Mohammed v Ali [1979] FJSC 15; Civil Case 4 of 1979 (6 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Criminal Case No. 4 of 1979

BETWEEN

NOOR MOHAMMED
Appellant

AND

SITAJ ALI
s/o Kasin Hussain &
3 M AUSTRALIA PTY LTD
Respondents

Mr. Umarji Mohammed, Counsel for the Appellant

JUDGMENT

The record shows a rather extraordinary situations. The plaintiff claimed general damages not exceeding $200, special damages of $219 in respect of an accident between his own car and a car driven by the first defendant and owned by the second defendant. At the first appearance before the court on 5/7/78 there was only an affidavit of service in respect of the 1st defendant, and according to the record judgment was given against the 1st defendant in default of appearance.

On 12/9/78 there was proof of service on the 2nd defendant, and in absence of appearance the matter was adjoined for "formal proof". If the plaintiff's claim had been limited to a liquidated demand only then the plaintiff would have been entitled to have final judgment entered in his favour in accordance with Order VI rule 8 of the Magistrates' Court Rules.

In so far as the plaintiff also claimed general damages not exceeding $200 it seems that O. VI r. 8 was not open to the plaintiff and the court would have to proceed under O.XXX rule 3, and require formal proof of the plaintiff's claim. It seems rather absurd that the plaintiff should be expected to prove that the 1st defendant was driving the vehicle and that the second defendant owned the vehicle particularly in view of the fact that neither had shown any intention of challenging those facts, and also the fact that the court had already given judgment against the 1st defendant so presumably had accepted that he was the driver of the car. Surely the real purpose of requiring proof liquidated demands is so that the court has some basis for its own assessment of general damages.

The magistrate was rather preremptory in dismissing the plaintiff's claim out of hand as he did. To make matters more absurd he did nothing about the judgment he had already given against the 1st defendant, which seems to contradict his own findings.

In any case I note that in his evidence the plaintiff only asked for $219 as special damages. If that meant that he was not pressing his claim for general damages there was no reason why the magistrate should not have given judgment by default under O.VI r.8. In fact the magistrate could and should have considered the special damages and general damages separately and confined his dismissal of the plaintiff's claim to the general damages.

I therefore set aside the judgment of the magistrate and give judgment for the plaintiff against the 2nd defendant for $219 special damages and costs.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
6th July, 1979.

Messrs. U. Mohammed & Co., for the Appellant
Date of Hearing: 26^th March, 1979.