IN THE MAGISTRATE'S COURT
AT SUVA,FIJI

MAGISTRATES COURT CIVIL CASE NO; 120 OF 2011

BETWEEN:

CREDIT CORPORATION (FIJI) LIMITED
PLAINTIFF

AND:

KASIM SABIR SAMAT
DEFENDANT

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe, 

COUNSEL: Mr. Ritesh Naidu for the Plaintiff,

Ms. Peniana Salele for the Respondent.

Date of Ruling: 12th day of July 2012.

RULING

1. This is an application for strike out the counterclaim of the Defendant as it's exceeds the monetary jurisdiction of the Magistrates' court. 

2. The plaintiff instituted this suite by filing its statement of claim wherein it claims inter alia judgment in the sum of $ 19,697.08 against the Defendant. The Defendant filed his statement of defence with his counter claim wherein the defendant prays following orders inter alia 

i.	Damages for breach of contract,

ii.	Pecuniary damages (alternative transport),

iii.	Non Pecuniary damages, ( to be assessed by the court),

iv.	Matter be transferred to the high court as per our counter claim exceeds the claim limits of the Magistrate Court Jurisdiction, 

3. The Defendant stated in paragraph 19 of his counter claim that " due to the breach of express and or necessarily implied terms of the APA the Defendant has suffered loss 

i.	Deposit $ 8,000,

ii.	Installment payment $ 10,262.72,

iii.	Bank Charges $ 27.50,

iv.	Alternative transport Cost $ 46,000,

v.	Non Pecuniary Damages, 

4. Subsequently the Plaintiff filed his Reply to the Statement of defence and Defence to the Counter claim wherein the Plaintiff sought an order to strike out the counter claim of the Defendant as it has exceeded the jurisdiction of this court. 

5. The learned counsel for the defendant made an oral application to amend the counter claim in order to limit the total sum of the counter claim within the jurisdiction of this court for which the learned counsel for the Plaintiff objected. Having heard both of their brief oral submissions, I invited both learned counsels to file their written submissions on the issue that whether the defendant can be allowed to amend the counter claim in order to limit the total sum claimed in the counter claim within the jurisdiction of this court. The Plaintiff filed his submission which was followed by the submission of the Defendant. Subsequently the Plaintiff filed his reply to the Submission of the defendant. Apart from filing of their respective written submissions the learned counsel for the Plaintiff filed a copy of a judgment of the learned Resident Magistrate of Nadi Magistrate court for which the learned counsel for the Defendant filed her views in writing. 

6. Having carefully perused of the respective written submissions of the Plaintiff and the Defendant, I now proceed to pronounce my ruling on this preliminary issue of whether the Magistrates' court has power to allow the Defendant to amend his counter claim in order to limit the total sum claimed in the counter claim within the jurisdiction of this court. 

7. Section 2 (1) (a) (ii) of the Magistrates' Court (Civil Jurisdiction) Decree of 1988 stipulates that the " A resident magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes-  in all other personal suits, whether arising from contract, or from tort, or from both, where the value of the property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than fifteen thousand dollars". 

8. The Defendant has conceded in his counter claim that the total sum claimed in his counterclaim has exceeded the jurisdiction of this court. The defendant's contention is that the counterclaim is an integral part of or a continuation of the Defendant's statement of defence wherefore it would be improper to treat the two as distinct and highly unjust to sever them via striking out. 

9. The learned counsel of the Plaintiff vehemently objected the application of the Defendant to amend his counterclaim and mainly relies his objection on the judicial principle enunciated in Ram Khelawan v Budh Ram ( (13 Fiji Law Reports 196). 

10. Order XXIII rule 1 of the Magistrates' court rules deals with counterclaim where it states that "A defendant in an action may set off, or set up by way of counterclaim against the claim of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a statement of claim in a cross action so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the court may, if, in the opinion of the court, such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof, and the court shall refuse permission in respect of any counterclaim for an amount or value exceeding the maximum amount or value of the subject-matter in respect of which a claim may be heard in such court". 

11. In view of the Order XXIII rule 1 of the Magistrates' Court Rules the counterclaim shall have the same effect as a statement of claim in a cross action so as to enable the court to pronounce a final judgment in the same action both on the original and on the cross claim. The order XXIII rule 1 further stipulates that the court shall refuse permission in respect of any counterclaim for an amount or value exceeding the maximum amount or value of the subject matter in respect of which a claim may be heard in such court. Accordingly it is apparent that the counter claim is a cross action and has a distinct independent existence of its own away from the Defence of the Defendant and it must be within the limits of the Jurisdiction of the court. 

12. Lord Gorell in Bow McLachlan & Co Ltd v The Ship "Camosun" and the Union Steamship Company of British Columbia Ltd ( 1909) A.C.597) has discussed the jurisdiction of the Exchequer Court of Canada ( Admiralty) to hear the counterclaim for damages against the plaintiff, where the Lord Gorell held that Exchequer Court of Canada(Admiralty) has no jurisdiction to grant damages for breach of contract where for has no jurisdiction to entertain a cross action by the defendant to recover from the plaintiff damages for breach of contract. That cross action should be left to be settled in a court having jurisdiction. 

13. Hammett J in Ram Khelawan v Budh Ram (supra) held that " A Magistrates Court is a creature of statue and the Magistrate and the court can only exercise the jurisdiction which is given them by the statue. Section 17 (1) of the Magistrate courts ordinance states quite clearly that a Magistrate empowered to hold a court of the first class may only exercise jurisdiction in a civil cause arising out of contract where the value of the property etc claimed is not more than $ 400. In this case where the claim was for property and damages far in excess of $ 400 in value the court below has no jurisdiction in the case by ordering an amendment of the statement of claim. The court was not empowered to exercise any jurisdiction in this at all". 

14. In view of the aforementioned judicial precedents and the provisions of the Magistrates courts' rules and the Magistrates' Court (Civil Jurisdiction) Decree of 1988, I find that the counterclaim shall have the same effect as a statement of claim. In order to invoke the jurisdiction of this court, the counterclaim shall be within the limits of the Jurisdiction of the Magistrates' court. If not this court cannot make any order in respect of such claim apart from striking out the same for want of jurisdiction.

15. Accordingly, I find that the total sum claim in the counterclaim by the Defendant has exceeded the monetary jurisdiction of this court; hence this court has no jurisdiction to make any order including order of amendment or order of transfer to the high court in respect of the counterclaim of the Defendant. 

16. In view of the foregoing reasons, I hold that this court has no jurisdiction to allow the Defendant to amend his counterclaim in order to limit the total sum claim in the counterclaim within the Jurisdiction of this court and / or to transfer the same to high court. Accordingly, I strike out the counterclaim of the Defendant for want of Jurisdiction. 

On this 12th of July 2012.

R.D.R.Thushara Rajasinghe,
Resident Magistrate, Suva.