Verma v Osaka Auto Spares (Fiji) Ltd [2011] FJHC 510; HBA13 of 2010 (8 September 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

HBA Civil Appeal No 13 of 2010

BETWEEN:

SANJAY SINGH VERMA (f/n Sukhdeo Singh) and BABITA KUMAR VERMA(f/n Pramod Nath) of Raralevu, Nausori in the Republic of Fiji islands, Businessman and Businesswoman.
APPELANTS

AND:

OSAKA AUTO SPARES (FIJI) LIMITED at Nasinu Road, Valelevu, in the Republic of Fiji islands, Limited Liability Company.
RESPONDENT

Appearances: Appellants in person
Respondent: representative present

Date of hearing: 23rd May, 2011

JUDGMENT

1. This Appeal is concerned with a judgment of the Magistrates' Court, which had heard an appeal from an order of the Small Claims Tribunal, on a mention date.
   
2. The Appellant had filed a claim in the Small Claims Tribunal, claiming a sum of $ 1110.00 from the Respondent as damages caused by a taxi to the vehicle of the Appellant, which had been left for repairs in the Respondent's garage. The Small Claims Tribunal on 24th September, 2009, had made Order that the Appellant pay the sum claimed to the Respondent.
   
3. On 10th September, 2010,the Learned Magistrate had delivered Judgment quashing the order made by the Referee, Small Claims Tribunal, on the ground that the referee had conducted the hearing in a manner unfair to the Respondent in terms of section 33(1)(a) of the Small Claims Tribunal Decree.
   
4. The copy record of the Magistrates' Court provides as following:
   
   1. On 23rd March,2010,the Appellant and Respondent were present in Court. Since the Presiding Magistrate was indisposed, the case had been "Adjourned( to) 16 July,2010, to set hearing date".
      
   2. On 16 July,2010, the Appellant was not present in Court. A representative of the Respondent Company had been present and stated "I am relying on my appeal grounds. Seek Judgment by court". The Learned Magistrate had recorded "Judgment-10th September 2010".
      
   100. Accordingly, as noted above, judgment was delivered on 10th September, 2010.
        
5. In my judgment, the Learned Magistrate erred in hearing the case on a mention date.
   
6. In the circumstances, I set aside the judgment of the Learned Magistrate dated 10th September, 2010, and make Order that the hearing of the appeal be taken up in the Magistrates' Court upon notice being given to the Appellant and Respondent. I make no order as to costs.
   

A.L.B.Brito-Mutunayagam
Judge

8th September, 2011