IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Civil Action No 53/2009

BETWEEN

FIJI HARDWOOD CORPORATION LIMITED
PLAINTIFF

AND

LUMBER PROCESSORS (FIJI) LIMITED
DEFENDANT

Plaintiff - Ms Rakai (Sherani & Co)
Defendant - Mr Singh (Parshotam & Co)

RULING

1.	The counsel for plaintiff by her inter parte notice of motion dated 14th December 2011 made an application to strike out the counter claim of the defendant which was filed on 21st August 2009.

2.	The plaintiff's claim in this matter is about balance monies owing by the Defendant for the Mahogany logs supplied and delivered. The Defendant filed a counterclaim stating that the Plaintiff failed to issue proper invoices and additionally that a proper reconciliation was not carried out. The Defendant counterclaimed for overpayment of $ 5,210.39 from the Plaintiff.

3.	Plaintiff submits that the counter claim should be struck-out as it falls within the preview of Mahogany Industry Development Decree 2010.

4.	The Court was benefited by the comprehensive written submission filed by both parties of the case. Plaintiff filed this action in March 2009. Mahogany Industry Development Decree 2010 was gazetted on 12th March 2010.

5.	Section 5(2) in Schedule 4 of the Decree sates as follows,

(2) Any proceeding to which this paragraph applies that was commenced but not determined immediately before the commencement of this Decree is upon the commencement of this Decree wholly terminated, and a certificate to that effect must be issued by the Chief Registrar to the parties.

6.	Section 5(1) identifies the matters that have effect of this paragraph.

5.-(1) This paragraph applies to any proceedings in a court in which proceedings-

(a)	any claim is made to the effect that or on the assumption that a grant or assignment, or purported grant or assignment, of lease to which paragraph 2(2) of this Schedule applies was not validly made;

(b)	any claim is made in respect of the use of  mahogany  plantation land of the kind mentioned in paragraph 3 of this Schedule;

(c)	any claim is made for loss of the kind mentioned in paragraph 4(2) of this Schedule;

(d)	any claim is made against Fiji Hardwood Corporation Limited in respect of an agreement for the sale or supply of  mahogany  timber, regardless of whether the claim relates to any matter to which paragraphs 2 to 4 of this Schedule apply, or any relief or remedy is sought in respect of any such claim.

7.	Pleadings of the Defendant show that there had been an agreement with the Plaintiff for supply of certain standard mahogany logs to him. Therefore I am of the view that the counter claim stems from an agreement to sale or supply Mahogany timber. Hence section 5(1)(d) applies to the counterclaim of the Defendant.

8.	The Defendant argues that if it (the Decree) has any application to his counterclaim then the proceeding should be wholly terminated. The section 5(2) states that 'Any proceeding to which this paragraph applies that was commenced but not determined immediately before the commencement of this Decree is upon the commencement of this Decree wholly terminated, and a certificate to that effect must be issued by the Chief Registrar to the parties'. But On the other hand Plaintiff states that it should only apply to the counterclaim. 

9.	At this juncture it is prudent to illustrate more on an action of 'Counterclaim' by a Defendant of a civil action.

10.	A Defendant who alleges that he has any claim or is entitled to any relief or remedy against Plaintiff in any action in respect of any matter, whenever and however arising, may make a counterclaim in respect of that matter instead of bringing a separate action. If therefore the Defendant has a valid cause of action of any description against the Plaintiff there is no necessity for him to bring a separate cross-action, and the rules relating to the joinder of causes of action apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the Plaintiff and the person against whom it is made a defendant. 

11.	For all practicable purposes, a counterclaim is a cross action, and not merely a defence to the Plaintiff's claim, although of course it must be of such a nature that the Court would have jurisdiction to entertain it as a separate action. Thus it has an independent life of its own, unaffected by anything which relates solely to the plaintiff's claim, and, once it has been made, a counterclaim may be proceeded with notwithstanding that judgement is given in the action or that the action is stayed, discontinued or dismissed.[Halsbury's Laws of England- Vol 37 Practice & Procedure] 

12.	Therefore I note that the counterclaim of the Defendant is another fresh claim against the Plaintiff of this case.

13.	The view of this Court is that the counterclaim of the Defendants falls within the requirements of section 5(1)(d) Schedule 4 of Mahogany Industry Development Decree 2010.

14.	However the Defendants further submits that the Court has no power under Order 26 Rule 1 of the Magistrate' Court Rules to strike out a claim. The Rule deals with interlocutory applications. Defendant points out that only the High Court has such discretion to strike out an action under Order 18 Rule 18(1) (b). View of this Court is that a mere technical objection cannot cover a situation when a substantive law clearly stipulate provisions for terminating the action. The magistrate's Court is empowered by the Magistrate's Court Act to make orders on equity.

15.	For the forgoing reasons I hold that the proceedings on the counterclaim is terminated under section 5(2) schedule 4 of the Decree as the matter was commenced before the commencement of the said Decree.

16.	Therefore now I refer this matter to the Chief Registrar to issue a certificate to that effect.

17.	No orders for cost.

Yohan Liyanage

Resident Magistrate

31st July 2012