Stewart v Nand [2014] FJMC 18; Civil Action 45.2009 (30 January 2014)

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

Civil Action No. 45 of 2009

Between :

Janice Stewart trading as Janice Stewart Catering
Services and Parnell Stewart
Plaintiffs

And :

Vishwa Nand
1st Defendant

Ritesh Kumar
2nd Defendant

Before : Mr. C. Lakshman

Resident Magistrate

Counsels : For the Plaintiff: Ms B. Malimali (Pacific Chambers)

Defendants: Mr. S Nandan (Reddy and Nandan)

RULING – Non- Suit

Introduction

In this Action the Defendant’s Counsel at the close of the Plaintiff case submitted that the Plaintiff had no locus standi to bring the action and that the action did not disclose a cause of action against the 1st Defendant. The Defendants pleaded non suit.

This Matter was heard by Mr. Yohan Liyanage (the current Acting CR, when he sat as the Magistrate). This File now has been forwarded to me to be dealt with. This Court has noted the pleadings filed and read the evidence recorded together with the submissions made by the Parties.

The Jurisdiction of the Magistrates Court

The Civil Jurisdiction of the Magistrates Court is set out in Section 16 of the Magistrates Courts Act (Amendment) Promulgation 2007. In addition to this the Fiji Court of Appeal (on appeal from the High Court) in Chandra v Ali [2008] FJCA 32; ABU0077.2007S (11 July 2008) stated that “Jitoko J held that a Magistrate has the power to enter a non-suit&against the Plaintlaintiff in a civil action. He observed that the rules made under the Magistrates Court Act do not explicitly provide for such a procedure. However, he held that section 46 of that Act does incorporate by reference the practice for the time being observed in England in the County Courts and courts of summary jurisdiction. The learned Judge reinforced his holding by reference to a decision in New India Assurance Co Ltd v Morris Hedstrom Co [1967] FLR 12. In that Judgment, the Supreme Court recognized the existence of a power to enter a non-suit.”

The Law – Non-Suit

The no case answer submission in civil proceedings is ally known as "non-suit". A submission of no60;non-sui0;is a moti motion made by the defendant for dismissal of the case against him/her on the ground that no case has been made out. This submission is made at the close of the plaintiffs caset the conclusion of his or s or her evidence in chief- Vye v Vye [1969] 2 AER 29.

Analysis

This Court has noted all the pleadings and the evidence given on behalf of the Plaintiffs. In fact only Ms. Janice Stewart gave evidence. She would be the 1st Plaintiff for that matter. The second plaintiff in this action is Mrs. Stewart Parnel Fitch. She did not give evidence before the plaintiff's case was closed. Mrs Stewart Parnel Fitch was the owner of the Private motor vehicle # FC831 that was involved in the accident with the Taxi driven by the 1st Defendant and owned by the 2nd Defendant.

The 1st Plaintiff in court gave evidence that the vehicle was owned by the 2nd Defendant at the time of the accident and was now owned by her. No evidence of her current ownership was tendered in Court. In cross-examination she admitted that she was not the owner of the car at the time of the accident and that she neither had authority from the 2nd Plaintiff to pursue action or file legal proceedings.

The 1st Plaintiff claimed that apart from the damages to the vehicle she sustained losses for her business (catering).

From the evidence before it this Court notes that the 1st Plaintiff (Janice Stewart) and the 2nd Plaintiff (Mrs. Stewart Parnel Fitch) both needed to give evidence in this matter. The 2nd Plaintiff needed to come to Court and give evidence of her ownership of the vehicle and that the vehicle which was owned by her suffered damages as a result of the accident caused by the vehicle driven by 1st Defendant and owned by the 2nd Defendant. This was not done. The 1st Plaintiff cannot stand in the shoes of the 2nd Plaintiff in the absence of any lawful authority granted to her to appear and give evidence for the 2nd Plaintiff.

This Court from the evidence before it at the close of the Plaintiff case finds that the 1st Plaintiff and 2nd Plaintiff brought this action to Court. 2nd Plaintiff was the vehicle owner and the 1st Plaintiff the user of the vehicle. 2nd Plaintiff needed to come to Court and prove ownership and her grant of use of the vehicle to the 1st Plaintiff. In the absence of the evidence of the 2nd Plaintiff who was the owner of the vehicle that was involved in the accident and sustained damages, the 1st Plaintiff's evidence alone (who was the user of the vehicle) carries no weight. The owner of the vehicle must come to Court to claim the damage to her vehicle. Following this would have been the grant of use of the vehicle to the 1st Plaintiff and her use of the vehicle for her business. This has not been done. The Plaintiff's case is not made out.

Orders

1. Non- Suit
2. Plaintiff shall pay costs on a Solicitor/Client indemnity basis.
   

Chaitanya Lakshman
RESIDENT MAGISTRATE

30th January 2014