IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBA 14 of 2010

BETWEEN:

VIMLA WATI
[Appellant]

AND:

JAGDISH NARAYAN
[Respondent]

Counsel : Mr. A. Sen for the Appellant.
Respondent in Person.

Date of Judgment: 12th October, 2012

JUDGMENT

[1].	This is an appeal against the ruling delivered by the magistrate in Suva on 15.07.2010. The plaintiff's action No. 142 of 2010 was struck out by the Magistrate.

[2].	The grounds of appeal as stated in the Notice of Appeal are as follows:

a.	The learned magistrate erred in law and in fact in dismissing appellant's claim when it was lodged in accordance with the rules of the court and a proper cause of action pleaded.

b.	The learned magistrate erred in law in holding that the plaintiff could pursue her claim in civil action No 271 of 2009 when it was impossible for the appellant to do so.

c.	The learned magistrate erred in law in dismissing the plaintiff's claim without perusing, scrutinizing or examining the pleadings before the court in civil action No 271 of 2009 to determine the validity of the respondent's action therein.

Background Facts

[3].	The appellant filed action no 142 of 2010 claiming damages from the respondent. The respondent filed a Notice of Motion with a supporting affidavit for an order that the action No 142 of 2010 be set aside. The respondent stated in that affidavit that there was an action bearing No 271 of 2009 filed by him and by filing the action no. 142 of 2010 by the appellant was an abuse of process.

[4].	The learned magistrate on 15.07.2010 struck out the action no. 142 of 2010.

[5].	As can be observed from the learned magistrate's ruling dated 15.07.2010, the said action was struck out on the basis that action No. 271 of 2009 and 142 of 2010 were based on the same set of facts as well as between the same parties, both parties would produce same evidence in both matters and the plaintiff could raise any issue which is relevant to the transaction in case No. 271 of 2009.

[6].	When the minutes of the Magistrate Court dated 15.07.2010 are perused, it could be observed that the learned magistrate had struck out the action 271 of 2009 on the basis that the plaintiff could file a counter claim in action No. 142 of 2010.

[7].	The appellant submitted that the action No. 271 of 2009 in the Magistrate Court was a nullity and therefore the magistrate had no power to deal with it. It was further submitted that once an action is a nullity, there could not be a counter claim on it.

[8].	The statement of claim filed by the respondent in action No. 271 of 2009 was for a breach of contract. In that statement of claim, relief sought by the respondent were as follows:

i.	A declaration that the defendant breached the contract terms executed by the said both parties on the 24th of April 2008;

ii.	A declaration that the defendant is liable for her culpable actions;

iii.	A declaration that as a result of the defendant's culpable action, the plaintiff has lost his good relationship with the Suva City Council;

iv.	Judgment in the sum of $ 9350.00 being a sum due and payable under the contract.

v.	Order for specific performance;

vi.	Interest at the rate of 5% per annum on the sum of $ 9350.00 from 1st December 2009 until the hearing of the action; and,

vii.	Costs.

[9].	It is apparent that the relief (III) would amount to a claim for defamation of character which cannot be tried by the Magistrate Court. Similarly, relief (v) being a claim for specific performance cannot be dealt with by the Magistrate Court. Jurisdiction of the magistrate court is provided for by the Magistrate's Court Act. Further, it could be observed that in action No. 271 of 2009, the plaintiff sought declaratory orders but the Magistrate's Court had no jurisdiction to make declaratory judgments. 

[10].	In view of the above, it is obvious that the plaintiff's claim in action No 271 of 2009 was in excess of the jurisdiction of the Magistrate's Court. 

[11].	The following extract by Hammet J. in Ram Khelawan v. Budh Ram 13 F.L.R. 196 at 197, articulates court's view in a case where summons has been issued in excess of the Magistrate Court's jurisdiction.

' Once a summons has been issued in a Magistrates 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 prosecution. 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 the jurisdiction which has been granted either to the magistrate or the court by the legislature.'

[12].	When the remedies sought in action 271 of 2009, by Jagdish Narayan (the plaintiff in case No. 142 of 2012) are considered it is plain and obvious that it exceeded the jurisdiction of the Magistrate Court. Thus, the action No. 271 of 2009 filed in the Magistrate's Court is a nullity. When an action becomes a nullity that means there is no valid action in the court. In other words there exists no valid claim before the court. Thus, it is legally incorrect to order a party to file a counter claim on a non existing action.

[13].	Therefore, it is my considered opinion that the learned Magistrate has erred in law when he struck out the action No 142 of 2010 on the basis that the plaintiff in that action could have filed a counter claim to the action No 271 of 2009 in which he was the defendant. On the above premise, I allow the appeal.

[14].	The orders of the court are:

1.	The appeal is allowed.

2.	The ruling dated 15.07.2010 by the learned Magistrate is reversed and the action No 142 of 2010 is reinstated.

3.	The action No. 142 of 2010 shall take its normal course.

4.	Cost is summarily assessed in the sum of $1000.00.

5.	The case record shall forthwith be sent to the Magistrate Court Registry.

Pradeep Hettiarachchi
JUDGE