Merchant Finance Ltd v Lal [2020] FJMC 134; Civil Action 457 of 2019 (11 September 2020)

IN THE MAGISTRATE’S COURT AT SUVA
CIVIL DIVISION

Civil Action No. 457 of 2019

BETWEEN:
MERCHANT FINANCE LIMITED
JUDGMENT CREDITOR

AND:
BRIJ LAL
FIRST JUDGMENT DEBTOR

AND:
NAVITALAI NABUCA
SECOND JUDGMENT DEBTOR

For the Judgment Creditor: Mr. Wally of Haniff Tuitoga
For the First Judgment Debtor: In person
For the Second Judgment Debtor: In person

RULING ON JURISDICTION

Background

This is Judgment Summons filed by the Judgment Creditor on 19^th September 2019. It was supported by a Praecipe and a copy of the Default Judgment of the High Court entered on 18^th January 2018 in which the following were ordered:

1. Judgment against the First, Second and Third Defendants in the sum of $129,284.55 (the Second and Third Defendants are the respective Second and First Judgment Debtors in this matter).
2. Pre judgment interest of 10% per annum from 22 October 2017 to the date of judgment pursuant to section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27.
3. Post judgment interest of 4% per annum from the date of judgment to the date of full payment pursuant to section 4 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act 27 as amended by section 2 of the Law Reform (Miscellaneous Provisions) (Death and Interest) (Amendment) Decree 2011.
4. Costs to be assessed.

The Judgment Creditor then filed an Affidavit of Service on 4^th February 2020 confirming service to both Judgment Debtors.

On 20^th July 2020, this Court in noting this civil cause as an enforcement proceeding against an order of the High Court for a sum that may be beyond the horizon of the usual civil suit jurisdiction of this Court, invited counsel for the Judgment Creditor to make submissions on whether this Court has jurisdiction to hear the matter.

Judgment Creditor’s submission

On 4^th September 2020, counsel for the Judgment Creditor filed helpful written submissions, essentially relying on the High Court Authority of Chand v Wati [2019] Civil Action No. HBC 160 of 2015 where his Lordship Mr. Justice Mohammed Ajmeer stated:

“If an application is filed in in the Magistrate Court under R 16 for a judgment summons to enforce a judgment delivered by the High Court or any other court, the Magistrates Court will seize jurisdiction to hear and determine such an application according to law. It would be incorrect to say that a Magistrates Court has no power to hear and determine a judgment debtor summons to enforce a judgment or order obtained by other court.”

The submission also relies on Order 48 Rule 1 (1) of the High Court Rules 1988, which states:

1(1) Where a person has obtained a judgment or order for the payment by some other person (hereinafter referred to as “the judgment debtor”) of money, the Court may, on an application made ex parte by the person entitled to enforce the judgment or order, order the judgment debtor or, if the judgment debtor is a body corporate, an officer thereof, to attend before the Registrar or such Magistrate as the court may appoint and be orally examined on the questions-

(a) Whether any and, if so, what debts are owing to the judgment debtor, and
(b) Whether the judgment debtor has any and, if so, what other property or means of satisfying the judgment or order,

and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination.

(2) An order under this Rule must be served personally on the judgment debtor and on any officer of a body corporate ordered to attend for examination, and appropriate conduct money must be paid or tendered.

Analysis

Does the Magistrates Court have jurisdiction to enforce a judgment of the High Court by Judgment Summons?

This matter falls into the civil jurisdiction of the Magistrates Court. Therefore, we will now examine the salient features of the Magistrates Court Act 1944. Section 16 of the Magistrates Court Act provides for the jurisdiction of Magistrates in Civil Causes. The relevant provision in relation to this Judgment Summons before this Court are Section 16(1)(i) and Section 16(1)(j), which reads:

Without prejudice to the jurisdiction of a Magistrate under this Act or other written law, a Resident Magistrate shall have and exercise jurisdiction in the following civil causes-

-to enforce by attachment any order made by the court

-to commit to prison for a term not exceeding 6 weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from the person under an order or judgment of the court or any other competent court (including the High Court).

(Emphasis added)

However, with respect to Section 16(1)(i) when read in line with the definition of ‘the court’ in Section 2 of the said Act then it appears to limit the ‘order’ to be only of orders of the Magistrates Court, and not of any other court. Ergo Section 16(1)(i) is then not applicable.

Subsection (j) however seems to invoke the Magistrates power to enforce a judgment of the High Court by committing any person to prison for defaulting in payment of any debt due from the person under a judgment of the High Court.

This supported by Section 16 (4) (a)(b), which further reads:

For subsection (1)(j)-

The power for committal shall only be exercised if it is proved, to the satisfaction of the Resident Magistrate, that the person making default has, or has had since the date of the order of judgment, the means to pay the sum in respect which the person has made default; and has refused or neglected to pay the same.

The Resident Magistrate may direct any debt due from any person, under an order or judgment of that or of any other competent court (including the high Court), to be paid by instalments, and may rescind or vary such order.

