Autar v Dame t-a Dame Consultancy [2013] FJHC 409; Civil Apeal 15.2012 (15 August 2013)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Appeal No. 15 of 2012

BETWEEN:

SUBHASH AUTAR T/A AUTAR REAL ESTATE
of Lot 58 Sevua Place, Nadera, Nasinu, Real Estate Agent
APPELLANT

AND:

1. ILIMO DAME T/A DAME CONSULTANCY
of Narere, Nasinu, Consultant

2. CONSOLIDATED AGRICULTURE FIJI LIMITED
a limited liability company having an office operating in Suva

3. MELA DRUWANI
of Dame Consultancy of Narere, Nasinu
RESPONDENTS

BEFORE : Hon. Justice Kamal Kumar
COUNSEL : Ms B. Malimali for the Appellant
Mr D. Sharma for the Respondent

DATE OF JUDGMENT : 15 August 2013

JUDGMENT

1.0 INTRODUCTION

1.1 On 28 September 2011 the Appellant filed Notice of Appeal dated 27 September 2011 of his intention to appeal the decision of the Resident Magistrate made on 21 September 2011 striking out the Appellants/Plaintiff's claim in Magistrate Court, Nasinu Civil Acton No. 79 of 2009.

1.2 On 6 July 2012 the parties were directed to file written submissions and the Appeal was listed for Argument on 2 October 2012 at 9.30am before his Lordship Justice Hettiarachchi (as then he was) which date was subsequently vacated.

1.3 Parties filed following Submissions:

(a) Appellant/Plaintiff

(i) Submission filed on 4 July 2012

(ii) Further Submission filed on 1 October 2012

(b) Respondent/2nd Defendant

(i) Submissions filed on 22 July 2012.

1.4 I caused this matter to be called 15 July 2013 when Ms Malimali appearing for the Appellant informed the Court that Ruling can be delivered on the basis of Submissions filed.

2.0 PRELIMINARY ISSUE

2.1 At paragraphs 1 and 2 of the Further Submission filed by the Appellant on 1st October 2012, Appellant raised following preliminary issues:

"1. A Preliminary Issue is that of the Petition of the former President of the Court of Appeal and whether its publication in the last two weeks has any effect on the matters pending in the High Court.

2. The Marshall Petition, whether we disagree with its contents or not, raise issues of integrity and whether decisions that are made are made impartially.

3. Why didn't Magistrate Sahu Khan go off on a tangent and decide the matter on an issue that was not before him? He should have done the appropriate thing and called for further submissions on the matter of jurisdiction."

2.2 Since there is no credible evidence before the Court in the form of an Affidavit from the Appellant in respect to the preliminary issues raised by the Appellant, I cannot deal the preliminary issues as the issues raised in the Submissions is hearsay.

3.0 GROUNDS OF APPEAL

3.1 The chronology of events leading up to Judgment under appeal is set down in the Judgment of the Learned Magistrate under the heading "A. BACKGROUND".

3.2 The Appellant filed seven grounds of Appeal in following terms:-

" Ground 1

That the Magistrate erred in law when he entertained an application to set aside the Judgment dated 31/03/11, when the period of appeal had already lapsed and enforcement proceedings were in motion.

Ground 2

That the learned Magistrate erred in fact in law when he entertained what was in effect an appeal from the decision of a fellow Magistrate, thereby exceeding his own jurisdiction.

Ground 3

That the learned Magistrate erred in fact when deciding at Paragraph 21 of the Judgment to strike out the claim.

Ground 4

That the learned Magistrate erred in fact and in law when he failed to apply the test and/or principles for setting aside a default judgment when arriving at his decision.

Ground 7

That in the alternative, the learned Magistrate erred in accepting this application to set aside a default judgment when the case had been Formally Proved and a Judgment had been properly entered."

3.3 In the Notice of Appeal dated 21 October 2011 even though the last ground of appeal is numbered 7 there is no grounds 5 and 6 and as such Ground 7 will be taken as Ground 5.

