Mr.. Singh for the Appellant
Mr. Eroni Veretawatini for the Respondent
JUDGMENT
This is the plaintiff's/appellant's appeal against the 'Ruling' of the learned trial Magistrate Viliame Nadakuitavuki Esq. given on
1 July 1997.
The appellant has filed numerous grounds of appeal and they are contained on pages 4 and 5 of the Record. As I understand it these
lengthy grounds raise just one issue namely whether the learned Magistrate was without jurisdiction when he dealt with the case in
the manner he did.
The facts are amply set out in the plaintiff's Statement of Claim. It is for ease of reference, inter alia, as follows:
1. That at all material time, the Plaintiff is a duly elected President of Lodoni Primary School.
2. The Defendant at all material time was the past President of the said Lodoni Primary School.
3. On or about 8 February 1997 the Annual General Meeting of Lodoni Primary School (hereinafter refer as "the school") was held
under the supervision of Ministry of Education.
4. That the Plaintiff together with 8 others were elected as the Committees of the school to run the school for the year 1997.
5. That the Defendant together with his other past official lost the said election.
6. On or about 9 February 1997, the Plaintiff together with his other committees approached the Defendant and/or his agent and/or his servant
for the school keys, documents and school properties.
7. The Defendant and/or his servant and/or his agent refused, neglected and/or failed to handover the school keys, documents and other school
properties to the Plaintiff.
8. Presently all school text books, keys, and financial documents are locked in school office.
9. At all material time, due to the negligence of the Defendant, the school children, teachers and members of the Public of Lodoni have
suffered loss.
The relief claimed by the plaintiff are, inter alia, (a) general damages, (b) interest and (c) that the defendant be ordered to hand-in
all documents, school keys, financial reports and school funds to the plaintiff immediately.
Among other things, the defendant disputes the plaintiff's claim as stated in his Statement of Defence. He says that the plaintiff
has no locus standi to bring the action in his personal capacity and says that 'the Ministry should have brought the action for any reliefs under the Committee as required under the Charitable Trusts Act'. The defendant further says that the "election of the plaintiff as President is null, void, arbitrary and ultra vires".
On 18.2.97 the same relief as in the Writ was applied for by the plaintiff in ex parte Motion filed in Court and certain orders were
made on 19.2.97; but at the hearing inter partes the defendant asked for the orders to be set aside which was refused in a Ruling
on 26.2.97.
Although the record states on 20.3.97 that there will be a hearing on 15.4.97 both counsel agreed to file written submissions (p.49
of Record) and thereafter there is the Ruling of 1 July 1997 by the learned Magistrate and this has become the subject matter of
the Appeal.
In that Ruling the learned Magistrate asked whether the election was "conducted fairly or otherwise in accordance with the Constitution of the said school". He examines the various provisions of the Constitution and rules that the "Plaintiff's election to the post of President is invalid, in law". He first held that the "election was also invalid" (p.42 Record). He concludes by saying (p.44 of Record) that "I do not think that the High
Court, would be the right forum to review petty squabbles, coming from charitable organisations, throughout Fiji, unless, Section
17 of Charitable Trusts Act Cap. 67 is invoked by the Trustees of Charitable Organisations".
With the above background and the manner in which the learned Magistrate handled the case let me now consider the appeal.
The issue on appeal in a nutshell boils down to this, namely, whether the magistrate's Court had jurisdiction to hear the case.
What initially was a simple claim, inter alia, for the return of certain books and papers and school keys to the new President after
the General Election in which the defendant lost the presidency gave rise in the Statement of Defence as filed matters pertaining
to the validity of the election and dispute as to right to office.
I have heard arguments from both counsel in this Appeal. On the evidence before me I have no hesitation in concluding that the Magistrate's
Court had no jurisdiction to decide matters regarding the validity of the General Meeting and whether the President was elected in
accordance with the provisions of the Constitution of the School or not.
The civil jurisdiction of Magistrates is now (since 1 January 1988) contained in the Magistrates' Courts (Civil Jurisdiction) Decree
1988 which by section 2 of the Decree replaces s16 of the Magistrates' Courts Act dealing with jurisdiction. In so far as it is relevant to this case the said section 2 provides:
"2. - (1) A resident magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being
in force, have and exercise jurisdiction in civil causes -
(a).....
(b).....
(c).....
(d).....
(e).....
(f).....
(i).....
Provided that a magistrates' court shall not exercise jurisdiction -
(i) in suits wherein the title to any right, duty or office is in question; or
(ii).....
(iii).....
(iv).....
(v).....
The learned counsel for the defendant when questioned by the Court also agreed that the Court was without jurisdiction and said that
it was the learned Counsel for the plaintiff who filed the application in the lower Court and had consented and submitted to its
jurisdiction (vide p.26 of Record).
It is the fault of the plaintiff in not applying to discontinue the action when once the questions regarding matters which were outside
the Court's jurisdiction were raised in the Statement of Defence. Although Mr. Singh submitted to the jurisdiction of the Court and
raised objection to this aspect in his submission that does not give jurisdiction to the learned Magistrate which he did not have
to decide on matters which he eventually dealt with when he gave his said Ruling.
Under s.32 of the Magistrates' Courts Act the learned Magistrate could have transferred the action to High Court once he found himself without jurisdiction.
The Magistrate's Court is a creature of statute, it can have no powers, jurisdictions or authorities other than those authorised by
the Act. For the reason given hereabove the Ruling of the learned Magistrate was beyond his powers.
To conclude, the appeal is allowed for the learned Magistrate acted without jurisdiction when s.2 of the Decree did not give him the
power to deal with title to Office and validity of the General Meeting hence the decision is null and void and is of no effect.
Deciding this Appeal has now become an academic exercise. Mr. Singh says that as a result of the Order that Dr. Ilaigasinghe made
on 25 February 1997 the school is now functioning properly and it was only the meeting that was being challenged led to this Appeal
being launched.
The Appeal is therefore allowed and the action is remitted to the Magistrate's Court for Counsel for the plaintiff to make the necessary
application for its continuance or otherwise and for the Magistrate to deal with the issue in accordance with the law. Each party
to bear his own costs here and below.
D. Pathik
Judge
At Suva
1 December 1998
Hba0015j.97s
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