Like most of the legislations that deal with jurisdiction of a Court, there are subsidiary legislations such as rules that aid and supplement its primary source. Such is the Magistrate Court Rules which was referred to in the Chand v Wati authority as submitted by Counsel for the Judgment Creditor. In as far as jurisdiction is concerned, his Lordship Mr. Justice Ajmeer refers to the applicable Order 36 Rule 16 of the Magistrate Court Rules, which for purposes of clarity I shall reproduce:

Where a judgment creditor desires to apply for a judgment summons to a court other than the court in which the judgment or order was obtained, he or she shall obtain from the clerk of the last mentioned court a certified copy of the judgment or order in the action and file the same with his or her application. The certificate shall, where the amount to be paid was directed to be paid into court either forthwith or at a specified time or by instalments, state the date on which the last payment into court, if any, under such judgment or order was made, or, if no payment into court has been made, the date which default was made.

This canvasses a mandatory procedure which must be carefully vetted prior to an institution of a judgment debtor summons. On hindsight, I note on record, there is a copy of the Default Judgment but it is neither certified by the High Court nor is there a certification of the date on which the default was made. A technical, more administrative, error that may be detrimental to the actual validity of this matter, which this Court may address later on.

In light of the above, the answer is in the affirmative in that the Magistrates Court has jurisdiction to enforce a judgment of the High Court by way of judgment summons. This is supported by the binding authority of Chand v Wati:

“If an application is filed in in the Magistrate Court under R 16 for a judgment summons to enforce a judgment delivered by the High Court or any other court, the Magistrates Court will seize jurisdiction to hear and determine such an application according to law. It would be incorrect to say that a Magistrates Court has no power to hear and determine a judgment debtor summons to enforce a judgment or order obtained by other court.”

Now in returning to Section 16 (1)(j) of the said Act, it appears to give power to the Magistrate to enforce any debt regardless of the amount due.

Is it “any debt due from the person under the judgment of the High Court” or is there a ceiling to the amount of debt due?

Section 16 (6) of the said Act is the last subsection of a provision which essentially canvasses the jurisdictional powers of a Magistrates Court and it stipulates:

In any action the debt or demand consists of a balance not exceeding $50,000 after an admitted set-off of any debt or demand claimed or recoverable by the defendant from the plaintiff, a Magistrate shall have jurisdiction and power to hear and determine such action within the limits of jurisdiction and power under this section.

(Emphasis added)

There is no interpretation of the term ‘action’ in the Magistrates Court Act nor the Interpretation Act of Fiji. Notwithstanding this absence of definition from the mentioned primary sources, the Oxford Dictionary of Law defines ‘action’ as a proceeding in which a party pursues a legal right in a civil court. It is this Court’s view that the Judgment Creditor is still in pursuit of a legal right by seeking to enforce it in this Court’s civil jurisdiction. Therefore, the judgment summons to enforce a legal right to a debt is, essentially, an action before this Court.

This subsection then goes on to express a mandatory ceiling to the amount of debt that a Magistrate has jurisdiction over and that is, $50,000. Any amount above this mandatory ceiling of $50,000 may as well be deemed the legal maxim, expressio unius est exclusio alterius.

Given the above interpretation and observation, this Court is of the respectful view that it has jurisdiction to enforce a judgment of the High Court but the debt pursued is not to exceed $50,000.

In the authority of Chand v Wati, the debt involved was a sum of $40,000.00. It was well within the jurisdiction of the Magistrates Court.

It also goes without saying that in its entirety when dealing with jurisdiction of the Magistrates Court, the Magistrates Court is a creature of statute and, as such, it only has jurisdiction to deal with matters conferred upon it under section 16 of the Magistrates Court Act. Such was the obiter by his Lordship Mr. Justice Tuilevuka in FNPF v Lal Mohammed HBM 23 of 2014, in which his Lordship also referred to a string of authorities that bolstered this position (see (Dayabhai & Ors v Bhai[1954] FijiLawRp 6; [1946-1955] 4 FLR 127 (7 April 1954); Wati v Vakaraubula [1996] FJHC 135; Hbc0139j.94s (6 August 1996); Khelawan v Ram [1967] FJSC 36; [1967] 13 FLR 196 (8 December 1967); Commissioner of Inland Revenue v Smith [1981] FJCA 13; [1981] 27 FLR 40 (31 July 1981).

Counsel for the Judgment Creditor has also referred to Order 48 Rule 1 of the High Court Rules as a basis of jurisdiction that this Court has over the current judgment summons. However it is this Court’s considered position that that Rule is primarily focused on the process of enforcement action before the High Court. The term ‘the Court’ in that rule is defined in Order 1 Rule 2 as primary, the High Court. Therefore, an application such as this may need to be instituted in the High Court should parties wish to access Order 48 Rule 1 of the High Court Rules.

I have also considered my powers under Section 32 of the Magistrates Court to transfer the matter to the High Court but I am guided by the authority in Ram Khelawan v Budh Ram [1967] 13 FLR 196 at page 197, which held that:

"Once a summons has been issued in a Magistrate Court of the first class in excess of jurisdiction which is given to that Court by the Legislature it appears to me that the only order that may be made when the matter is being dealt with by the Magistrate is for him to strike out the cause for want of jurisdiction. The Magistrate does not appear to have any powers either to amend the claim or to transfer the case. He can therefore only decline to entertain the suit on the ground that it is in respect of a matter that is beyond the jurisdiction which has been granted either to the Magistrate or the Court by the Legislature".

This Court therefore will not be deciding on the non-compliance of Order 36 Rule 16 of the Magistrate Court Rules as alluded to above, but will order as follows

1. This judgment summons is struck out for want of jurisdiction;
2. Parties will bear their own costs.
   

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Joseph Daurewa
Resident Magistrate
11^th September 2020