Hassan v Chand [2014] FJHC 741; Miscellaneous Action 4.2013 (14 October 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Miscellaneous Action No. 4 of 2013

BETWEEN :

MOHAMMED HASSAN
PLAINTIFF/APPELLANT

AND:

SUBHASH CHAND
FIRST DEFENDANT/RESPONDENT

AND:

PARMOD ENTERPRISES LIMITED
SECOND DEFENDANT/RESPONDENT

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Mr A. Sen for the Plaintiff/Appellant

Mr A. Kohli for the Defendants/Respondents

Date of Hearing : 8 July 2014
Date of Ruling : 14 October 2014

RULING
(Appeal - Application for Transfer of Proceedings)

1.0 Introduction

1.1 On 22 May 2014, Appellant filed Notice and Grounds of Appeal dated the same day against the decision of the Master delivered on 1 May 2014.

1.2 Grounds of Appeal are stated as follows:-

"1. The Master erred in law in holding that the appellant did not have the right to apply for transfer of these proceedings from Magistrates Court to High Court.

2. The Master erred in law in holding that the application for transfer of proceedings pending in Magistrates Court has to be first considered by the Magistrate under Section 32 of the Magistrates Court Act before the application can be heard under Section 33 of the Magistrates Court Act."

1.3 The Notice of Appeal was called before the Master on 29 May 2014 when he adjourned the Appeal to 8 July 2014 for hearing and directed parties to file submissions before the hearing date.

1.4 Appellant filed his submissions whilst the Respondents did not do so.

1.5 On 8 July 2014, Appeal was heard and adjourned for Ruling on Notice.

2.0 Background Facts

2.1 In August 2010, Appellant (Plaintiff) instituted Magistrates Court Action being Civil Action No. 318 of 2010 in respect to injuries sustained by him in a motor vehicle accident.

2.2 On or about 15 February 2013, Appellant filed an Application in Magistrates Court pursuant to Section 32 of Magistrates Court Act Cap 14 for an Order that the pendency of the Magistrates Court action "be reported to the Master of the High Court for reason that same be transferred to such court and the costs of the application be costs in the cause."

2.3 The Application made pursuant to section 32 of the Magistrates Court Act is still pending in Magistrates Court.

3.0 Preliminary Issues

3.1 Order 59 Rules 9, 10 and 11 of the High Court Rules provide as follows:-

"9. An appeal from an order or judgment of the Master shall be filed and served within the following period-

(a) 21 days from the date of the delivery of an order or judgment;

or

(b) in the case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.

10.-(1) An application to enlarge the time period for filing and serving a notice of appeal or cross-appeal may be made to the Master before the expiration of that period and to a single judge after the expiration of that period.

(2) An application under paragraph (1) shall be made by way of an inter-parte summons supported by an affidavit.

11. Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment."

3.2 It is undisputed that no leave has been obtained prior to filing of Notice and Grounds of Appeal.

3.3 Applicant's Counsel stated that he was not aware about the need to obtain Leave to Appeal and made oral application for extension of time to appeal the decision of the Master and for Leave to Appeal.

3.4 Respondents Counsel submitted that he has no objection for Leave to Appeal be granted out of time on the basis that Appellant's Grounds of Appeal as filed be determined by the Court.

3.5 In order to avoid unnecessary delay and in exercise of my discretion pursuant to Order 59 Rule 10 of High Court Rules Leave is granted to Appellant for filing of Grounds of Appeal out of time.

3.6 However litigants should not take the Rules of the Courts and in particular the requirement to obtain Leave of Court lightly.

4.0 Grounds of Appeal

4.1 Since both grounds of appeal deal with provisions for transfer of Magistrates Court proceedings pursuant to Section 32 and 33 of the Magistrate Court Act Cap 14 it is prudent to deal with both grounds as one.

4.2 The Learned Master referred the matter back to the Magistrates Court for determination of the Application filed in Magistrate Court pursuant to Section 32 of the Magistrate Court Act.

4.3 Section 32 and 33 of the Magistrates Court Act Cap 14 provides as follows:-

"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. (Cap. 21)

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." (emphasis added)

4.4 Section 32 of the Magistrates Court Act gives the Magistrates discretion to report to High Court the "pendency of any cause or matter which in the opinion of the Magistrate ought for any reason be transferred from his Court to other Magistrate Court or to High Court."

4.5 The Magistrate has discretion to report the cause or matter of his/her own motion or on the application of any person concerned.

