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Credit Corporation (Fiji) Ltd v Sokosoko [2015] FJMC 114; Civil Case 77.2012 (24 June 2015)

IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Case No. 77/2012

BETWEEN:

CREDIT CORPORATION (FIJI) LIMITED
a limited liability company having its registered office at Credit House,10 Gorrie Street, Suva, Fiji.
Plaintiff

AND:

KINUNWAI SOKOSOKO and TALICA SOKOSOKO Both
of Lot 9,Kalabu Housing, Nasinu, Unemployed and Nurse Midwife respectively.
Defendants

Ms. Sharma for the Plaintiff
HM Lawyers for the Defendants

RULING ON OBJECTION BY DEFENDANTS

Fact

[1]The Plaintiff of this action filed their statement of claim 24th February 2012 claiming the balance sum of $ 4,352.13with the other court cost and other remedies from the above mentioned defendants as the balance amount due out of purchasing of a second hand vehicle Registration Number DJ 546 (Eng:35-9727291 Chassis: SXA110134640) under Asset Perches Agreement dated 5/08/2005.

[2]The defendants filed statement of defence. The defendant did not dispute the existence of the subject contract but has listed their hardships. Further this court noticed the defendants indirectly raised a preliminary objection that the matter has been closed at Small Claims on 09/03/2009 on the ground of non-appearance of the clement (the plaintiff). The statement of defence was irregular and lack of formal legal format such as there was no pray. But since the mention objection was taken before this court on 19/2/2014 this court advice the parties to file written submission on the jurisdiction of this court on hearing this matter.

[3] Both the parties filed their written submissions. As this matter is not an appeal or reviews of the decision of the Small Claims Tribunal (Here after referred as SCT) the sole concern of the bench at this moment is legality of the proceeding of this case but nothing about the proceedings at SCT or the merits of the case.

[4]The basic issue before this court was to determine whether

a) Whether the Magistrate Court conferred jurisdiction to hear this matter as a fresh application other than as an appeal or reweave as the matter already filed and struck out by SCT?

b) If the answer is "yes" for the above dose the principle of res judicata applies here and preventing the Magistrate Court from hearing this matter on merits?.

[5] ISSUE a) Whether the Magistrate Court conferred jurisdiction to hear this matter as a fresh application other than as an appeal or reweave as the matter already filed and struck out by SCT?

The SCT is considered as lowest court in the judicial system of Fiji. As per section 3 and 4 of Small Claim Tribunal Decree 1991(Hereafter referred as Decree) SCT enjoys divisional civil jurisdiction of Magistrate Court.

[6] According to section 8 and 9 of Decree SCT has been conferred with concurrent jurisdiction on certain matters which the claim or subject value is less than $ 5000. It is noted that Magistrate Court has exclusive jurisdiction for some matters and this jurisdiction not conferred to SCT. But the jurisdiction of this matter is conferred to both institutes. Therefore it is vital to answer the issue of legality of filing a new application upon the same issue by a party whom abandoned the matter at SCT.

[7] This court noticed that the SCT is acting as a normal civil court and which is engaged in the same dispute resolution mechanism with regard to matters listed under the same. Therefore the litigants have been given election to select that in which forum they prefer to have their matter to be heard. Once any litigant has taken this decision to proceed in one court it cannot switch to the other court at the same time. As per section 14 of the decree confirms this as follows.

"Sec: 14.-(1) If a claim is lodged with or transferred to a Tribunal and is within its jurisdiction, the issues in disputes in that claim (whether as shown in the initial claim or as emerging in the course of the hearing) shall not be the subject of proceedings between the same parties in any other Court or Tribunal unless -

(a) an order is made under section 22 or section 35(1)(c);

(b) the proceedings before that other Court or Tribunal were commenced before the claim was lodged with or transferred to the Tribunal; or

(c) the claim before the Tribunal is withdrawn, abandoned, or struck out.

(2) If subsection (1)(b) applies to proceedings before another Court or Tribunal, the issues in dispute in the claim to which those proceedings relate (whether as shown in the initial claim or emerging in the course of the hearing) shall not be the subject of proceedings between the same parties to a Tribunal unless the proceedings are transferred to a Tribunal under section 23 or the claim before the other Court or Tribunal is withdrawn, abandoned, or struck out.

[8] The general practice is either party would file their case a SCT or Magistrate Court. If the case filed in SCT if final order granted party move to Magistrates court for appeal purpose or for the enforcement. In the event of abandonment of the case or withdrawal or struck out litigant can file new application or application for reinstatement at SCT.

[9] If litigants thinking of transferring their case between SCT and Magistrate Court it is possible after making application of transfer at SCT or Magistrate Court as both institutes empowered with equal concurrent Jurisdiction.

