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Sharma v Motibhai & Company Ltd [2012] FJMC 285; Civil Action 263.2008 (25 October 2012)

IN THE MAGISTRATE’S COURT

AT SUVA,FIJI

CIVIL ACTION N0: 263 of 2008


BETWEEN: KAMAL DEO SHARMA


PLAINTIFF


AND: MOTIBHAI & COMPANY LIMITED,


COMMISSIONER OF POLICE,


ATTORNEY GENERAL OF FIJI 1st, 2nd and 3rd DEPENDANTS


BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,


COUNSEL: Messrs M.K. Khan for the Plaintiff,


Messrs Sherani Law for the 1st Defendants,


Attorney General’s Chambers for the 2nd and 3rd Defendant,


Date of the Ruling : 25th of October 2012.


RULING


  1. The 1st Defendant / Applicant (hereafter refers as the 1st Defendant) filed this notice of motion together with an affidavit in support on the 27th day of January 2012 seeking following order inter alia
    1. The plaintiff’s writ of summons and statement of claim filed in the Magistrates Court in this action on 1st December 2011 be struck out on the grounds that;
      1. It discloses no reasonable cause of actions and remedies,
      2. It is an abuse of the court process due to a parallel criminal action,
      1. The person making the complaint is responsible for this action and,
      1. The plaintiff’s action is scandalous, frivolous or vexatious,
  2. It is noteworthy to briefly state the backgrounds of this writ of summon filed by the plaintiff before I proceed with my ruling on this application to strike out. The plaintiff instituted this case by filing a writ of summons with his statement of claim against these three defendants on the 1st day of December 2011 seeking following orders inter alia, that;
    1. The sum of $3,288.95 being the amount paid to the defendant,
    2. General damages,
    3. Loss incurred by the plaintiff,
    4. Cost and interest.
  3. The plaintiff claims that he paid the 1st Defendant a total sum of $3,288.95 by way of cash for the items he purchased from the 1st Defendant on the 22nd of June 2011. However the agents of the 2nd Defendant approached him and then seized the items which he purchased while he was loading them in to his vehicle at the warehouse of the 1st Defendant. The plaintiff further claims that the 1st Defendant should have returned the money he paid for the good as the accusation of theft was against the servants of the 1st defendant. His contention against the 2nd Defendant is that the 2nd Defendant should have at least taken photographs of the goods or considers other options instead of refuse to deliver the goods back to the plaintiff.
  4. Assistant Superintendent of Police Sami Surend stated in his affidavit in support of the 1st Defendant’s notice of motion, that the 2nd defendant acted on the formal complaint lodged at the Central Police Station on 22nd June 2012 by Dinesh Bala the Manager of the 1st defendant for a suspected involvement of company’s employee in Suva regarding a theft of company’s good. It is a lawful obligation of the 2nd defendant to conduct a thorough criminal investigation into the allegation upon receiving of such complaint. He further deposed that having conducted a proper investigation into the allegation and the verification of the goods involved in the allegation the 2nd Defendant seized the items which were inside the vehicle of the plaintiff.
  5. ASP Surend deposed that upon completion of proper criminal investigation into this matter, it was established that there was reasonable and probable cause of action to institute criminal charges for falsification of documents, obtaining property by deception and conspiracy to defraud. Accordingly, four employees of the 1st defendant were charged in the Magistrates’ court and it was set down for hearing on the 28th and 30th of May 2012. The items seized by the 2nd Defendant during the cause of this criminal investigation are now exhibited for the criminal proceeding and vital evidence for the prosecution. Having stated aforementioned grounds ASP Surend prayed to dismiss the plaintiff’s claim against the 2nd and 3rd Defendants.
  6. The Plaintiff in his affidavit in reply stated that he is not charged with any criminal offence and only the four employees of the 1st Defendant were charged. He stated that having considered the perishable nature of the items seized by the 2nd Defendant, he should have found other alternation instead of holding them till the end of the court proceedings.
  7. The 1st defendant, in his affidavit in reply stated that he has no objection for the 2nd Defendant’s application.
  8. Subsequent to filing of Affidavits, the matter was set down for hearing. All parties to this proceeding agreed to have the hearing by way of written submissions. However only the 2nd Defendant filed a detailed and comprehensive written submission which I carefully perused and considered in this ruling.
  9. Having carefully perused and considered the affidavits filed by the parties to the proceeding and the written submissions filed by the 2nd and 3rd Defendants, I now proceed to pronounce my ruling.
  10. The defendant’s main contention is that there is no reasonable cause of action and remedies sought against the 2nd Defendant. The 2nd defendant argues that its involvement in this incident based on a formal complaint lodged at the Central Police Station and it is a lawful obligation of the 2nd Defendant to conduct proper investigation into the complain pursuant to section 5 of the Police Act.
  11. Section 2 of the Magistrates’ court (Civil Jurisdiction) Decree 1988 has precisely stipulated the Civil Jurisdiction of the Magistrates’ court. It states that “

