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

Devi v Rizwan [2009] FJHC 100; HBM0029.2009 (6 April 2009)

IN THE HIGH COURT OF FIJI

AT SUVA
CIVIL JURISDICTION

MISCELLANEOUS ACTION NO. 29 OF 2009

Between:

ARUN DEVI f/n Ram Dass

Plaintiff

And:

ABDUL RIZWAN f/n Abdul Hakim
Defendant

Mr. V. Maharaj for the Plaintiff
No appearance by the Defendant

JUDGMENT

A. Background facts

[1] By motion dated 23 February 2009 supported by an affidavit the Applicant (Arun Devi – the Plaintiff) has applied to this Court for an order that the Order of ‘Magistrates Court of 6th day of February 2008 in Miscellaneous Action No. 2 of 2009 be set aside and/or stayed and that the defendant (Abdul Rizwan) be ordered to pay costs of this proceedings on an indemnity basis.’

[2] On 11 March 2009 after hearing Mr. Vijay Maharaj, counsel for the applicant, there being no appearance of the Respondent/Defendant, I gave an extempore judgment/ruling stating I will give reasons later which I now do.

[3] This application came about as a result of the following Order made by the Resident Magistrate, His Worship Mesake Wakanivonoloa on 6 February 2009:

‘Court: Absconding warrant to be issued against the Defendant that the Defendant to return all working tools. Order granted as prayed.’

[4] That the defendant (Abdul Rizwan, the Plaintiff in Magistrate’s Court) made an application on an ex parte motion for an absconding debtors warrant supported by an affidavit.

[5] It appears from the Record in the lower Court that there was no service of papers on the applicant Arun Devi (the defendant in Magistrate’s Court) at any time.

[6] The Order was made as stated above and the only note the Magistrate made was as in the said order.

[7] It is obvious that the Magistrate was without jurisdiction when he entertained the application for an absconding debtors warrant (writ ne exeat regno).

[8] The applicant, who is an Australian citizen and wanted to return to Australia made the present application to this court for orders as stated hereabove. Her application is supported by an affidavit.

[9] The hearing before me took place on 11 March 2009 with the applicant present with her Counsel. There was no appearance of the respondent as he is evidently evading service.

[10] According to Mr. Maharaj after the order ‘police got involved’ in this. There were 5 police officers who went to serve her with the Magistrate’s Order. She inquired what was it all about. Then they all ended up in the Magistrate’s Court Registry to clarify the matter.

[11] On oath the applicant told the Court what actually took place and how the police handled the matter which was all very embarrassing to her.

[12] As required by Court Mr. Maharaj made a short written submission in writing particularly on law relating to absconding warrant and at the hearing briefly addressed the Court.

[13] Mr. Maharaj asked for orders as in the Motion and costs on an indemnity basis in the sum of $2500.00.

B. Consideration of the issue

[14] This case concerns the application of the prerogative writ of Ne Exeat Regno (more properly in Fiji to be entitled Ne Exeat Civitate and commonly called absconding debtor warrant).

[15] The Magistrate’s Court is without jurisdiction to issue an ‘absconding debtor warrant’. Hence the order was improperly obtained.

[16] The question is whether the Order ought now to be rescinded and the applicant discharged as prayed.

[17] Under section 34(3) of the 1997 Constitution "every citizen and every other person lawfully in Fiji, has the right to move freely throughout Fiji and the right to leave Fiji". In this case the applicant is an Australian citizen and is lawfully in Fiji.

[18] The Courts are vested with jurisdiction to prevent debtors leaving the country in certain circumstances. Because arrest of a debtor results in considerable infringement of personal freedom, a great deal of caution is required in exercising the power of arrest if a particular Court has that power.

[19] Here the Magistrate’s Court did not possess any power at all. The jurisdictional aspect had escaped the attention of the Magistrates Court Registry. Not only that, the Magistrate himself overlooked his jurisdiction for which there is no excuse as he is a Professional Magistrate. One comes to the Bench well-qualified for there is no room for slackness for the consequences could be very costly both to the Magistrate and also to his appointing authority. Here the applicant was wrongfully arrested and embarrassed in public by five Police Officers under their purported authority.

