IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

High Court Civil Appeal No. 18 of 2019

BETWEEN:

ENERGY FIJI LIMITED (a successor to/and what was formerly the FIJI ELECTRICITY AUTHORITY) a limited liability company established under the Companies Act 2015

APPELLANT

AND:

PRAVIN CHAUHAN TRADING AS DOMINION ALUMINIUM WORKS
FIRST RESPONDENT
AND:

DOMALCO LIMITED
SECOND RESPONDENT

BEFORE:
M. Javed Mansoor, J

COUNSEL:
Ms. L. Prasad for the appellant
Mr. M. N. Sahukhan for the respondents

Date of Hearing:
3 December 2019

Date of Judgment:
30 December 2021
DECISION

MAGISTRATES’ COURT ACT		Jurisdiction – Damages – Counterclaim for unspecified damages – Whether counterclaim liable to be struck off –  Whether amendment of counterclaim should have been allowed – Sections 16 (1 )& (2) and 19 of the Magistrates’ Court Act 1944  – Orders 14, 16 & 23 Magistrates’ Court Rules 1945 

The following cases are referred to in this decision:

1.	Govind Holdings Limited v Kalia Nand Civil Appeal HBA 0015.1998L (March 2000)
2.	Ram Khelwan v Budh Ram [1967] 13 FLR 196 (8 December 1967)
3.	Subash Autar v Ilimo Dame Civil Appeal [2013] FJHC 409; Civil Appeal 15.2012 (15 August 2013)
4.	Faizal Ismail Deen v Marshall Wholesale Limited [2018] FJHC 1123; HBA 2.2018 (28 November 2018)
5.	Sharveen Chand v Avinesh Sharma [2016] FJHC 1022; Civil Appeal 9.2014 (8 November 2016)
6.	Imam Din v Muna Lal Civil Appeal 4 of 1966 (16 September 1966)
7.	Labasa Town Council v Bashir Khan [2012] FJHC 1327; Civil Appeal 2.2010 (27 July 2012)
8.	Legon v Count [1945] All ER 710 

1.	This appeal turns on the question of the Magistrate Court’s jurisdiction                         in regard to a counterclaim for unspecified damages. 

2.	The plaintiffs (respondents) filed action against the defendant (appellant) in the Magistrate Court seeking damages, and an injunction to restrain the appellant from disconnecting the supply of electricity to the respondents’ premises. The appellant counterclaimed for sums owed as charges for electricity and for damages.   

The claim and the counterclaim
3.	The respondents filed an amended statement of claim on 10 July 2017, and a further amended statement of claim on 15 October 2017. The appellant filed its statement of defence with a counterclaim on 1 September 2017, followed by a statement of defence and counterclaim to the amended statement of claim on 6 December 2018. The respondents filed a reply to defence and defence to counterclaim on 19 December 2018. The appellant’s reply to the defence to counterclaim was filed on 9 September 2019.

4.	The respondents claimed that the appellant did not bill accurately for electricity supplied to them for the period 17 March to 1 April 2009 owing to a wiring defect. They blamed the appellant for the wiring defect. They pleaded that the appellant had demanded a sum of 23,895.14 by a letter of demand dated 14 April 2015, and that by a further letter dated 12 October 2015, threatened to disconnect their supply of electricity. The respondents sought general damages, damages for stress, anxiety and anguish and for orders to restrain the appellant from disconnecting electricity to the respondents. 

5.	In its statement of defence and counterclaim, the appellant claimed, inter alia, that the respondents failed to make payments for the electricity that was consumed. The appellant acknowledged having demanded a sum of $23,895.14 from the respondents and admitted that it advised the respondents of a disconnection in the supply of electricity due to non- payment.
 
6.	The respondents, by their reply to defence and defence to counterclaim denied that they were liable to pay the appellant a sum of $23,895.14 and called upon the court to strike out the statement of defence and the counterclaim. They pleaded that the appellant’s counterclaim was beyond the jurisdiction of the court. 
 
