Finau v Fakahua [2013] TOSC 17; AM09 of 2013 (23 August 2013)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

AM 9 of 2013
[MC 166 of 2008]

BETWEEN:

KAITU'U FINAU
Appellant

AND :

TOMASI FAKAHUA
Respondent

L.M. Niu for the Appellant
Mrs F. Vaihu for the Respondent

JUDGMENT

1. The Appellant commenced proceedings in the Magistrates' Court in 2008. The matter first come before me in October 2010 and in my judgments of 11 October 2010 and 10 January 2011 I briefly set out the history of the action which I ordered remitted to the Magistrates' Court for continuation of the trial.
   
2. On 29 March 2011 the Magistrates' Court set 11 April 2011 as the date for the resumption of the trial however neither party appeared on that date and the action was struck out.
   
3. It was not until 29 August 2012 that the Appellant filed a notice of appeal against the strike out order. On 13 September 2012 a Magistrate issued an order as follows:
   

"re: Notice of Appeal has been refused

1. Notice of Appeal is way out of time.

2. I cannot rely on unsupported allegations for failure of counsels to appear either,

3. When our records clearly show that both counsels were present when the hearing date was fixed."

4. This is an application, commenced by way of letter addressed to the Supreme Court dated 14 November 2012, seeking leave to appeal against the Magistrate's order of 29 August 2012.

5. Section 74(1) of the Magistrates' Courts Act states that:

"In every civil case .... every party shall have a right of appeal to the Supreme Court from any judgment, sentence or order of a magistrate."

6. Section 75(1) provides that:

"The appellant shall within 10 days after the date of the Magistrate's decision give written notice to the magistrate and to the other party stating his intention to appeal and the general grounds of appeal." (Emphasis added)

After the provisions of Section 75 have been complied with the clerk of the Magistrates' Court is required to send the appeal papers to the Supreme Court (Section 76).

7. Section 80 provides that the Supreme Court may, upon hearing the appeal "affirm reverse or amend the decision of the magistrate or may remit the case with the opinion of the Supreme Court ... or may make such other order ... as it thinks just and may by order exercise any power that the magistrate might have exercised."

8. Section 81 provides that:

"No decision of a magistrate shall be reversed or varied for any defect in form therein or in any of the proceedings before the Magistrate but every appeal shall be decided on its merits only."

9. Mr Niu conceded that while he had filed a notice of appeal against the order of 11 April 211, no notice had been filed against the order of 13 September 2012. Mrs Vaihu however accepted that a magistrate has no jurisdiction to strike out an appeal to the Supreme Court and since want of jurisdiction was the only complaint against the decision of 13 September 2012 I am of the view that the failure to lodge a formal appeal against the decision should not be fatal.

10. The next question is whether failure to comply with the requirements of Section 75(1) has the consequence that the right of appeal granted by Section 74(1) is lost.

11. Time limits for filing appeals are usually included in regulations or rules to the statute rather than in the statute itself. Where limits are included in the rules the Court generally has the power to extend the time for the avoidance of injustice to the parties (Schafer v Blyth [1920] 3 KB 143). Where, however, Parliament has itself defined the limits by Act, the Court cannot extend the limits unless it reaches the conclusion that the specified limit is directory rather than imperative. In order to ascertain the character of the limit in question all the circumstances must be looked at (Howard v Bodington [1877] UKLawRpPro 14; (1877) 2 P.D. 203).

12. Taking into account, in particular, the wording of Section 74(1), the difficulties facing the courts and practitioners in Tonga and the dire consequences of strict adherence to a 10 days limit, I am satisfied that Section 75(1) is directory rather than imperative and that a person who wishes to appeal to the Supreme Court against a decision of the Magistrates Court does not lose his right of appeal because more than 10 days are allowed to pass before the notice of appeal is lodged with the court.

13. In my view the correct procedure, following failure to comply with Section 75(1) is for application to be made to the Supreme Court for leave to appeal out of time. This application should be supported with the proposed grounds of appeal and a supporting affidavit. If leave is refused that will be the end of the matter; if leave is granted then the Supreme Court will order a transcript of the proceedings in the Magistrates Court to be prepared. In my opinion a Magistrate has no jurisdiction to refuse an application to the Supreme Court for leave to appeal out of time.

14. Turning then to the merits of the appellant's grounds of appeal, I am inclined to agree with Mrs Vaihu that there is really no acceptable reason for waiting until August 2012 to appeal the 11 April 2011 strike out. The Appellant says that his former solicitors failed to follow his instructions to prosecute his appeal however as pointed out by the Court of Appeal in MBf Bank v Mangisi [2005] To. L.R. 396, 399 this is not a good reason for not complying with the rules.

15. On the other hand, this litigation, which has its roots in LA 02/2002, commenced approximately eleven years ago, which involves a complaint of professional misconduct against the Respondent, which has been to the Law Society and then to the Supreme Court twice, as well as to the Magistrates' Court, has still not been substantively heard and adjudicated upon. In my opinion this unmeritorious state of affairs strongly suggests that procedural shortcomings should be overlooked and the matter brought on for trial at the earliest opportunity.

16. On 10 January 2011 I adjudged that Magistrates Court Civil Action 166/08 be brought to trial for hearing and judgment. I now repeat that order.

Result:

(i) Order of 13 September 2012 is set aside.
(ii) Leave to appeal against the order of 11 April 2011 is granted.
(iii) The order of 11 April 2011 is set aside.
(iv) The parties are to request a date for the hearing of civil action 166/2008 at the earliest opportunity before another magistrate.
(v) No order for costs.

DATED: 23 July 2013.

CHIEF JUSTICE

N. Tu'uholoaki

23/8/2013