Nand v Ram [2024] FJMC 16; Civil Action 12 of 2021 (17 May 2024)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CIVIL DIVISION

Civil Action No. 12 of 2021

BETWEEN:

MUNI KRISHNNEL NAND
Carrier Proprietor of Malaqereqere, Sigatoka
APPLICANT

AND:
JAMES PARAS RAM
Businessman of 16 Nimblin Avenue, Hoxton Park 2171, New South Wales, Australia.
RESPONDENT

For the Applicant: Mr. Madhavan
For the Respondent: Mr. Chand

RULING ON JOINDER

Introduction

1. In the substantive matter, the Applicant in this matter is the Defendant while the Respondent is the Plaintiff. The substantive matter is about a breach in sales and purchases agreement regarding land, which is described as Certificate of Title Number 35766 being lot 6 on DP No. 7641, land known as Malaqereqere in the Province of Nadroga, Tikina of Cuvu and in the island of Viti Levu containing an area of 1006 square meters.
   
2. The Applicant filed this Motion on 3^rd November 2024 seeking inter alia the following:
   
   1. Leave for the Applicant, as the Defendant in the substantive matter, to join Sunil Kumar of Malaqereqere of Sigatoka, Taxi Proprietor as the Second Defendant in the substantive matter;
   2. Costs.
      
3. The Applicant also filed an Affidavit in Support of Muni Krishneel Nand on 3^rd November 2023. The Respondent then filed its Affidavit in Opposition on 7^th December 2023. Both parties have also filed their respective written submissions.
   
4. There was a discrepancy on the issues pertaining to whether another interim issue of security for costs was before the Court for which the Court entertained both issues with a Ruling on 3^rd May. However, given that the Applicant has withdrawn the application for security for costs, this Ruling, which supersedes the other unperfected Ruling, will only be exclusive to the issue of Joinder.

The Submissions

5. The Applicant submits that one Sunil Kumar needs to join as a Second Defendant in the substantive matter for the following reasons:
   1. Sunil Kumar acted as an agent and/or servant and/or employee and/or representative of the Respondent;
   2. The Applicant paid Sunil Kumar the sum of $10,000 who received it on behalf of the Respondent as consideration for the above mentioned land.
6. The Respondent submits, in response to the Applicant’s application to join Sunil Kumar:
   1. The Applicant has not shown any proof that the $10,000 was paid into Sunil Kumar’s account;
   2. The Respondent did not authorise Sunil Kumar to receive any money on his behalf; and
   100. Applicant agreement was to transfer the consideration of $10,000 to the Respondent’s account and he still has not done so.

The Analysis

Joinder

7. The Applicant relies on Order 8 Rule 2 of the Magistrates Court Rules of the Magistrates Court Act, which provides for joint ground of suit, which appears is recourse for persons instituting suits like the Respondent who is the Plaintiff in the substantive matter. Essentially the Applicant fails to comply with the rules by referring to the incorrect rule. I also note the Respondent does not take issue to this misconceived reliance on Order 8 Rule 2. In light of this and the powers vested in this Court by Order 3 Rule 8 of the Magistrates Court Rules and Order 2 Rule 1 of the High Court Rules of the High Court Act, I choose to regularize this slight error by turning to the appropriate rule and that is Order 8 Rule 5(1) of the Magistrate Court Rules of the Magistrates Court Act. It states:

Non joinder

5.-(1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to, or who claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case, the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons or in such manner as the court thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause:

Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit.

(emphasis added)

8. The question therefore is – will this Sunil Kumar be likely affected by the result of the substantive matter? If Sunil Kumar is likely to be affected then he qualifies to join as a party to the proceedings. To determine this, we will need to consider the Applicant’s argument, if any, on this issue and also assess what the prayers are in the substantive matter and see if it has any bearing or nexus with the Defendant.
   
9. The Applicant focuses on the argument that firstly, because the Respondent had decided that payments for a transaction prior to the sale of the land in the substantive matter be made to his brother, Sunil Kumar then the said Sunil Kumar should be made a party to this proceeding. Secondly, Sunil Kumar acted as the agent for the Respondent and received the sum in question on behalf of the said Respondent. These arguments explain how Sunil Kumar is apparently related to the transaction as an agent which may be arguable had the parties contend the applicability of the related provisions in the High Court Rules in this matter. But in this matter, does not specifically say that. It is in this vagueness, that the Applicant fails to explain how exactly Sunil Kumar is affected by the result of the substantive matter.
   
10. The Statement of Claim filed on 2^nd March 2021 contains the following prayers:
    1. Judgment against the Defendant in the sum of $15,074.21;
    2. Payment of further interest at 13.5% from 1^st March 2021 until payment;
    100. Interest pursuant to Law Reform Miscellaneous Act;
    4. Cost on a Solicitor client indemnity basis; and
    5. Any other or other relief that the Honourable Court deems fit.
       

The Statement of Defense filed on 11^th March 2022 shows the following prayers:

1. The Plaintiff’s writ of summons and statement of claim to be struck off, dismissed for want of prosecution, abuse of court, want of jurisdiction and want of proper parties;
2. Solicitor/client indemnity costs;

100. Wastage costs; and

4. Any other orders this Honourable Court deems just and proper.
   

11. There is no argument or submission before the Court as to how Sunil Kumar will be affected by them. All in all, when looking at the above prayers, it is difficult to see how likely Sunil Kumar will be affected by them.
    

The Courts Finding

12. The application for Sunil Kumar to join as Second Defendant is hereby refused.
    
13. No order as to costs.
    

---------------------------
J Daurewa
Resident Magistrate

17^th May 2024