7.	The appellant, in its reply to defence to counterclaim pleaded that the counterclaim in the sum of $23,895.14 was within the jurisdiction of the Magistrate Court and that even if it prayed for damages without quantifying, the omission would not result in an automatic strikeout of the defence and counterclaim for want of jurisdiction.

8.	In their pleadings, the respondents, unlike the appellant, expressly confined their reliefs to the jurisdiction of the Magistrate Court. 

Objection to jurisdiction
9.	When the matter was taken up for trial on 25 March 2019, the respondents objected to the magistrate’s jurisdiction to hear the case stating that the counterclaim was for an unspecified sum, and damages were not limited to the magistrate’s jurisdiction. The respondents had also taken up this position in their reply to the appellant’s defence. The Magistrate Court upheld the objection by its decision of 29 March 2019, and did not permit the appellant to withdraw its claim. The court held that it was driven to the conclusion that the appellant had not limited its claim to the jurisdiction of the court, and that, therefore, the counterclaim was struck out for want of jurisdiction. This appeal is from that decision.

10.	In arriving at his decision, the magistrate quoted with approval inter alia the decisions in Govid Holdings Limited v Kalia Nand and Ram Khelwan v Budh Ram. The ruling also made reference to Subash Autar v Ilimo Dame and Dean v Marshall Wholesale Ltd. 
 
11.	The appellant based its appeal on eight grounds of appeal. The thrust of its argument is that there is no requirement in the Magistrates’ Court Act 1944 (Act) as amended or the Magistrates’ Court Rules 1945 (Rules) to plead that its counterclaim was limited to the court’s jurisdiction, and that by commencing proceedings in the Magistrate Court the appellant had limited itself to the jurisdiction of the court. The appellant relied on the decision of Chand v Sharma. 

12.	The appellant contended that the magistrate erred by disallowing the oral application to withdraw its claim for damages against the respondents on the day of the hearing. The appellant submitted that the magistrate erred in law by striking out the counterclaim without considering the substantive matter, and in doing so denied the appellant’s right to have the matter determined by a court of law, especially when the appellant had moved to withdraw its claim for damages against the respondents.

The law
13.	Section 16 of the Act as amended sets out the jurisdiction of the Magistrate Court. Section 16 (1) (b)  states:

“(1)	Without prejudice to the jurisdiction of a Magistrate under this Act or other written law, a Resident Magistrate shall have and exercise jurisdiction in the following civil causes-
(b)   In all other personal suits, whether arising from contract, or from tort, or from both, if the value of the property or the debt, amount or damage claimed whether as balance claimed or otherwise, is not more than $50,000”

14.	The respondents sued on the alleged basis of tort to recover damages, while the appellant counter claimed to recover purported unpaid bills and for damages. The Magistrate Court, therefore, had jurisdiction over the subject matter of the action. The Magistrate Court, however, is fettered in terms of the monetary limit placed on its jurisdiction. The present limit placed by the Act is $50,000.00. 

15.	The Act sets out the matters concerning which the Magistrate’s Court has no jurisdiction. Section 16 (2) enacts:           
A Magistrates Court shall not exercise the following jurisdiction-
(a) in suits wherein the title to any right, duty or office is in question; or
(b) in suits wherein the validity of any will or other testamentary writing or of any bequest or limitation under any will or settlement is in question; or
(c) in suits wherein the legitimacy of any person is in question; or
(d) except as specifically provided in the Family Law Act 2003 or any other written law, in suits wherein the validity or dissolution of any marriage is in question; or
(e) in any action for malicious prosecution, libel, slander, seduction or breach of promise of marriage.
16.	The legislative proposition in section 16 (2) of the Act, when taken in isolation of the facts, is mandatory. The respondents’ action and the appellant’s counterclaim do not fall within the categories enumerated in section 16 (2) of the Act. 

