Shameer v Hassan [2014] FJMC 2; Civil Action 157.2013 (7 January 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION

Civil Action No. 157 of 2013

Abdul Shameer
Claimant

v

Abdul Hassan
Respondent

For Applicant : In Person
For Respondent : In Person

Ruling

Introduction

In this matter the Respondent has filed a Notice of Motion seeking that "(i) leave be granted to appeal out of time; and (ii) that default judgment entered on 20th March 2013 be stayed and set aside."

An affidavit was filed in support of the Motion. The Claimant responded by way of affidavit and both parties agreed that the Court rely on the submissions made and provide a ruling.

History of the Matter

(a) Claimant obtained judgment in SCT on 20th March 2013 against the Respondent in the sum of $3300.

(b) The Claimant then filed a Judgment Debtor Summons which was to be called in Court on 15th August 2013.

(c) On 4th September 2013, Respondent filed a Notice of Motion to appeal out of time.

The Law

In Chans Long Chang vs Yen Yain Kai (1999) FJ HC 107, 45 FLR 217, the general principles governing the grant of leave to appeal out of time are set out as follows:-

(1) The length of the delay.

(2) The reason for the delay.

(3) The chances of an appeal succeeding if the time for appealing is extended.

(4) The degree of prejudice would cause to the respondent if the application is granted.

Analysis

(1) Length of Delay -

The length of delay is about 6 months. The Respondent stated that he "was never aware of any action against [him] in the Small Claims Tribunal..."

The argument advanced by Respondent is that he was not served to appear in the SCT. He also stated that he lodged a report regarding the affidavit of service. This Court notes that the Respondent appeared in Court upon service of the JDS and immediately brought up the issue of service of SCT matter.

(2) Reasons for Delay –

The reason the Respondent outlines is that he was not served and he only appeared after he was served the JDS.

(3) The chances of an appeal succeeding if the time for appealing is extended –

This Court has noted that the Referee did not hear both sides before he made a decision. He granted the orders sought following non-appearance of the Respondent. The Referee noted that an affidavit of service was filed and to him the Respondent (as per the affidavit) was served.

(4) The degree of prejudice would cause to the respondent if the application is granted -

This Court notes that a party that succeeds in the Court of law is entitled to the fruits of its litigation. In this case both the parties were not heard. It would only be fair if both are heard and then a decision made. For the foregoing reasons this Court will set aside the decision of the SCT and seek that matter be heard.

This Court Orders as follows:

(a) Leave to Appeal is granted.
(b) Order of SCT dated 20th March set aside.
(c) Matter to be heard by another Referee.

Chaitanya Lakshman
Resident Magistrate
7th January 2014