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Devi v Waqavonovono [2005] FJHC 640; HBC0307.1999 (15 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0307 OF 1999

BETWEEN:

MANJULA DEVI
PLAINTIFF

AND:

MAKERETA WAQAVONOVONO
1ST DEFENDANT

THE ATTORNEY GENERAL OF FIJI
2ND DEFENDANT

Mr Koya [For Mr Iqbal Khan] for the Plaintiff
Ms S. Tabaiwalu for the Defendants

Date of Hearing: 17 June 2005
Dates of Submissions: 24 June, 1 July, 8 July 2005
Date of Ruling: 15 July 2005

RULING OF FINNIGAN J

I have before me the Defendant’s applications to set aside a default judgment in liability [2 September 1999] and to strike out the substantive claim [17 August 2000]. Submissions were timetabled, but filed only by the Defendant.

The Plaintiff sues a Magistrate for putting her in the custody of the Lautoka Police on 10 to 11 August 1999. She pleads that the Defendant acted wrongfully and without any jurisdiction [or alternatively in excess of jurisdiction] and that she acted maliciously and without reasonable cause, well knowing that she was acting without jurisdiction or in excess of jurisdiction. This plea takes the matter outside the ambit of Section 65 of the Magistrates Courts Act which protects a Magistrate from suit for any Judicial Act within or without jurisdiction so long as she/he acts in good faith. What is alleged here is bad faith.

On 2 September 1999 an interlocutory judgment was entered by the Deputy Registrar on the basis that no acknowledgement of service had been filed. The same day the Defendant applied to have that judgment set aside. No affidavit in support is on the file but I uphold that application without hesitation. There is no application for interlocutory judgment on the file, but presuming one was made I assume it was made under Order 19 Rule 7 of the High Court Rules. This is a discretionary application and while the Court is obliged to give judgment it must do so only after a hearing and in so far as the Plaintiff appears entitled. There is no record of any hearing in the present case and in any event judgment by default on an allegation of this kind would seldom if at all be appropriate, in my view.

I turn to the application to strike out the action as disclosing no reasonable cause of action. Only the Defendant filed written submissions in support of the application. Counsel for the Plaintiff was advised that a ruling would be issued with submissions filed or not and I assume the Plaintiff abides whatever reasonable decision I make.

Counsel for the Defendant submits, with authorities, that whichever way the statement of claim is considered the facts pleaded disclose no cause of action against the Attorney General either as a Minister of the Crown or as representing the Crown. I uphold that submission and dismiss the Attorney General from the action on that ground.

However the situation is different in respect of the Magistrate herself. Under Section 65 of the Act she is immune from suit only provided that “she at the time in good faith believed herself to have jurisdiction to do or order the act complained of”. It is pleaded that she fell outside the proviso. The pleading in my view discloses a reasonable cause of action.

I therefore order that this matter proceed to trial but against the first Defendant only. I direct that she file and serve within 28 days hereof a statement of defence, i.e. before 4.00pm on Friday 12 August 2005. The matter will be listed before me at 9.00am on Friday 26^th August 2005 for further directions.

I make no orders for costs.

D.D. Finnigan
JUDGE

At Lautoka
15 July 2005