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Western Wreckers Ltd v Ali [2010] FJMC 57; Case 160 of 2009 (31 May 2010)

IN THE MAGISTRATE COURT AT LAUTOKA


Case No 160/09


BETWEEN


WESTERN WRECKERS LIMITED


AND


NASIB ALI


RULING


  1. This is a case filed by the judgement creditor, Western wreckers Ltd to enforce an order made by the small claim Tribunal on the 9th February 2009. The small claim tribunal has ordered the Judgement debtor to pay 5000 dollars to the judgement creditor before the 25th February 2009.
  2. When this case was first called the judgement debtor, Nasib Ali did not appear in court although the judgement debtor summons had been duly served. Subsequently a bench warrant has been issued. On the 25th August 2009 he appeared in court and was released on bail to appear on the 26th August 2009. But since he did not appear on that date again a bench warrant had been issued.
  3. On the 22nd October 2009 when the judgement debtor appeared the court examined the means of the judgement debtor and ordered him to pay 800 dollars monthly and in default 30 days imprisonment.
  4. However on the 12th November 2009, the judgement debtor filed an ex parte motion seeking this court to grant leave to appeal out of time and to set aside the order made by the Small Claim Tribunal.
  5. Before I proceed any further it should be noted that the unreasonable delay of the judgement debtor amounts to sheer negligence and if not he had waited until the out come of the Magistrate's Court order and has decided to go on a voyage of discovery to find a way out. I cannot understand as to why he waited exactly nine months to appeal against the Small Claim Tribunal order.
  6. Be that as it may, the court heard this application inter parte on the 17th November 2009 and struck out the motion dated 09.11.09 with 100 dollars cost.
  7. Again on the 18th November 2009 an ex parte motion was filed by the judgement debtor and asked for leave to appeal out of time and asked for the order made by this court on the 22 November 2009 to be stayed.
  8. Although it appears to be an ex parte motion and although it does not appear that notice have been served, the judgment creditor's counsel too has appeared on the 02nd December 2009 and has sought time to reply to the application. The affidavit of the Judgement creditor is thus filed on the 3rd February 2010. However the judgment debtor has not filed the reply to that within 7 days as ordered.
  9. Any way when the case was called on the 3rd March 2010 the judgment debtor did not appear and the court struck out the so called ex parte motion for the second time.
  10. On the 14th April 2010 the court issued an order of commitment against the Judgement debtor for non payment of the money.
  11. Again on the 16th April 2010 an ex parte motion was filed by the judgement debtor seeking the striking out order to be set aside and to get the matter reinstated. Although the motion says that there is an affidavit to support the application it should be noted that no such affidavit is filed. Yet the court fixed this application for hearing for the 6th May 2010.
  12. Once again on the 23rd April 2010 the Judgement debtor filed another ex parte motion seeking the order of commitment to be struck out and seeking the order of commitment to be lodged with the Official receiver.
  13. However when the case was taken up for hearing on the 6th May 2010 an application was made on behalf of the counsel of the Judgement debtor for the case to be stood down. The counsel for the Judgement creditor objected to that and the case was adjourned to the 20th May 2010. On the 20th May 2010 counsel for both parties were heard orally regarding the so called ex parte motion dated 16th April 2010.
  14. This is the order regarding the ex parte motions dated 16th April 2010 and 22nd April 2010.
  15. I will first deal with what transpired at the examination in to the means of the Judgement debtor on the 22nd October 2009. For the first time in this case the judgement debtor informed court that his properties are under official receiver when he was examined on the 22nd October 2009. Yet he had suggested that he will pay 200 dollars a month plus interest. Having examined the judgement debtor the court ordered him to pay 800 dollars a month. Although it was transpired that the properties of the judgement debtor are under the official receiver the court has proceeded with this matter. However the judgement debtor has not taken any steps to appeal against the order of the Magistrate's Court.
  16. Now it is worthwhile to see what happened to the first ex parte motion filed on the 12th November 2009. When this application was heard on the 17th November 2008 the counsel who appeared for the judgement debtor informed Court that "I was not told regarding bankruptcy" and he has withdrawn the motion. Accordingly the motion was struck out with 100 dollars cost.
  17. I am compelled to note that I was surprised to hear that it was the first time the counsel came to know about the bankruptcy issue. I can not believe that he filed the ex parte motion on the 12th November 2008 without knowing what transpired at the means examination just three weeks before.
  18. Be that as it may, I will now see what the grounds of appeal were in that application which was withdrawn as it would be useful to get a clear picture about the whole case. The grounds for appeal were as follows;
    1. That the action is status barred
    2. That the Referee erred in fact and law, the particulars of which are set out below:-
      1. The claimant / respondent is not the registered owner of the vehicle No DG 973
      2. The record of registration shows that Jone Vunibola was the owner from 29/01/06 and still the owner to date
      1. The decision of the Referee completely ignored the evidence of registration
