Chand v Chand [1999] FJHC 61; HBA0018D.1999S (12 July 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL APPEAL

CIVIL APPEAL NO. HBA0018 OF 1999

BETWEEN:

DEWAN CHAND
Appellant

AND:

NARESH CHAND
Respondent

Counsel: Mr Raza for Appellant
In Person for Respondent

Hearing: 5th July 1999
Decision: 12th July 1999

DECISION

This is an appeal from the decision of the Suva Magistrates Court on 26th March 1999, to refuse the appellant leave to appeal from a decision of the Small Claims Tribunal in Suva, on 28th July 1998.

The grounds of appeal are as follows;

1. The learned Magistrate erred in law in dismissing the appeal from the Small Claims Tribunal.
   
2. The Magistrate erred in law and fact is failing to find that the claim in the Tribunal was misconceived because the Respondent was never employed by the Appellant.
   
3. The Appellant was not trading as Dee Cees Bus Company and the Small Claims Tribunal could not have held the Appellant liable in person.
   

The facts of the matter are that the Respondent in this appeal lodged a claim against the Appellant in Person in the Small Claims Tribunal in Suva. It appears from the Order of the Small Claims Tribunal that the parties agreed on 10th March 1998 that the Respondent should produce wage and time records to the Labour Inspector on 11th March 1998. The Tribunal then accepted a recommendation of the Labour Inspector in a letter dated 16th March 1998, and ordered the Appellant to pay the Respondent the sum of $1,616.00 within 30 days. It appears that the claim was in respect of unpaid wages. On 28th July 1998, the Appellant failed to appear before the Tribunal, and the order was made in his absence.

The Appellant did not pay the sum ordered, and a writ of fieri facias was issued by the Magistrates Court to enforce the judgment debt. The writ is dated 28th September 1998.

On 6th November 1998 a Motion and Affidavit was filed in the Suva Magistrates Court, for orders that the decision of the Small Claims Tribunal be set aside for irregularity, that the Judgment Debtor Summons be set aside and/or that leave be given to the Appellant to appeal out of time. By 6th November 1998 the appeal was more than two months out of time.

The supporting affidavit of Dewan Chand deposed, at paragraph 3, that he did not recall receiving any notice of the claim from the Claimant. At paragraph 6, Dewan Chand deposed that he did not call receiving a copy of the order of the Referee until the Judgment Debtor Summons was issued on 26th September 1998.

There is no record that the Appellant filed a Notice of Appeal pursuant to Section 33 (3) of the Small Claims Tribunal Decree.
The matter was called before the Magistrates Court on 6th November 1998 and the court ordered the Appellant to file an application in the Small Claims Tribunal.

It appears from page 19 of the record, that the Referee found that there was no provision in the Small Claims Tribunal Decree for enlarging time to appeal, and he rejected the documents. The matter was again called before the Resident Magistrate.

Seven days were given to Appellant for submissions. These submissions were filed on 10th March 1999.

On 26th March 1999 the Resident Magistrate dismissed the Motion with costs. She found firstly that the motion was couched as an appeal, secondly that the proper procedure had not been followed, thirdly that the issue of the application for enlargement of time had not been addressed adequately, and thirdly that the purported appeal appeared to attack the merits of the decision of the Referee, which was not permissible under Section 33 of the Small Claims Tribunal Decree.

The decision of the Magistrate is clearly a decision to refuse leave to appeal out of time. The grounds of appeal filed in the High Court, challenge the decision of the Small Claims Tribunal Referee. They do not specify how the Magistrate erred in refusing to grant leave to appeal.

Mr Raza for the Appellant was heard on 5th July 1999. The Respondent appeared in person. Mr Raza submitted that the Referee had erred in permitting a claim against the Appellant in person. He submitted that this error resulted in an irregularity that, in effect, deprived the Tribunal of jurisdiction. He therefore submitted that this was not an appeal on the merits, but an appeal which fell within the ambit of Section 33(a) and (b) of the Decree. He argued that the Magistrate therefore erred in holding that this appeal dealt with the merits of the Referee's decision.

Furthermore he submitted that the affidavit of Dewan Chand showed that the Appellant had been unaware of the proceedings in the Tribunal and that he therefore had a good reason for the delay in the filing of the appeal.

The Respondent in response submitted that the delay in the case had prejudiced him and that he had received money from the Appellant in person, in the course of his employment.

In order for this appeal to succeed, the court must find that the learned Magistrate erred in her approach to the application for leave to appeal of time.

