IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. HBC0139 OF 1994

Between:

LILA WATI, RAJ PAL
and MADAN PAL
as Executors and Trustees of the
Estate of Ram Pal (f/n Jaghoo)
Plaintiffs

- and -

ALITIA VAKARAUBULA
Defendant

Mr. V. Kapadia for Plaintiffs
Ms. V. Narayan for Defendant

JUDGMENT

This matter was referred to the Court by the Chief Registrar in his capacity as 'Sheriff of Fiji' seeking the Court's direction as to whether or not he should proceed to execute a Writ of Possession issued by the Magistrates Court, Suva on 29th September 1995 in Civil Action No. 1258/94S.

I confess to some misgivings as to the form or manner in which this matter was drawn to the Court's attention but equally I am convinced that this Court has the necessary jurisdiction to deal with the matter.

In this latter regard Section 3 of the Supreme Court Act (Cap. 13) provides that the Court "... shall have all such powers and jurisdiction as are or may from time to time be vested in the Court under or by virtue of the Constitution, this Act or any law for the time being in force."

Then Section 114(1) of the Constitution 1990 expressly grants this Court:

"... 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."

Also by Section 18 of the Supreme Court Act the High Court has all the jurisdiction powers and authorities exercisable by Her Majesty's High Court of Justice in England which includes the inherent authority of the Court of Kings Bench "... to control all inferior tribunals, not in an appellate capacity but in a supervisory capacity. The authority not only extends to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law." (per Denning L.J. in R. v. Northumberland Compensation Appeal Tribunal Ex-parte Shaw (1952) 1 K.B. 338 at 346.)

Finally in Mahadeo Sharma & Others v. Charisse Caldwell (1975) 21 F.L.R. 85 The Fiji Court of Appeal in upholding a High Court judgment on an 'Originating Summons' setting aside a consent judgment, entered in the Magistrate Court seven (7) years earlier, Held inter alia:

"2.	Proceedings in the Supreme Court should have been commenced by way of appeal or by certiorari. However institution of proceedings by originating summons was a procedural rather than a jurisdictional defect.

3.	Although there was nothing to authorise the Supreme Court setting aside a judgment of an inferior court except by the recognised methods of appeal and prerogative writs, there was nothing to prevent such action. The orders made in the Supreme Court were within the judge's powers on appeal, and therefore, in the interests of justice could be permitted to stand."

I am keenly aware that in this case, no formal originating process exists before the Court but where the assistance of an officer of this Court is sought to enforce a judgment albeit of a lower Court, then this Court in my view, is sufficiently seised of the matter as to entitle this Court generally to exercise its jurisdiction in the cause or matter. A fortiori where the Court has already dealt with and dismissed an identical claim albeit in different proceedings.

The proceedings have a rather unfortunate and chequered background which bears repeating. The plaintiffs are the Executors and Trustees of the Estate of Ram Pal and the registered proprietors of a Crown Lease situated at 152 Fletcher Road, Vatuwaqa upon which a dwelling house is erected. The defendant is the occupant of the dwelling house and the legal wife of Madan Pal the third-named Executor and Trustee.

On 7th February, 1994 the plaintiffs through their solicitors served a Notice to Quit on the defendant and upon its expiration and her refusal to vacate the premises, the plaintiffs issued an 'Originating Summons' for vacant possession under Section 169 of the Land Transfer Act (Cap. 131) on the 21st March, 1994 in High Court Civil Action No. HBC0139/94S. On 13th July, 1994 the plaintiff's summons was dismissed with costs to the defendant. The dismissal order was not sealed however until the 21st October 1994. No appeal has been lodged against the dismissal of the plaintiffs 'S.169 application'.

In the meantime, on 11th October, 1994 the plaintiffs issued a Writ of Summons against the defendant out of the Magistrate Court, Suva seeking amongst other things, an "Order for vacant possession" of the land which was the subject-matter of the earlier unsuccessful High Court proceedings and order. The Magistrate Court Action is numbered 1258/94S and para.2 of the plaintiffs four (4) paragraph Statement of Claim in the Magistrate Court action reads: 

"THE Defendant is illegally occupying the plaintiffs property."