[20] If the Magistrate is of the view that he has the power to make such an order, which he has not, then it is not a bona fide exercise of his power.

[21] It is essential that in an application of this nature all the requirements must be strictly complied with. Arrests of this type are available only in the High Court (Principles of Civil Procedure by Andrew Beal). An application is made ex parte to a judge.

[22] There is provision under Order 111 of The High Court Rules 1998 for ‘Absconding Debtors’. There is no such provision in the Magistrates’ Courts Act Cap. 14.

[23] As for jurisdiction of the High Court, to hear this application in the form or manner in which this matter was drawn to this Court’s attention, I consider that this Court has the necessary jurisdiction.

[24] As was said by Denning L.J in R v Northumberland Compensation Appeal Tribunal Ex parte Shaw [1951] EWCA Civ 1; (1952) 1 KB 338 at 346 on jurisdiction powers and authorities exercisable includes the authority of the Court "...to control all inferior tribunals, not in an appellate capacity but in a supervisory capacity. The authority not only extends to seeing that the inferior tribunals keep within their jurisdiction, but also seeing that they observe the law."

[25] In this case the order was obtained by the defendant in the absence of the plaintiff. It was obtained ex parte but there was neither an order to serve the documents on the plaintiff nor a returnable date for hearing of the application given.

[26] As Mr. Maharaj submits there are procedural defects in the matter, namely, there is no substantive action filed, there is no final judgment, documents were not served on the plaintiff herein and the ex parte notice of motion contains statements of facts without stating the authority under which the relief is sought.

[27] As I said before the Magistrates’ Court did not have the jurisdiction to issue an absconding debtors warrant.

[28] In the case of Westpac Banking Corporation vs. Satish Chandra, High Court Civil Action No. 356 of 1991, Justice Scott referred to the Fiji Court of Appeal case of Sundarjee Bros Ltd v. Jeffrey John Coulter, Civil Appeal 65/1986 in which Justice Rooney ruled that Section 6 of The Debtors Act (Cap 32) was void for unconstitutionality to the extent only that the warrant was sought to enforce payment of a debt owed by an absconding debtor where the debt arose out of a contract as opposed to being a debt imposed by law.

[29] Here the alleged debt is a private debt and the defendant has to satisfy the Court with reasons as to why section 34(3) should not be upheld. This the defendant did not do. In Sundarjee (supra) it was held that section 6 of the Debtors Act is inconsistent with the Constitution of Fiji and is to that extent void.

[30] This present case was one where the parties entered into an agreement for construction of certain joinery works. The contract is private in nature and is not imposed by law.

[31] In dealing with the subject of prerogative writ of Ne Exeat Civtate we cannot lose sight of the case of Felton & Anor v Callis [1969] 1 Q.B. 200 for there the history of the writ and the circumstances of its availability are stated.

[32] To conclude, the Magistrate entertained the application when he had no jurisdiction. The defendant has abused the process of the Court although he filed papers in person and appeared before the Magistrate. After he obtained the order he did not leave his whereabouts and evidently he was evading service.

[33] The defendant’s application is not only frivolous but vexatious as well.

[34] The counsel for the plaintiff has asked for an Order for costs on an indemnity basis which I allow in the circumstances of this case. The defendant had acted unreasonably as the action is frivolous and vexatious and for the reasons given the defendant has not established grounds for not rescinding the ex parte order for arrest of the Plaintiff.

Order

[35] As Ordered the Magistrate’s Court Order is set aside as being a nullity And it is further Ordered that the Plaintiff Arun Devi be completely discharged and free to leave the country whenever she likes And it is further Ordered that the defendant pay costs to the plaintiff on an indemnity basis in the sum of $2500.00 within 7 days from 11 March 2009 when extempore Ruling was given.

D. Pathik
Judge

At Suva

6 April 2009