeking for a grant of order for an extension of time and or leave to appeal out of time.
   
2. On 14 May 2014, this Court refused the Applicant, Ms. E I L R’s application to adopt Master AK. The Court further gave a direction that the parties had 30 days to appeal the decision.
   
3. I have perused the Affidavit filed in support of the Motion which inter alia reads that the Notice of Appeal was filed within the 30 day period from the date of the decision. The Family Court registry however refused to accept the Notice of Appeal on the basis that the Notice of Intention to Appeal was not filed within 7 days after the date of the decision appealed from.
   
4. The affidavit further reads that the law firm Haniff Tuitoga mistakenly overlooked the provisions of Order XXXVII Rule 1 of the Magistrates Court Rules because of the Resident Magistrates order that the parties had 30 days to appeal the decision.
   
5. The affidavit further reads that there will be no prejudice to the Respondents. The Respondent and the Social Welfare Officer had no objection to the adoption of Master AK in favour of EILR. The only issue was whether the Applicant, Ms EILR is resident in Fiji in terms of Section 6(4) of the Adoption Act and the Applicant believes she has good prospects of succeeding on appeal.
   
6. In Chand v Chand [1999] FJHC 61; HBA0018D.1999S (12 July 1999) the court provided factors that have to be considered in order to grant extension and the factors are as follows:

(a) the length of delay;

(b) the reasons for the delay;

(c) the chances of the appeal succeeding if time for appealing is extended; and

(d) the degree of prejudice to therespondent if the application is granted

7. Motion and Affidavit seeking enlargement of time to appeal. The Law firm was attempted to file without filing the intention to appeal under Order XXXVII Rule 1 of the Magistrates Court Rules 41 days after lapse of appeal time and 31 days after the rejection of the Notice of Appeal. I also note according to the file note that the Deputy Registrar sought directives from her ladyship Justice Anjala Wati and it was noted in the file note that the ” notice of intention to appeal was not filed within 07 days and grounds to appeal was also not attached.”
   
8. Enlargement of time may only be granted if the Appellants can satisfy this Court that there is a chance of succeeding in the appeal within High Court jurisdiction. The original adoption application was refused in terms of Section 6(4) of the Adoption of Infant Act Cap 58. The court, having considered all the documents before it and all the other requirements under the Adoption of Infants Act (The Act.)Cap 58. And extensively addressed on the question whether the applicant is qualify under Section 6(4) of the Adoption of Infants Act by the Ruling delivered on the 14 May 2014 Wherein the applicant was not a Resident in Fiji but a ‘Resident’ of Australia.
   
9. The court also wish to reproduce the provisions of Order XXXVII Rule 1 of the Magistrates Court Rules Cap 14 under the heading of ; CIVIL APPEALS as follows;
   

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 29th November, 1946, and amended by Rules 6th November, 1950.)

10. The appellant mentioned that they were unaware as to the Appeal proceedings. The court notes that the applicant was represented in Court for the adoption matter from the very beginning by Law firm Haniff Tuitoga. Therefore, I refuse to accept the above-mentioned ground mentioned in above paragraph 4 as ignorance of the law is not a reasonable explanation to justify the delay in moving this court for 'Appeal out of time'. In the light of Order XXXVII Rule 1 of the Magistrates Court Rules Cap 14.
    
11. The court also wish to highlight the maxim “ignorantia legis neminem excusat means that "ignorance of the law excuses no one" is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware.
    
12. On same token I also quote the maxim vigilantibus, non dormientibus jurasubveniunt which means the law assists those that are vigilant with their rights, and not those that sleep thereupon.
    

NOW THEREFORE BE IT ORDERED BY THE COURT THAT:

13. In light of the above discussed and based on the above-mentioned grounds I decide that applicant had failed to give justifiable reasons for the delay in seeking to appeal out of time and therefore, I refuse the application ‘seeking leave to appeal this Court decision out of time or on extension of time accordingly.
    
14. Right of Appeal 30 days.
    

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 08^th day of August 2014