It is noteworthy that the averment is wholly unparticularised and the Statement of Claim merely refers to the earlier-mentioned Notice to Quit and the defendants refusal and neglect to vacate the land. No reference was made to the plaintiffs' earlier unsuccessful application in the High Court to recover the same land or the Court's order therein.

I am not unmindful that the Fiji Court of Appeal has described an application under Section 169 of the Land Transfer Act as "... a summary procedure designed to avoid delay." (per Speight V.P. in Harakh Narayan v. Chotu Bhai Patel Civil Appeal No. 26 of 1985) and that: "... complicated questions of fact (particularly where there are allegations of fraud) cannot adequately be investigated and dealt with on a summary proceeding in Chambers" (per Gould V.P. in Shyam Lal v. Eric Shultz 18 F.L.R. 152, 154).

Furthermore the first 'proviso' to Section 172 of the Land Transfer Act (Cap. 131) expressly provides: 

"... that the dismissal of the (S.169) summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he might be otherwise entitled."

In this regard, counsel for the plaintiffs forcefully submits that:

"The words 'any other proceedings' include Magistrate's Court proceedings. The proceedings before the High Court were in the nature of a summary ejectment procedure. Once the defendant was able to show some cause the Learned Judge was entitled to dismiss the Summons. Then it was up to the plaintiffs whether they file another action in the High Court or took a Magistrate's Court action."

With all due regard to the submission I cannot agree. The 'proviso' does not in terms permit the institution of 'any' proceedings as appears to be suggested, it only permits an unsuccessful applicant "... to take any other proceedings against the person summoned to which he might be otherwise entitled". These underlined words of the 'proviso' must in my view, bear a necessarily restrictive meaning.

I am also aware that the Court's order on a 'S. 169 application' need not necessarily deal with the merits of the application such as, where the Court decides that the issues raised by the affidavits can only be determined at a trial or, where the application is dismissed because the applicant has failed to establish the necessary 'locus' to bring the application.

But where the Court's order is to the effect that the defendant has satisfactorily established 'a right to possession of the land' such as occurred in the High Court proceedings in the present case, then, there is little doubt in my mind that a fresh proceeding in a lower court which raises the same ground(s) as that unsuccessfully advanced in an earlier 'S.169 application' and, which suppresses the fact of the earlier unsuccessful application is an 'abuse of process' and prima facie contemptible (See: In the matter of Charles Gordon Civil Appeal No. 49/75).

Equally in my view such a 'proceeding' does not fall within the above-mentioned 'proviso' to Section 172 in so far as the proceeding as framed, is 'res judicata' and therefore not "... any other proceeding ... to which (the applicant) would be otherwise entitled (to bring)."

As was said by Lord Halsbury L.C. in Reichel v. Magrath (1889) 18 A.C. 665 at 668: 

"I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the court has decided in a separate action."

In this case in dismissing the plaintiffs 'S.169 application' brought on the basis that the defendant's licence to occupy the premises had been revoked by an expired Notice to Quit, the High Court had plainly rejected that 'ground' as a proper basis upon which the plaintiffs could recover possession of the land.

Notwithstanding that, and without seeking any appropriate declaration(s) or disclosing their earlier unsuccessful application in the High Court, the plaintiffs advanced the very same 'ground' in their Writ action instituted in the Magistrate Court in seeking vacant possession of the land.

Needless to say the Magistrates Court being a 'creature of statute' does not have an unlimited jurisdiction to entertain any suit for the recovery of land. In my view the plaintiffs claim in the Magistrates Court not being one between a landlord and tenant, can only be entertained by the Magistrate Court if it falls fairly and squarely within the provisions of Section 16(1)(b)(ii) of the Magistrate Court Act (Cap. 14) which reads (so far as relevant):

"(ii) in all suits involving trespass to land or for the recovery of land ... irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land ..."

