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Cheng v Raman [2012] FJMC 185; Civil Case 593.2010 (3 August 2012)

IN THE MAGISTRATES COURT AT NASINU

Civil Case No. 593/10

ALBERT LUM & DANNY CHENG
[Plaintiffs]

And

RAJESH RAMAN
[Defendant]

Ms Marie Chan for the plaintiffs
Mr. Tirath Sharma for the Defendant

Ruling on Jurisdiction

1] This case was filed by the plaintiffs on breach of contract to repay the loan by the defendant. The writ was issued on 13th December 2010. The plaintiffs in their writ have not mentioned how much money they lent to the defendant.

2] But the claim for the plaintiff is;

1. The sum of $33,000;
2. Solicitor's costs of this action;
3. Bailiff Fees of $40.00;
4. Interest at 5% per annum from 8th May 2007 until judgment.
   

And the Plaintiffs further claim the costs of this action

3] The defendant filed the statement of defence on 18th August 2011. In that the defendant denies the receiving any loan and counter claim as follows;

1. An order that the Agreement dated 18th of April 2007 be set aside;
2. An order that the Plaintiffs Writ of Summons be struck out on the basis that it flawed to the effect that it fails to state that the Plaintiffs claim be limited to $50,000.00 to be within the jurisdiction of this Honorable Court.

100. General damages for economic pressure and/or duress and stress up to sum not exceeding $10,000.00.

4. Costs.
5. Such other reliefs this Honorable Court seems just ad expedient.
6. That the Defendant limits its Counter Claim to be within the monetary jurisdiction of Honorable Court.
   

4] In respect of jurisdictional issue the plaintiffs says in their reply;

"The Plaintiffs say they are entitled to judgment, interest and costs as prayed, which when calculated, are within the jurisdiction of the Magistrates Court. The Plaintiffs intend to limit their claim to the jurisdiction of the Magistrates Court."

5] It seems to me this jurisdiction objection was taken at the outset however the case was fixed for hearing on 29th May 2012. On the hearing date the learned defence counsel raised this matter be resolved first. The defendant's objection is plain to see that the plaintiffs have not limited the jurisdiction of this court, therefore this court does not have jurisdiction to try this action.

6] The Plaintiff learned counsel said that the Magistrates' Court Jurisdiction has increased to $50,000 and the defendant has not raised this objection as early as possible. The claim is just $33,000 and it does not exceed the jurisdictional limit of $50,000.

7] It is seen that the plaintiff has not limited the jurisdiction in his claim. The plaintiffs in their pray firstly prayed $33,000 and secondly prayed as a further claim Total $30,563.13 (plus interest at the rate of 5% per annum from 8th May 2007 until Judgment). The plaintiff claim is unclear in that sense. The Plaintiffs claimed interest at the rate of 5% per annum from 8th May 2007 until Judgment and this will exceed the jurisdiction if not this limited in the prayer. This clearly shows that the claim will excess the jurisdiction. Further, in their reply they said that they intend to limit. But this cannot be accepted as the pleadings must be précised.

8] The plaintiffs further said this objection must be taken at very outset. Common law allows that the Objection for jurisdiction must be taken at very outset. In Boyle v Sacker [1888] UKLawRpCh 126; (1888) 39 Ch D 249 at 252 and court held Pringle v Hales [1925] 1 KB 573 at 581, 583.

"It is suggested that a defendant ought to raise any objection at the earliest opportunity. It may be argued that the failure to take objection amounts to a waiver or those late objections should not be permitted in the interests of case management."

9] In Srijj v Native Land Trust board Civil Appeal 12/94 High Court Labsa Scott, J addressed this issue that:

"Alleged want of jurisdiction should always be voiced at the commencement of the proceedings and while a total want of jurisdiction cannot be cured by consent of the parties (Jones v Owen (1849) 18 LJ QB8) a party who conducts himself as to waive his rights cannot rely on want of jurisdiction on appeal (Windsor v Danford [1848] EngR 625; (1848) 12 QB 603 and Prinsle v Holes (1925) 1 KB 573.

10] The defendant has taken this objection in his statement of defence and that is the earliest opportunity to object. I hold there is no delay in make this objection. Before pleadings were closed objection for jurisdiction must be taken as this is patent lack of jurisdiction. The defendant has taken objection within the pleadings and thereby no sinister had been done.

11] The section 16 (i) (b) (ii) (as amended) of the Magistrate's Court Act provides the jurisdiction of the Magistrate's Court is which states:

" in all other personal suits, whether arising from contract, or from tort, or from both, where the value of property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than fifty thousand dollars".

12] This situation has clearly enunciated by Hammett J in Ram Khelawan v Budh Ram (13 FLR) 196 at page 197 held that:

"Once a summons has been issued in a Magistrate Court of the first class in excess of jurisdiction which is given to that Court by the Legislature it appears to me that the only order that may be made when the matter is being dealt with by the Magistrate is for him to strike out the cause for want of jurisdiction. The Magistrate does not appear to have any powers either to amend the claim or to transfer the case. He can therefore only decline to entertain the suit on the ground that it is in respect of a matter that is beyond the jurisdiction which has been granted either to the Magistrate or the Court by the Legislature".

13] Hammett J again in Imam Din v Muna Lal Civil Appeal No. 4 of 1966 articulated the principles as follows:

"In the Magistrate's Court a litigant is not entitled to claim general damages to an unspecified amount. He must state the amount of his claim in order that it may be seen to be within the jurisdiction of the Court and in order that the appropriate court fee which is based on the amount of the claim can be assessed and paid"

14] The plaintiffs were represented by the legal practitioner. The writ was signed (possibly drafted) by the same legal practitioner. Thus, one cannot say this is ignorance of law. Ignorance of a practitioner cannot be condoned and cannot be taken as an excuse. However, the Ignorance of law is no excuse-Ignorantia Legis Neminem Excusat".

15] I therefore make following orders;

a) Case is struck out in want of jurisdiction

b) Parties will bear their own cost

Orders accordingly,

On 03rd August 2012 at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]

Resident Magistrate-Nasinu