Prasad v Karan [2014] FJHC 299; HBC19.2013 (1 May 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

ACTION NO. 19 OF 2013

BETWEEN:

SASHI KIRAN PRASAD
of Waiqele, Labasa. Domestic Duties
PLAINTIFF

AND:

JAI KARAN
1ST DEFENDANT

AND:

DALIP CHAND & SONS LIMITED
a limited liability company having its registered office at Ritova Street, Labasa
2ND DEFENDANT

Appearances: Mr. A Sen for the Applicant/Plaintiff
Mr. A Kohli for the Defendants

Introduction

This is an application by the Plaintiff pursuant to Order 33 of the High Court Rules for an order that the pendency of the this action be reported to the Master of the High Court for the action to be transferred to the High Court. The application was supported by an affidavit sworn by the applicant. The application is opposed. Prior to the application being made in the High Court a similar application was made at the Magistrate Court before Mr. Cabealawa who rejected the application on the ground that there was no sufficient reason to transfer the matter.

Submission

The Defendant did not provide any submission but appear to rely on the previous refusal of the application in the Magistrate’s Court to bar any further application in the High Court.
The plaintiff argues that the application in the Magistrates Court under section 32 is different to an application in the High Court under section 33 and submits that a section 33 application can be made independent of the section 32 application.

Determination

Sections 32 & 33 of the Magistrates Court Act states:-

32. Subject to the provisions of the Criminal Procedure Code, a magistrate may, of his own motion, or on the application of any person concerned, report to the Supreme Court the pendency of any cause or matter which in the opinion of such magistrate ought for any reason to be transferred from his court to any other magistrates' court or to the Supreme Court. The Supreme Court shall direct in what mode and where the cause or matter shall be heard and determined.

Transfer of cases by a judge

33.-(1)

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

(i) transfer to a magistrates' court any civil cause before the Supreme Court, being a civil cause which is not excluded from the jurisdiction of such magistrates' court;

(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.

(b) Any civil cause may be transferred either entirely or in respect of any part thereof or procedure required to be taken therein.

(2) The power of transfer shall be exercised by means of an order under the hand of a judge and the seal of the court, and may apply either to any particular cause or causes, matter or matters in dependence either entirely or in respect of any part thereof or procedure required to be taken therein, or generally to all such causes and matters as may be described in such order, and in the latter case may extend to future causes or matters as well as to such as may at the time of making such order be in dependence.

(3) The Supreme Court may at all times cancel, alter, add to or amend any such order.

(4) The Supreme Court may, if it appears expedient, in the first instance cause the contents of any such order to be telegraphed, and such telegram shall, until receipt of the said order, have the same validity and effect as if it were the said order.

Effect of order of transfer

34.-(1) Every order of transfer shall operate as a stay of proceedings in the court to which it may be addressed in any cause or matter to which the order extends or is applicable, and the process and proceedings in every such cause or matter, and an attested copy of all entries in the books of the court relative thereto, shall be transmitted to the court to which the same shall be transferred and henceforth all proceedings in the cause or matter shall be taken in such court as if the cause or matter had been commenced therein.

(2) Any order given under section 31, 32 or 33 shall not be subject to appeal.

Under section 33(1)(ii) the High Court may at any time at any stage before judgment transfer any civil cause or matter before a magistrate's court being a civil cause which is not excluded from the jurisdiction of such other magistrate's court to the High Court. Given that any orders given under section 32 cannot be appealed the Plaintiff has taken the option to apply under section 33. I agree with his view that these two sections can operate separately from each other however I am also of the view that the circumstances upon which such a decision can be made is different from that which is currently requested.

In the first instance the High Court in exercising its power under section 33 is acting independently, that is, section 33 does not provide avenues for parties to an action to apply to it for the exercise of its discretion. If the need arises for a question to be determined perhaps because of public interest consideration or important questions of law the Judge can refer this matter to the High Court for consideration. It can, as is provided under the section, after consideration refer the matter back to the Magistrates Court depending on which part of the action or procedure needs to be considered. In this regard the application to transfer matters because of the pendency of the action is not a criteria in the transfer of matters under this section. Hence a failure to have a matter transferred under section 32 does not in my view open the door to further application under section 33. The decision in both instances is final.

The Plaintiff's Section 32 application has been considered fully by the Magistrate and a decision made which could not be appealed.

Conclusion

In view of the above the application to transfer the matter under section 33 is refused in that this power could not be exercised in the way applied for. That the decision by the Magistrate is final.

Order

1. That the matter be referred back to the Magistrate's Court for a convenient hearing date to be given; and
   
2. That the Plaintiff to pay the costs of this application to the Defendant which I summarily assess at $250:00.
   

H A Robinson
Master, High Court, LABASA

1 May 2014.