Quite plainly the jurisdiction of the Magistrates Court pursuant to the above subsection is necessarily confined in my view, to an occupier who is a 'trespasser', and it need hardly be said, in the light of this Court's earlier ruling in HBC0139/94S and the Statement of Defence, that such a description is wholly inapplicable to the defendant. (See: generally the judgments in Bendall v. McWhirter (1952) 2 Q.B. 466; Tuivaga J. in Lawlor v. Duaibe (1977) 22 F.L.R. 134 and per Hutchison and Marsack JJ.A. in Ram Narain v. Ram Kissun 15 F.L.R. 1).

The plaintiffs Writ of Summons was served on 17.10.94 and on 8.12.94 the defendant filed a Statement of Defence denying any illegal occupation of the premises and claiming to be entitled to remain in occupation by virtue of her 'status' as the legal wife of the third-named plaintiff, a registered joint-proprietor of the land. She further raised a form of 'estoppel' against the plaintiffs. Unfortunately the Statement of Defence made no reference either to the earlier proceedings in the High Court as it should have done.

Be that as it may the Magistrate Court record of proceedings indicates that the plaintiffs Writ action was called on three (3) occasions and on 21.3.95 the following entry appears:

"Mr. Sharma for Plaintiffs
Ms. Narayan for Defendant

Case settled. Of consent defendant to vacate premises on before 31.7.95. If not vacated execution to issue."

On 7th April, 1995 the plaintiffs' solicitors filed and sealed the 'consent order'. The relevant 'affidavit of service' of the 'consent order' also filed on 7th April 1995 states however, that a true copy of the order "regularly issued out of the Magistrate Court" was personally served on the defendant on 20th March 1995 (i.e. almost 2 weeks before it was filed in Court). Furthermore, the copy order attached to the 'affidavit of service' and bearing an original Magistrate Court stamp and signature, is dated "21st day of March 1995". There had to be mistake.

When the above 'discrepancies' were drawn to counsel's attention, he sought to explain it as 'a typing error' where the date of service should have read "20th May, 1995" instead of "20th March 1995". The original handwritten acknowledgment of receipt by the defendant endorsed on the backing cover of the copy order clearly indicates however, that service was effected on '20/4/95'.

The Magistrate Court record also contains the following 'cryptic' entry dated 18.10.95:

"Mr. Kapadia refers me to consent settlement order of 21.3.95 and having perused that order I see no reason for me to make any other order especially in the absence of any objection or application for the defence. Order of 21.3.95 to stay."

I say 'cryptic' because what? it means or why? it was made at all, is not entirely clear, but, in any event, Mr. Kapadia (unlike the trial magistrate) has no recollection of appearing before the Magistrate Court on the day in question.

Nothing much happened after the 'consent order' was served, until the 29th September 1995 when the plaintiffs solicitors issued a Writ of Possession out of the Magistrate Court, Suva directed to: 'The Sheriff of Fiji' and commanding him to execute the order for vacant possession.

Almost a month later on 20th October, 1995 the defendant's solicitors filed a Motion in the Suva Magistrates Court seeking an order that the consent judgment entered on the 21st day of March 1995 against the defendant be set aside on the ground that the condition under which the 'consent order' was obtained, namely, the payment of maintenance by 'the third defendant' (sic) had not been fulfilled.

There was annexed for the first time, to the defendant's affidavit in support of her Motion, a copy of the High Court's ruling in the plaintiffs' earlier unsuccessful 'S.169 application'. She also expressly deposed in para.8:

"THAT (she) did not consent to leaving the matrimonial home at any time provided (sic) there was satisfactory arrangement about the maintenance for me and my son which maintenance has not been paid to date."

It is noteworthy that no condition as to maintenance was recorded by the trial magistrate as attaching to the 'consent order' made, nor was there any affidavit filed either by the plaintiffs or their counsel denying that any such 'condition' was ever discussed or agreed to.

It is also noteworthy that Order XXXII rule 10 of the Magistrates Court Rules expressly provides:

"If the plaintiff and defendant shall agree as to the terms and conditions on which judgment shall be entered, the Court, unless it sees good reason to the contrary, shall enter judgment on such terms and conditions."