      1. That the referee was biased in his decision to award it to the claimant.
    3. That the respondent /applicant reserve the right to add further grounds when transcript of evidence is available.
  19. It should be noted that no reason had been disclosed in the motion or the supporting affidavit as to why the court should grant leave to appeal out of time. It only sets out grounds of appeal and I would not go to comment on whether, the grounds of appeal are tenable or not, since the motion is already struck out.
  20. The judgement debtor filed another ex parte motion on the 02nd December 2009 asking for the following orders again;
    1. That the small claim tribunal order against the respondent made on the 20th august 2008 in the sum of $5000 be set aside until further order of this honourable court.
    2. That the Magistrate's court order made against the respondent on the 22nd day of October 2009 be stayed until further order.
    1. That the judgement debtors summons against the respondent be set aside until further order of this honourable court.
    1. That leave be granted appeal out of time until the hearing and determination of the appeal on the ground contained in the affidavit of Nasib Ali filed herein.
  21. The only difference between the ex parte notice of motion which was withdrawn earlier an the ex parte motion filed on the 02nd December, is asking for an additional order in the latter motion to stay the Order made on the 22nd October 2009. It does not appear to be a substantial difference between the two ex parte motions. I do not understand the reason for filing almost the same motion asking for the same orders when the first one was withdrawn for the only reason which can be perceived to be the unawareness of the counsel regarding the bankruptcy issue.
  22. Furthermore the ground of appeal seems to be exactly the same except for the addition "that the respondent was not present at the hearing in the small claim tribunal hence the default judgement". However this motion too was struck out on the 03rd March 2010 as mentioned above in para 9.
  23. Now I will consider both ex parte motions dated 16th April 2010 and 22nd April 2010 together as the fundamental deciding factors are common to both applications.
  24. The Small claim tribunal Act provides for the instances where an appeal can be made against an order in Section 33. Accordingly an appeal can be made on the following grounds;
    1. the proceedings were conducted by the referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings
    2. the tribunal exceeded the jurisdiction
  25. Furthermore the magistrate's Court has no jurisdiction to look in to the merits of a claim in an appeal as the issues that can be considered are confined only to what is set out in section 33.
  26. Secondly if a person makes an application to appeal out of time, such person has to satisfy court about the reasons for delay. Only upon being satisfied about such reasons the court has discretion to grant leave to appeal.
  27. The judgement debtor, in his motion filed on the 02nd December 2009 or in the supporting affidavit has not mentioned a single word regarding the reasons for the delay. As it was mentioned earlier the judgement debtor made this application more than 9 months after the Small Claim Tribunal order. But nothing is placed before the court to consider whether leave could be granted to appeal out of time. Instead, the affidavit filed in support of the application only states the facts relating to the ownership of a vehicle which seems to be involved with the original claim at the Small Claim Tribunal.
  28. Also it appears that even if leave is granted to appeal out of time, the grounds of appeal do not seem to fall within the scope of section 33 of the Small Claim Tribunal Act. Therefore I do not see any likelihood that this appeal would succeed.
  29. Now I will consider two issues that the judgement debtor was trying to capitalize in all these application. The judgement debtor has made the following issues to be the crux of his applications;
    1. That he is not the owner of a vehicle which is involved with the original claim at the SCT
    2. That the judgement debtor has been declared bankrupt and under the Section 9 of the Bankruptcy Act no action can be maintained against him without the leave of the court.
  30. Firstly it should be noted the merits of the claim cannot be considered in this court at this stage. Clearly the issue which is raised by the judgement debtor regarding the ownership of the vehicle is a matter to be considered by the small Claim Tribunal. The judgement debtor does not say that he was treated in an unfair manner in the Small Claim Tribunal by not taking his submissions in to consideration regarding the claim. The judgement debtor has not appeared in the Small Claim Tribunal. But it should be noted that the judgement debtor was very careful not to divulge as to why he did not appear in the Small Claim Tribunal. If the judgment debtor was not given a chance to defend himself at the Tribunal that would have been a valid ground for an appeal.
  31. I have perused the Small Claim Tribunal case record. It appears that the judgement debtor (then the Respondent) had been duly served with notices of the claim. But he had not appeared. Therefore it is evident that he had been given an opportunity to make all these submissions regarding the ownership of the vehicle at the Small Claim Tribunal which he failed to do so. Therefore I note that the ownership of the particular vehicle has no bearing on these applications under consideration.
  32. The second issue is the bankruptcy. As it was mentioned before this issue was first transpired at the means examination on the 22nd October 2009. The Section 9 (1)of the Bankruptcy Act reads as follows;

