Devi v Pal [1997] FJHC 51; Hba0012j.96s (5 May 1997)

Fiji Islands - Devi v Pal - Pacific Law Materials

(AT SUVA)

APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0012 OF 1996

BETWEEN:

NIL DEVI
F/N >F/N UNKNOWN
Appellant

AND:

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> SURUJ PALman">
F/N KANDHAI
Respondent

H.A. Shah for the Appellant
N. Vithal for the Respondent

Date of Hearing May 1997
Date of Judgment: 5th May 1997

JUDGMENT

This is an Appeal from a Ruling also callJudgment of the Nausori Magistrate's Court dated 22nd NovemNovember 1995.

The action concerns a claim by the Respondent (Plaintiff) an Defendant (Appellant) for the sum of $14,000.00 being the the balance allegedly due and owing by the Defendant to the Plaintiff in respect of the sale of a motor vehicle Registration No. E2903; alternatively the recovery of the said motor vehicle. The Writ was issued on the 13th of September 1994 after the Magistrate's Court had made an Ex-parte Order on the 9th of August 1994 allowing the Plaintiff to seize and obtain possession of the vehicle, a Nissan Bluebird Sedan, together with an Order that the Defendant be restrained from interfering with the rights and ownership and possession of the vehicle of the Plaintiff.

On the 5th of Janu995 the Defendant filed an Ex-parte Notice of Motion for an Order dissolving the Court Orde Order of the 9th of August 1994 and directing the Plaintiff to forthwith release the motor-vehicle to the Defendant.

On the 17th of January 1995 the Court dissolved the Oof the 9th of August and directed the Plaintiff to forthwitthwith release the motor vehicle to the Defendant.

Both parties appeared bethe Magistrate's Court on the 18th of January 1995 when they were represented by counsel, Mel, Mr. M.B. Patel appearing for the Plaintiff and Mr. Veretawatini appearing for the Defendant.

By consent the Court ordered that

<1"> (1) the Order it made thvious day be stayed until further order;

(2) the parties were directed not to sell or iere with the vehicle in the interim;

(3) the Defendant no later than within 7 days servies of all documents filed iled in the matter on the solicitors for the Plaintiff.

That the proceedings be adjourned for hearing on th of February 1995.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> It is not clear from the Court Record whether the parties actually appeared before the Magistrate on the 8th of February but what is clear is that after the 18th of January 1995 pleadings were delivered by the parties, the last being a reply to Defence and Defence to counter-claim on the 22nd of February 1995.

They are then followed by a series of affidavits by the parts to the matters in dispute and written submissions on beha behalf of the parties.

This was in response to what appears to have been aerlocutory Application by the Plaintiff for judgment on then the substantive claim.

The Defendant submitted that this was not proper aat pending police investigation into the respective claims aims the vehicle should remain in the custody of the counsel for the Defendant until the Court had decided a question of alleged forgery which had arisen between the parties.

However the matter did not rhere because on the 13th and 19th of April 1995 the Plaintiff swore two more affidavits in s in response to those already filed on behalf of the Defendant. Considering the fact that by the 4th of April the Court had received submissions from the parties as to where the vehicle should remain I find this very unusual.

Nothing then occurred until the Court delivered its Ruling or Judgment oice on the 22nd of Novemberember 1995. This judgment occupies 23 pages. A good proportion of it consists of copies of the various affidavits already filed. Why the Court should have engaged in this time-and-paper-consuming exercise I do not understand but then the learned Magistrate proceeded to give judgment on the substantive claim, in which he found for the Plaintiff. He ordered that the motor vehicle be returned to the Plaintiff following its seizure by the National Bank of Fiji and that the Defendant pay the Plaintiff the sum of $4,000.00 being part-payment for the vehicle.

On the 22nd of November 1995 the Defendant filed Notice of A. The principal ground (and the only one on which I heard sard submissions today) was that the learned Magistrate erred in law in making Orders in favour of the Plaintiff on the substantive claim when in fact he should have only made an Order relating to the interim custody of the motor vehicle.

Counsel for the Respondent (Plaintiff) who did not appear in the Magistrate's Court agreed thl the submissions made to t to the learned Magistrate concern the interim custody of the vehicle only.

On this material I have no hesin in upholding the Appeal. I remit the matter to the Nausori Magistrate's Court for re-hear-hearing by another Magistrate on the substantive issue between the parties and I order that the costs of this Appeal be in the cause.

E. BYRNE
JUDGE

Hba0012j.96s