Rule 4 of Order XXXVII of the Magistrates Courts Rules Cap. 14 provides;

"On the Appellant failing to file the grounds of appeal within the prescribed time he shall be deemed to have abandoned the appeal, unless the court below or the appellate court shall see fit to extend the time".

The principles determining the exercise of this discretion are well set out in the decision of Thompson J in Ist Deo Maharaj -v- BP (South Sea) Company Ltd. Civil Appeal No. ABU0051 of 1994S. At page 5 of the decision, his Lordship said-:

The Court has an unfettered discretion in the grant or refusal of leave. The factors which are normally taken into account in deciding whether to grant an extension of time are:

(a) the length of delay;

(b) the reasons for the delay;

(c) the chances of the appeal succeeding if time for appealing is extended; and

(d) the degree of prejudice to the Respondent if the application is granted

.
In this matter the learned Magistrate found that the Appellant had failed to follow the proper procedure for making such an application, that the motion and affidavit had failed to provide sufficient grounds for the application, and that the appeal appeared to be one relating to the merits of the decision.

It appears from this ruling that the learned Magistrate was correctly applying the principles for dealing with an application for enlargement of time.

Firstly no notice of appeal was filed. Secondly, the motion purported to be a Motion for orders to be granted on the appeal proper. The application for leave is only an alternative prayer under paragraph (3).

Thirdly, whilst the affidavit of Dewan Chand states that the claim was never served on him, the Order of the Tribunal, at page 11 of the Record suggests that the parties had appeared on 10th March 1998 and that they had agreed that the Respondent was to produce wage and time records to the Labour Inspector on 11th March 1998. It is significant that non-service is not a ground of appeal. Furthermore, the affidavit fails to explain the delay of one month in filing the application, after service on him of the Judgment Debtor Summons of 26th September 1998. It appears therefore that the learned Magistrate was quite correct in concluding that the application failed to adequately address the issue of enlargement of time.

Finally, in response to the argument that this appeal challenges the jurisdiction of the Tribunal, rather than the merits of the decision, I note that the Referee referred to the Appellant "trading as Dee Cees Bus Company". Mr Raza argued that this was an error which deprived the Tribunal of jurisdiction. He was unable to refer the Court to any authority to support his submission.

Section 33(1) of the Small Claims Tribunal Decree provides;

Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under Section 15(6) or Section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the Appellant and prejudicially affected the result of the proceedings or

(b) the Tribunal exceeded its jurisdiction.

The scope of appeals under this provision was discussed by Fatiaki J in Sheet Metal and Plumbing (Fiji) Limited -v- Uday Narayan Deo Civil Appeal No. 0007 of 1999. In that decision, a similar application had been made to the Magistrates Court to enlarge the appeal period. The application was refused. The Appellant appealed to the High Court. The appeal was dismissed on the ground that the learned Magistrate had not erred in the exercise of her discretion.

However Fatiaki J went on to consider the purpose of the Small Claims Tribunal, that is, to provide prompt, inexpensive and lay tribunals for the settling of small claims. His Lordship referred to Section 15(4) of the Decree which provides;

"The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so . . . . . shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities."

His Lordship went on to say that the appeal failed to properly appreciate the function and nature of a non-legally qualified referee exercising what in effect is an equity and good conscience jurisdiction.

Part II of the Decree is entitled "Jurisdiction and Functions of Tribunals" Sections 8, 9, 10, 11, 12, 13 and 14 deal with the jurisdiction of the Tribunal, and refer to the value of the claims, limits on claims for land, titles and matters which can not be heard in the Magistrates Courts, the value of counter-claims, prohibition of division of claims, agreements to exclude the jurisdiction of the Tribunal and the lodging of duplicate claims.

It appears therefore that the reference in Section 33 to "jurisdiction" relates to the matters dealt with in Part II of the Decree. The bringing of actions against particular persons falls rather under Part III of the Decree. Section 19 gives the Tribunal the discretion to give notice of a claim to any person with a sufficient connection with the proceedings.

I am not satisfied that the error of law alleged by the Appellant is one which falls within the ambit of Section 33(1) of the Decree. As such I cannot agree that the learned Magistrate erred when she found that the appeal appeared to be on the merits of the decision of the Tribunal. It follows that therefore the appeal had no reasonable prospect of success.

For these reasons, I am satisfied that the learned Magistrate did not err in the exercise of her discretion to refuse the application for leave to appeal out of time.

The appeal is dismissed. The payment into court of $1,616.00 is to be paid to the Respondent forthwith. The Appellant is to pay the Respondent's costs which I fix at $50.00.

[Nazhat Shameem] Ms
JUDGE

At Suva
8th July 1999