[10] If the matter withdrawn the claimant will have privilege of election of institute. Therefore claimant could file his claim either in SCT or Magistrate court as nothing happened before. This court think this stand shall applicable for abandon of case as well as for struck out but it must be subject to specific cost of the litigation of the opposite party as this may defiantly cause hardship for them.

[11] Further it is not logical to say that when a matter struck out by any of this institute, the parties cannot go to the other without pay any cost to defendant by way of new application without filing application of reinstatement in the same court as this both using same jurisdiction within same court system. It is well known fact that when the SCT or Magistrate Court entertained application for reinstatement obviously has to concern about the loss suffered by the defendant.

[12] Therefore this court answer issue no (a) as "yes". But the defendant will be entitled for the cost of litigation at SCT at the ruling of the substantial matter.

[13] ISSUE no (b) If the answer is "yes" for the above dose the principle of res judicata applies here and preventing Magistrate Court from hearing this matter on merits?.

The plaintiffs stand in this issue is since the matter has not decided on its merits this court has full jurisdiction to hear the matter and it is not subjected to res judicata. Further the plaintiff adds they have come to court within the prescribed time therefore the struck out at SCT is irrelevant for bringing the issues a fresh case.

[14] The principle of res judicata may be used either by a judge or a defendant. Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. The general rule is that a plaintiff who prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:

(i) Claim is based on the same transaction that was at issue in the first action;

(ii) The plaintiff seeks a different remedy, or further remedy, than was obtained in the first action;

(iii) The claim is of such nature as could have been joined in the first action.

[15] In Carl-Zesis-Stiftung v Rayner and Keeler Ltd and Others (No 2) [1966] 2 ALLER 536, Lord Guest said (at 564-565);

"As originally categorized, res judicats was known as "estoppels by record". But as it is now quits immaterial whether the judicial decision is pronounced by a tribunal which is required to keep a written record of its decisions, this nomenclature has disappeared and it may be convenient to describe res judicata in its true and original form of "cause of action estoppels". This has long been recognized as operating as a complete bar if the necessary conditions are present. Within recent years the principle has developed so as to extend to what is now described as "Issue estoppels", that is to say where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided then that may create an estoppels per rem judicatam".

[15] For the application of the principle of res judicata it is necessary to consider several factors by a bench and which could be lineup as that;

(a) the identity in the thing at suit;

(b) identity of the cause at suit;

(c) identity of the parties to the action;

(d) identity in the designation of the parties involved;

(e) whether the judgment was final; and

(f) whether the parties were given full and fair opportunity to be heard on the issue.

[16] Without considering above mentioned factors court cannot stop hearing of a case under principle of res judicata. In the matter of LeduaVs Colonial Life Fiji Ltd [2008] FJHC 363 adopting the case of Yat Tung Co Vs Dao Heng Bank [1975] UKPC 6; [1975] AC 581, at page 581 Lord Kibrandon said

"The shutting of a subject of litigation a power which no court should exercise but after a scrupulous examination of all the circumstances is limited to cases where reasonable diligence would have caused a matter to be earlier raised, moreover although negligence would have caused a matter to be earlier raised, moreover although negligence in advertence or even accident will not suffice to excuse, nevertheless special circumstances are reserved in case justice should be found to require the non-application of the rules".

[17]In Pople v Evans [1968] 2 ALLER 743, the plaintiffs sued the defendant on an alleged contract, and the defendant applied to strike out the Statement of Claim as res judicata relying on an earlier order dismissing the plaintiff's action for want of prosecution. The Court holding that the dismissal was not as a result of trial, admissions, pleading default or otherwise in any sense a decision on the merits, it was just dismissal for want of prosecution said at page 752:

"The principle of the Court is that, unless the merits of the case have been dealt with, the dismissal is not a bar to another action of the same kind",

It ruled that the plaintiff's claim was not barred as res judicata for the following reason:

"(1) estoppels by res judicata could not be maintained merely by reason of the dismissal of an action for want of prosecution for the estoppels by res judicata was intended to be limited to the decision of issues on their merits as eg. When orders were made on trial of an admission or by way of compromise".

[18] Since the both parties have not been heard and there is no final determination on the merits principles of res judicata would not preventing this bench from hearing this matter. Therefore this court answers issue number (b) as "NO".

[19] This court is mindful of the right of litigation of the plaintiff as well as the cost of litigation of the defendants. Therefor to minimized the abused of process without preventing the plaintiff from his rights, this court intend to grant cost for the 1 and 2 defendants. Until the matter finally decide by either SCT or Magistrate Court claimant or Plaintiff can excised his rights of litigation as his wish but it must be subject to the other parties' rights as well.

[21] Based on the above mentioned reasoning this court,

1. Overruled the objection of the 1st and 2nd defendants on the jurisdiction of this bench to hear this matter and order parties to take step to proceeds hearing the matter on merits at appropriate date.
   

On 24thJune 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate