IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
CIVIL JURISDICTION
	
CIVIL APPEAL NO. HBA 1 OF 2022.
M.C.Lautoka Civil Case No-87/2018

BETWEEN		:	MAHENDRA SHARMA of Naikabula, Lautoka, and Businessman
1st APPELLANT
(ORIGINAL 1ST PLAINTIFF)

AND	:	MAHENDRA SHARMA of Naikabula, Lovu, Lautoka, in the Republic of Fiji, Businessman, as the Administrator in the ESTATE OF RAJENDRA SHARMA late of 153 triangle Road, Massey, Auckland, New Zealand, Builder Intestate and in propria persona
2ND APPELLANT
(ORIGINAL 2ND PLAINTIFF)

AND	:	MOHAMMED IBRAHIM of Naikabula, Lautoka and/ or the Occupants upon Asdullah Khan’s Property
1ST RESPONDENT 
	
AND	:	HASMAT KHAN of Naikabula, Lautoka and/ or the Occupants upon Hasmat Khan’s Property
2ND RESPONDENT 

AND	:	SHAFIQ KHAN of Naikabula, Lautoka and/ or the Occupants upon Safiq Khan’s Property
3RD RESPONDENT

AND	:	ITAUKEI LAND TRUST BOARD a body corporate duly constituted under the iTaukei Land Trust Act Cap 134.
4TH RESPONDENT 

BEFORE 		:	Hon. Mr. Justice Mohamed Mackie

APPEARANCES	:	Mr. M. Kumar, for the 1st Plaintiff.
			:            1st to 3rd Respondents appear in person.
Mr. Ratule K, for the 4th Defendant
    	
DATE OF JUDGMENT	:  	12th February, 2024

JUDGMENT

A.	INTRODUCTION:

1.	This is a timely Appeal preferred by the Plaintiff-Appellant (“the Appellant”) on 29th December 2021, with the Notice of Intention of Appeal being filed on 17th December 2021, against the Ruling pronounced by the learned Resident Magistrate (the Magistrate) of Lautoka on the 15th December 2021.

2.	By the impugned Ruling, the Magistrate had made the following Orders;

1.	That the application to strike out the action is granted on the basis that the Court has no jurisdiction.
2.	The Plaintiff is to pay costs to the 4th defendant summarily assessed at $500.00.

B.	BACKGROUND HISTORY:

3.	The Appellant on 21st August 2018 filed his writ of Summons and the Statement of Claim at the Magistrate’s Court of Lautoka against the 1st to 4th Defendant-Respondents (“the Respondents”) seeking the following reliefs:

1.	An Order that the 1st, 2nd and 3rd Defendants do forthwith remove the present fence constructed beyond their lawful boundaries at their own cost.

2.	An Order that the 1st,2nd and 3rd Defendants do forthwith remove all structures , buildings, obstructions erected beyond their lawful boundaries at their own cost.

3.	An Order that 1st, 2nd and 3rd Defendants be restrained from interfering with the 1st and 2nd Plaintiffs’ erection of a fence along their lawful boundaries.

4.	An Order that the 1st and  2nd Plaintiffs be authorized to enter upon  and remain on the 1st, 2nd and 3rd Defendants’ lease hold and remain thereon  to carry out necessary erection of a proper fence  along the lawful boundary.

5.	An Order that the 1st, 2nd and 3rd Defendants jointly and severally  pay all costs  of removal and clearance of the  offending structures  and together with the costs of erection of a proper fence along the lawful boundary.

6.	An Order that the 1st, 2nd and 3rd Defendants jointly and severally  pay reasonable compensation for the loss of use  of the 1st and 2nd plaintiffs’  property  by the construction of the illegal fence and such compensation to be paid within the jurisdiction of  the Magistrate Court.

7.	An Order that the 4th Defendant at its own expenses take all necessary steps to confirm the lawful boundary between the parties leasehold.

8.	An Order that the Defendants jointly and severally pay costs of these proceedings.

Application for Strike Out:

4.	When the action was to continue in normal way, the 4th Defendant, having filed the Notice of Intention to Defense on 5th June 2019, subsequently filed a Notice of Motion on 12th July 2019, along with an Affidavit in support sworn by CEMA ROKOMATU, Senior Estate Officer, seeking reliefs, inter alia, to have the claim struck out alleging it is an abuse of process pursuant to Order 18 Rule 18(1) (d) of the High Court Rule 1988 and under inherent jurisdiction of the Court.

5.	The Magistrate, after entertaining written submissions from the Plaintiff and the 4th Defendant, by his Ruling dated 14th August 2020 made the following orders:

1.	The application by the 4th Defendant to strike out the claim is dismissed.

2.	The Plaintiff and the Defendants are ordered to file submissions on the issue whether this Court has jurisdiction to deal with the claim that has been filed in Court. Each party given 14 days to make submissions, simultaneously.

3.	No Orders as to Costs.

6.	By the said Ruling, apart from refusing to strike out the Claim as per the Application of the 4th Respondent, the Magistrate in the absence of an application on the part of any Respondent, and acting on his own motion went one step further and directed the parties to file written to decide whether his Court had the jurisdiction to deal with this claim. 

7.	Accordingly, after entertaining written submissions from the Appellant and 4th Respondent, the Magistrate on 15th December 2021 proceeded to make the impugned Ruling referred to in paragraph 2 above to strike out the Appellant’s action, which contradicted his earlier Ruling made on 14th August 2020 (referred to in paragraph 5 above) by which he had refused to strike out.
	