“A resident magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes-

(a) (i) in all personal suits arising out of any accident in which any vehicle is involved where the amount, value or damages claimed, whether as a balance claimed or otherwise, is not more than fifteen thousand dollars;

(ii) in all other personal suits, whether arising from contract, or from tort, or from both, where the value of the property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than fifteen thousand dollars;

(b) (i) in all suits between landlords and tenants for possession of any land (including any building or part thereof) claimed under any agreement or refused to be delivered up, where the annual value or annual rent does not or did not exceed two thousand dollars;

(ii) in all suits involving trespass to land or for the recovery of land (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof);

(c) in any of suit covered by p by paragraphs (a) and (b) whateve vthee, amount, debt debt, damages sought to be recovered is, or whatever the annual value or annual rent is, if all the parties or their respective barrisand stors nt th in writing:

PrProvideovided thad that whet where any such suit has already been commenced in the High Court it may only be transferred to a resident magistrate's court with the prior consent of the High Court;

(d) to issue wof habeas corpus rpus for the production before the court of any person alleged upon oath to be wrongfully imprisoned and detainnd to make orders thereon;

(e) to appoint guardianinfants,ants, and to m to make orders for the custody of infants;

(f) to grant in uit instituted uted in the court injunctions or orders to stay waste or alienation or for ttention and preservation ofon of any property the subject of such suit, or to restrain torts or breaches of contracts;

(g) to enforce by attachment any order made by the court;

(h) to commit to prison term nerm not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or installment of any debt due from himpursuance of any order or judgment of the court or any othe other competent court:


  1. In view of the section 2 (1) of the Magistrates Court (Civil Jurisdiction) Decree 1988, the plaintiff has not specifically stated that he has a proper cause of action or claim against the 2nd and 3rd Defendants which would falls within the ambits of the section 2 (1) of the said Decree.
  2. The plaintiff claim is in nature of personal suit. The jurisdiction of the personal suit in the magistrates’ court is limited to the personal suits arising from accidents, from contracts, from tort and/ or from both contract and tort. The plaintiff in pursuant of rule 2 of Order VI of the Magistrates’ court rules is required to state briefly and clearly the subject matter of the claim and the relief he sought against each and every defendant in his writ of summons. It is a mandatory component of a valid and proper writ of summons. The Order VI rules 2 of the Magistrate’s courts’ rules states that “ the writ shall contain the name, place of abode and occupation of the plaintiff and of the defendant, so far as they can be ascertained, and the date (called “return day’) and place of hearing, and there shall be endorsed on the write particulars of the claim signed by the plaintiff or his barrister and solicitor which shall state briefly and clearly the subject matter of the claim and the relief sought”.
  3. The plaintiff merely states that that the 2nd Defendant approached him while he was loading the goods and then sized them informing that the goods were stolen items and there was an accusation of theft against the employees of the 1st defendant. Apart from stating such, he only clams that the 2nd defendant then refused to deliver the goods back and should have at least taken photographs of them or considered other option instead of retained the sized goods. The Plaintiff has not clearly stated the nature of his cause of action against the 2nd Defendant’s such involvement. The plaintiff has not specified in his writ of summons that his claim against the 2nd and 3rd defendants is arising from an accident, from contract or tort or from both.
  4. Moreover, the Plaintiff in his prayer to the statement of claim states that “ the plaintiff claims following from the defendants :-
    1. The sum of $3,288.95 being the amount paid to the defendant,
    2. General damages,
    3. Loss incurred by the plaintiff,
    4. Cost and interest.

However he failed to specified clearly the cause of action he has to claim such orders against the 2nd and 3rd Defendants.


  1. In view of these reasons set out above, I find that the plaintiff has not disclosed a proper cause of action against the 2nd and 3rd Defendants which could fall within the jurisdiction of the Magistrates’ court as it is stipulated in section 2 of the Magistrates’ Court ( Civil Jurisdiction) Decree 1988. Hence I find that the writ of summons filed by the Plaintiff on the 1st day of December 2011 is not in conformity with the mandatory requirements stipulated in Order VI rule 2 of the Magistrates’ court rules and could not be considered as a proper and valid writ of summons. I accordingly hold that there is no proper action instituted against the 2nd and 3rd Defendants by the Plaintiff pursuant to Order VI rule 1 of the Magistrates’ court rules which states that “Every suit shall be commenced by a writ of summons to be issued by the Magistrate or the clerk of the court”.
  2. In conclusion, I dismiss the writ of summons and the statement of claims filed by the Plaintiff against the 2nd and the 3rd defendants. The cost of this application will be summarily determined by the court at the presence of the parties.
  3. Seven days to file notice of intention to appeal.

On this 25th day of October 2012.


R.D.R.Thushara Rajasinghe

Resident Magistrate, Suva.


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