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Vodafone Fiji Ltd v Sharma [2011] FJMC 35; CC234.2010 (11 February 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Case No 234/ 10

BETWEEN

VODAFONE FIJI LIMITED

AND

RAKESH CHAND SHARMA

RULING

1. The Plaintiff instituted this action by way of writ of summons to recover the sum of $ 539.16 as the monies due and owed by the defendants for outstanding mobile call charges.
   
2. Apart from this action, the Plaintiff Company instituted more than 200 cases to recover outstanding mobile call charges from various parties.
   
3. It was observed that almost all these claims are less than $5000.
   
4. Hence the Court requested the Counsel for the Plaintiff Company to file written submissions on the issue of jurisdiction as all the claims seem to fall well within the jurisdiction of the Small Claim Tribunal.
   
5. The Plaintiff filed written submissions and this is the ruling on that.
   
6. According to the Magistrate's Court Act (Amendment) Promulgation 2007 (Promulgation No 34 of 2007) the Magistrate's Court has jurisdiction to hear civil causes set out in Section 16 of the Magistrate's Court Act, up to a maximum level of $ 50 000. As it was rightly pointed out by the Plaintiff, there is no lower limit set out in respect of the jurisdiction of the Magistrate's Court.
   
7. Be that as it may, it is worthwhile to consider the jurisdiction of the Small Claim Tribunal at this juncture. As per the Small Claims Tribunal Decree (Amendment) Promulgation 2007 (Promulgation No 35 of 2007), the jurisdiction of the Small Claim Tribunal was expanded to include claims which does not exceed $ 5000.
   
8. It appears that most of the cases filed by the Plaintiff are for claims less than even $1000 dollars. The main objective of the Plaintiff seems to be to recover the outstanding mobile call charges from its customers. Apparently there seems to be no obstacle to bring these claims in the Small Claim Tribunal.
   
9. The Small Claim Tribunal Decree stipulates instances where the SCT does not have jurisdiction to hear cases even if they fall within the $ 5000 limit. The jurisdictional limitations of the Small Claim Tribunal are stipulated in Section 9 of the Decree;
   

"A Tribunal shall have no jurisdiction in respect of any claim:

(a) for the recovery of land or any estate or interest therein;

(b) in which the title to any land or any estate or interest therein, is in question;

(c) which could not be brought in a Magistrates' Court; and

(d) which is required by any law to be brought only before any other specified court."

10. It is very clear that theses claims of the Plaintiff do not fall within the ambit of Section 9 of the Small Claim Tribunal Decree.
    
11. At this point it is worthwhile to ascertain the intention of the legislature in respect of the expansion of jurisdiction of the Small Claim Tribunal to $ 5000. The transitional provisions set out in Section 3 of the Small Claims Tribunal Decree (Amendment) Promulgation No. 35 of 2007, throw some light on this issue. It says;
    

"Any civil case already instituted in the Magistrates' Courts at the commencement of this promulgation and with respect to which jurisdiction is vested in the Small Claims Tribunal by reason of this promulgation may, with the consent of the parties, be remitted under an order of a magistrate to the Small Claims Tribunal for hearing and determination"

12. It appears that when the jurisdiction of the Small Claim Tribunal was increased from $2000 to $ 5000, the law expected the claims already instituted in the Magistrate's Court to be remitted to the Small Claim Tribunal with the consent of the parties. One major reason behind this transitional provision can be fathomed as the importance to create sufficient room for the Magistrate's Court to deal with more serious matters.
    
13. Now it is important to see the provisions applicable to cases which falls within the purview of the Small Claim Tribunal jurisdiction, but instituted subsequent to the commencement of the said Promulgation. It appears that Section 23 of the Small Claim Tribunal Decree deals with that.
    
14. The Small Claims Tribunal Decree provides for the transfer of proceedings from Magistrate's Court to the Small Claim Tribunal under Section 23(1) of the Decree.
    

