Yogesh Chand v. Subhas Chandra

• Jurisdiction: Fiji
• Judgment Date: 18 October 2017
• Date: 18 October 2017
• Docket Number: Appeal No. HBA 10 of 2017 Civil Action No. 03 of 2016
• Counsel: Mr. S. Kumar for the Plaintiff-Appellant,Mr. K. Singh for the Defendant-Respondent
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI AT SUVA

APPELLATE JURISDICTION

Appeal No. HBA 10 of 2017

Civil Action No. 03 of 2016

Between

Yogesh Chand of Sawani, Nausori, Handyman at Silverstone Limited.

Paintiff-Appellant

v.

Subhas Chandra of Sawani, Nausori, Carrier Driver.

Defendant-Respondent

Date of Hearing: 13^th September, 2017

Date of Judgment: 18^th October, 2017

Counsel:

Mr. S. Kumar for the Plaintiff-Appellant

Mr. K. Singh for the Defendant-Respondent

JUDGMENT

[1] This is an appeal from the ruling of the learned Magistrate striking out the claim of the plaintiff-appellant.

[2] The plaintiff-appellant instituted these proceedings in the Magistrate’s Court of Nausori by writ of summons seeking to recover $7524.45 from the defendant-respondent.

[3] The plaintiff-appellant’s case is that he entered into a sale and purchase agreement with the defendant-respondent to purchase a block of land which was completed on 31^st December, 2001. The plaintiff thereafter, constructed a house and lived happily there for five years until the defendant started to shift the drive way by pulling out the culvert and barbwire. The plaintiff-appellant has spent $1200.00 to construct the drive way.

[4] On the instructions of the defendant-respondent the plaintiff-appellant had put up a new culvert which cost him $500.00 and to shift the electricity line the plaintiff-appellant had paid $580.00. The defendant-respondent thereafter had constructed another house and rented it out. The tenant of the new house had damaged the newly built culvert of the plaintiff-appellant. The action of the plaintiff-appellant is not based on the sale and purchase agreement.

[5] From the reading of the entire ruling of the learned Magistrate it appears that she has struck out the writ of summons on the ground that the cause of action was barred by the provisions of section 4(1) of the Limitation Act 1971.

[6] From these findings, as submitted by the learned counsel for the plaintiff-appellant, two important issues arise for consideration in appeal that is whether the learned Magistrate had the power to strike out the writ of summons ex mere motu without an objection taken by the defendant-respondent to that effect and whether the learned Magistrate had sufficient material on record to arrive at such a conclusion.

[7] In her ruling, at paragraphs 11 and 12 the learned Magistrate states as follows:

11. The sale and purchase dealing was completed in 2001.

The plaintiff claims that after 05 years the...