Housing Authority v Kant [2007] FJMC 19; Civil Case No 89 of 2005 (15 June 2007)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL CASE NO.: 89 OF 2005

BETWEEN:

HOUSING AUTHORITY
PLAINTIFF

AND:

NAVIN KANT f/n Krishna Kant

SANGEETA DEVI f/n Subhas Chand
DEFENDANTS

Counsel for the Plaintiff: Mr I. Romanu
Counsel for the Defendant: Ms N. Khan

Date of Hearing: 09/05/07; 06/06/07
Date of Ruling: 15/06/07

RULING

[1] The plaintiff lent a sum of $9,158.10 to the defendants as Housing loan and repayment was at the rate of $29.93 per week.

[2] The defendants defaulted in payment of the loan and on 21/01/99 the plaintiff issued a demand notice and on 29/05/99 carried out an advertisement in the local newspaper for mortgagee sale and on 05/11/02 sold the property for the sum of $7,000.00. The balance owing at the time was $19,183.03 and after the mortgagee sale was a sum of ($19,183.03 - $7,000.00) $12,183.03 was owing and the plaintiff filed the present claim on 12/08/05.

[3] The defendant filed a statement of defence and counter claim and raised the issue of jurisdiction.

ISSUE OF JURISDICTION

[4] The issue of jurisdiction was raised on 06/09/06 when the matter was set down for hearing and Ms Gowing did not make any determination on the issue of jurisdiction and adjourned the matter to 13/09/06.

[5] On 13/09/06 the defendant’s counsel again raised the issue of jurisdiction and again no ruling was made by Ms Gowing and the case was adjourned to 08/11/06 for hearing.

[6] Again on 08/11/06 the counsel for defendant raised the issue of jurisdiction and once again no determination was made on the issue and the matter was adjourned to 15/11/06.

[7] On 15/11/06 once again the issue of jurisdiction was raised and Ms Khan indicated that she will file an application to strike out the claim and the matter was adjourned to 29/11/06.

[8] On 29/11/06 the plaintiff was given leave to file an amended statement of claim within one month and the plaintiff eventually after further delays filed the amended statement of claim on 09/02/07 where the prayer reads as follows:

(a) Special damages in the sum of $12,183.03 (Twelve Thousand One Hundred Eighty Three Dollars and Three Cents);

(b) Further agreed interest on the sum of $12,183.03 at the rate of 11.5% per annum from 28th July, 1998;;

(c) Costs of this action on a Solicitor and client on indemnity basis;

(d) Such further or other relief as this Honourable Court deemed fit and just and expedient in the circumstances.

Where the claim is limited to the jurisdiction of the Court.

[9] Ms Gowing allowed the claim to be amended in the face of the well established authorities – e.g. Govind Holding Limited.-v- Kalia Nand HBA 00151/ 1998L and others before it. Once a claim has been amended then I think it would be wrong for me to make any comments on the same as I am a Court of parallel jurisdiction and I have no power to overrule a fellow colleague. The only options open to the defendants was to appeal against the ruling.

[10] Since the issue of jurisdiction has been raised before and arguments advance on behalf of both parties I shall determine as to whether or not the amended statement of claim is within the jurisdiction of the Magistrate Court.

[11] The prayer to the claim is stated as follows:

(a) Special damages in the sum of $12,183.03 (Twelve Thousand One Hundred Eighty Three Dollars and Three Cents);

(b) Further agreed interest on the sum of $12,183.03 at the rate of 11.5% per annum from 28th July, 1998 limited to the jurisdiction of the Court;

(c) Costs of this action on a Solicitor and client on indemnity basis;

(d) Such further or other relief as this Honorable Court deemed fit and just and expedient in the circumstances.

Where the claim is limited to the jurisdiction of the Court.

[12] The jurisdiction of this Court is set out in Section 16 of the Magistrate Court Act and subsequently amended by Magistrates’ Court Civil Jurisdiction (Decree1988) where the amount was increased from $3,000.00 to $15,000.00.

[13] I asked both counsels to make further submissions on whether the amended statement of claim was within the jurisdiction. Mr I. Romanu relied on Order VI Rule 10 whilst Ms N. Khan did not appear and therefore no further submissions were made on behalf of the defendants.

[14] Plaintiff’s prayer (a) claims a sum of $12,183.03 and prayer (b) claims agreed interest on the sum of $12,183.03 at 11.5% per annum from 28/07/98 limited to the jurisdiction of the Court.

What is the jurisdiction of this Court?

The total civil jurisdiction is contained in Section 2 (1) of the Magistrates Court (Civil Jurisdiction) Decree 1988. The heading to Section 2 (1) is "Civil Jurisdiction of Magistrates Court"

The relevant section is Section 2 (1) (a) (ii) which reads –

"In all other personal suits, whether arising from contract, or from tort, or from both, where the value of the property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than fifteen thousand dollars."

It ends off with the word that the amount, value or damages claimed, whether as a balance claimed or otherwise, is not more than $15,000.00

[15] The $15,000.00 sealing has been put for a reason and the reason becomes very apparent when one reads Order VI Rule 10 which reads:

"It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions, but any plaintiff having a cause of actions in excess of the amount for which an action might be brought in any Court may abandon the excess, and, on proving his case, recover such amount; and the judgment of the Court in respect of that amount shall be in full discharge of all demands in respect of such cause of action, and entry of the judgment shall be made accordingly".

[16] Interest on $12,183.03 at 11.5% is $1,401.04 per annum. The writ was filed on 12/08/05 and for 6 years at $1,401.04 per annum ($1,401.04 x 6) is $8,406.29. If you add $12,183.03 and $8,406.29 it comes to $20,589.32.

[17] In accordance with the provisions of Order VI Rule 10 the plaintiff should have confined his claim to $15,000.00 and abandoned the balance of $5,582.32 and as a result of the plaintiff’s failure the claim in my view is beyond the jurisdiction of this Court. See The Law and Practice of the District Courts of Queensland 2nd Edition at page 39 where it is stated:

"The abandonment of excess must be express (Vines –v- Arnold [1849] EngR 1139; (1849), 8 C.B. 632, and must be the act of the plaintiff himself (Re Hill; Hill –v- Swift [1855] EngR 78; (1855), 10 Exch. 726)".

[18] In the circumstances the plaintiff’s claim is struck out and I shall hear the defendants on their counter claim.

[Mohammed S Khan]
Resident Magistrate

15 June, 2007