Permal v Deo [2005] FJHC 590; HBA0017.2003 (3 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0017 OF 2003

BETWEEN:

ANIL PERMAL
RADHA PRASAD
PARAS RAM
APPELLANTS

AND:

ANIL DEO
RESPONDENT

Mr S K Ram for the Appellants
Mr M S Sahu Khan for the Respondent

Date of Hearing: 27 July 2005
Date of Judgment: 03 August 2005

JUDGMENT OF FINNIGAN J

History

A brief history of the matter may help. In November 1999 the Appellants filed as Plaintiffs an action in the Magistrates Court at Tavua seeking return of certain items which they claimed had been taken from them or an order for payment of the value of the items. Sometime after that they gained possession of some of the items and when the Defendant filed a statement of defence he filed also a counter claim for return to him of those particular items and with that a counter-claim for damages of $5,000.00. In July 2000 the Defendant filed an interlocutory motion seeking an early order for return of those items. On 10 August 2000 the Magistrate heard Counsel and made an order for return of a selection of the claimed items (musical instruments?) by the Plaintiff to the Defendant for 10 days after which they were to be returned by the Defendant to the Plaintiffs. The other items, not being musical instruments, were also dealt with in the order.

Subsequently on 3 September 2001 Counsel again appeared before the Magistrate and by consent an order was made for the Plaintiffs to return to the Defendant what appears to be the sum total of the same items, these being the items which the Defendant in any case was claiming by way of counter-claim.

Clearly from these facts alone there has been an ongoing dispute about which of the parties should have possession of those specified items. They have been attempting to have the issue decided by their claim and counter-claim but in the meantime the items were supposed to be going back and forth but alternately seem to have been retained by the Plaintiffs, who had started the action on a claim that the items belong to them.

Eventually the matter came on for hearing and because the Plaintiffs had not complied with the consent order made on 3 September 2001 the Magistrate refused to allow them to present their claim and proceeded only on the counter claim. The Magistrate thus ended up hearing only one side of what clearly was a an evenly balanced dispute and one fully capable of resolution after hearing the evidence of both parties.

In my opinion the problem raised in this appeal was caused by the failure of the parties and the Court to recognize that in principle a substantive claim should be left for trial and not dealt with by way of interlocutory relief.

It is easy to see why the Magistrate became exasperated with the Plaintiffs, but how could justice be done in such a clearly defined dispute without giving the Plaintiff the opportunity to be heard? As the Plaintiffs were apparently in contempt, costs would have been the Court’s remedy.

The Magistrate declared the Defendant to be President of the organization to which they both belonged and that was not part of the counter-claim. It was outside the terms of the claim and I agree with Counsel for the Appellant that this decision should not have been made. The damages award also appears to be higher than claimed, and this without jurisdiction. I do not need to decide the question of jurisdiction of the Magistrate to make this decision under Section 16 of the Magistrates Courts Act. After giving her decision, in a Ruling on a stay of execution, the Magistrate dealt with her jurisdiction and decided she had not had jurisdiction because of S.2 (a) (h) (i) of the Magistrates’ Courts (Civil Jurisdiction) Decree 1998. She ruled that the real issue is which party is President of their Mandali.

The decision of the Magistrate must be set aside. I order accordingly, and remit the matter to the Magistrate’s Court for a fresh hearing, before a Magistrate acceptable to both parties.

I fix costs for the Appellants at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
03 August 2005