17.	Section 16 (6) of the Act states:
“If in any action the debt or demand consists of a balance not exceeding $50,000 after an admitted set-off of any debt or demand claimed or recoverable by the defendant from the plaintiff, a magistrate shall have jurisdiction and power to hear and determine such action within the limits of jurisdiction and power under this section”.  
18.	The provision refers to a balance after an admitted set-off of a debt or demand claimed by the defendant. After set-off, the balance must not exceed $50,000 in order for the court to hear the action. The magistrate is granted jurisdiction and power to hear and determine an action as opposed to words to the effect, “shall not entertain…” 

19.	Having the jurisdiction to hear and determine an action can be understood to mean enabling the court to make an enforceable judgment on the matter brought for its adjudication. Without jurisdiction, the court’s judgment will not bind the parties. In the present case, for instance, the magistrate would not have jurisdiction to give judgment in a sum exceeding $50,000. However, it is arguable whether the legislature intended an application for amendment or withdrawal to be caught by the phrase, “hear and determine an action”.  

20.	Order 23 of the Rules deals with equitable relief, counterclaim and set off. Order 23 Rule 1 states: 
“A defendant in an action may set off, or set up by way of counterclaim against the claim of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a statement of claim in a cross action so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross claim.  But the court may, if, in the opinion of the court, such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself or herself thereof, and the court shall refuse permission in respect of any counterclaim for an amount or value exceeding the maximum amount or value of the subject-matter in respect of which a claim may be heard in such court” (emphasis added).

21.	Order 23 Rule 3 states:

“Where, in any action, a set off or counterclaim is established as a defence against the plaintiff’s claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he or she may be entitled to upon the merits of the case”.   

22.	Rule 3 of Order 23 is not expressly qualified by a monetary value. The court’s power to give judgment in favour of the defendant for the balance where a set off or counterclaim is established must be taken to be restricted by the court’s monetary limit except where the parties give consent in terms of section 16 (1) (e) of the Act.

23.	The Magistrate Court is required to refuse permission in respect of any counterclaim for an amount exceeding the maximum amount or value of the subject matter in respect of which a claim may be heard. On the face of it, the counterclaim did not state a sum exceeding the court’s monetary jurisdiction. The respondents’ objection was that the counterclaim did not specify the quantum of damages. 

24.	The question whether the failure to specify damages in an action in the Magistrates’ Court has been examined in several cases of the High Court of Fiji. 

25.	In Govind Holdings Limited v Kalia Nand, the High Court expressed the view that the “monetary ceiling stipulated a complete bar”. In that case, the Magistrate Court of Ba set aside a default judgment on the ground it was irregularly entered as the claimant had failed to limit its claim for interest to the extent of the court’s monetary jurisdiction. 

26.	The reasoning of Hammet, J, in the then Supreme Court of Fiji decision of Ram Khelwan v Budh Ram  has been adopted in several later cases. The plaintiff in that case issued a writ of summons claiming specific performance and damages for breach of contract in the Magistrate Court. In terms of section 17 (1) of the Magistrates’ Courts Ordinance the court’s jurisdiction was limited to £400 in personal suits concerning property, debt and damage. The plaintiff sought to enforce a claim for £1,200. An application was made for amendment of the claim, which was allowed by the Magistrate Court. In appeal, Hammet, J, (as he then was) stated that when the Magistrate Court made the order for amendment, it had exercised jurisdiction in a cause which was beyond its jurisdiction. The Magistrate’s order to grant leave in the matter was held to be a nullity, and set aside. His Lordship observed,

“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 jurisdiction. The magistrate does not appear to have any powers either to amend the claim or 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 to the magistrate or the court by the Legislature”. 
   
27.	The decisions referred to by the respondents mention an earlier decision by Hammet J in Imam Din v Muna Lal. The decisions have reproduced the following paragraph.

“In the Magistrate’s Court a litigant is not entitled to claim general damages to an unspecified amount. He must state the amount of his claim in order that it may be seen to be within the jurisdiction of the Court and in order that the appropriate court fee, which is based on the amount of the claim, can be assessed and paid”.    

The court went on to say, “Open claims must necessarily be assumed to exceed jurisdiction”. 

28.	In Labasa Town Council v Bashir Khan, the High Court agreed with the reasoning in Ram Khelawan v Budh Ram and stated that if an action is commenced in the Magistrate Court on a claim which exceeds the limit of $50,000.00, the magistrate has no power to amend the claim. In that case, the amended counterclaim exceeded the court’s jurisdiction, and, therefore, it was struck out.       