3.4 Grounds 1, 2 and 5 can be dealt as one ground as it deals with same issue.

3.5 Order XXX Rule 5 of Magistrates Court Rules provides:- "Any judgment obtained against any party in the absence of such party may on sufficient cause shown, be set aside by the Court, upon such terms as may seem fit."

3.6 In this instance the Appellant's claim was formally proved in Magistrates Court on 21 July 2010 after the Respondent/Defendants failed to appear on previous occasions.

3.7 On 9 March 2011 Judgment was delivered in favour of the Appellant.

3.8 The Appellant proceeded to execute the Judgment by way of Judgment Debtor Summons.

3.9 By Notice of Motion dated 3rd August 2011, Secondnamed Respondent made an Application to set the Judgment delivered on 9 March 2011.

3.10 The Judgment delivered on 9 March 2011 and subject to setting aside application was in default of the Defendant's appearance in Court and as such the Application to set aside Judgment by Default could be dealt under the provision of the Order XXX Rule 5 of Magistrates Court Rules.

3.11 Accordingly, Grounds 1, 2 and 5 are dismissed.

3.12 Grounds 3 and 4 will be dealt together.

3.13 These grounds deal with the issue whether the Resident Magistrate erred by striking out the action for want of jurisdiction when dealing with Application for setting the Judgment by Default.

3.14 At paragraph 21 of his Judgment the Resident Magistrate stated as follows:

"21. Accordingly in all the circumstances in this case I have no option but to strike the Plaintiff's claim for want of Jurisdictions as that is the only appropriate order that this is to be made in the matter. It follows that the Judgment given in the matter goes with it."

3.15 Section 16(1) of the Magistrates Court Act provides:

"16-(1) Without prejudice to the jurisdictions of a magistrate under this Act or other written law a resident magistrate shall have and exercise jurisdiction in the following civil cases:-

(a) ........

(b) in all other personal suit whether arising from contract, or from tort or from both, if the value of the property or the debt amount or damage claimed whether as a balance claimed or otherwise, is not more than $50,000.00"

3.16 In the instant case the Appellant in the Magistrates Court Action claimed:-

"(a) Payment of Valuation of Property $ 250.00

(b) Commission claimed $12,000.00

(c) Interest @ 13% effective 5 September 2008 to date of payment

(d) Any other relief the court deems fit."

3.17 It is undisputed that Appellant failed to limit its claim within the monetary jurisdiction of the Magistrates Court.

3.18 It is well established that the amount claimed and interest forms part of the monetary jurisdiction of the Magistrate and Magistrate Courts have no jurisdiction to deal with the matter where there is a failure by the parties to limit the amount of claim (liquidated of unliquidated) plus interest within the jurisdiction of the Magistrates Court.

Imam Din v Munal Lal Civil Appeal No. 4 of 1966

Govind Holdings Ltd v Kalia Nand Civil Appeal No. HBA 0015 of 1998

Mishra Prakash & Assoc. v Credit Corporation (Fiji) Ltd [2005] FJHC 603; HBA 7 of 2000

3.19 It is obvious that where the Magistrates Court does not have jurisdiction to deal with the matter before the Court it had no powers to amend the Claim to bring it within its jurisdiction.

Ram Khelawan v Budh Ram (1967) 13 FLR 196 at p.197

3.20 The Resident Magistrate who initially dealt with the Magistrates Court Action should have struck out the action when she was first seized of it instead of having the matter formally proved.

3.21 The Resident Magistrate who dealt with the Application to set aside the Judgment in Default rightly struck out of the Magistrates Court Action for want of jurisdiction as he had no other alternative after having found that Magistrate Court had no jurisdiction to deal with the matter.

3.22 Therefore grounds 3 and 4 are also dismissed.

4.0 CONCLUSION

4.1 I make the following Orders:-

(i) Appeal be dismissed and struck out.

(ii) Appellant is to pay Secondnamed Respondent's, Cost of this Appeal assessed at $800.00.

...........................
KAMAL KUMAR
JUDGE

........................
DATE