"On the making of a receiving order the official receiver shall be thereby constituted receiver of the property of the debtor, and thereafter, except as directed by this Act, no creditor to whom the debtor is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall commence any action or other legal proceedings, unless with the leave of the court and such terms as the court may impose."


  1. If the judgement debtor believed that no action can be instituted against him in view of the provision of Section 9 of the bankruptcy Act I cannot understand as to why he did not appeal against the order made by this court irrespective of the fact that his properties are under the official receiver on the 22nd October 2009. The best recourse would have been to appeal against that order if the judgement debtor genuinely believed that an illegality or an irregularity has occurred.
  2. The proceedings against the judgement debtor have continued so far irrespective of the legal bar he complains of. Besides, the fact that a receiving order is issued is not a total shut out to institute an action. The provision clearly says that a matter can be instituted with the leave of the court. Since the judgement debtor's bankruptcy issue was within the knowledge of the Court when the order was made on the 22 October 2009, it may be considered as a tacit sanction of the court.
  3. However this court has proceeded against the judgement debtor irrespective of the bankruptcy issue. But the judgement debtor has not resorted to a proper remedy if he was dissatisfied. I do not think now the judgement debtor can ask for orders from this court based on the same issue after having waited for so long. The law does not provide relieves to those who sleep over their rights.
  4. On the 27th April 2010 the counsel for the judgement debtor sought an order from the court based on the ex parte motion that the order of commitment issue against the respondent may be struck out and the amount owing under the order of commitment be lodged with the official receiver as the duly constituted trustee under the Bankruptcy Act. I do not find any valid or just reason to grant this relief for the above reasons I have discussed. It only seems like another attempt to complicate this issue and to prolong the matter. Accordingly I dismiss the ex parte motion filed on the 23rd April and dated 22nd April 2010.
  5. The ex parte motion filed on the 16th April 2010 sought an order to set aside the striking out order made on the 3rd March 2010 and to reinstate the matter. Although in the motion it says that a supporting affidavit is filed, it should be noted that no affidavit is filed of record. In any event even if the striking out order is vacated I do not see that there is a tenable application placed before this court to consider as I mentioned above. Accordingly I dismiss the ex parte motion dated 16th April 2010 for the above reasons.
  6. Already this case has been prolonged unnecessary due to long delayed, baseless, irregular and frivolous applications. No stone is unturned by the judgement debtor to prolong this matter without resorting to proper remedies. The court has a duty to ensure finality to a case. The judgement debtor has exhausted the jurisdiction of this court too many times and over an over again in an unfair manner. These attempts amount to nothing less than abuse of processes of this court.
  7. I am compelled to order cost on the judgement debtor for the above reasons. However having considered the value of this action and the costs already ordered by this court in previous instances I order 500 dollars cost on the judgement debtor.

28 days to appeal.


Rangajeeva Wimalasena
Resident Magistrate


Lautoka
31.05.2010

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