Chetty v Western Wreckers Ltd [2010] FJMC 82; Civil Appeal Case 53 of 2009 (15 September 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Appeal No 53/09

BETWEEN

SAGA DUVEN CHETTY
Appellant

AND

WESTERN WRECKERS LTD
Respondent

For the Appellant- Mr. H.A. Shah
For the Respondent – Mr. F. Khan

RULING

1. The Appellant, Saga Duven Chetty filed this case seeking an ex parte order to stay all execution on default judgement of small claims tribunal reference No 1630 of 2007 and seeking leave to appeal out of time.
   
2. When the case was called to support the ex parte motion on the 09th December 2009 the applicant did not appear and the case was dismissed accordingly.
   
3. On the 10th December 2009 the learned counsel for the appellant, Mr Haroon Ali Shah made an application to court saying that he could not appear on the 9th December due to unavoidable circumstances and pleaded to re instate the matter for him to support. Having heard the application of the learned counsel, the court vacated the order of dismissal made on the 9th December 2009.
   
4. On the 11th December 2009, the learned counsel for the appellant made submissions to court that the appellant was not served with summons at the Small Claim Tribunal case and sought an order to stay execution. The court stayed the execution of the committal warrant for seven days pending the determination of the leave to appeal out of time application and ordered to notice the respondent.
   
5. Although it does not appear that the appellant served notice on the other party as ordered by this court, on the 18th December 2009 a counsel appeared for the Respondent and sought an adjournment informing the court that the respondent has no objection for further stay of the execution of the committal warrant.
   
6. On the 19th January 2010 the respondent filed an affidavit in opposition to the application of the appellant. Subsequently the case was fixed for hearing regarding the application to grant leave to appeal out of time. The appellant was informed to file written submissions and the respondent was also informed to file written submissions thereafter.
   
7. The appellant did not file any written submissions nor did he make any representations with regard to the hearing of the application. There is nothing before this court to support the claim of the appellant and in the absence of any submissions by the appellant I do not see any reason as to why this court should grant leave appeal out of time.
   
8. Be that as it may, the respondent in this case has asked for dismissal of this application with 1125 dollars costs.
   
9. The respondent has stated that judgement debtor summons proceedings were commenced consequent to the order made by the Small Claim Tribunal in SCT case No 1630 of 2007. The respondent says that the issue of non service of summons was raised by the Appellant in case no 64 of 2009 at that stage too. But the court had inquired in to the matter on the 14th May 2009 and decided that the summons was properly served.
   
10. The respondent states that, thereafter on the 10th June 2009 the court examined the means of the appellant and made an order to pay the judgment debt in Case no 64 of 09.
    
11. Upon perusal of the record of case no 64 of 2009 I observed that the facts stated by the respondent is true and correct. Further it appeared that the appellant has suppressed all those facts and filed this present case, no 53 of 2009.
    
12. The respondent stated in his affidavit in opposition;
    

"From the onset I state that the application is a clear and utter abuse of process by the applicant that is causing unnecessary cost and prejudice to the respondent."

13. I do agree with the respondent. I re iterate that this is a clear abuse of process and I do not think any responsible person would act in this manner knowingly and intentionally under any circumstances, to abuse the process of court.
    
14. The respondent has not only suppressed facts, but he has misled the court to prevent the respondent from reaping fruits of the order made by the Small Claim Tribunal on the 18th December 2007.
    
15. I am satisfied that immense prejudice is caused to the respondent by this frivolous and baseless application made by the appellant. I decide that in all circumstances, it is just and reasonable to award 1125 dollars cost to the respondent.
    
16. I dismiss this application with 1125 dollars cost. I dissolve the stay order issued regarding the execution of the committal warrant.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
15.09.2010