Singh v Singh [2015] FJHC 989; HBC394.2011 (1 December 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 394 of 2011

BETWEEN :

CHARAN JEATH SINGH
Plaintiff

AND :

SUKHA SINGH
Defendant

COUNSEL : Mr. R. Naidu for the Plaintiff

Defendant in Person

Dates of Hearing : 22nd October, 2015
Date of Ruling : 01st December, 2015

RULING

[1] In this matter the writ of summons along with the statement of claim was filed 30th December 2011 and the affidavit of service was filed on 10th January 2012. The plaintiff claimed damages from the defendant for publishing defamatory materials.

[2] As per the writ of summons the plaintiff resides within the territorial jurisdiction of the High Court of Suva whereas the defendant resides within the territorial jurisdiction of the High Court of Labasa. It is not a disputed fact that the publication was done in Suva and therefore the cause of action accrued in Suva within the territorial jurisdiction of this Court.

[3] After two and a half years from the institution of these proceedings the defendant filed a notice on motion on 30th June 2014 seeking an order to transfer this matter to the High Court of Labasa for the reasons stated therein.

[4] The grounds relied on by the defendant to transfer this matter to the High Court of Labasa are, that both the plaintiff and the defendant are residents of Labasa and the school Guru Nanak Secondary School which is the matter of concern in this case is also from Labasa. In his submissions the defendant stated that all his witnesses are also from Labasa.

[5] Order 4 rule 1(1) and (4) of the High court Rules provides as follows;

1. Proceedings must ordinarily be commenced in the High Court registry located in the Division in which the cause of action arises.
   
2. Any action commenced in the High Court may be transferred by the Court from one High Court registry to another or to a Magistrate's Court.
   

[6] In Halsbury's Laws of England (Fourth Edition – Volume 37) where it states thus;

1. The court's power to transfer proceedings from one court to another is a useful corrective to ensure that the proceedings, wherever begun or whatever forum the plaintiff has initially chosen, should be dealt with or heard or determined by the court most appropriate or suitable for those proceedings. When making or refusing an order for transfer, the court will have regard to the nature and character of the proceedings, the nature of the relief or remedy sought, the interest of the litigants and the more convenient administration of justice. It is a discretionary power which will be exercised having regard t all the circumstances of the case.
   

[7] The defendant's position that both the parties reside in Labasa has not been substantiated by any material. The Court must have some good reason to disregard the plaintiff's position that his residence is within the jurisdiction of this Court. A bare statement of the defendant to that effect is not sufficient.

[8] The fact that the defendant and all his witnesses are residence of Labasa cannot be the sole ground for the transfer of this case. It is more so because the defendant has decided to make this application after two and a half years from its institution. On the very first instance he has not attended Court and the Court entered default judgment against him but thereafter he has been attending Court without any difficulty.

[9] The question here is whether the defendant is entitled to have this case transferred to Labasa only on the ground that he and his witnesses reside in that jurisdiction. The action has been instituted in the jurisdiction within which the cause of action arose and the plaintiff and his witnesses reside. The fact that the defendant resides and all his witnesses, as he says, reside in Labasa may, in certain circumstances, be a sufficient ground for the transfer. However, in this case the defendant has not experienced any inconvenience for almost two and a half years since the filing of this action.

[10] For the reasons set out above I hold that the defendant has not been able to adduce sufficient grounds to allow his application for the transfer of this case to the High Court of Labasa and therefore, I make the following orders.

[11] ORDERS

1. The application of the defendant to transfer this case to the High Court of Labasa is refused.
   
2. There will be no order for costs of this application.
   

................................
Lyone Seneviratne
JUDGE