Narayan v Commissioner of Police [2012] FJMC 289; Civil Action 37.2012 (1 November 2012)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION

Civil Action No. 37 of 2012

Between :

Sandhya Narayan
Plaintiff

And :

The Commissioner of Police
1st Defendant

The Attorney General of the Republic of Fiji Islands
2nd Defendant

Before: Mr. C. Lakshman : Resident Magistrate
Counsels: For the Plaintiff: Ms P. Preetika (Reddy & Nandan)
Defendants : Mr N. Chand (AG's Chamber)

RULING – Motion to Strike out

Introduction

In this Action the Plaintiff filed a writ of summons seeking that the 1st and 2nd Defendant either by themselves or by their servants and/or agents be ordered to release the vehicle # CN391 to the plaintiff, costs, and other relief that the Court deems just, within the jurisdiction of the Court.

On 13th March 2012 the Defendants filed a motion to strike out stating that the Writ and Claim did not disclose a reasonable cause of action and remedies, ongoing criminal investigation, abuse of Court process, and that the action is scandalous, frivolous and vexatious. The Plaintiff has affidavit in reply.

The Defendants Submission

The Defendants relied on Order 30A of the Magistrates Court Rules wherein they state that "the power given by amendment only focuses on the issues of unreasonable delay in the conduct of any civil proceedings, where the Court may strike out the proceedings and make any further order it considers just. Although it does not discuss other ground for striking out, however there is a 'pre-existing' power to strike out proceedings."

The Plaintiff's Submission

The Plaintiffs submitted that the Defendants application exceeds the jurisdiction of the Court. The Plaintiff's state that the Magistrate's Court does not have power to strike out the summons and does not have power similar to Order 18 Rule 18 of the High Court. The Plaintiffs relied on the decision of Fatiaki J in Mahesh Chand & another v. Carpenters Fiji limited 41 FLR 155.

Analysis

The Court has noted the submissions made by both the parties. The Court has also seen all the pleadings filed in this case so far. The Writ of Summons which was filed in this Court initiating the action purportedly sets out the claim by the Plaintiff and it further seeks certain orders against the Defendants.

Having noted the submissions and the Magistrates Court Rules and case law, in particular, Mahesh Chand & another v. Carpenters Fiji limited 41 FLR 155, This Court agrees with the Plaintiff that this Court has no powers to strike out the Writ of Summons filed by the Plaintiff. The Defendants in their submission agree that no such powers exits in the Magistrates Court, however the submission goes on to confuse itself with a certain 'pre-existing' power which has not been altered by the amendments to the Rules. The amendment addressing the issue of unreasonable delays in the Magistrates Court and does not include powers to strike out civil action.

Furthermore, this Court notes that the Motion to strike out that has been filed by the Plaintiff states that the Magistrates Court has inherent jurisdiction to deal with this application. This is incorrect. This Court has on numerous occasions noted Counsels submitting that The Magistrates Court has inherent jurisdiction. Counsels are reminded that the Magistrates Court are a Court of Summary jurisdiction and is a Court of Limited jurisdiction, the jurisdiction of Magistrates in civil cases is provided for under Section 16 of The Magistrates Court Act (Amendment) Promulgation 2007. To state that the Magistrates Court has inherent jurisdiction is erroneous and misleading.

While on the issue of jurisdiction this Court would like submissions by both the Parties on the issue of Jurisdiction to see whether this Court has jurisdiction to deal with the matter.

Orders

1. The application by the Defendant to strike out the Claim is dismissed.
2. No order as to Costs.
3. Both parties to make submissions on the issue whether this Court has jurisdiction to deal with the claim that has been filed in Court. Each Party given 14 days to make submissions, simultaneously.
   

Chaitanya Lakshman
RESIDENT MAGISTRATE

1st November 2012