Chand v Chand [2013] FJHC 83; Miscellaneous Action 3 of 2012 (1 March 2013)

IN THE HIGH COURT of FIJI AT LABASA
CIVIL JURISDICTION

Miscellaneous Action No: 3/12

BETWEEN:

ANISH CHAND of Wailevu, Labasa, Cultivator as
the administrator in the Estate of Dewan Chand.
PLAINTIFF

AND:

ISWAR CHAND of Wailevu, Labasa, Taxi Driver as
surviving Administrator in the Estate of Munnu.
DEFENDANT

Before : Master Robinson

Appearances : Mr Sen of Maqbool & Co for the Plaintiff

: Mr. Iswar Chand in person

RULING

Introduction

This is an application by the Plaintiff by notice of motion for the transfer of the parties Magistrates Court Action being Civil Action No: 29/08 to the High Court. The application is made pursuant to section 32 & 33 of the Magistrates Court Act.

Background

This matter has a long history covering a period of approximately thirty yers. The Plaintiff Anish Chand is the nephew of the Defendant, he being the Defendant's brother's son. The defendant Iswar Chand and his brother Dewan Chand were the administrators of the Estate of their late father Munnu. When Dewan Chand died in 2005 his son, Anish Chand, the Plaintiff became the sole surviving administrator of his father's estate. With most of the beneficiaries renouncing their interest in the estate of Munnu in favour of the Plaintiff, the Plaintiff's interest in both his father's and grandfather's Estate now amounts to six-seventh of the shares.

In 2007 the Plaintiff brought a High Court action (High Court Civil Action No: 15/07) against his uncle over the distribution of the estate. On 25 April 2008 the High Court then made the following Orders:-

1. That the Plaintiff is given Lots 1 & 3 of the residential subdivision;

2. The Plaintiff is given the entire Agricultural Lot namely 27acres 1 rood 13 perches;

3. The Defendant is given Lots 2 & 4 of the residential subdivision;

4. The Defendant to execute all transfer and assignment of cane contract within 14 days of presentation to him through his solicitor; and

5. The Plaintiff to suffer all costs of transfer and assignment of cane contract.

In Plaintiff then appealed against the decision but the High Court's Orders were upheld with costs to the Defendant. This decision was given on 23 March 2012. Before the decision of the Court of Appeal was given the parties peaceful enjoyment of their respective lots was interfered with by constant bickering. The result of which was another civil action this time at the Magistrates Court in which the Plaintiff sought some relief from the Courts so that he could have peaceful enjoyment of the Lots granted him by the High Court. It is not necessary for me to provide in detail the interference of this peaceful enjoyment and the remedies sought by the Plaintiff from the defendant.

The Application.

The Plaintiff in his motion seeks the following Orders:-

a. An order that all proceedings in Magistrates Court being Civil Action No. 29 of 2008 be transferred to High Court, Labasa.

b. That the plaintiff be given leave to amend his statement his statement of claim.

c. The costs of this application be in cause.

The application is made upon the following grounds:-

1. THAT the Magistrates Court does not have the jurisdiction to grant the orders as now prayed for by the plaintiff in the amended statement of claim.

2. THAT the Resident Magistrate has no powers to grant reliefs now sought.

3. THAT irreparable damage would be done to the plaintiff in the event this matter is not transferred.

In its affidavit in support the Plaintiff claims among other things that the Defendant:-

1. Had refused to comply with the Courts Orders in respect of the transfer of the agricultural block;

2. Had interfered with the use and access to the water meter;

3. That the defendant has executed a transfer of CL 17661 consent

of which has been granted by Lands and Survey Department and transfer has been lodged in the stamp duties office for clearance and once cleared would be transferred to a third person and it is likely that the defendant will leave the jurisdiction of this Court incurring me irreparable loss; and that

4. Unless this matter is transferred to this Honourable Court and unless I am granted the reliefs sought in terms of the amended statement of claim, it would be futile to pursue my said Magistrates Court Civil Action No. 29 of 2008 and irreparable damages would be done to me.

Transfer of Matters to the High Court

Section 33(1)(a)(ii) gives the power to a Judge of the High Court to transfer a matter from the Magistrates Court to the High Court, the provision states:-

(1) (a) The Supreme Court may at any time at any stage thereof before judgment-

(i) ....

(ii) transfer any civil cause or matter before a magistrates' court, to any other magistrates' court, being a civil cause which is not excluded from the jurisdiction of such other magistrates' court, or to the Supreme Court.

Matters that are transferred to the High Court may be transferred either entirely or in respect of any part thereof or procedure required in the action {s(33)(1)(b)} and that the power to transfer is exercised by means of an order under the hand of the judge and the seal of the Court. The Court also has the power to cancel, alter, add to or amend any such order. The Master has by special permission of the Chief Justice under Order 59 rule been granted this power of transfer under Section 32 & Section 33.

The effect of this order of transfer is that it shall operate as a stay of proceedings in the court from which the matter was transferred and thereafter all proceedings in the cause or matter shall be taken in such court as if the cause or matter had been commenced therein.

The power to transfer is discretionary and in exercising that discretion the Court should take into account all the matters which would make it necessary and which is reasonable in the circumstances of the case. In my view given the extent at which the Defendant has continued not to follow the prior orders of the Court which has resulted in more wrongs being committed against the Plaintiff I am of the view that it is only just that the matter be transferred to the High Court. Of course the Defendant is also entitled to have his opinion and views taken into account, for it is quite possible that the Plaintiff too could be at fault in some respects.

It is for this reason that the Plaintiff has considered it appropriate to amend his claim to take into account the unfortunate development in his relationship with his uncle. The matter has a long history in that nothing happened to the Plaintiff's grandfathers estate because the parties could not resolve the family problem regarding the distribution of the assets of the estate long after the late Mr. Munnu's death. Since then the same situation continues to persist the Plaintiff is therefore granted leave to amend his claim accordingly and the matter to be transferred to the High Court. The Defendants only objection is that he could not afford to litigate the matter in the High Court, and I have taken that into account. Given the history of this matter the fact that it arose from the distribution of an estate I am also of the view that the dispute between the parties can be resolved amicably without litigation. This is another reason the application to transfer is granted and the matter to be then put before me for mediation.
Conclusion

The Plaintiffs application to transfer the matter to the High Court is granted and he if further given leave to amend his claim accordingly. The orders are therefore:-

1. Magistrates Court Civil Action No: 29/08 is transferred to the High Court in its entirety and as a result the magistrates court action is stayed;

2. That the Plaintiff is given leave to amend his statement of claim and that the said amendment to be filed and served within 14 days; and

3. The matter to be adjourned before me to fix a date for mediation on 25 March 2013.

Dated 1 March 2013

H ROBINSON
Master
High Court, LABASA