In the High Court of Fiji
At Suva
Appellate Jurisdiction

Civil Appeal No. HBA 28 of 2020

Sanjay Singh Verma
Appellant

v

Dineshwar Prasad
Respondent

                                   Counsel:                Mr Kunal Singh for the appellant
        Mr A. Nadan for the respondent	
                                   Date of hearing:      2nd February,2022
                                   Date of Judgment:   9th February,2022

Judgment

1.	The  appellant appeals from  a  decision of the Resident Magistrate  striking out and dismissing an appeal from the SCT on the following grounds of appeal:
a.	That the learned Resident Magistrate erred in law and in fact by dismissing the appeal due to non-appearance of the counsel for the Appellant with costs.
b.	That the learned Resident Magistrate erred in law and in fact by adjourning the matter on 10/02/2020 due to non-appearance of the Respondent and did not observe and carry out the same on 10/09/2020 due to non-appearance of the Appellant’s counsel.

c.	That the learned Resident Magistrate has acted in contravention of the rules of natural justice and basic constitutional right of the Appellant when he misdirected himself to dismiss the Appeal whereas in absence of the Appellants counsel the procedure is to serve NOAH on the Appellant. In the event if the Appellant still does not appear then court may struck out the appeal, which could be brought on cause list on application by way of motion. The dismissal of appeal leaves the Appellant with no alternative but to appeal the decision of the Magistrate. Pursuant to Magistrates Court Rule, Part IV – Proceedings in the Appellant Court Order 13(2):
“When an appeal has been dismissed owing to the non-appearance of the appellant or his barrister and solicitor, the appellate court may, if he thinks fit and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.”
d.	That the learned Resident Magistrate erred in law and in fact by awarding costs against the Appellant without the appeal being heard and the Respondent being successful in defending the same.
e.	That the learned Resident Magistrate erred in law and in fact by not considering the merits of the appeal contained in the Grounds of Appeal on pages 4 and 5 of the copy record dated 06/07/2020.
f.	That the learned Resident Magistrate erred in law and in fact by not considering that Respondent was served with a NOAH on 13/07/2020 by the Sheriff “Vani” and chose to give another date in absence of the Respondent whereas dismissed the appeal in absence of the Appellant and/or his counsel and by doing so has closed doors for a reinstatement option leaving no other option but to appeal to the High Court and by doing so has caused gross misconduct and a miscarriage of justice.

2.	The crux of this appeal is that the lower Court, on a mention date, erred in striking out and dismissing an appeal from the SCT with “court costs of $300” due to the non-appearance of  the appellant or his counsel.

3.	On 17th August,2020, the Learned Magistrate had ordered both parties to file written submissions and directed the matter to be mentioned on 10th September,2020. Both parties were represented by his counsel.

4.	On 10th September,2020, neither the appellant nor his counsel was present. The respondent was represented by his counsel. The  Magistrates’ notes of  that day reads as follows:
                           Appellant or counsel for Applicant not present in court
                                       No reasons duly informed for absence
Appellant has not complied with the directions to file written submissions
Court finds the appeal has been abandoned. As such appeal struck out and dismissed subject to a court cost of $ 300
                                      SCT file to be returned.

5.	Mr Singh, counsel for the appellant submitted that the Learned Magistrate had no power to abandon an appeal due to the non-appearance of a party nor strike out and dismiss an action on a mention date.

6.	Mr Nadan, counsel  for the respondent concurred with Mr Singh, , but submitted that the matter was struck out, as the appellant had not complied with the order to file written submissions.

7.	Kumar J (as he then was) in Singh v Fiji Sugar Corporation,[2014] FJHC 755; HBA 2.2009 (22 October 2014)  cited the Magistrate Court Rules on non- attendance of parties at the hearing and concluded:
4.9 There is no provision in the Magistrates Court Rules that gives the Magistrates power to strike out any pleading and adjourn the matters for formal proof when a party fails to appear on a mention date.
4.10. A Magistrate can only strike out pleadings of defaulting party and hear evidence of party in attendance when the matter is set down for hearing………
4.13 Therefore the procedure to be adopted by the Magistrates Court when a party fails to appear on a mention date or a date set down to fix hearing date is as follows:
i.	“ Fix a hearing date;
ii.	Serve Notice of Adjourned Hearing (NOAH) on the absent party or the absent party's solicitor on record.
iii.	In any party fails to appear at the hearing and upon proof of service of the NOAH on the absent party, Magistrate can then determine the matter pursuant to provision of Order 30 of the Magistrates Court Rules." (emphasis mine)

8.	In my judgment, the Magistrate Court is not empowered to strike out and dismiss an action for failure of a party to file written submissions and appear on a mention date. 

9.	The procedure to be adopted, in such an event, is to fix the matter for hearing and serve a NOAH on the parties as laid down by Kumar J (as he then was) in Singh v Fiji Sugar Corporation,(supra).

10.	The appeal succeeds. 

11.	Orders
a.	The appeal of the appellant is allowed.
b.	I set aside the Order of the Magistrates’ Court of 10th September,2020, and direct that this appeal be heard before another Magistrate.
c.	I make no order as to costs

A.L.B. Brito-Mutunayagam
                                                             Judge
                                                   9th February,2022