Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

Kumar v Lata [2012] FJMC 5; Civil Action 45 of 2010 (31 January 2012)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
WESTERN DIVISION
FIJI ISLANDS

Civil Action No. 45 of 2010

Between :

SARWAN KUMAR of Kabisi, Sigatoka, Farmer.
Plaintiff

And :

KESHNI LATA of Olosara, Sigatoka, as Sole Executor and
Trustee of the Estate of Prem Wati.
Defendant

Before Mr. Chaitanya Lakshman
Resident Magistrate

Counsels: For the Plaintiff: Mr. Robinson Prasad

For the Defendant: Mr. Epeli Vula

Ruling on Jurisdiction

1). Introduction

The Plaintiff in this Action is one of the Beneficiaries under the Estate of Prem Wati. The Defendant is the sister of the Plaintiff and is the Sole Executor and Trustee of the Estate of Prem Wati by virtue of Probate # 40183.

The Plaintiff cultivates a farm under the said estate. The proceeds are deposited in the Estates Bank account. The Defendant is required to withdraw the monies and hand to the Plaintiff. The Plaintiff is claiming from the Defendant a sum of $953.00 being cane proceeds which is alleged to have been deposited in the bank account, plus legal cost of notice $150.00, interest at rate of 5% from date of judgment until final payment.

2). The Defendant filed a Statement of Defence and stated that the Plaintiffs claim be dismissed, that Probate number 40183 be revoked (the defendants pleading used the words "revocated"), the Plaintiff pay the Defendant special damages of $3200 for Defendants service to the Estate, and costs.

3). The Court noted from the pleadings that there were issues about the Estate and the Will and therefore the Court invited submissions from the parties on the jurisdiction of this Court. The Court noted from the Writ that the Plaintiff claimed the sum as sum due and owing by the Defendant to the Plaintiff. The Defendants in the Statement of Defence brought in issues of resignation of the trustee,

4. Submissions

The Plaintiff and the Defendant Counsels filed submissions on the issue.

It would be worthwhile stating at this point that when making submissions the Counsels cite the correct and relevant laws. They should be very precise and that at the Magistrate's Court level where the Court deals with numerous cases (civil, criminal and family) and we end up reading numerous files and writing many rulings and judgments we seek that submissions are correct as to the law, and only relevant points and issues are covered. The Counsels should not raise irrelevant issues. The Court only wants relevant and to the point submissions and un-necessary points and issues that are raised are waste of all our time. Once Counsels are found citing incorrect laws and making irrelevant submissions the Court becomes very cautious. Counsels should note that the Court is seeking submissions so that it could be assisted in making it decision. Submission of incorrect laws and irrelevant issues do not assist the Court. This Court hopes that this concern is taken heed of and in future submissions are to the point and correct and relevant laws are cited.

5. The Law
   

The Jurisdiction of the Magistrate's Court is governed by the Magistrates Court Act and as a result of subsequent amendments is now covered by Magistrates Court Act (Amendment) Promulgation 2007 (Promulgation No. 34 of 2007). I have pointed this Law out as in one submission there is reference to Section 16, Cap 14 of the Laws of Fiji, Subsidiary Legislation which incidentally has been amended and replaced by Magistrates Court Act (Amendment) Promulgation 2007 (Promulgation No. 34 of 2007).

Section 16.-"(1) 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 three thousand dollars;

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

"Provided that a magistrates' court shall not exercise jurisdiction-

(i) in suits wherein the title to any right, duty or office is in question; or

(ii) 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......

(v) in any action for malicious prosecution, libel, slander, seduction or breach of promise of marriage."

6). The Ruling

The Court has noted from the Plaintiff's Writ that the Plaintiff has made a claim seeking payment of $953.00 which is alleged to be paid into the Estate bank account managed by the Defendant who is the Sole Executor and Trustee of the said Estate. The Money paid is cane proceeds. The Defendant neither denies nor admits the payment and as per her defence is seeking proof of the same from the Plaintiff.

The Court has noted from the relevant laws cited, its jurisdiction and is very cautious when jurisdiction comes an issue. This Court takes note that it cannot exercise jurisdiction 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". The Court finds the suit filed seeks that the Defendant who is the Sole Executor and Trustee perform her role as per the probate which involves paying the beneficiaries their entitlements. The Court also notes that the Writ does plead that the Executor and Trustee is not performing her role and has "failed to and/or neglected to do so". While the Plaintiff does not raise any issue of revocation of the role of the Defendant as the Executor and Trustee, the Defendant does so.

In dealing with this case the Court might need to look at the Probate and the Will and with that in mind This Court finds that it does not have jurisdiction to deal with the issue.

However, having seen the pleadings the Court without taking over any role of the Superior Courts, this Court would like to state that the Counsels for the Parties should talk the issues over as it seems the issues seeking payment can be resolved by perusing the documents which will surely be in possession of the Parties.

7). The Court Orders as follows:

(a) The Court has no jurisdiction to hear this matter.

Chaitanya Lakshman
RESIDENT MAGISTRATE
31/01/2012