Hassan v Chand [2014] FJHC 300; HBM4.2013 (1 May 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Miscellaneous Action No. 4 of 2013

BETWEEN:

MOHAMMED HASSAN
of Tabia, Labasa, Driver
PLAINTIFF

AND:

SUBHASH CHAND
1ST DEFENDANT

:PARMOD ENTERPRISES LIMITED
a limitedliability Company having its registered office at Ritova Street, Labasa
2ND DEFENDANT

Appearances: Mr. A Sen of Maqbool & Co for the Applicant/Plaintiff.
Mr. A Kohli of Kohli & Singh for the Defendants.

Introduction

This is an application by the Plaintiff made under section 33 of the Magistrates Court Act to transfer his Magistrate's Court action to the High Court. Before making this application to the High Court a prior application was made in the Magistrate's Court. Unfortunately no decision was made as the Resident Magistrate who dealt with the matter has left the country without a decision being made. The matter is a personal injury action arising from a motor vehicle accident. The Defendant's are the bus driver and owner of the bus company respectively. The application is supported by an affidavit deposed by the Plaintiff which states so far as is relevant that:-

(i). That they had applied to the Magistrate to transfer the matter to the High Court under section 32 but that no decision has yet been made;

(ii). That he is severely prejudiced by not having the matter heard and is likely that the matter will not be heard;

(iii). That he has been advised that the matter will not be heard for several years and that he alleges that he is not entitled to interest in the Magistrate's Court;

(iv). That he is making this application due to the extent of injury suffered by him in the accident; and

(v). That he had filed the action in the Magistrate's Court in the hope that it will be expeditiously heard.

Submissions

The Plaintiff submits that the High Court has the power to transfer matters to the High Court from the Magistrates Court at any time and at any stage. His Counsel relies on the authority in REX –v- NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL EX. PARTE SHAW [1951] EWCA Civ 1; (1952) 1 K.B. 338

"The answer to this argument, however, is that the coot of King's Bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law.

The Defendant did not file any affidavit in opposition but opposed the application and submitted that:-

(i). That the application is based on delay and the fact that the applicant is now suffering pain which he thinks the appropriate award can be made in the High Court

(ii). That the Plaintiff's claim does not come above the threshold allowable in the Magistrates Court and there is nothing to indicate that the injuries have deteriorated;

(iii). That if the application is allowed then it will set a bad precedent and will allow other Plaintiffs to file their claim in the Magistrates Court and then transfer the matter before trial

Determination

The question I feel ought to asked is whether the High Court can determine the transfer when there is a simultaneous question being asked in the lower court. It is apparent from section 32 that a Magistrate can transfer a matter to the High Court on its own motion or where an application has been made. The criteria necessitating a transfer would include matters regarding jurisdiction particularly if the Plaintiff feels that his claim may eventually be beyond the Magistrates Court Jurisdiction. However delay has not been considered a basis upon which matters could be transferred. If there was concurrent jurisdiction between a lower and a higher court, which appears to be in this instance, than the lower court's decision must be considered first and when that avenue is been exhausted then the matter can be determined in the higher court. Although this appears to be the logical way in which concurrent jurisdiction is followed the application of section 32 and 33 of the Magistrates Court Act shows that this is not so. In the first instance any order given under Section 32 and 33 shall not be subject to an appeal (see Section 34). The second is that section 33 operates differently from section 32. Section 33 states:-

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.

The application relies on sub-section 33(1)(a)(ii) which allows the High Court to transfer any civil matter before a magistrate court which is not excluded from the jurisdiction of that court to the High Court. The Plaintiff's application is for the action to be wholly transferred.

The phrase "of his own motion or on the application of any person concerned" which allowed the Magistrate to exercise a power under section 32 is absent in section 33. Why is this phrase absent and how can the High Court exercise the power under section 33? I am of the view that these two exercises of powers are different and this is shown by the fact that once an order is made by the Magistrate or Judge under these provisions these orders are final. If the sections operated concurrently then it is possible for an applicant to make the same application under both provisions which would become a roundabout way of appealing contrary to section 34. The High Court in making an order under section 33 appears to me to be exercising a power as the Court of original jurisdiction. The Court is making an order under special circumstances and of its own motion. An order under circumstances which could not be appealed due perhaps to the uniqueness of the questions or of procedure which needs to be determined. These circumstances may include matters of national interest or public interest. It gives the High Court an overriding power to determine matters that are urgent in nature. In my view section 33 could not be used to transfer matters similar to that which could be made under section 32.

In relation to the Plaintiff's submission that the exercise of the Court' Power under section 33 as akin to the role of the Judges as expressed in REX –v- NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL EX. PARTE SHAW [1951] EWCA Civ 1; (1952) 1 K.B. 338 I beg to differ. The exercise of the power under Section 33 by the High Court could not in any way be seen as supervisory in nature nor is it to see that the Magistrates Court keep within their jurisdiction or that they observe the law. Nothing could be further from the truth section 33 does not operate that way at all.

Conclusion

From the above I conclude that section 33 could not be exercised in this way and that a decision by the magistrate's court on the prior application under section 32 be considered first.

Order

1. That the matter be referred back to the Magistrate's Court for determination on the first application to transfer under section 32;
   
2. That the Plaintiff to pay the costs of this application to the Defendant which I summarily assess at $350:00.
   

H A Robinson
MASTER, LABASA HIGH COURT

1 May 2014.