Bhukan v RB Patel (Fiji) Ltd [1998] FJHC 114; Hba0002j.98b (23 July 1998)

Fiji Islands - Bhukan v RB Patel (Fiji) Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CIVIL APPEAL NO. 2 OF 1998
(Labasa Mag. Ct. C.A. No. 500/94)

BETWEEN:

:

ARJUN BHUKHAN
f/n Bhukhan
Appellant/
Original Defendant

AND:

R.B. PATEL (FIJI) LIMITED
Respondent/
Original Plaintiff

Mr. A. Sen fe Appellppellant
Mr. A. Kohli for the Respondent

JUDGMENT

This is the Appellant's/Defendant's appeal against the interlocutory Ruling of the Learned Magistrate refusing his application to amend his Counterclaim by adding a "paragraph 9" as follows:

"The defendant claims from the plaintiff the sum of $1481.15 being the sum due and owing from defective goods delivered under invoice number 22423 and 21788 and that any cheques made by the defendant is void for lack of consideration."

Mr. Ram had objected to the amendment which was accepted by the Magistrate.

In refusing the application to amend the Magistrate said: "if this is allowed then there would be no end to this". When Mr. Sen insisted on appealing from this Ruling the Magistrate said that he had no alternative but to allow stating, inter alia, "that interim applications are not encouraged by High Court".

On this appeal I heard arguments from both counsel.

The substance of Mr. Sen's submission is that he is entitled to apply to amend under Or.14 r.1 of the Magistrate's Court Rules which is the same as Or.20 r.5 of the High Court Rules 1988.

Mr. Ram made a lengthy submission in writing and elaborated on it orally. He argued that the Magistrate had no jurisdiction to entertain the Counterclaim under s.16 of the Magistrates' Courts Act as it was a "defamation of character" claim. Therefore he said the Court had "no jurisdiction to add, amend or do anything" and the "correct procedure is to strike counterclaim out". Again by adding another $1481.15 it would have taken it out of the jurisdiction of the Court under Or. XXIII (1) of the Magistrates' Courts Act.

I am in full agreement with Mr. Ram's submission. For Civil Jurisdiction of Magistrates reference should now (since 1 January 1988) be made to Magistrates' Courts (Civil Jurisdiction) Decree 1988 which has replaced section 16 of the Magistrates' Courts Act by section 2 of the Decree. The Magistrates' Courts have no jurisdiction over defamation action and also jurisdiction is limited to fifteen thousand dollars (section 2(3) of the Decree). In so far as it is relevant to this Appeal, the Decree provides:

"2. - (1) A resident magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes -

(a) .....

(b) .....

(c) .....

(d) .....

(e) .....

(f) .....

(g) .....

(i) .....

PROVIDED that a Magistrates' Court shall not exercise jurisdiction-

(i) .....

(ii) .....

(iii).....

(iv) .....

(v) in any action for malicious prosecution, libel, slander, seduction or breach of promise of marriage."

This appeal is clearly an abuse of the process of the Court. The way the pleadings were drafted leaves much to be desired. This kind of counterclaim a layman would present. Mr. Sen should have known that the Magistrate's Court has no jurisdiction to hear the counterclaim as a qualified person. Although the law allows for amendment, this is a discretionary matter for the Magistrate in the exercise of his judicial discretion.

The history of the case reveals that there have been numerous adjournments before a hearing date was given and opportunity was also given to amend the pleadings but this was not done. Instead, in the trial this unmeritorious application is made. The claim which Mr. Sen wants to add has nothing to do with the plaintiff's claim or even arises out of it and Mr. Ram is correct if it is added to the $15,000 for defamation claim it would exceed the Magistrates' Courts jurisdiction.

Interlocutory applications are only granted in exceptional circumstances. Here the circumstances were not such as to warrant the grant of the application.

It is quite clear that this application was without any merit whatsoever and there was no hope of success. The Court orders for payment of costs have not been complied with by the defendant and he had hardly appeared in Court. It is a matter of comment that this case had been dragged on for so long without any progress. This should not have happened if counsel followed the time table laid down in the Rules and pleadings are filed with due diligence.

To conclude, I find that this appeal is without merits and it is dismissed with costs against the defendant in the sum of $200.00 which is to be paid within 14 days from the date of hereof.

D. Pathik
JUDGE

At Labasa
23 July 1998

Hba0002j.98b