29.	Subash Autar v Ilimo Dame was a case in which the plaintiff filed a claim in excess of the Magistrate Court’s jurisdiction. An appeal was ledged when default judgment given in the plaintiff’s favour was subsequently struck out for want of jurisdiction. The court held that the claimant had failed to limit its claim within the monetary jurisdiction of the Magistrates Court.   

30.	In Sharveen Chand v Avinesh Sharma, the High Court did not adopt the reasoning in Iman Din v Muna Lal and Ram Khelwan v Budh Ram. Exercising its appellate jurisdiction, the High Court held that there was no legislative requirement or rule of court that an unspecified claim filed in the Magistrate’s Court must carry the words “limited to the jurisdiction of the court”. The court expressed the view that when an unspecified claim is filed, the Magistrate Court has the option of proceeding on the basis that the claim is limited to the court’s jurisdiction. 

31.	An instance of a claimant confining itself to the jurisdiction of the magistrate at the outset is the High Court appeal case of Faizal Ismail Dean v Marshall Wholesale Limited which was cited by the respondents. In this case, the plaintiff expressly limited its claim to $50,000.00 even though the alleged dues were $56,733.28. This decision is not relevant to the issue before court. 

Application to amend counterclaim
32.	The appellant complained that when it sought to amend or withdraw its claim, the court had declined the application, reasoning that it lacked the power to permit amendment or withdrawal as the claim exceeded the court’s monetary jurisdiction. On 25 March 2019, the day fixed for hearing, counsel for the appellant sought leave to amend stating that damages would not be sought and that evidence would only be limited to the counterclaim. The magistrate was of the view that it was beyond the jurisdiction of the court to amend the counterclaim. 

33.	Order 14 of the Rules states:

“The court may, at any stage of the proceedings, either of its own motion or on the application of either party, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made.  Every such order shall be made upon such terms as to costs or otherwise as shall seem just”.

34.	By the above rule, the court is empowered to amend any proceedings at any stage of the proceedings in order to eliminate all statements which may tend to prejudice, embarrass or delay the fair trial of the suit. The rule does not restrict the court’s power to amend pleadings or claims by any party, and the rule is only qualified as provided. A party that wishes to amend or withdraw a claim is not imposed with added toil. In this case, an application was made by the appellant to withdraw a claim at the outset of the hearing.  

Conclusion
35.	A counterclaim must be seen as a cross suit premised on a cause of its own. A counterclaim attracts the rules that are generally applicable to a plaint. It must not exceed the pecuniary or monetary jurisdiction of the court. If, on the face of it, the counterclaim exceeds the court’s monetary jurisdiction, the court will not exercise jurisdiction in the matter. For the court to decline jurisdiction, the jurisdictional fact upon which it refuses to exercise jurisdiction must be clearly apparent. In the case of Ram Khelwan v Budh Ram and in some of the other cases where the reasoning of Hammet. J, was adopted, the claims of the plaintiffs were quite clearly in excess of the courts’ jurisdiction. 

36.	The appellants counterclaim was based on separate causes of action; of debt and damages. The facts did not render the Magistrate Court bereft of jurisdiction to hear the counterclaim in the sense spoken of in Ram Khelwan v Budh Ram. The court, in this case, was possessed of jurisdiction at the time the counterclaim was filed. On the face of it, the counterclaim, in this case, did not exceed the court’s jurisdiction. In Ram Khelwan v Budh Ram, the plaintiff’s claim was clearly in excess of the magistrate’s jurisdiction at the time summons was issued. I agree with the appellant that there could not have been an automatic strike out of the entire counterclaim. In the circumstances, it was necessary for the court to hear and determine the action. Thereafter, it was open to the magistrate to make orders, if remedies are necessitated, to ensure they will not exceed the court’s jurisdiction.   

37.	A court must not lightly assume an absence of jurisdiction. There was no reference in Ram Khelwan to any statutory provision or rule of the common law saying that a claim for unspecified damages is liable to be struck off when a court’s jurisdiction is limited by a monetary value. Such a rule or principle of the law was also not brought to the notice of the court by the respondents in this case. 

