Tetabea v Lameko [1990] KICA 4; Civil Appeal No 1 of 1990 (28 March 1990)

IN THE COURT OF APPEAL OF KIRIBATI

Civil Jurisdiction

Civil Appeal No. 1 of 1990

BETWEEN:

TEIRAOI T. TETABEA
Appellant

AND

LOMI LAMEKO
Respondent

Mr. Tawaia for Appellant
Mr. Koaru for Respondent

Date of Hearing: 28th March 1990
Delivery of Judgment:

JUDGMENT OF THE COURT
(Gibbs V.P., Frost and Mitchell J.J.A.)

This appeal is brought from a decision of the learned Chief Justice quashing an order made by magistrates in favour of the present appellant, Teiraoi T. Tetabea, for want of jurisdiction.

The appellant was the plaintiff in proceedings brought in Betio Magistrates' Court against the present respondent, Lomi Lameko, as defendant. The respondent had been awarded a sub-contract to do the electric wiring of the new High Court building on Betio. The appellant, who is an electrical contractor, and who has been granted A and B licences under regulation 11 of the Electricity Regulations under the Public Utilities Ordinance, and is an approved contractor under regulation 12 of those Regulations, claimed that the respondent should not have been granted the sub-contract, and that in entering into it he has interfered with the business interests of the appellant. The appellant's contention, as formulated before us, was that the respondent should not have been granted the contract, because he was not an approved contractor. In the summons which commenced the proceedings before the Magistrates' Court, and in those proceedings themselves, the appellant referred to the absence of a license rather than to the fact that the respondent was not an approved contractor, but this imprecision of language is immaterial for present purposes, although it may have led to confusion in the Magistrates' Court.

The claim on the summons was for an injunction to restrain the respondent from carrying out the sub-contract. As orally formulated at the hearing, the claim was, "I want defendant to stop laying the wire for a new court house since he has no licence to do it and (is) now interfering (with) the plaintiff who has the licence". The judgment of the magistrates was expressed as follows: "Judgment after your case have been heard for Defendant's case on what you did. The court believed that you could presume the work but you have no licence or an approved contract to do the work. And the judgment, you are going to stop the work of the contract unless you apply for your contract. If you have applied and became a contractor, it is more important to have an Approved Licence or Contract."

From this judgment an appeal was lodged on behalf of the respondent by the People's Lawyer. The notice of appeal stated the following grounds

(1) That there was evidence that the appellant did have an approval for an electrician's licence to work as a contractor.

(2) The decision of the magistrates is ambiguous.

By a letter dated 19th December 1989 the People's Lawyer, on behalf of the respondent, wrote to the Acting Chief Registrar of the High Court enclosing the notice of appeal and applying pursuant to section 74 of the Magistrates Court Ordinance "for the High Court to give a direction for him to continue the work until such time the appeal is heard."

Section 74 of the Magistrates' Court Ordinance provides as follows:

"In the case of any civil proceedings neither notice of appeal nor an appeal shall operate as a stay of execution or of proceedings under the judgment appealed from except so far as the magistrates' court which gave such judgment, or the High Court, may direct, and any such direction may be given with or without the application of either party."

In effect, the appellant's lawyer was seeking a stay of execution or of proceedings under the judgment of the magistrates from which the Appeal had been brought.

On the same day, 19th December 1989, the learned Chief Justice considered the application without hearing either party. He concluded that the magistrates had no jurisdiction to try the issue before them. In his written reasons, he referred to section 23(1) of the Magistrates Court Ordinance which provides amongst other things that the jurisdiction in civil causes of magistrates' courts is that set out in Schedule 1 to the Ordinance. He referred also to paragraph 1(b) of Schedule 1 which states that every magistrates' court "shall have jurisdiction to entertain, hear, try, determine and otherwise deal with...any personal suit, whether arising from contract or from tort, or both, in which the defendant is ordinarily resident within the jurisdiction of such court or in which the cause or action arose in such jurisdiction and where the value of the property, debt or damage claimed (whether as a balance of account or otherwise) is under $3000."

