IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL APPEAL NO. 2 OF 2010
MAGISTRATES COURT CIVIL CASE NOS.: 
612/1999, 636/1999, 645/1999, 444/2000 and 473/2000

BETWEEN:

LABASA TOWN COUNCIL
[Appellant/Plaintiff]

AND:

BASHIR KHAN s/o Puran Singh
[Respondent/Defendant]

Counsel: Messrs Gibson & Co for the Appellant/Plaintiff
Nepote Vere & Associates for the Respondent/Defendant

Date of Judgment: 27th July, 2012

JUDGMENT

1.	The plaintiff appellant, Labasa Town Council (appellant) has appealed against the ruling of the Resident Magistrate Labasa delivered on 03.07.99, and published on 20.07.99. 

2.	The grounds of appeal as stated by the appellant are as follows;

i.	The learned Magistrate erred in fact and in law in holding that he has jurisdiction to deal with the matter after deciding that the amended counterclaim was beyond the jurisdiction of the court.

ii.	 The learned Magistrate erred in fact and in law in holding that the original counterclaim still subsisted and could be re-instated.

iii.	That the learned Magistrate erred in fact and in law in adjourning the defendant's counterclaim for a trail on the original counterclaim (when the same was non-existent and had been replaced with an offending counterclaim)

iv.	The learned Magistrate erred in fact and in law in holding that the original counterclaim ought to be reverted to and ought not to be disregarded because of a mere technicality and the claim should not fail because of a technicality.

v.	Having struck out the amended counterclaim the learned Magistrate erred in law and in fact in adjourning the matter for a trial on the original counterclaim. 

Background facts:

3.	This action was heard in the Magistrate's Court Labasa and the judgment was given in favour of the Labasa Town Council (the plaintiff in the original action) with the counterclaim for Bashir Khan (the defendant in the original action) being dismissed. The defendant appealed the Magistrate's judgment to the High Court. In the High Court, the defendant admitted the plaintiff's judgment amount and the same was paid by the defendant. The High Court referred the case back to the Magistrate's Court for a re-hearing of the defendant's counterclaim.

4.	Subsequently, in the Magistrate's Court, the defendant made an application to amend the counter claim. The amendment was allowed by the Magistrate, and accordingly, the defendant filed an amended counterclaim. In response to that the plaintiff filed his amended defence.

5.	In the Magistrate's Court, the plaintiff submitted that since the defendant's amended counterclaim had exceeded the jurisdiction of the Magistrate's Court it should be struck out.

6.	The learned magistrate delivered his ruling striking out the amended counterclaim but reverted to the original counterclaim.

7.	It is against that order of the Magistrate; the plaintiff appellant filed this appeal.
8.	The predominant issue to be considered here is the standing of the defendant's original counterclaim, when the amended counterclaim was accepted and later struck out by the court.

9.	It is trite law that an amendment of pleading has retrospective effect, i.e. the amendment takes effect not from the date on which it was amended but from the original date of the pleading. The defendant moved to amend his counterclaim because he was not satisfied with it. No sooner was the amended counter claim accepted by the court than the original counterclaim receded and became extinct.

10.	Effect of an amendment is explained in Supreme Court Practice 1991 Vol. 1 paragraph 20/5-8/2 as follows;

An amendment duly made, with or without leave, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends; and this rule applies to every successive amendment of whatever nature and at whatever stage the amendment id made. Thus, when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning: "the writ as amended becomes the origin of the action, and the claim thereon indorsed is substituted for the claim originally indorsed' (per Collins M.R. in Sneade v. Wotherton, etc. [1904] 1 KB 295, p.297). Similarly, in the pleadings: once pleadings are amended, what stood before amendment is no longer defines the issues to be tried"

11.	When an amended counterclaim is filed it becomes effective as if it was filed from the date on which the original counterclaim was filed. Therefore, when the amended counter claim once accepted and subsequently struck out by the magistrate, on the basis that the amended counterclaim exceeded the monetary jurisdiction of the court, the original counterclaim cannot be given life.

12.	When a party filed an amended pleading subsequent to a leave granted by the court the original pleading becomes nonexistent. It is on the amended pleading that the action should continue as if it was the original pleading. Therefore, if the court strikes out the amended pleading on the basis that it exceeded the monetary jurisdiction there exist no pleading before the court and therefore, the action becomes a nullity. 

13.	In other words, once the amended counterclaim was struck out on the basis that it exceeded the monetary jurisdiction of the court there is no counterclaim to proceed with any further. 

14.	As amended by Magistrates' Court Act (Amendment) Promulgation 2007, the civil jurisdiction of a Magistrate's Court is limited to $ 50000.00 by section 16 (1) of the Magistrates' Court Act. Therefore, if an action is commenced in a Magistrate's Court on a claim which exceeds this limit, the magistrate has no power to amend the claim. In the present case, the amended counterclaim clearly exceeds the Magistrate's jurisdiction. Hence, it is my view that the Magistrate could not and should not have ordered the defendant to revert to the original counterclaim. 

15.	To deal with a particular action the court must have jurisdiction. If the court has no jurisdiction in respect of a particular action then the court cannot entertain any application in connection with that action. When the amended counterclaim of the defendant exceeded the monetary jurisdiction of the Magistrate's Court, it means that there was no valid counterclaim before the Magistrate and hence, the Magistrate had no jurisdiction to allow any amendments or to order the defendant to revert to the original counterclaim. 

16.	In Ram Khelawan v. Budh Ram 13 FLR 196 at 197, Hammet J. explicated the effect of claim for amount in excess of jurisdiction as follows:

'Once a summons has been issued in a Magistrate Court of the first class in excess of the jurisdiction which is given to that court by the Legislature it appears to me that the only order that may be made when the matter is being dealt with by the Magistrate is for him to strike out the cause for want of jurisdiction. The Magistrate does not appear to have any powers either to amend the claim or to transfer the case. He can therefore only decline to entertain the suit on the ground that it is in respect of a matter that is beyond he jurisdiction which has been granted either to the Magistrate or the court by the Legislature.'

17.	Therefore, it is my considered view that the learned Magistrate erred in fixing the matter for further trial to consider the defendant's claims made in the original counterclaim.

18.	 For the above reasons, the appeal is allowed. The order of the Magistrate's Court granting leave to the defendant respondent to proceed with the case on the original claim is a nullity and must be set aside.

19.	On the above premise, I order the defendant respondent's entire claim in the Magistrate's Court be struck out for want of jurisdiction.

20.	The other connected matters being civil actions Nos. 473/2000, 612/99, 636/99, 471/2000 and 645/99 are based on the same footing and therefore this judgment should apply to all in entirety.

21.	The plaintiff appellant is awarded costs in the sum of $ 1500.00.

Pradeep Hettiarachchi
Judge