38.	It is important that a court stays conscious of the need to avoid a multiplicity of cases between the same parties. The desirability of a single case putting an end to all controversies that relate to a transaction or closely connected events needs no elucidation here. Order 23 permitted the claims of the respondents and that of the appellants to be heard and determined before the Magistrate Court, instead of the appellant having to file a separate action in respect of the matters alleged in the cross-claim. 

39.	The application for amendment or withdrawal of the counterclaim did not relate to a cause in respect of which the court had no jurisdiction in terms of section 16 (2) of the Act. The view that is more likely to promote the interests of justice is to hold that the Magistrate Court had the jurisdiction to deal with the appellant’s application to amend notwithstanding that the sum claimed as damages in the counterclaim was unspecified. The court’s jurisdiction to deal with an application, and to make necessary orders to bring the matter within its monetary limits was unaffected. That the quantum of damages claimed was not specified should not, by itself, deprive the court of jurisdiction to deal with a procedural application. Such a conclusion, I think, would not lead to a failure of justice

40.	The facts of a case will give contextual meaning to an enactment, and at times, the combined effect of certain enactments have to be considered. The resulting proposition from the applicable statutory provisions, does not, in this case, take away the magistrate’s jurisdiction to hear and determine the action or to adjudicate upon the application for amendment or withdrawal. The relevant provisions of the Magistrates’ Court Act, the Magistrates Court Rules and the jurisdictional facts of this case satisfy me that the Magistrate Court was competent to deal with the appellant’s application to withdraw its claim for damages.

41.	There are other enactments that reinforce this view.  

42.	That the monetary limit placed on the court may not be an absolute bar is suggested by section 16 (1) (e) of the Act. The section states 

“Without prejudice to the jurisdiction of a Magistrate under this Act or other written law, a Resident Magistrate shall have and exercise jurisdiction in the following civil causes-

(e)	“in any type of suit covered by paragraphs (a) to (d) whatever the value, amount, debt, damages sought to be recovered is, or whatever the annual value or annual rent is, if all the parties or their respective legal practitioners consent thereto in writing”

43.	Section 16 (1) (e) allows the parties or their representatives to give consent to the magistrate to hear any type of suit covered by paragraphs (a) to (d) whatever the value. Contract and tort are among the causes of action referred to in these paragraphs. 

44.	Section 19 of the Act is another such provision. This provision authorises the Chief Justice to increase the jurisdiction in civil causes and matters to be exercised by the magistrate to the extent specified in the Chief Justice’s order. The Chief Justice may at any time revoke such order by an instrument under the seal of the High Court. 

45.	The decision of the English Court of Appeal in Legon v Count  – which was not cited in submissions – supports the conclusion reached by this court. The plaintiff in that case brought an action in the county court. The plaint did not specify the amount of damages to be claimed. The county court judge took the objection that he had no jurisdiction to hear the case because the amount of damages claimed was not specified and might be beyond the jurisdiction of the county court. When the plaintiff sought leave to amend the particulars of claim by adding the words, “not exceeding £100”, the judge refused to allow the amendment on the ground that, as he had no jurisdiction to try a case claiming unlimited damages, he could not entertain the case at all. 

46.	The Court of Appeal unanimously held that the judge clearly had jurisdiction to allow the amendment and that, in the circumstances, he ought to have done so. The judgment made a passing reference to a provision in the county court rules to abandon the excess and bring a cause of action within the county court’s jurisdiction. In this case, such a provision has not been brought to the court’s notice. Nevertheless, the non-existence of such a provision does not affect the rationale of this decision. The conclusion here has been reached upon an overall consideration of the provisions of law in the factual context.  The appeal is allowed.

ORDER 
A.	The appeal is allowed. The order of the Magistrate Court is set aside. 
B.	The case is remitted to be heard by another magistrate.
C.	The respondents are directed to pay the appellant a sum of $1,500.00 as costs summarily assessed by court within three weeks of this date.

Delivered at Suva on this 30th day of December, 2021

M. Javed Mansoor
Judge