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Devi v Nandan [2011] FJHC 183; Civil Appeal 002.2011 (23 March 2011)

IN THE HIGH COURT OF FIJI AT LAUTOKA

APPELLATE JURISDICTION
Civil Appeal No 002 of 2011

Nadi Magistrate' s
Court Civil Action No. 189 of 2009

BETWEEN:

SAROJINI DEVI
PLAINTIFF APPELLANT

AND:

VISHWA NANDAN
DEFENDANT RESPONDANT

APPELLANT: In person
RESPONDENT: Mr H Ram

JUDGEMENT

1. This is an appeal against the judgment dated 25 January 2011 of Nadi Magistrate's Court in a civil action.
   
2. The plaintiff-appellant (appellant) filed action before the Magistrate claiming a sum of $ 19,086.65 as damages against the defendant-respondent (respondent). The action was based on alleged acts of negligence of the respondent resulting in a motor traffic accident while driving the car bearing No DY 575 on 29 August 2007. The appellant claimed that the accident had caused damages to her vehicle bearing No. BV 717 in the amount she claimed in the statement.
   
3. The respondent, in his statement of defence, admitted the accident and disputed that the accident was caused by his negligence. The respondent stated that the accident was caused due to the appellant's negligence and that the value of the appellant's vehicle was no more than $2000.00.
   
4. The case was taken up for trial before the learned Magistrate on 25 January 2011. The learned Magistrate has recorded that:
   

'Plaintiff closing her case reading statement of claim in evidence.

Defendant's Counsel submits that there is no case to defend. However we can pay $1,800.00 for repairs without accepting any liability.'

5. The learned Magistrate, thereupon, gave judgment, which reads as follows:
   

'Plaintiff claiming a sum of $ 19,000.00 from the defendant as the damages to her car as the result of accident by him.

He denied the claim and stated that the car is not worth $2,000.00 as it is a 1985 model.

Plaintiff admitted that the car is manufactured in 1985.

Plaintiff did not give evidence or tender any supporting evidence to prove her case.

Accordingly I struck out the plaintiff's claims. However, since the defendant is willing to pay $1,800.00 as vehicle repairs, I enter judgment for that amount'

Thirty days to appeal.

Plaintiff says she is going to appeal.'

6. The appellant, having verbally given notice of intention to appeal immediately after the judgment under O xxxvii r 1 of the Magistrate's Court Rules, has filed her grounds of appeal under r 3 of the said Order. The ground relied upon by the appellant was that the learned Magistrate had erred in law and in fact in assessing the damages to be at $ 1800.00.

7. At the hearing before me, the appellant who was suffering from some physical disability in her limbs, read out the contents of a written submission in support and relied on the above ground of appeal.

8. Learned counsel for the respondent opposed the appeal. He submitted that the appellant did not give evidence before the learned Magistrate. Instead, she had followed a similar procedure of reading out her statement of claim without giving evidence from the witness box before the learned Magistrate.

9. The submission of the learned counsel, however, is not supported by the record. Instead, the original handwriting of the learned Magistrate in the record and the transcript of the court proceedings show the contrary as noted in paragraph 4 above. Its reproduction for the purpose of emphasis is relevant, which reads:

'Plaintiff closing her case reading statement of claim in evidence.'

10. The recording by the learned Magistrate, therefore, shows that the appellant had read-out the statement of claim in evidence. However, the learned Magistrate had subsequently entered his judgment on the basis that the appellant did not give evidence or tender supporting evidence to prove her case.

11. The method of reading-out of a statement of claim or of defence in evidence by a party is permissible. In this instance, the learned Magistrate had recorded that the appellant had closed her case after reading-out the statement of claim in evidence. To that extent, the judgment of the learned Magistrate that there was no evidence offered by the appellant cannot be correct or at least constitutes a contradiction on record. Therefore, it is open, going by the record, to conclude that the appellant's claim was placed in evidence according to law after following procedural formalities in court because, if it was otherwise, a mere reading-out of the appellant's claim could not have become evidence as noted by the learned Magistrate.

12. In the circumstances, the learned Magistrate's decision to strike-out the appellant's claim is improper and unlawful.

13. It appears that there were triable issues between the appellant and the respondent, which the learned Magistrate, however, had failed to put on trial despite his own recording that the plaintiff had closed the case with the statement of claim having been placed in evidence.

14. The above conclusions lead me to rule that the proceedings, as conducted by the learned Magistrate, were improper and irregular in law and that they should not be permitted to stand.

15. In the result, I hold that the decision of the learned Magistrate to enter judgment for $ 1800.00 has been made in pursuance of an erroneous procedure. I, accordingly, set aside the proceedings and the judgment of the learned Magistrate and remit the case for trial.

16. Appeal is allowed. I, however, order no costs.

17. Orders accordingly.

Priyantha Nawana
Judge
High Court

Lautoka
23 March 2011