Sami v Nath [2013] FJMC 369; Civil Action 34.2012 (30 September 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS

Civil Action No.34 of 2012
SCT Claim No. 3051/10

Between:

Vinod Narayan Sami
Claimant/Judgment Creditor

And:

Suchendra Nath
Respondent/Judgment Debtor

Claimant/Judgment Debtor: In Person
Respondent/Judgment Creditor: MrAnil J Singh

Ruling

Introduction

In this matter the Respondent/Judgment Debtor has filed a Notice of Motion and Affidavit seeking "1. an order that the Order made by the Small Claim Tribunal against the Defendant on the 22nd day of February 2011 be set aside. 2. An Order that the execution of the said Orders made by the Small Claims Tribunal on the 22nd day of February 2011 be stayed. 3. An Order that claimant pays the cost of this application."

The Claimant has obtained orders in his favour in the Small Claims Tribunal and issued Judgment Debtor Summons to get the Debtor to comply with the Judgment so obtained.

The other issue raised for the Respondent/Judgment Debtor is that the Suva Magistrates Court had no jurisdiction over the issue.

The Submissions

This Court has considered the written submissions.

Analysis

This Court will firstly deal with the issue of jurisdiction. The Claimant in the SCT had given as Melvinton Road, Suva as his address and based on this the Claim would have been allowed to have been filed in Suva. From the submission by the Respondent it seems that he was aware of the proceedings in the SCT and appeared in the SCT. No issues were raised on Jurisdiction in the SCT. The claim in the SCT was properly filed and the Claimant gave his address in Suva. Noting from the submissions made this Court does not find that the Claimant misled the SCT as regards his residence. The SCT had no reason not to accept the claim in Suva. From the claim so filed this Court finds that it was properly filed in the SCT and the SCT had jurisdiction to deal with the matter.

The Respondent is seeking to set aside the Orders of the SCT. No appeal has been filed. This Court will not entertain a setting aside as the Respondent does not offer any explanation apart from stating that he had engaged certain solicitors to appear for him on appeal. No appeal has been filed of the Orders granted by the SCT. No explanation is offered why the lawyers did not file the appeal, as is claimed by the Respondent.

This Court has noted the delay since the Claimant obtained Orders in SCT. The Respondent did not seek to exercise his right to seek leave to appeal out of time to-date. The Claimant cannot be denied his right to the fruits of his litigation and this Court will not allow the Respondent to seek setting aside after it waived its right to appeal.

Orders
This Court Orders as follows:

(a) Application for setting aside of Small Claims Tribunal Orders is dismissed.
(b) Claimant at liberty to execute/enforce the Small Claims Tribunal Orders.
(c) The Respondent to pay costs $200.00 to the Claimant/Judgment Creditor.

Chaitanya Lakshman
Resident Magistrate

30th September 2013