Narayan v Mow [2014] FJMC 8; Civil Action 191.2010 (15 January 2014)

IN THE MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Civil Action No. 191 of 2010

BETWEEN:

PREM NARAYAN
PLAINTIFF

AND:

JOSEPH MOW
DEFENDANT

AND:

THE DEPARTMENT OF CO-OPERATIVES
1st THIRD PARTY

AND:

THE ATTORNEY GENERAL OF FIJI
2nd THIRD PARTY

RULING

1. The Plaintiff in this matter filed writ of summons on the 11th June 2010 against the defendant claiming the sum of $23,000 being unpaid rent.
   
2. The said amount is allegedly due and owed by the defendant under a purported tenancy agreement between the parties, in respect of the defendant's occupation of a block namely Block 05.
   
3. According to the pleadings the said Block 5 is part of an Industrial Crown Lease No .12007 comprising Lot 31 and 32 on Muir Lane, Vatuwaqa.
   
4. Suva Industrial Co-operative Ltd was the registered lessee of the said Crown Lease and according to the writ of summons the Plaintiff was allocated the said block by the said Co- operative.
   
5. This claim is contested by the Defendant who has also filed a counterclaim against the plaintiff and for the 1st and 2nd Third party for his unlawful removal from the said block 5 and unlawful removal of his working tools and damages.
   
6. A preliminary objection was raised by the defendant on the Locus Standi of the Plaintiff to institute this proceeding against the defendant for the arrears.
   
7. 1st and 2nd Third parties also supported this objection, I directed all the parties to file written submissions to decide on this issue. All the parties filed their written submissions accordingly.
   
8. In addition 1st and 2nd Third parties taken up the issue as to whether there is a cause of action against them which was addressed in their written submission. Without hearing the other parties I conclude it is not appropriate for me to decide this issue and therefore I would not address this issue in my ruling.
   
9. According to the Defendant pursuant to section 14 of the Co-operative Act 1996 the power to institute and defend legal proceedings vests with the registered name of the Co-operative and in this case the Suva Industrial Co-operative Ltd.
   

Section 14 of the Act provides:

"the registration of a co-operative shall render it a body corporate by the name under which is registered, with perpetual succession and a common seal, and with the power to hold movable and immovable property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purpose of its by-laws".

10. Further according to the defendant Block 5, being the subject matter of this claim being part of Crown land and the Suva Industrial Co-operative being the lessee of that land and only they can institute this action.
    
11. The defendant in his submission also submitted that presently Suva Industrial Ltd was dissolved and therefore section 109(1) (d) of the Co-operative Act applies in this case.
    
12. Section 109(1)(d) of the Co-operative Act 1996 provides that:
    

"Subject to the provisions of any order made by the Registrar under Section 110 of this Section a liquidator appointed by the Registrar shall have power to refer a dispute to arbitration and defend suits and other legal proceedings on behalf of the co-operative by his or her name or office".

13. Therefore in this case only the appointed liquidator can institute legal proceedings. Based on all these reasons the defendant argued that the Plaintiff has no Locus Standi to institute this action against the Defendant and therefore the Plaintiff's writ of summons to be dismissed with cost.
    
14. 1st and 2nd Third Party also took the same argument in their submission and also asked this Court to exercise the discretion whether to allow the Plaintiff to proceed in this case.
    
15. The plaintiff in his submission stated that this issue has to be decided at the trial. The Plaintiff further submitted that the he was a lawful member of the Co-operative and this Court has no power to determine his rights pursuant to section 16(2) (i) of the Magistrate Court Act . Section 16(2) (i) provides:
    

"(2) A Magistrates Court shall not exercise the following jurisdiction-

(a) In suits wherein the title to any right, duty or office is in question;...."

16. The Plaintiff also took objection about the Defendant's Locus Standi in this case. According to the Plaintiff the defendant not being a member of the Co-operative has no right to question the Locus Standi of the Plaintiff.
    
17. After considering above submissions as well as the applicable law I would pronounce my ruling as follows.
    
18. As admitted by parties in the pleadings this agreement was entered into between the plaintiff and the defendant for the Block 05.
    
19. According to pleadings this Block 05 is part of a Crown Lease and the lessee was Suva Industrial Co-operative Ltd.
    
20. According to the plaintiff, he being a member of that society was allocated that block and he entered into a tenancy agreement for the Defendant to occupy this piece of land .
    
21. I find that the real issue to be determined in this case is whether the plaintiff has a right to enter in to an agreement with the defendant for this block. As admitted by parties whole land belonged to the Co-operative Ltd and this part was allocated to the Plaintiff.
    
22. This Court has to determine if the plaintiff being a member whether he had the right to enter in to an agreement with the defendant for Block 5. If the answer is negative then the Plaintiff has no rights to institute this proceeding and therefore has no locus standi.
    
23. But these issues have to determine only after considering the evidence and the tenancy agreement at the trial. Tenancy agreement was not produced so far in this case. I also note that in the PTC minutes this issue has been already taken up by the parties (The issue of the validity of the tenancy agreement between the parties).
    
24. I also do not agree with the learned counsel for the Plaintiff that the defendant not being a member can't question the validity of the Plaintiff title or Locus Standi. A person does not have to be a member of the Co-operative to take up this issue.
    
25. Based on the reasons mentioned above I decide that whether the Plaintiff has the right to institute this action (Locus Standai) need to be determine at the proper trial based on the evidence and testimonies of the witnesses. As such I overrule this preliminary issue . There is no cost in this application.
    
26. 28 days to appeal
    

15th January 2014

H.S.P.Somaratne
Resident Magistrate, Suva