8.	As a result, there are two conflicting Rulings made by the same Court on the same striking out application preferred by the    same defendant pursuant to Order 18 Rule 18 (1) (d) of the High Court Rules 1988.

C.	GROUNDS OF APPEAL:

9.	Aggrieved by the above Ruling dated 15th December 2021, the Appellant has filed this Appeal on 6 grounds of Appeal, out of which, in my view, grounds 1, 2 and 4 are meritorious enough to dispose this Appeal. I shall not proceed to consider the grounds 3 and 5 as I have my reservation whether the Magistrate should have considered the matters therein, when he was called up on to decide the matter only under section 20 of the Fencing Act. 

10.	I shall leave out the ground 6 as well since the leading of both oral and documentary evidence need not have, necessarily, warranted the decision in favor of the Appellant as averred in the said ground of Appeal No-6. Further, since the issues herein are already decided or to be decided by the Supreme Court, I am of the view that this Court should not delve into it. 

11.	I shall reproduce the grounds of Appeal 1 to 6 as follows for the sake of clarity and easy reference.
 
1.	The learned Magistrate erred in laws and in fact in dismissing the 4th Respondent’s application to strike out the Appellant’s claim and then striking out the Appellant’s claim on irrelevant and unsupported basis.
2.	The learned Magistrate erred in law and in fact in dismissing the Appellant’s claim on a misconceived basis that is the Appellant’s claim was based on equity and not on an Application of a statutory provision, namely the Fencing Act.
3.	The learned Magistrate erred in law and in fact in dismissing the Appellant’s claim when there was no evidence from the Respondents that any survey Plan and not necessarily that Appellants would have shown that the 1st to 3rd Respondents had encroached on the Appellant’s property.
4.	The learned Magistrate erred in law and in fact in dismissing the Appellant’s claim on an erroneous basis.
5.	The learned Magistrate erred in law and in fact in dismissing the Appellant’s claim when there was no correct survey forthcoming from the 4th Respondent to challenge the Appellant’s survey.
6.	The learned Magistrate erred in law and in fact in dismissing the Appellant’s claim prematurely that is without the reception of oral and documentary evidence, which would have found a case in favor of the Appellant under the Fencing Act.

D.	ANALYSIS AND DETERMINATION:

12.	 At the brief hearing held before me, learned Counsel for the Appellant made oral submission, in addition to the contents of the written submission filed, particularly stressing on the 1st ground of Appeal. Learned Counsel for the 4th Respondent, having considered the current issue before the Court highlighted by the Counsel for the Appellant, intimated that the intervention of this Court may be warranted for the Appellant’s Appeal to be considered favorably and the substantial matter to be duly dealt with by the Magistrate.

13.	As alluded to by me in paragraph 8 above and submitted by the Counsel for the Appellant, the Magistrate, who dismissed the Application for Strike Out on 20th August 2020, could not have revived the same Application again and allowed it by his subsequent Ruling made on 15th December 2021. Thus, the ground 1 should succeed.

14.	What the Magistrate was expected to perform was to exercise his jurisdiction conferred under section 20 of the Fencing Act, and not to consider any other extraneous matters that he was not called upon adjudicate. After dismissing the Application for striking out on 20th August 2020, rightly or wrongly, he could have either proceeded to fix the matter for formal proof, as none of the Respondent had filed their statement of defense, or afforded them an opportunity to file the same and proceeded for trial. 

15.	As the 1st to 3rd Respondents were without any legal representation and all the Respondents were mainly focusing on the Striking out Application preferred by the 4th Respondent, before the Magistrate, the most prudent next step after dismissing the said striking out application, in my view, was to afford them an opportunity file their statement of defense in order to proceed for trial. However, liberty of giving an opportunity to file statement of defence should be left in the hands of the Magistrate, who hears the substantial matter. 

16.	Further, even if a party moves to decide the matter on a preliminary issue like the question of jurisdiction, always it is prudent to decide  such a matter after taking the evidence at the trial proper, in order to avoid any possible miscarriage of justice.

17.	Learned Magistrate has clearly erred, not only, by striking out the action on a non-existent striking out Application, but also  by proceeding to decide on the question of jurisdiction, on his own move, and dismissing the action in the absence of any evidence and an Application by the Respondents to that effect.

18.	Accordingly, I decide to allow the Appeal by setting aside the Ruling dated 15th December 2021 and direct the matter to be heard by another Magistrate, who is left at liberty to decide whether to allow the Respondents to file their Statement of Defensce or not, considering the overall circumstances.

E.	FINAL ORDERS: 

1.	The Appeal is allowed.
2.	The impugned Ruling pronounced by the learned Magistrate of Lautoka on 15th December 2021 is hereby set aside.
3.	The matter be heard and disposed by another Magistrate of Lautoka as expeditiously as possible.
4.	No costs ordered and the parties will bear their own costs.
5.	The original case record, along with a copy of this judgment, be dispatched to the Magistrate’s Court of Lautoka forthwith.
6.	These Orders be sealed and served on the Respondents. 

A.M. Mohamed Mackie
Judge

At the High Court of Lautoka on this 12th day of February, 2024.

SOLICITORS:
For the Appellant:		Messrs Fazilat Shah Legal, Barristers & Solicitors 
For the 4th Respondent:	In-house Solicitors for T.L.T.B.
1st to 3rd Respondents:           Appear in person.