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Naidu v Carpenters Fiji Ltd [2005] FJHC 356; HBA0008.2001 (29 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0008 OF 2001

BETWEEN:

GIRISH KUMAR NAIDU
APPELLANT

AND:

CARPENTERS FIJI LIMITED
RESPONDENT

Mr S K Ram for the Appellant
No appearance for the Respondent
(Messrs Lateef & Lateef Suva)

Date of Hearing: 27 July 2005
Date for Submissions: 17 August 2005
Date of Judgment: 29 September 2005

JUDGMENT OF FINNIGAN J

This is an appeal from a Magistrate’s ruling delivered on 21 March 2001. The Magistrate had held that the claim, which was for damages with no amount specified, was beyond the jurisdiction of the Court and struck out the claim. He also held that the part of the claim which was for defamation was outside the Court’s jurisdiction by reason of Section 16 (1) (i) (v) of the Magistrates’ Courts Act.

Sadly the appeal lay about in the Registry of this Court from April 2001 until April 2005 when it came before me in a general callover. Only Counsel for the Appellant appeared and I supplied to him a copy of the record. The matter was given a firm fixture at 2.15pm on 27 July 2005.

On 27 July there was no appearance by Counsel for the Respondent. From the file I doubt that the Respondent’s solicitors advised of the revival of this appeal. Nonetheless Counsel for the Appellant accepted a timetable whereby both parties would file submissions by 4.00pm on 17 August 2005. The Court undertook to advise the solicitors for the Respondent and it did so by letter dated 1 August 2005.

This matter has been dealt with in the context of many other similar matters. Every case in which Counsel require a hearing is being given a hearing date. Because of the pressure of work on both Counsel and the Court cases to be heard by submission only are frequently timetabled for written submissions with a written ruling thereafter on notice. The ruling is delivered pursuant to the timetable except where Counsel have requested an extension to the timetable. Absence of a submission by any party is a factor taken into account but it does not delay delivery of the ruling or judgment.

This is such a case. As sometimes happens neither Counsel has filed a submission. It might be proper to treat such cases as abandoned and struck them out for want of prosecution but I generally deliver a determination with reasons. In the present case, in the absence of submissions, it is not difficult to determine the appeal and to give reasons.

The Plaintiff in the Magistrate’s Court claimed his employment had been wrongfully terminated and that in the process of dismissing him the Defendant had published a defamation about him. He sought “damages for wrongful termination” and injunction against further defamation (a whimsical remedy in my view), “general aggravated and exemplary damages” and indemnity costs.

I shall deal first with the defamation aspect. I have not previously encounted Section 16 (1) proviso (v) of the Magistrate’s Courts Act before but it does indeed provide that the Court shall not exercise jurisdiction in any action for libel or slander. The claim itself however could be dismissed on its own facts. It is a not unfamiliar situation in which an employee is dismissed upon an allegation of theft. The employer conducted an enquiry. It concluded as a result of its enquiry that theft had occurred and dismissed the employee. In doing so, it wrote him a letter setting out the details of the its enquiry. That is a perfectly proper indeed one might say necessary thing for an employer to do in these circumstances. It informs the employee of how the employer concluded that he should be dismissed. It is a fair procedure. In so far as a letter sets out the details of the enquiry (as one presumes it does in this case) it is a recital of facts as revealed in the enquiry and can only be challenged as defamation if it does not speak the truth about that enquiry and about the conclusion reached. To do so is to speak the truth and not to defame.

In respect of jurisdiction I have not been able to see an argument for the appellant. The Magistrate relied on Govind Holdings Ltd –v- Nand Civil Appeal No HBA0015 of 1998L a judgment of this Court dated 17 March 2000. In that case this Court relied on a principle stated by Hammatt J in Imam Din –v- Muna Lal Civil Appeal HBA0004 1966 which it set out as follows:

“In the Magistrate’s Court a litigant is not entitled to claim general damages to an unspecified amount. He must state the amount of his claim in order that it may be seen to be within the jurisdiction of the Court and in order that the appropriate court fee which is based on the amount of the claim can be assessed and paid”.

It may have been Counsel’s intention at one time to challenge the long standing practice based on that dictum. If however it was his intention to abandon the appeal then I would not be surprised.

The appeal is dismissed without costs.

D.D. Finnigan
JUDGE

At Lautoka
29 September 2005