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Driver v Raj [2012] FJHC 1378; HBA26.2011 (18 October 2012)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

Appeal No. HBA 26 of 2011
Magistrates Civil Action No. 119 of 2009

Fred Driver
Appellant

v.

Reuben Sesaiya Raj
Respondent

Appearances: Mr A Bale for the appellant
Mr Sunil Kumar for the respondent

Date of hearing: 4th April, 2012

JUDGMENT

1. This appeal is concerned with a judgment of the Magistrates' Court. The appellant appeals to this Court on the following grounds of appeal, namely that:
   
   1. the judgment of His Worship the Resident Magistrate Mr Sumudu Premachandra dated the 3rd of August 2011 be stayed pending the hearing and determination of the appeal in this matter.
      
   2. the judgment of His Worship the Resident Magistrate Mr Sumudu Premachandra dated the 3rd of August 2011 be set aside and remitted to the Nasinu Magistrate Court for hearing and determination of its merits.
      

The singular ground of appeal, which the appellant then relies on is follows:-

(1) That His Worship Mr Sumudu Prema Chandra exercised his discretion wrongly when he proceeded with the hearing of the matter on the 15th day of June 2011 in the absence of the Appellant's counsel when the court had been advised of the counsel's inability to attend court.

2. The statement of claim filed by the respondent, in the Magistrates' Court, provides that after a collision between his vehicle and that of the appellant's on 11th October, 2006, the appellant had assaulted him. The respondent had claimed general damages in a sum of $ 49,000 for the loss sustained by him and special and exemplary damages. The appellant had filed statement of defence admitting the collision and moved that that the claim be struck out.
   

The hearing before the Magistrates' Court was fixed for 15th June, 2011.The proceedings of 15th June, 2011, provides that counsel for the defence had informed the Registry by a phone call, that he was unable to attend court on that day and had sought an adjournment. The judgment of the lower court provides that the Resident Magistrate had refused to vacate the hearing date, on the ground that there was no proper application before him. The Resident Magistrate had stated that the application through the court clerk, was a bad precedent. The appellant was then, notified that the matter would be taken up for formal proof at 2pm.

3. At the hearing before me, Mr Bale, counsel for the appellant submitted at the outset, that a letter dated 15 June, 2011, is missing from the court record and made application that this letter be admitted as part of the copy record . This letter, it was submitted, contained the reason for counsel's inability to attend court.
   
4. The only matter contained in the ground of appeal advanced is that the Resident Magistrate had exercised his discretion wrongly, when he proceeded with the hearing of the matter on 15th June, 2011, in the absence of his counsel, when court had been advised of the counsel's inability to attend court.
   

In my judgment, the Resident Magistrate was correct in declining to vacate the hearing date, on the ground that there was no proper application before him. I agree with the Resident Magistrate, that it is not an accepted practice that an adjournment of a hearing be sought through a court clerk. As the judgment of the lower court provides, the case was fixed for hearing on15th June, 2011, as it was a date suitable to both counsel.

5. In my judgment, there is no merit in this appeal, nor in the application made to include in the copy record, a letter of 15th June, 2011, which again is not a salutary practice. The proceedings of 15th June, 2011, make no reference to any such letter, which comes up as something of an afterthought, for this was not raised in the grounds of appeal.
   
6. The appeal is dismissed with costs in a sum of $1000 payable by the appellant to the respondent.
   

18th October, 2012
A.L.B. Brito- Mutunayagam
Judge