In re Application by Suva Bottlers Collectors Association [1993] FJHC 40; Hbj0006d.1993s (21 April 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

ACTION NO. 6 OF 1993

BETWEEN:

IN THE MATTER OF AN APPLICATION BY SUVA
BOTTLERS COLLECTORS ASSOCIATION
APPLICANT

-AND-

IN THE MATTER OF AN ORDER MADE BY THE
MAGISTRATE SYED MUKHTAR SHAH ON 22ND
FEBRUARY 1993 IN THE CIVIL MAGISTRATE'S
COURT ACTION NO. 160 OF 1993
RESPONDENTS

RULING

This is a ruling in respect of a Notice of Application for Leave to issue Judicial Review under Order 53 of the High Court Rules, 1988 lodged by the Solicitors for the Applicant Association (hereafter shall be referred to as the "Association") on 22nd February 1993.

On the 7th day of April I had the opportunity to hear Messrs Paramanandam and Balram presenting submissions for their respective parties.

Mr Parmanandam submitted that leave should be granted as his application involves substantive law and any argument advanced should properly be the subject matter of a substantive hearing.

He further submitted that the learned Magistrate's Order made on Monday 22nd of February, 1993 removing the suspension from membership of one Shameem Dean f/n Allan Dean is ultra vires, as he had acted beyond his jurisdiction. He referred the Court of Magistrate's Courts (Civil Judirisdiction) Decree 1988 (hereafter shall be referred to as the "Decree") particular Section 2-(1)(i) which reads:

Provided that a magistrate's court shall not exercise jurisdiction -

(i) in suits wherein the title to any right, duty or office is in question

or -

He argued that membership of the "Association" falls squarely within Section 2-(1) (i) (i) of the Decree and as such, excludes Magistrates of any jurisdiction.

Mr Balram for the respondent opposed the application and submitted that the Magistrates have jurisdiction as this matter comes within the ambit of Section 2-(1) (f) of the Decree which reads-

(f) to grant in any suit instituted in the court injunctions or orders to stay waste or alienation or for the detention and preservation of any property the subject of such suit, or to, restrain torts or breaches of contracts.

He further argued that solicitor for the 'Association' could have tone before the learned Magistrate and asked him to rescind his order, but did not do so.

I believe that for the purpose of this application I should confine myself to the question whether the learned Magistrate had the jurisdiction to make such order removing the suspension of Shameem Dean.

It must, however, be borne in mind that Magistrates are creatures of statute and their jurisdictions are governed by statutes and can only act within such jurisdictions as provided for by statutes and not otherwise.

The statement of claim of Shameem Dean fails to disclose, among other things, any tort or breach of contract against the 'Association'. That being the case he cannot rely on Section 2-(i) (f) of the Decree as his claim is for wrongful suspension as a member of the "Association".

This then brings us back to the claim by the 'Association' that the suspension of Shameem Dean from Membership of the "Association" comes within the ambit of Section 2-1 (i) of the 'Decree' which deals with suits wherein the title to any right, duty or office is in question, and specifically excludes Magistrates' Courts. A closer analysis of the wording and a broader application of this subsection, will in my view, include question relating to membership of any association. Even if I am wrong I am, however, fortified with this view by the fact that no other provision of the Decree provides anything, on question relating to membership of any association or the like which could avail Magistrates' Courts.

If I am correct with my interpretation of Section 2-1(i) of the Decree, and I believe I am, then the learned Magistrate had acted beyond his jurisdiction.

For reasons states above I order that leave be granted to the 'Association' to apply for an order for Judicial Review.

Further, the order granting leave will also operate as an order under Order 53 Rule 3 (8) (a) of the High Court Rules, 1988.

Cost to be in the cause.

S W Kepa
JUDGE

21st April, 1993

HBJ0006D.93S