Charan-Katonivere Holdings Ltd v Challenge Engineering Ltd [2010] FJHC 109; HBC235.2007 (8 April 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 235 of 2007

BETWEEN:

CHARAN – KATONIVERE HOLDINGS LTD
Plaintiff

AND:

CHALLENGE ENGINEERING LTD
Defendant

SUVA CITY COUNCIL
Third Party

Ms. R. Naidu - for the Plaintiff
Mr. R. Nand - for the Defendant
Ms. S. Saumatua - for the 3rd Party

Date of Decision: 8th April 2010

DECISION
[Application to transfer action]

[1] By Motion dated 17 April 2009 the Plaintiff is seeking an order that this action be transferred to the Magistrate’s Court at Suva for determination upon the grounds contained on the affidavit of Ritesh Chandra Singh, the Litigation Executive employed by the Plaintiffs solicitors.

Background Facts

[2] Briefly, the background facts are that the plaintiff pursuant to the Sales and Purchase Agreement entered into by the plaintiff with the defendant bought certain properties, namely Crown Leases Nos. 7511, 1717, 1731 and 1747.

[3] It was a term of the said agreement that the defendant would pay all outgoings including Suva City Council rates in respect of the said properties to the date of settlement.

[4] It is alleged that the defendant failed to pay the rates in respect of the said properties and the Council lodged a charge over Crown Lease No. 7511 on 15 June 2005 for arrears of City Rates and is now claiming rates from the plaintiff.

[5] However, the plaintiff has cleared the rates with the Council from 1998 to 2002.

[6] On 31 May 2007 the plaintiff issued a writ of summons against the defendant claiming the sum of $18,665.49 which it paid in respect of the rates.

[7] The Magistrate’s Court Act [Amendment Promulgation 2007] Promulgation No. 34 of 2007 had increased the Magistrates Court jurisdiction to hear matters upto the claim of $50,000.00.

[8] The defendant’s submission sets out the grounds for objecting to the transfer.

[9] The action herein was commenced by the plaintiff on 31 May 2007 and the Promulgation was issued on 27 September 2007.

[10] The Defendant refers to Section 3 of the said Promulgation which provides as follows:-

"Any civil case already instituted in the High Court at the commencement of this Promulgation and with respect to which jurisdiction is vested in a magistrate’s court by reason of this Promulgation may, with the consent of the parties, be remitted under an order of a Judge of the High Court to the magistrate’s court for hearing and determination." [emphasis mine]

[11] Counsel for the defendant therefore argues that the matter can only be remitted to the Magistrate’s Court ‘if the parties agree’. The defendant does not agree since it says "the matter is already in the High Court and the pleadings have been filed, the matter should be heard and determined by the High Court." He says that the matter cannot be transferred to the Magistrate’s Court unless the parties consent. The defendant is not consenting to that.

[12] The defendant says that it relies on notice of Assessment for the year 2004 which shows a ‘nil balance’ for rates. In 2005 the Third Party [Suva City Council] issued arrears of rates and claims it from plaintiff.

[13] It is the defendant’s submission that the nature of claim "involves complex issues which are best determined by the High Court."

[14] As ordered by Court both counsel filed written submissions in late October 2009.

[15] Because of ill – health I was not able to deliver my decision until now.

Consideration of the application

[16] Pursuant to the provisions of the said Promulgation there is no doubt that the Magistrates Court has jurisdiction to deal with claim up to $50,000.00.

[17] This is a personal suit arising out of contract where the balance claimed is not more than $50,000.00.

[18] No question of title to land arises in this case as the issue is whether any rates are owed to the Suva City Council and if so, what is the amount and for what period.

[19] I have carefully considered the argument advanced by both counsel particularly on the interpretation of section 3 of the said Promulgation.

