Narayan v Sevutia [2015] FJMC 40; Miscellaneous Action 2235.2013 (25 March 2015)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION
MISCELLANEOUS ACTION NO. 2235/2013

BETWEEN:

JAGDISH NARAYAN
APPLICANT

AND:

JOSUA SEVUTIA
RESPONDENT

Counsel : The Applicant in person
The Respondent in person
Date of Ruling : 25th March 2015

RULING

1. The applicant on 19th February 2015 filed a notice of motion with a supporting affidavit seeking to file an appeal out of time against the order of the Small Claim Tribunal dated 26th August 2014 as well as to stay the execution of the judgment. The reason given for delay was that he has difficulty contacting his solicitors and also the applicant submitted that he has a valid and meritorious defence which this Court has to consider . The respondent is objecting to this application.
   
2. Section 33 of the Small Claim Decree states that the notice of appeal against a decision from the Small Claim has to file within 14 days and the Decree is silent about extending the time period .
   
3. In Chand v Chand [1999] FJHC 61; HBA0018D.1999S (12 July 1999) it was held that the Magistrate's Courts Rules applied to the Small Claims& Tribunal unal in instances where there is no provision under the Small Claims nal uecree.
   
style='text-indent:0pt; margin-top:0pt; margin-bottom:0pt;' value='4' value="4"> Order XXXr XXXVII r.4 of the Magistrate's Courts Rurovidat the court below or the Magistrate may extend tend thehe time within which the grou>ds of appeal are tfibe . Justice Face Fatiaki in Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 25; [1999] 45 FLR 80 pril expd the view that Order XXXVII XVII r 4 gr 4 gave power to a Magistrates' Court to t to extenextend the 14 day period under the Small Claim Decree .

5. In Chand v Chand (Supra) ) 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; /p> <(>(b) the rthe reasons for the delay;

(c) the chances of the appeal& s60;eeding if #160;time for appealing isnded; and

(d) tgree&of prejudicjudice to e t resp respondent if the application is granted

1. ="6"> The The delay for appealing is nearly 06 months and the reason for delay is n is not valid. I do not accept that the applicant could have difficulty contacting his solicitors for nearly 06 months.
   
7. Apart from saying he has a valid defence the applicant has failed to elaborate about that in his affidavit . Also I note that the award was given with the consent of both parties. I have perused the small claim record and in that also the applicant agreed that he would pay this interest and therefore the award was entered. Now the applicant can't dispute about that. Therefore I do not see the appeal succeeding even if the leave granted is granted
   
8. Based on the above reasons I do not think this application should be allowed and therefore dismiss this with a cost of $100.00 to be paid to the respondent.
   
9. 30 days to appeal
   

H.S.P.Somaratne
Resident Magistrate, Suva