4.6 If in exercise of his/her discretion the Magistrates report the pendency of the cause or matter that needs to be transferred to another Magistrates Court or to High Court then it is for High Court to transfer the cause or matter to another Magistrate Court or High Court in consultation with the head of his own division and that of the division in which the case is to be transferred. Barclays Bank PLC v Bemister and Anor. [1989] 1 WLR 128.page 131G; State v. President of Fiji Islands [2000] 1 FLR 241 (12 October 2000)

4.7 Section 33(1)(a)(ii) of the Magistrates Court Act gives power to High Court to transfer cause or matter from one Magistrate Court to another Magistrate Court having jurisdiction over the cause or matter or to the High Court.

4.8 I agree with Learned Master's statement in the last sentence of second paragraph on page 3 of his Ruling that "Section 33 operates differently from Section 32."

4.9 Under Section 32 parties have a choice to make application to the Magistrates to report the pending cause or matter to High Court for transfer to another Court or High Court.

4.10 On the other hand Section 33 gives the power to High Court to transfer any cause or matter to another Magistrate Court or High Court.

4.11 It is interesting to note as was done by the Learned Master that Section 33 does not give the parties any right to make an application for any cause or matter to be transferred to another Magistrate Court or High Court.

4.12 High Court has the power to transfer matters from one Magistrate Court to the other or to High Court on its own motion.

4.13 It is apparent from the following that no application is required to be filed by a party for transfer or any cause or matter and that a cause or matter under this provision can only be transferred by the Court on its own motion:-

(i) No provision is made for a party to apply for transfer pursuant to Section 33 as opposed to Section 32 pursuant to which party can apply for Magistrate to report cause or matter to High Court;

(ii) Under s33(3) High Court has discretion to cancel, alter, add or amend any Order for transfer;

(iii) High Court has the obligation to seal the Order and send it to the Courts s33(2)(4);

(iv) No provision has been made for any parties to seek leave or make application to cancel, amend or vary any Order for transfer of the cause or matter under Section 33.

4.14 I agree with submission of Appellant's Counsel that Sections 32 and 33 operates independently of each other.

4.15 A pending application under Section 32 does not restrain the High Court from transferring any cause or matter to another Magistrates Court or to High Court.

4.16 I also agree with the Learned Master that reason and factors to be taken into consideration would not be same when report is made to High Court by the Magistrate pursuant to Section 32 and when cause or matter is transferred by High Court pursuant to Section 33.

4.17 The Appellant has exercised its rights by filing Motion under Section 32 of the Magistrates Court Act which Application is yet to be determined.

4.18 The appellant has also made Application under Section 33 of the Magistrates Court for High Court to transfer the Magistrates Court Civil Action No 318 of 2000 to High Court on the grounds that Appellant's claim may exceed the jurisdiction of the Magistrates Court, Magistrate does not have power to award interest and trial of Magistrates Court Action has been delayed.

4.19 As stated at paragraphs 4.10 to 4.13 of this Ruling, Order for transfer of cause or matter under Section 33 is made by High Court on its own motion and not on an application by a party to the cause or matter.

4.20 Even if the Appellant could make an Application (which as already stated he cannot do), then the Application for an Order for transfer of the Magistrates Court Action No. 318 of 2000 under Section 33, by the Appellant would be an abuse of court process for the reason that having chosen to exercise his rights under Section 32 he cannot then invoke the provisions of Section 33 until he withdraws the earlier Application. For instance if High Court transfers the cause or matter to another Magistrates Court or High Court upon receipt of a report from the Magistrate and on the other hand, High Court refuse to transfer the cause or matter to another Magistrates Court or High Court in respect to an Application under Section 33, then both orders not being subject to appeal (Section 34 of Magistrates Court Act), will create great uncertainty for the parties concerned and the Courts.

5.0 Conclusion

5.1 For the reasons stated above and except for my comment at paragraphs 4.14 and 4.15 of this Ruling, I do not find any error in respect to Learned Master's reasoning and finding.

5.2 On issue of cost, I have taken into consideration that Respondent neither filed Submissions as directed nor made any comprehensive submissions during the hearing of the Appeal.

5.3 I make following Orders:-

(i) Appeal is dismissed;

(ii) No order as to costs.

...........................

K. Kumar

JUDGE

At Labasa

14 October 2014

Maqbool & Co. for the Plaintiff/Appellant

Kohli & Singh for the Defendants/Respondents