Autar v Naidu [1977] FJSC 131; Civil Appeal 5 of 1977 (2 September 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Civil Appeal No. 5 of 1977

BETWEEN

1. RAM AUTAR s/o (Not known)
2. SHIU CHARAN s/o Ram Autar
Appellants

AND

MUNIRATNAM NAIDU s/o Venkat Sami Naidu
Respondent

Mr. G.P. Shankar, Counsel for the Appellants
Mr. H.C. Sharma, Counsel for the Respondent

JUDGMENT

This appeal concerns a magistrate's decision in an action arising out of a traffic accident on 1/3/74 in which extensive damage was done to the plaintiff's car.

The estimated cost of repairs was $727.10 but it was an old model and the parts required were probably unobtainable.

The plaintiff had bought it 6 months before for $600.00.

Defence counsel, argued that damages could not exceed its value. However, the learned magistrate allowed the plaintiff $727.10, the estimated cost of the repairs.

The defendants appeal against that decision.

The action was first mentioned on 4/4/75 and was mentioned 16 times before the hearing on 23/8/76.

A hearing date was fixed for 3.10.75, on which date it was adjourned to 22.10.75 for a settlement. That adjournment may have wasted a lot of magisterial time. The magistrate could have allowed ½ hour to reach a settlement and then insisted on hearing the action if no settlement was reached.

On 22.10.75 no one appeared and the magistrate further adjourned to 13.11.75. It was open to the learned magistrate to strike out the action under O.XXX. r.1, Magistrates Courts' Rules, Cap. 10. In fact according to r.1, if there was no good cause for not striking it out then that is what he should have done.

Again on 13/11/75 only the plaintiff appeared and it was further adjourned to 5.12.75. On 7.6.76 it was set down for hearing on 23.8.76 ten months after the first hearing date even then the defence advocate did not appear and the magistrate stood the case down until 2.00 P.M. to allow him to attend.

The hearing concluded on 23.8.76 and judgement was deferred to 14.9.76, on which date there again was no appearance by the defendant.

On 5.11.76 the defence advocate said he only became aware of the judgement a few days earlier and requested leave to appeal out of time. It was the advocate's duty to appear when the judgment was delivered or to arrange for someone to do so and his failure in that respect was not a good ground on which to apply for an extension of time. However, the learned magistrate generously allowed the defendants 14 days in which to file an appeal from the date on which they received a copy of the judgment.

An order of that nature can lead to complications. It tends to put the onus upon the court to ensure that a party receives a copy of the judgment, when it is the defendant's duty to obtain a copy.

How does one fix the time allowed for appealing under such an order? If the copy is ready on the 10th when will it be received? Can the party collect it in his own good time? If he takes 2 months to collect it does he then have a further 14 days in which to appeal? Who will record the date on which he receives the copy judgment for the purpose of fixing the final date for filing the appeal?

Those problems faced this court in regard to the instant appeal. After hearing both counsel I deferred judgment and it was then that I observed that the appeal was signed on 1/4/77. The original copy of the appeal does not bear the Court stamp, or an official date stamp. However, in the top left-hand corner appears-

"$15.00.	602512
	25.5.77"

indicating that it was filed on 25th May 1977, more than 6 months after the application for extra time on 5.11.76.

Since the appeal was signed on 1/4/77 the appellants must have had a copy of the judgment prior to 1/4/77 on which basis it should have been filed by 15.4.77.

There is in the court file a copy of the judgment which bears -

	452125"
"50c. R.R.	22/3/77

which suggests that 50c. was paid on 22/3/77 for a copy of the judgment, on which basis the appeal should have been filed on 5/4/77.

The magistrate gave leave to appeal on 5/11/76 and it did not take until 22/3/77 to provide a copy of his judgment. The Court staff say they maintain no record showing appeals pending and dates of supplying judgments and records. I would have thought that such a record would be of paramount importance to a magistrate in determining whether an appeal is in time.

The court file contains a copy of the judgment which bears the court stamp and the learned magistrate's signature certifying it on 17/11/76. Therefore the copy judgment was ready on 17/11/76. It is no fault of the magistrate's staff that the appellants waited 4 months before collecting it. The onus is on the appellants to find out if it is ready and to collect it.

Although the judgment was ready on 17.11.76 it was not collected until 23/3/77, and although the appeal was signed on 1st April 1977 it was not filed until 25.5.77. The appellants were grossly out of time under the magistrate's order of 5/11/76 and it was, in my view, improper for counsel to file an appeal in these circumstances without applying for a further extension of time.

It might be useful when a court is extending time for an appeal to be lodged to make the period run from the date on which a certified copy has been signed by the magistrate.

Under O. XXXVII r. III, (4) where an appellant fails to file grounds of appeal within the prescribed time, he shall be deemed to have abandoned the appeal, unless he obtains a further extension of time.

I ordered the appellants, through their advocate, Mr. G.P. Shankar, to show cause why the appeal should not be dismissed under the above rule, and under s. 38 of the Magistrates Courts' Ordinance, Cap.10.

Mr. G.P. Shankar appeared on that notice and expressed no wish to show cause and accepted that the appellants were out of time.

Accordingly the appeal is dismissed.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
2nd September, 1977.

Messrs G.P. Shankar & Co., Counsel for the Appellants
Messrs Patel & Sharma, Counsel for the Respondent.

Date of Hearing: 26th August, 1977.