Khan v Kumar [2006] FJHC 80; HBA014.2006 (23 October 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL APPEAL NO. 014 OF 2006

NO. 222 OF 2006

BETWEEN

KHAIYUM KHAN
1st Appellant

SHERIN NAZRUL NISHA
2nd Appellant

AND

MADHUR KANT KUMAR
Respondent

Appearances: Messrs Patel & Sharma for the appellants
Messrs Haroon Ali Shah for the respondent

Hearing: 21 September 2006
Decision: 23 October 2006

JUDGMENT

[1] These appellate proceedings were commenced by an ex-parte motion issued on 30 May 2006 filed by the appellants for an order that the Resident Magistrate in Nadi, Mr. Syed Muktar Shah ‘give to the parties in written form his last ruling in the Nadi Magistrates Court in Civil Action No. 74 of 2005.’ The order sought was granted. The Court officer of the Nadi Court was ordered to provide to this Court the Nadi Court file in respect of Civil Action number file 74 of 2005 with a typed copy of the Court records and the Resident Magistrate at Nadi, Mr. Syed Muktar Shah was ordered to provide a transcript of his final ruling of 12 April 2006 in the said civil action within 14 days. The orders were complied with.

[2] It remains unclear why a written judgment was not made available to the parties on 12 April 2006 given that the Record before me contains the written judgment purportedly delivered on 12 April. That judgment at pages 35 to 41 of the Record is dated 12 April 2006. If it was in fact in written form on 12 April 2006, a copy should have been given to the parties when it was delivered. It was not. The appellants were put to expense, inconvenience and delay in having to obtain an order from this Court to get what ought to have been provided to them as of right when the judgment was delivered on 12 April. Suffice it to say that the injustice to the appellants occasioned by the apparent failure to provide a written ruling of the judgment when it was delivered on 12 April 2006 would have been avoided had the Nadi Court made available the judgment immediately on delivering the same.

The grounds of appeal

Ground 1

That the Honourable Magistrate erred in law and in fact in finding that the respondent/original plaintiff’s cause of action was grounded in tort.

[3] At page 31 of the Record (Vol. 1) is an undated earlier Ruling granting ex-parte orders to the respondent. The Nadi court had granted to the respondent the substantive relief claimed in the writ when it dealt with the ex-parte application. In that Ruling, the first sentence states "At the outset, I wish to point out that this action is in tort." The substantive action appears to have been dealt with on the same basis. This is obvious from the court’s orders in its final judgment.

[4] However the statement of claim, pages 4 and 5 of the Record (Vol. 2) is clearly premised in contract. The respondent pleaded the sale and purchase agreement with the appellant wherein the respondent agreed to purchase the business of the appellant styled as Rangeela Night Club, in Nadi for $150, 000.00. It was alleged that prior to settlement the appellants unlawfully took over the business allegedly causing loss to the respondent in excess of $40, 000.00.

The relief sought was as follows:

(i) That the defendants, its servants, agents or nominees forthwith give possession and the keys of Rangeela Night Club to the plaintiff or its servants, agents or nominees situated at Andrews Road, Nadi Town, Nadi

(ii) That the police assistance be given to the plaintiff to execute order no. 1 until further order of the court

(iii) That the defendants, its servants, agents or nominees be restrained from harassing or interfering the plaintiff, its servants, agents or nominees, or coming close to Rangeela night club until further order of this court

(iv) That the plaintiff to continue use the Liquor license and Business license of the 2nd defendant until further order of this court

(v) Damages

(vi) Costs of this application be paid by the defendants on a solicitor/client indemnity basis

(vii) Damages and cost not to exceed $15, 000.00 the jurisdiction of this Honorable Court.

[5] By prayer 1 the respondent sought specific performance of the agreement that she be given possession and the keys to the subject property. That relief was granted ex-parte and maintained in the final judgment of the court. It is clear from the pleadings and the record of the evidence that the cause of action was based on the contract entered into between the parties. I have upheld learned counsel for the appellants submission. The learned Magistrate erred in fact and in law in finding that the cause of action was grounded in tort. It was in fact and in law grounded in contract.

Grounds 2 & 3

That the Honourable Magistrate erred in law and in fact in not declining jurisdiction in the respondent/original plaintiffs cause of action – as that cause of action required specific performance by the appellants.

That the Honourable Magistrate erred in law and in fact in not declining jurisdiction in the respondent/original plaintiffs cause of action – as that cause of action stemmed from a sale & purchase agreement worth $150, 000.00 – beyond the monetary jurisdiction of a First class Magistrate’s Court.

[6] The Nadi court conferred on itself jurisdiction it clearly did not have in entertaining the respondents claim. Although the respondent limited her claim for damages to $15, 000.00, the substantive relief sought was specific performance of a contract which the learned Magistrate did not have jurisdiction to deal with. By granting the relief of specific performance as it did, the court acted in excess of its jurisdictional limits contained in Section 16 of the Magistrates’ Courts as amended by the Magistrates’ Courts (Civil Jurisdiction) Decree 1988. I have upheld the appellants on this ground.

Ground 4

That the Honourable Magistrate erred in law and in fact in not giving a judgment or determination on the counter-claim as pleaded by the appellants in their statement of defence.

[7] The learned Magistrate did not have jurisdiction to hear and determine the counter-claim filed. I have declined this ground. However the appellants pleadings ought to have further alerted the Magistrate that he did not have jurisdiction to entertain the action. In proceeding to hear and determine the plaintiffs claim the Nadi court breached Section 16 (3) of the Magistrates’ Court Act, as amended.

Grounds 5 & 6

That the Honourable Magistrate erred in law and in fact is not considering that the respondent/original plaintiff refused on oath to pay the balance of the purchase price to the appellants.

That the Honourable Magistrate erred in law and in fact in not considering that the balance sum of $150, 000.00 is yet to be paid to the appellants by the respondent/original plaintiff.

[7] Had these matters been considered the court would have acted in excess of jurisdiction. I decline to uphold these grounds. However it must be said that in dealing with the claim in the first place and in granting the orders he did, the learned Magistrate acted in excess of jurisdiction. He proceeded on the wrong footing from the outset.

Orders

(i) The appeal is allowed and all orders made in the Nadi Magistrates Court including the judgment of 14 April 2006 are quashed

(ii) In the exercise of my powers under Order XXXVII rule 18 of the Magistrates’ Courts Rules, the whole case will be re-heard in this Court

(iii) Each party is at liberty to apply on three days notice

(iv) The respondent is to pay the appellants costs of the entire appellate proceedings to-date assessed in the sum of $1, 000.00 within 14 days

(v) Case adjourned to 10/11/06 to fix a hearing date.

Gwen Phillips
JUDGE

At Lautoka
23 October 2006