Ram v Mamta [2010] FJHC 341; HBA003.2010L (4 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Appeal No: 3 of 2010L

BETWEEN:

TOTA RAM
Appellant

AND:

GITA BALA MAMTA
Respondent

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Appellant in person
Respondent in person

Solicitors: Self Represented
Self Represented

Date of Hearing: 4 August 2010
Date of Judgment: 4 August 2010

INTRODUCTION

[1] These are the reasons for my judgment on an appeal from the Lautoka Magistrate Court which was also an appeal from the Small Claims Tribunal in which I dismissed the appeal for lack of grounds.

THE SMALL CLAIMS TRIBUNAL

[2] These facts and findings are from the Referee's Report in the Small Claims Tribunal. In November 2005, Mrs Gita Mamta and Mr Tota Ram entered into a written agreement in which Tota Ram was to live on Mrs Gita Mamta's sugar cane farm and work on the farm during the slack season and harvest cane during the crushing season for 2 years. Tota Ram said the agreement was for $13 per ton of harvested cane and Mrs Gita owed him $1,220.15 for cane harvesting and expenses. Mrs Gita on the other hand counter-claimed for $1102.69. After hearing the parties on 31 March 2008 the Referee dismissed Tota Ram's claim and upheld Mrs Gita's counter-claim. The reasons given were that the counter-claim was supported by documents while the claim was not and the $13.00 per ton for harvesting as claimed by Tota Ram was too much. The counter-claim for $11 per ton was amended to $1651.69. The Refereed awarded 50%. Tota Ram was ordered to pay Gita Mamta $825 in monthly instalments of $50. Default in payment of those instalments would make the total outstanding amount due immediately. The Report also showed that the Referee explained the procedure to both parties and they both understood.

THE MAGISTRATES COURT APPEAL

[3] Tota Ram appealed the Referee's decision to the Magistrates Court. His principal ground of appeal was breach of natural justice by alleged failure by the Referee to allow a Hindustani speaking interpreter to be present at the hearing, failure to allow him to call his witnesses and failure to allow him to file his defence to the counter-claim.

[4] The Magistrates Court file shows that Tota Ram's appeal was first called on 1 October 2008 and adjourned to 15 October 2010 to fix a hearing date. On that date the appeal was set down for hearing on 5 November 2008. Both parties appeared on the date of the hearing. Tota Ram asked for time to seek legal representation. Mrs Gita did not object. The Magistrate adjourned the appeal to 12 November 2008 for mention. Both parties appeared on 12 November 2008. The matter was further adjourned to 17 November 2008 for mention again. On 17 November 2008, Tota Ram did not appear so the Magistrate struck the appeal out. Tota Ram wrote a letter to the Magistrates Court, which was stamped received on 31 March 2010, to explain that he was waiting outside the Magistrates Court when his appeal was struck out. He filed his appeal but the Registries gave him conflicting instructions on which court his papers should be filed and that caused delay. He went to New Zealand for three months in December 2009 and when he came back he was told to write this letter. He asked for his appeal to be forwarded to the High Court.

THE HIGH COURT APPEAL

[5] Only the Copy Record from the Magistrates Court was filed in the High Court. No formal grounds of appeal were filed in this Court so I take the grounds of appeal in the Magistrates Court as the grounds in this Court.

[6] Mrs Gita filed her Reply dated 4 August 2010 in which she said the Referee spoke to them in Hindustani and an Indian interpreter was present in the Small Claims Tribunal. She does not understand why Tota Ram would say he did not understand what was being said. The Referee also spoke to his witnesses in Fijian. The Referee explained everything to him. In the Magistrates Court, the Magistrate gave him enough time for him to get legal advice. Tota Ram did not seek legal advice and the Magistrate ordered him to pay the full amount or he would face 3 weeks imprisonment.

[7] The Small Claims Tribunal Decree 1991 provides:

Functions of other jurisdictions

15.-(1) The primary function of a Tribunal is to attempt to bring the parties to a dispute to an agreed settlement.

(2) If it appears to the Tribunal to be impossible to reach a settlement under subsection (1) within a reasonable time, the Tribunal shall proceed to determine the dispute.

(3) ...

(4) The Tribunal shall determine the dispute according to the substantial merits and justice of the case, and in doing so shall have regard to the law but shall not be bound to give effect to strict legal rights or obligations or to actual forms or technicalities.

(5) Without limiting the generality of subsection (4), a Tribunal may, in respect of any agreement or document which directly or indirectly bears upon the dispute between the parties, disregard any provision therein which excludes or limits,

(a) conditions, warranties, or undertakings; or

(b) any right, duty, liability, or remedy which would arise or accrue in the circumstance of the dispute; if there were no dispute; if there were no such exclusion or limitation.

(6) To give effect to its determination of the dispute or in granting relief in respect of any claim, which is not disputed, the Tribunal shall make one or more of the orders which it is empowered to make under section 16 or under any other law.

Order of Tribunal

16.-(1) A Tribunal may, as regards any claim within its jurisdiction, make one or more of the following orders and may include therein such stipulations and conditions (whether as to the time for, or mode of, compliance or otherwise) as it thinks fit:

(a) the Tribunal may order a party to the proceedings to pay money to any other party;

(b) the Tribunal may make an order declaring that a person is not liable to another in respect of a claim or demand for money, the delivery of goods or chattels, or that work he performed;

(c) ...;

(d) ...;

(e) if it appears to the Tribunal that an agreement between the parties, or any term thereof, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, the Tribunal may make an order varying the agreement, or setting it aside (either wholly or in part);

(f) if it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, the Tribunal may make an order varying or setting aside the agreement, or the writing (either wholly or in part);

(g) the Tribunal may make an order dismissing the claim.

(2) ...

Orders of Tribunal to be final

17. An order made by a Tribunal shall be final and binding on all parties to the proceedings in which the order is made, and subject to section 32 and except as provided in section 33, no appeal shall lie in respect thereof.

...

Appeals

33.-(1) 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.

[8] This appeal is not on the grounds that the Tribunal exceeded its jurisdiction. It is on the grounds that Tota Ram was treated unfairly. It is abundantly clear from the record in both the Small Claims Tribunal and the Magistrates Court that he was given adequate opportunity to seek legal advice and was treated fairly in the courts. I note that his documentation did not show any signs that he did not understand sufficient English to present his case. I do not accept that failure to translate or explain the proceedings in Hindustani, if there was such a failure and the records show otherwise, prejudiced Tota Ram at all. His appeal fails on this ground.

[9] However, I think I need to go further and examine the Referee's decision as to whether it complied with the Decree. His Report showed that he explained that after hearing the parties and their witnesses he would make suggestions in order that the could parties reach a settlement, and if that was not possible, he would go on and make a decision. That seems to be the procedure that he followed. The order that he made is authorised under s 16 of the Decree. He has complied with the provisions of the Decree.

THE ORDERS

[10] The appeal fails on all grounds and is dismissed with no order as to costs.

Sosefo Inoke
Judge