[20]

a. Even without the said section 3, the court has the inherent jurisdiction to transfer a case if it thinks that it is a proper case to do so.

b. Here the present case falls within the jurisdiction of the Magistrate’s Court to hear the case. Hence the High Court ‘must’ transfer the case although commenced in the High Court pursuant to the said section of the Promulgation.

[21] I say "must transfer" because of my reading of the interpretation of the word ‘may’ in the context of the said section given by MacDuff CJ in W.L.D Harvie Limited -v- Naranji Deoji and Others 8 FLR p.117.

[22] The said section 3 says "... may, with the consent of the parties be remitted." The determination of the issue before this court is dependent not so much on the words "with the consent of the parties" as what interpretation which one puts on the word ‘may’.

[23] In Harvie Limited [supra] at p.117 it was held that:

"the word "may" as used in the first sentence of para. (b)of Order 13 of the Magistrates’ Courts Rules has a compulsory meaning. When, therefore, a defendant in an action in tort pleads specially in objection to the jurisdiction and provides evidence [which is not disputed] that he carries on business in Lautoka, the action, commenced in the Magistrate’s Court at Suva, must be reported by the Magistrate to the Supreme Court under section 33 of the Magistrates’ courts Ordinance and dealt with by the Supreme Court under paragraph (d) of Order 13 of the Magistrate’s Courts Rules."

[24] In the light of the above I would say that the word ‘may’ in the case before me means ‘must’.

[25] If the Court cannot transfer then the whole purpose of the transfer provision will be defeated.

[26] In my view it would be wrong to read ‘may’ with the words ‘with the consent of the parties’ as obtaining the ‘consent’ is one of the ways in which transfer could be effected and it cannot oust the jurisdiction of the court to transfer if consent of both parties is not obtained.

[27] In Harvie Limited [supra] at p.119 MacDuff CJ quoted the following passage from R. V. Mitchell, Ex parte Livesey [1912] UKLawRpKQB 186; [1913] 1 KB 561 on p.568 by Lord Coleridge J which I consider apt in determining the issue before me on the interpretation of the word ‘may’:-

"Originally, and apart from surrounding circumstances, the word ‘may’ in a statute means ‘may’ and nothing else. That has often been laid down, especially by Cotton L.J. in In re Barker, Nichols –v- Baker. But it is equally clear that there are cases where the word ‘may’ has the effect of ‘must’. Apart from the cases which have been cited there is Rex –v- Justices of Dublin. By s.5 of the Beerhouses [Ireland] Act 1864 [27 & 28 Vict. C.35], the superintendent of police of the Dublin Metropolitan Police district is authorized to object before justices to the issue of a certificate for a licence, and the justices shall in such case proceed to consider, examine on oath into, and adjudicate upon the truth, sufficiency, and validity of such objection; and if such justices shall be satisfied of the truth and sufficiency of the such objection, ‘they may refuse to grant such certificate.’ In constructing this enactment Andrews J. said: ‘Having regard to these provisions, I think it clear, and it has not been disputed, that if the justice is satisfied of the truth, sufficiency, and validity of the objection, his duty is to refuse to grant the certificate, and that the word ‘may’ is to be interpreted in an obligatory as distinguished from a merely permissive sense’. Undoubtedly the word ‘may’ there means must. Therefore regard must be had to the surrounding circumstances to discover whether the word ‘may’ is to have a permissive or a compulsory meaning."

Conclusion

[28] To conclude, in the light of what I have stated hereabove, the plaintiff succeeds in its application to transfer the case to the Magistrate’s Court at Suva for in all the circumstances of this case the word ‘may’ has a compulsory meaning. I reject the defendant’s reasons for objecting to the transfer.

[29] Because the Magistrate’s Court has jurisdiction to hear the case it is only proper that the case be transferred to that Court on the facts and the nature of this case.

Order

[30] It is therefore ordered that this action be transferred to the Magistrate’s Court at Suva with costs against the defendant in the sum of $400.00 to be paid within 14 days.

D. Pathik
JUDGE

At Suva
8th April 2010.