Chaoxui Cui v Chand [2017] FJMC 62; Miscellaneous Action 16.2016 (28 April 2017)

IN THE FIRST CLASS MAGISTRATE’S COURT OF FIJI
APPELLANT JURISDICTION
WESTERN DIVISION AT LAUTOKA

Miscellaneous Action No. 16 of 2016

[Civil JDS Case No. 89 OF 2016]

BETWEEN : Chaoxui Cui of Drasa Dam Road, Lautoka.
Appellant [Original Respondent]
AND : Atish Chand of Buabua, Lautoka.
Respondent
[Original Claimant]
Ms Naidu of Qoro Legal for the Appellant
The Respondent In Person

RULING

Introduction

1. On the 18^th of October, 2016, the Appellant filed a Motion along with a supporting Affidavit seeking leave to apply for an extension of time to appeal and stay the decision dated 21^st of September, 2016 of the Small Claims Tribunal. This matter was called before my Brother Magistrate Wimalasena on a number of occasions until the 18^th of January, 2017 when the matter was transferred to this Court.
   
2. In the meant time, on the 21^st of October, 2016, the Respondent filed a Judgement Debtor Summons against the Appellant herein. This matter came before this Court on the 19^th of January, 2017. On the 25^th of January, 2017, the two matters were consolidated. I have decided to deal with the application for appeal out of time first. The Respondent filed an Affidavit in Opposition on the 18^th of January, 2017. Both parties have filed written submissions. The Hearing for the application to appeal out of time was held on the 22^nd of March, 2017.
   

The Law

3. The Small Claims Decree provides in section 33 that any party aggrieved by a decision of the Small Claims Tribunal is entitle to file a notice of appeal within 14 days of such Order. There is no specific reference to any provision for an appeal out of time under the Decree. However, Order XXXVII of the Magistrates Court Rule, Cap 14 provides in subsection 4 that:
   

‘On the Appellant failing to file the grounds of appeal within the prescribed time, he shall be deemed to have abandoned the appeal, unless the Court below or the Appellate Court shall see fit to extend the time’.

4. In this instant, the relevant Order of the Tribunal was made on the 21^st of September, 2016.There was an attempt to file a Notice of Appeal on the 3^rd of October, 2016. However, this application was finally lodged on the 14^th of October, 2016.
   

Legal Matrix

5. The primary obligation of the Appellant herein is to convince this Court that he failed to file an appeal on time due to a justifiable reason and that he has taken all reasonable measures to act with due diligence after the time limit. At this stage of the proceedings, the only consideration for this Court is whether the delay was justified and if so, whether leave be granted to appeal out of time.
   
6. In his submissions, the Appellant is relying on the cases of Loks Crane and Contractors Limited v Clutch Systems (Fiji) Limited unreported Civil Appeal 31 of 1999 and Verma v Singh, Civil Action No. 6 of 2015.
   
7. In the case of Prasad v Prasad [2016] FJCA 116, the Court cited with approval the principles established in the case of Avery v No. 2 Public Service Appeals Board and others [1973] 2 NZLR 86 as per Richmond J at page 91, the general principle that:
   

‘When once the Appellant allows time for appealing to go by, then his position suffers a radical change, whereas previously he was in a position to appeal as of right, he now becomes an applicant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all circumstances, the justice of the case requires that he be given an opportunity to attack the judgement from which he appeals’.

8. The need for and the importance of complying with the Rules was emphasised in the case of Kenneth John Hart v Air Pacific Ltd, Civil Appeal No. 23 of 1983. In the case of Native Land Trust Board v Kaur [1997] FJCA 44, the Court adopted the principles espoused in the case of Venkatamma v Ferrier-Watson, Civil Appeal No. CBV0002 of 1992 at p.3 that
   

‘We now stress, however, that the Rules are there to be obeyed. In future practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal: in cases not having the special combination of the features present here, it is unlikely to be excused’.

9. In the case of Ministry of Health v Nacanieli [2010] FJMC 41, the Court adopted the principles highlighted in the case of Ali v Ilaitia Boila and Chirk Yam, Fiji Development Bank of Fiji Civil Appeal No. ABU 0030 of 2002 where the Court held that:

"The power to extend the time for appeal is discretionary and has to be exercised judicially having regard to established principles.... The onus is on the Appellants to satisfy the Court, that in the circumstances, justice of the case requires that they be given the opportunity to attack the Order... the following factors are normally taken into account in deciding whether to grant an extension of time;

1. The length of delay
2. The reasons for delay
3. The chances of the appeal succeeding if time is extended.
4. Prejudice to the respondent".
   
