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Narayan v Wati [2012] FJHC 852; Civil Appeal 04.2008 (2 February 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Appeal No: 4 of 2008

BETWEEN:

SAT NARAYAN
APPELLANT/PLAINTIFF

AND:

VIDYA WATI AND PURAN SINGH
RESPONDENT/DEFENDANT

JUDGMENT

Judgment of: Ms Dias Wickramasinghe J.

Counsel: Mr Kohli for the appellant-plaintiff
Mr Sen for the respondent -defendant

Solicitors: KOHLI & SINGH for the appellant-plaintiff
Maqboll & Co for the respondent -defendant

Date of Judgment: 2 February 2012

INTRODUCTION

[1] This is an appeal from the learned Resident Magistrate's decision dated 19 July 2005 where His Worship struck out the case for want of jurisdiction.

[2] There is no written ruling by the Magistrate setting out the reasons for his decision. The minute sheet for the day contains just few lines of handwritten notes of the submissions made by counsel for both parties. It also appears that the learned Magistrate was persuaded in his findings on the obiter reference made in the judgment of Govind Holdings Ltd v Kalia Nand – Civil Appeal No. HBA0015 of 1998L and struck out the case by an extempore bench order after hearing oral submissions of the counsel. Immediately thereafter Mr Kohli who appeared for the appellant-plaintiff informed court that he intends to file an appeal. However, the appeal papers were not filed on time and after several applications, the appellant-plaintiff had been ordered to file his grounds of appeal.

[3] The matter was listed before me on 10 July 2010. Both counsel informed me that they have no objection for me to hear this appeal on their written submissions. However, only Mr Koli filed written submissions and the file was transmitted to me in Lautoka in August 2011 to write the judgment without the written submissions of the Respondent.

[4] The appellant-plaintiff relies on the following ground of appeal:

THAT the learned Magistrate erred in law and in fact in coming to a finding that the claim was out of jurisdiction as the costs claimed was not specified.

[5] On a consideration of the above ground of appeal, it appears that the learned Magistrate appeared to be of the view that when costs are ordered the claim will exceed the jurisdictional limitation of $15,000.00 stipulated in section 2 of the Magistrates Court (Civil Jurisdiction) Decree 1998.

[6] The appellant/ plaintiff in the statement of claim seeks the following reliefs:

1. The sum of $5,170.00 (FIVE THOUSAND ONE HUNDRED SEVENTY DOLLARS) being the amount cash lent and advanced by the Plaintiff to the Defendant under Promissory Note No. 46140 dated 21st day of September, 1998.
   
2. The sum of $1,561.90 (ONE THOUSAND FIVE HUNDRED SIXTY ONE DOLLARS AND NINETY CENTS) being payment for repairs done to the Defendant's vehicle Registered No. BO 368 at his request by the Plaintiff)
   

AND THE PLAINTIFF CLAIMS THE COSTS OF THIS ACTION.

Sum Claimed $ 6,731.90

Court Fees $ 25.00+$2.50

Bailiff Fees $ 22.00

Solicitors Costs (undefended scale) $ 35.00 + 3.50

$ 6,820.00

[7] A similar application was considered in the case of Ram v Flying Prince Transport Company Ltd [2005] FJHC 329; HBA0004.2003L (28 October 2005) where Judge Connors deliberated at length whether the appellant's claim for costs in addition to damages in the sum of $15,000.00 creates a claim, which exceeds the jurisdiction of the Magistrates Court. In that case, Justice Connors examined section 2 of the Magistrates Court (Civil Jurisdiction) Decree 1998, which confers a Magistrate with civil jurisdiction. I agree with His Lordship's comments that the section is tacit as to whether costs and disbursements should be included in calculating the value of the claim for the purpose of the jurisdictional limit. Cost orders are made by the a Magistrates under Magistrates Court Rules [Order XXXIII] rule 1 and 3 and determined at the conclusion of the proceedings. Clearly, it does not form part of the proceedings relating to the claim.

[8] I concur with His Lordship judgment on the point where it was held:

'.....that any costs which may be awarded to the plaintiff by the Court at the conclusion of the proceedings do not form part of the plaintiff's claim for the purpose of calculating whether the claim falls within the jurisdictional limits of the Magistrates Court'.

[9] Accordingly, there was no requirement under the law for the appellant-plaintiff to specify the costs claimed. Nor can costs be considered when calculating the value of the claim. I conclude that the learned Magistrate erred in finding that the claim was out of jurisdiction, as costs were not specified.

ORDERS

1. Appeal allowed.

2. Matter remitted to the Magistrate's Court, for trial according to law.

3. Respondent to pay the appellant's costs which I summarily assessed in the sum of seven hundred dollars ($700.00).

D. Dias Wickramasinghe
Judge