Section 23(1) If proceedings within the jurisdiction of a tribunal have been commenced in a Magistrate's Court which has a Tribunal as a division of it before a claim in respect of the same issues between the same parties has been lodged in or transferred to a Tribunal, the Magistrate may on the application of either party or of his own motion order that the proceedings be transferred to the Tribunal subject to such provision (if any) as to payment of costs as he thinks fit.

15. It is crystal clear that the legislature in fact, intended to make room for the transfer of proceedings already instituted in the Magistrate's Court when the jurisdiction of the Small Claim Tribunal was expanded. In any event the law provides for the Magistrate's Court to exercise it's discretion to transfer proceedings where claims falls within the ambit of the Small Claim Tribunal jurisdiction.
    
16. On the other hand it is not very difficult to understand the main reason for saving the jurisdiction in the Magistrate's Court for claims below $ 5000 in light of the provisions set out in Section 22 of the SCT Decree.
    
17. Section 22 of the Small Claim Tribunal Decree reads as follows;
    

22 - (1) If any proceedings have been commenced in a Tribunal when it has no jurisdiction to hear and determine the Tribunal may instead of striking out the proceedings order that they be transferred to a Magistrate's Court in its ordinary civil jurisdiction.

(2) If any proceedings have been commenced in a Tribunal which in the opinion of the Tribunal would more properly be determined in a Magistrate's Court, the Tribunal may, on the application of a party or of its own motion order that the proceedings be transferred to a Magistrate's Court in its ordinary civil jurisdiction.

18. Although there is no strict rule not to entertain claims under $ 5000 in the Magistrate's Court, in cases where the claims do not fall within the scope of Section 9, I do not see any justification in instituting such claims in the Magistrate's Court. Besides if such claims are instituted in the Magistrate's Court without a reasonable ground the whole purpose of vesting a specific jurisdiction on the Small Claims Tribunal would be lost.
    
19. The Plaintiff could not satisfy this Court with a reasonable explanation as to the reason for instituting these actions in the Magistrate's Court. Merely because one party can afford to get legal representation, as stated in the written submissions, cannot be considered as a reason to entertain these claims in the Magistrate's Court.
    
20. The Plaintiff contended that it is the party's prerogative on where to institute legal proceedings. Further the Plaintiff submitted that there is no minimal value to any claim which can be instituted by way of writ of summons. Although technically speaking there is no obstacle to institute proceedings for claims under $5000 in the Magistrate's Court, I do not think it was the intention of the legislature.
    
21. It appears there are two main purpose for saving the jurisdiction for the Magistrate's Courts for claims below $5000;
    
    1. To keep provision for claims lower than $5000 where the Small Claim Tribunal has no jurisdiction under Section 9.
       
    2. To keep provisions for instances set out in Section 22 of the SCT decree.
       
22. Thus it appears that there is no impediment for the Small Claims Tribunal to deal with these claims which does not exceed the limit of $ 5000. Further it is very clear that the Magistrate Court has discretion to transfer such proceedings to the Small Claim Tribunal under Section 23 of the Small Claims Tribunal Decree.
    
23. Apart from the above discussed legal provisions, there is a practical aspect to this issue as well, as far as this Magistrate's Court is concerned. There are more than 1200 Civil cases pending in this Court and about 150 cases out of that are pending for more than one year. There are about 1500 Criminal, Traffic and Family cases pending in the Lautoka Magistrate's Court. I do not think it would be even fair by the other litigants, to allow this Court to be flooded with claims which can be easily brought within the jurisdiction of the Small Claims Tribunal.
    
24. How ever it appears that in some cases the Plaintiff has already effected service. I am of the view that it would be unjust to transfer such proceedings where default or consent judgements can be entered without delay. Accordingly I decide to deal with only those matters where default or consent judgements can be entered.
    
25. Having said that, I transfer all the proceedings forthwith to the Small Claims Tribunal, for claims less than $ 5000 which are instituted by the Plaintiff Company, except the following;
    
    1. All the actions where service is done by 11.02.2011 and where judgements can be entered by consent.
       
    2. All the actions where service is done by 11.02.2011 and where default judgements can be entered.
       

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
11.02.2011