10. I will now deal with the length of delay. The Appellant state that he is 8 days out of time. I disagree. The 14 days appeal period ended on the 5^th of October, 2016. The current application was filed on the 14^th of October, 2016. The Appellant is out of time by 9 days.
    
11. The Appellant state that the reason for the delay was that the prescribed form 6 was not attached to the Notice of Appeal that he had attempted to file on the 3^rd of October, 2016. In any event, I note that, at that point in time, the Appellant was still within the stipulated timeframe, and yet, the Appellant still fail to remedy the error within the next 24 hours. Similarly, there is no explanation as to why he did not act within that 24 hour window. Furthermore, there is also no explanation as to why it took another 9 days to lodge an application to appeal out of time. In short, the Appellant has failed to act with due diligence and has not provided any valid reason for his delay.
    
12. In the case of Fa v Tradewinds Marine Ltd and another (unreported), Civil Appeal No. ABU 0040 (1994), the Court held that a delay of only 4 days required satisfactory explanation before an extension of time could be properly given. In that case, the applicant gave no explanation at all and consequently he was refused leave to appeal out of time. The case of Fa v Tradewinds Marine Ltd (supra) is applicable herein.
    
13. The other aspect to consider is the chances of appeal succeeding if time is extended. In the Affidavit in Support of Motion filed by the Appellant he has attached and annexed as ‘CC 3’ a copy of his proposed Notice and Grounds of Appeal. The first ground of appeal raised by the Appellant is that:
    

‘The proceedings were conducted by the Referee in a manner which was unfair to the Appellant and prejudicially affected the result of the proceedings’.

14. In Paragraph 6 and Paragraph 7 of his Affidavit in Support, the Appellant state that he is not the owner of Yalodina Tropical Farm and is not the owner of the Motor Vehicle No. FR 596 he was driving on that fateful day. He is merely an employee. The Appellant further state in Paragraph 9 that the Respondent did not produce any valid quotations at the Hearing.
    
15. I have not been provided with a copy of the Court record of the proceedings at the Small Claims Tribunal. However, I note that the issues raised by the Appellant herein are evidentiary in nature which would in my view require the adjudicator to dwell into the merits of the case already determined by the Learned Tribunal.
    
16. In the case of Aaryan Enterprise vs. Mehak Unique Fashion (2011) FJHC 727, Civil Appeal No.17 of 2011, his Lordship Justice W.D.Calanchini (as he then was) stated:
    

It is a right of appeal which requires the Appellant Court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine whether the Appellant’s complaint has any merit. There is certainly, no right of Appeal in respect of any error of law or in respect of factual error. The proceedings to be adopted in clearly one of review and not one of re-hearing.

17. In essence, the Appellant herein is alleging that the decision of the Learned Tribunal dated 21^st September, 2016 was made on the basis of a factual error. It is clear that the application by the Appellant herein is an attempt at a re-hearing. The principle highlighted in the case of Aaryan Enterprise (supra) is clear and applicable herein. I hold the view that the grounds of Appeal raised have less chance of success.
    
18. It has been 6 months since the decision of the Small Claims Tribunal dated 21^st September, 2016. The Court is duty bound to strike a balance between the prejudice caused to the Respondent and to the Appellant herein. The Respondent submits that he has been prejudiced. He is a farmer and has not had the use of his Motor Vehicle since the accident. He is incurring further cost from hiring vehicles to take his produce to the market.
    

Final Analysis

19. I have heard the submissions by both parties. I am not convinced by the submissions made for the Appellant, in any event, he has failed the test highlighted in the case of Ali v Ilaitia Boila (supra). I therefore refuse to extend the time for appeal. Consequently, I do not see any reason to consider the plea of a Stay of proceedings.
    
20. The full orders of this Court are as follows:
    
    1. The application for leave to appeal out of time is denied.
    2. The Appellant to pay the Respondent cost in sum of $200.00 within 21 days.
    100. The JDS Civil Action No. 301 of 2016 will now be listed for mention on the 30^th of

May, 2016.

Ordered Accordingly,

..........................................
JEREMAIA N. LEWARAVU
RESIDENT MAGISTRATE
28^th of April, 2017.