Auto One Importers & Exporters Company Ltd v Coastal Development Ltd [2014] FJMC 28; Civil Action 433.2008 (11 March 2014)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Civil Action No. 433/2008

BETWEEN:

AUTO ONE IMPORTERS & EXPORTERS COMPANY LIMITED
a duly incorporated company having its registered office at 142 Ratu Mara Road, Suva.
APPLICANT

AND:

COASTAL DEVELOPMENT LIMITED
a duly incorporated company having its registered office at 18 Aurora Avenue, Makoi, Nasinu.
RESPONDENT

Ms. Preetika for the Applicant
Mr. O'Driscoll for the Respondent

RULING

1. The Judgment was given in favor of the Respondent on 17th December 2013 and the Applicant filed an ex-parte motion supported with an affidavit seeking to stay the execution pending the appeal.
   
2. The Court ordered the notice of this motion to be served to the Respondent and this was taken for hearing on 10th February 2014.
   
3. In the hearing the learned counsel for the Respondent raised a preliminary objection. His objection was that the notice of appeal was not filed on the stipulated time pursuant to Order 37 Rule 01 of the Magistrate Court Rules and therefore there is no valid appeal before this Court to stay this judgment.
   
4. The applicant filed further affidavit of Sangeeta Devi on 24th February 2014. In that she deposed that the notice of appeal was filed within the prescribed 07 days but they failed to serve to the Respondent within the time because of Legal vacation.
   
5. When this was mentioned for further hearing the counsel for the Respondent informed that they did not want to answer to that affidavit and again argued that there is no valid appeal filed by the Applicant.
   
6. Learned counsel also drew this Court's attention to Crest Chicken Ltd V Central Enterprise Ltd [2005] FJHC 87 where His Lordship Justice Pathik held that Or37 Rule 01 is mandatory. Based on this judgment the learned counsel for the Respondent argued that this Court has no power to extend the time under this Rule.
   
7. When this was pointed out to the counsel for the applicant she again submitted that the notice was not given on time as there was legal vacation and moved this court to accept the notice.
   
8. Having considered the submissions as well as respective affidavits I believe the issue to be determined is whether this Court can extend time to file notice of appeal under Order 37 rule 01.
   
9. Order 37 rule 1 states that:
   

"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. There are two limbs in the above rule. In view of the above rule a party has to file a notice of appeal within 07 days which the applicant complied with. Also they have to give other party notice of this appeal. The applicant admitted that they failed to give this notice as there was legal vacation and moved this Court to accept that.
    
11. In Taylor v Waikoho Council [1922] N.Z.L.R it was held that the 'formalities required by the statue must be complied with'.
    
12. In Crest Chicken Ltd v Central Enterprise Ltd (supra) His Lordship Justice Pathik said that order 37 Rule is a mandatory rule and it does not give the magistrate the power to extend time.
    
13. In view of the above judgment I find that there is no valid notice pursuant to Order 37 rule 01 of the Magistrate court Rules. Therefore I dismiss this motion for stay of the judgment without cost.
    

11th March 2014

H.S.P.Somaratne
Resident Magistrate, Suva