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Costal Development Ltd v Razak [2013] FJMC 372; Civil Case 433.2008 (14 October 2013)

IN THE FIRST CLASS MAGISTRATES COURT
OF FIJI SUVA
CIVIL JURISDICTION

Civil Action No. 433/2008

BETWEEN:

COSTAL DEVELOPMENT LIMITED a duly incorporated company having its registered office at 18 Aurora Avenue, Makoi, Nasinu.
PLAINTIFF

AND:

MOHOMAD RAZAK trading as AUTO ONE EXPORTERS (formerly of Lot 33 Stage 1, Makoi, Nasinu) now of 142 Ratu Mara Road, Suva.
DEFENDANT

RULING

1. This is the ruling with regard to the application made by the learned Counsel for the Plaintiff at the closing of the Plaintiff's case to strike out the counter claim of the Defendant.
   
2. The case for the Plaintiff was concluded on 16th September 2013 after leading the evidence of only one witness. After it was closed the Counsel for the Plaintiff made an application to strike out the counter claim of the Defendant on the basis that the defendant failed to ask any question from the Plaintiff's witness about the claim.
   
3. Both parties have been invited to file written submissions regarding this which they obliged.
   
4. The Plaintiff relies on the principle as set out in Mohammad Shikandar Bukasha v Central Meat Compnay (Nasouri MC Action No. 77/2010) in support of this contention. The Counsel in addition also based his application on Brown v Dunn.
   
5. The Defendant in their submission submitted Sewak v Narayan [2008] HBC 118 of 2007 where it was held:
   

"In such a situation where crucial elements of the Defendant's case have never been put to the Plaintiff, the common law rule from Browne v Dunn (1893) 6 R 7 must apply, that is, as no notice was given either through cross-examination or in the pleadings of the above crucial elements of the Defendant's case, the Court must rule whether to exclude the consideration of such evidence."

6. I have carefully perused both submissions and do not think the Mohammad Shikandar Bukasha v Central Meat Compnay (Nasouri MC Action No. 77/2010) would be useful to the Plaintiff as in that case order was granted to strike out the counter claim only after a full hearing.
   
7. As noted in Sewak v Narayan [2008] HBC 118 of 2007 it was decided that Brown v Dunn will apply in a situation where no notice was given either through cross examination or in a pleading.
   
8. In this case even though no questions were asked about the counter claim during the Plaintiff's case I agree that the Plaintiff is fully aware about this through the defendant's pleading. Therefore I do not think Brown v Dunn rule would be applicable in this kind of situation.
   
9. Therefore even without putting his counter claim to the Plaintiff's witness the defendant is able to maintain this in his defence. The weight to be given to the counter claim is to be decided at the end of the hearing and it is premature to decide about this at this juncture.
   
10. Now I would turn my attention to an application made by the defendant in his written submission. The defendant request this Court to amend the Para 3 of the PTC Minutes. When this was made during the Plaintiff's case the Plaintiff strongly objected and now they have made it again through their submission.
    
11. The PTC Minutes were filed on 18th September 2012 and in that in Para 03 both parties agreed that the Plaintiff gave its motor vehicle (subject matter in this case) to the Defendant. Now the defendant is disputing the ownership of the vehicle.
    
12. Even in the Statement of Defence filed on 01st December 2009 they did not dispute about the ownership of the vehicle. The Plaintiff has already closed his case also. Allowing this amendment to the PTC Minute would mean amending the pleadings and recalling the witnesses again. I do not think that would be suitable in this case.
    
13. For the reasons mentioned above I dismiss the Plaintiff's application to strike out the counter claim of the defendant. I also reject the defendant's application to amend the PTC Minutes.
    

14th October 2013

H.S.P.Somaratne
Resident Magistrate