Verma v Qalobogidua [2012] FJHC 846; Civil Appeal 05.2009 (31 January 2012)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

Civil Appeal No.05 of 2009

BETWEEN:

SANJAY SINGH VERMA and BABITA KUMAR VERMA APPELANTS

AND:

VILISONI & VILIAME QALOBOGIDUA
RESPONDENTS

Appellants in person
1st Respondent in person
2nd Respondent absent and unrepresented
Date of hearing: 25th August, 2011

JUDGMENT

1. This appeal lies from an order of the Magistrate striking out a matter with costs of $ 200 to be paid by each party, since the judgment creditor and judgment debtor were not present in court, on the date the respondents were summoned to appear, consequent to judgment debtor summons (JDS) being issued.
   
2. Grounds of Appeal
   

The grounds appeal provide the Learned Magistrate erred in law and in fact by:

1. failing to evaluate the evidence adduced by the Appellants/Claimants and the Respondents adequately and/or at all.
   
2. dismissing the Judgement Debtor Summons in the absence of the Appelants/Claimants and in the presence of the Respondents, namely Vilisoni who was present outside the court with full debt repay on 30/07/2009.
   
3. imposing fines of $200.00 to each party meaning $800.00 in total which also exceeds the entire JDS amount.
   
4. completely failed to consider the evidence adduced by Court Clerk, Ms Anshu that she received phone call from the Appellants/Claimants that the Appellants/Claimants are in Rakiraki attending a hearing and therefore requested to stand down this Matter until 2pm and she had informed Court Clerk Mr Vinil who was supposed to be the clerk in Court No. 2 as previously but was shifted to court 5 in that week.
   
5. making a finding that the Appellants/Claimants deliberately failed to attend court on 30/07/2009 alleging that the Appellants/Claimants mocked up a story involving Ms Anshu, which is contrary to the evidence adduced in court.
   
3. The determination
   

The central issue which arises in this Appeal is whether the learned Magistrate was entitled to impose costs on each party in the absence of the parties.

In my view,on a judgment summons date, if the judgment debtor is not present in court, the Magistrate may issue a bench warrant requiring him to attend court.

Grounds 1,2 and 3 take issue with the Magistrate failing to evaluate evidence that one of the respondents "was present outside the court" and that the "Appellants.. requested (that the case) stand down .. until 2pm". It would suffice to state that parties are required to be in court, when a case is taken up.

I do not find any finding of the Magistrate as stated in ground 5 of this appeal.

4. Order
   

I set aside the order of the Magistrate imposing costs on the parties and issue open bench warrant to the respondents to appear before the Magistrate and show means as to how they would pay their debt. I make no order as to costs.

A.L.B.Brito-Mutunayagam
Judge

31st January, 2012