Quite plainly a Magistrate is not intended thereby to be a mere 'rubberstamp' to any consent judgment or compromise that might be arrived at by the parties however seemingly one-sided or contrary to the pleadings it may be. Nor in my view is a magistrate required to blindly enter a consent judgment merely because the parties are legally represented.

Indeed, on the face of the Magistrate Court record of what transpired, one has the rather extraordinarily altruistic situation in which the defendant (who had earlier successfully opposed the plaintiffs summary application for vacant possession in the High Court) who had filed a comprehensive Statement of Defence in contesting the plaintiffs Magistrate Court action, for no apparent or clearly recorded benefit or reason, consented unconditionally to judgment being entered against her ostensibly in consideration of her being given slightly over 4 months and nothing more (or 3 months from the date of service), in which to vacate the premises which she had fought to retain and which had been her home for more than 20 years since her marriage to the third-named plaintiff and whatsmore, from a deserted wife with a dependant child, who had a subsisting 'maintenance order' since January 1995, for which she had never received any payments!

In Huddersfield Banking Company Limited v. Henry Lister & Son, Limited (1895) 2 Ch.D. 273 Vaughan Williams J. in setting aside a 'consent order' which had been completed and acted upon by the parties said at p.276:

"The real truth of the matter is that the order is a mere creature of the agreement, and to say that the Court can set aside the agreement - and it was not disputed that this could be done if a common mistake were proved - but that it cannot set aside an order which was the creature of that agreement, seems to me to be giving the branch an existence which is independent of the tree."

More trenchantly and somewhat scathingly in Neale v. Gordon Lennox (1902) A.C. 465 where a successful attack was made by a plaintiff in a libel action upon a 'consent order' directing that the case be referred to an arbitrator without her counsel complying with a condition imposed by the plaintiff in her instructions, Lord Brampton said at p.472:

"I have rarely heard anything more preposterous, to my mind, than the notion that a suitor can impose no effective veto upon a course proposed to be taken by his or her counsel which rightly or wrongly in his or her judgment will operate prejudicially to his or her interests in an action, and possibly to the ruin of his or her character. I quite agree therefore, that this appeal ought to be allowed and the case restored to the paper."

More recently in Marsden v. Marsden (1972) Fam 280 Watkins J. in discussing the Court's power to set aside a 'consent order' entered into beyond counsel's instructions said at p.284:

"It is a discretionary remedy to be exercised with care and with regard to the injustice or otherwise of allowing an order to stand."

Having regard the chronology of these proceedings and to the undisputed matters raised in the defendant's affidavit in support of her motion to set-aside the 'consent order' and the 'extraordinarily altruistic situation' earlier described, there can be little doubt in my mind where the 'injustice' of this case lies in allowing the 'consent order' to remain.

Finally, in Thwaite v. Thwaite (1981) 2 ALL E.R. 789 Ormond L.J. said in respect of the enforcement of a disputed 'consent order' at p.794:

"Where the order is still executory, as in the present case, and one of the parties applies to the court to enforce the order, the Court may refuse if, in the circumstances prevailing at the time of the application, it would be inequitable to do so ... Where the consent order derives its legal effect from the contract, this is equivalent to refusing a decree of specific performance, where the legal effect derives from the order itself the court has jurisdiction over its own orders: per Jesell M.R. in Mullins v. Howell (1879) 11 Ch.D. 763 at 766."

In light of the fore-going the trial magistrate's perfunctory dismissal on the 27th of October 1995 of the defendant's interlocutory Motion to set aside the 'consent order' without any detailed reasons, and without first ordering an affidavit from the plaintiffs, can only be considered as highly arbitrary and wrong.

The Writ of Possession is accordingly set aside. The consent judgment is also quashed and the matter is returned to the Magistrate Court with a direction that a new file be opened with the existing pleadings and the parties are ordered to file further pleadings (as necessary). Thereafter the action is to continue before a different magistrate.

(D.V. Fatiaki)
JUDGE

At Suva,
6th August, 1996.
HBC0139J.94S