Ongoloka v Pongi [2014] TOSC 10; AM 6 of 2014 (16 May 2014)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

AM 6 of 2014
[MC, CV106/2013]

BETWEEN:

PULALOA ONGOLOKA
Appellant

AND:

1. 'ETUINI PONGI
2. SIOPE POUTELE
Respondents

T. Fakahua for the Appellant
'O. Pouono for the Respondents

JUDGMENT

[1] On 21 March 2013 a road traffic accident occurred at the junction of Laifone and Taufa'ahau Roads. The Respondents commenced proceedings in the Magistrates' Court on 4 July 2013. They claimed that the cause of the accident was the Appellant's failure to exercise care in the manner of his driving. The Respondents claimed:

(i) compensation of $10,000.00

(ii) damages of $500.00

(iii) lawyers fees of $1,200.00.

[2] During the appeal Mr Pouono explained that by "compensation" he meant special damages namely the damage to the Respondents vehicle; by "damages" he meant general damages for shock and being "baffled".

[3] In a Defence filed on 18 July 2013 the Appellant denied negligence. He also pointed out that the jurisdiction of the Magistrate's Court is limited to TOP$10,000 by virtue of Section 59(2) of the Magistrate's Courts Act (Cap 11) as amended. Since the total amounts claimed exceeded the limit it was pleaded that the Magistrate's Court had no jurisdiction to hear the Respondent's claim.

[4] In a reply to the Defence the jurisdiction plea was "noted".

[5] On 27 January 2014 the matter come on for hearing before Magistrate M. Kaufusi. Mr Fakahua raised the jurisdiction point. Mr Pouono is then recorded as saying:

"The actual claim is $10154, deduct $154 and leave with only $1,000. The $500 is for the damages alone. I propose that the court should accept the compensation of $10,000 which was the actual claim. The compensation for the damages done will be estimated according to the facts that will be heard during the trial".

[6] I must confess that I do not find the submission entirely clear, however at the hearing of the appeal Mr Pouono explained that he was confirming to the Magistrate that his total claim would be restricted to $10,000 and that the excess, $154 "compensation" and $500 "damages" were abandoned.

[7] On 29 January 2014 the Magistrate gave an interim ruling affirming that the Court's jurisdiction was limited to $10,000 but ruling that costs, if awarded, were not included in this limit. He gave the Respondents seven days in which to make further submissions.

[8] On 31 January Mr Pouono filed a reply. Again, I did not find the meaning entirely clear, perhaps because of the translation. He did however confirm at 3(b) that the "damages" of $500 were no longer required while at 5 he stated: "the case should proceed in this Court's jurisdiction in the value of $10,000".

[9] Three grounds of appeal were filed. At the hearing of the appeal Mr Fakahua confirmed that his central ground of complaint was that the Magistrate dealt with the action at all, whether by hearing submissions, adjourning or making rulings when the claim as presented exceeded his $10,000 jurisdictional limit. In Mr Fakahua's submission the action should simply have been struck out.

[10] Neither counsel nor the Magistrate referred to Section 59(3) of the Magistrates' Court Act which reads as follows:

"(3) A plaintiff may abandon so much of a claim as exceeds the jurisdiction of the Magistrate's Court in order to keep the claim within the jurisdiction of the Court".

[11] In my view there is no need for any application to be made by a Plaintiff to comply with Section 59(3) – he merely gives notice to that effect. Once notice has been given the excess is abandoned and the action proceeds as normal.

[12] I also agree with the Magistrate that it is the total value of the claim which is the relevant figure. Thus, if both general and special damages are sought the combined amount of the claim cannot exceed the $10,000 limit. I further agree with the Magistrate that costs are not part of the claim but follow the successful prosecution of the claim. If, therefore, $10,000 is awarded there is no bar to a further award of costs.

[13] The final matter which sometimes causes difficulty is a claim for unliquidated damages. Such a damages claim should not be quantified but left to the court for evaluation. The problem however is that given the jurisdictional limit of the Court it might be argued that a claim for general damages potentially exceeds the limit and therefore is beyond the jurisdiction of the court to entertain. The answer to this problem is for a claim for general damages only to be followed by the words "limited to $10,000". When both special and general damages are sought the claim should specify that the total amount claimed is "limited to $10,000" (see Legon v Count [1945] 1 All ER 710 and Rule 7(2)(b) of the Magistrates Courts Rules 2007).

[14] The Respondents in this case having clearly abandoned their claim for the excess in accordance with Section 59(3), I am satisfied that the Magistrate was right to rule that the court therefore had jurisdiction to deal with the action.
[15] I should perhaps add that Tu'ikolovatu Palu v Lesieli Taufa Palu [1908-1959] To L.R. 53 was decided before the Magistrate's Courts Act was amended to include Section 59(3).

Result: The appeal is dismissed with costs to be taxed if not agreed.

DATED: 16 May 2014.
CHIEFJUSTICE

N. Tu'uholoaki
16/5/2014.