The learned Chief Justice said that the matter heard by the magistrates was not a matter arising from contract or tort and that in any case the claim disclosed no cause of action against the defendant. He therefore decided to exercise the power conferred upon the High Court by section 89(1) of the Constitution which provides as follows: "The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court." He said that since the magistrates had no jurisdiction to hear the suit their decision was a nullity and that no appeal could lie against a void decision. He added that the proper course was to apply for a writ of certiorari to quash the purported decision but that this course had not been taken. He ordered that the order made by the magistrates be quashed on the ground that they had no jurisdiction to make it.

The appellant has appealed from this decision on the grounds that the High Court -

"(1) erred in law in quashing the order of the magistrates without hearing an appeal or appellant;

(2) erred in law in quashing the order of the magistrates stating to have no jurisdiction for being inconsistent to Schedule 1(3) of the Magistrates Court (Minor Amendment) 1980;

(3) erred in law and fact in quashing the order for having no jurisdiction when the claim in front of the magistrates was against the commissions of acts which interfered with the interests of claimant/appellant."

With regard to the first ground of appeal, it is true that the learned Chief Justice should not have made the order which he did without first hearing the parties. The provisions of section 89(l) of the Constitution proceed on the assumption that the jurisdiction which is conferred on the High Court will be exercised in accordance with established judicial principle, that is, only after the persons affected have been heard. The fact that the parties were not heard does not however mean, in the circumstances of the present case, that the order must be set aside. We have heard full and helpful argument on the question whether the Magistrates' Court had jurisdiction, and the question whether the appeal should be allowed must depend on whether the learned Chief Justice was correct in concluding that the Magistrates' Court had acted without jurisdiction.

Mr. Tawaia for the appellant, in support of the second ground of appeal, referred us to paragraph 3 of Schedule 1 of the Magistrates' Courts Ordinance, which, in his submission, conferred the necessary jurisdiction on the Magistrates' Court. That paragraph reads as follows:

"3. Each magistrates' court shall have jurisdiction to grant an injunction in any case upon application made by any party to an action or claim, in order to preserve the status quo or to preserve the subject matter of an action or claim or any part of such subject matter from interference, alteration or destruction, and shall have power to impose imprisonment and order removal, destruction and payment of compensation for breach of such injunction and generally."

The power which is given by that paragraph is to grant as interlocutory injunction in a case in which the Magistrates' Court already has jurisdiction. The paragraph deals with a situation in which there is already an "action or claim" in which the court has jurisdiction, and empowers the court to grant an injunction to preserve things as they are until the action or claim is concluded. It does not empower the Magistrates' Court to grant an injunction in any case, but only in a case in which the court already derives Jurisdiction from another source.

The learned Chief Justice was therefore correct in thinking that the Magistrates' Court had jurisdiction in the present case only if it was a personal suit arising from contract or tort or both. Clearly there was no contractual relationship between the appellant and the respondent. Nor did the fact that the respondent obtained a contract which he was not legally qualified to enter into amount to a wrong, in the legal sense, to the appellant. Mr. Tawaia argued that there was an interference with the business interests of the respondent. However, the respondent had no more than a hope or expectation of being awarded the contract.

The appellant did not induce anyone to break a contract with the respondent or interfere in any way with a contract to which the respondent was a party. This possible injury to the commercial interest of the respondent, by depriving him of the opportunity of entering into a contract, was not, in law, a tort. The action of the respondent, in contracting to install electrical wiring when he was not an approved contractor, was a breach of regulation 12 of the Electricity Regulations which might have been remedied by other action, but it did not amount to a civil wrong to the appellant for which he could bring proceedings in the Magistrates' Court.

The conclusion reached by the learned Chief Justice that the decision of the Magistrates' Court was given without jurisdiction was therefore correct.

For that reason the appeal must be dismissed. It was agreed that there should be no order for costs.

The Order of the Court is: Appeal dismissed.

Vice President
Judge of Appeal
Judge of Appeal