Western Wreckers Ltd v Raj [2012] FJHC 1415; HBA009.2012L (14 November 2012)

IN THE HIGH COURT OF FIJI
LAUTOKA
[CIVIL JURISDICTION]

CIVIL APPEAL NO : HBA 009/2012L
CIVIL APPEAL [MC] NO : 041/2011
SMALL CLAIMS TRIBUNAL NO : 608/2011

BETWEEN:

WESTERN WRECKERS LTD
RESPONDENT-APPELLANT

AND:

KHEM RAJ
CLAIMANT-RESPONDENT

Before : Priyantha Nāwāna J.
Counsel : Appellant : Mr Roneel Kumar
Respondent in person

Date of Hearing : 14 November 2012

JUDGMENT

1. The appellant appeals the ruling dated 26 April 2012 of the learned Magistrate, Lautoka, dismissing the appeal against the decision of the Small Claims Tribunal (SCT) dated 08 June 2011. The notice of intention to appeal to this court was given only on 10 May 2012.
   
2. Facts reveal that the respondent lodged a claim for a sum of $ 5000.00 against the appellant before the SCT on the basis that the appellant had failed to return the said amount after repossessing the car bearing No CU 469 in consequence of a contract of sale. The claim was supported by documentary evidence.
   
3. At the hearing before the learned Referee of the SCT, the respondent gave evidence in support of his case. The appellant, too, gave evidence. Opportunities for cross-examination were also available for the appellant and the respondent.
   
4. The learned Referee, upon consideration of the evidence and the documents, allowed the claim of the respondent and ordered the appellant to pay a sum of $ 2000.00 by 30 June 2011 and the balance sum of $ 3000.00 in six monthly installments of $ 500.00.
   
5. On appeal to the Magistrate's Court, both parties made written-submissions in support of their respective cases. Learned Magistrate, upon consideration of the submissions, concluded in his ruling that the Tribunal had conducted the proceedings properly and saw no reason to intervene in the award of the SCT.
   
6. Mr Roneel Kumar, learned counsel for the appellant, submitted at the hearing into the appeal to this court that a witness namely, 'Sunny', had not been called by the respondent. He submitted, in the circumstances, that the proceedings were not fair and relied on Jones v Dunkel 1959-60 (1) CLR 298 to contend that that evidence was not called as it was unfavourable to the respondent.
   
7. The powers of appeal against a decision of the SCT are very limited. And, I find that the SCT had not exceeded its jurisdiction or conducted itself in an unfair manner so as to prejudicially affect the result of the proceedings in order to attract intervention of the Magistrate's Court in the exercise of its limited power of appeal in terms of Section 33 (1) of the Small Claims Tribunal Decree of 1991 (the Decree).
   
8. The learned Magistrate, having considered the appeal and the record of the proceedings, rightly held that it had no jurisdiction to inquire into the merits of the dispute.
   
9. I have considered this appeal and its grounds in light of the above submissions of the learned counsel under Sections 36 and 39 of the Magistrate's Court Act read with Rules 18 and 19 of the Order XXXVII of the Magistrate's Court Rules. My consideration of the matter was on the basis of any possibility for this court to intervene by way of revision as this appeal had not been validly made in view of the delay in giving notice of intent to appeal under the Magistrate Court Rules.
   
10. There is no requirement in law that all the witnesses that a party relies on, should be called. The claim of the claimant in this case could be established only with his evidence and the documents he relied on, if such evidence was acceptable to the tribunal. I, therefore, see no merit in the submission of the learned counsel.
    
11. I also find no error on fact or on law in the proceedings had before the Magistrate's Court at the appellate stage before the learned Magistrate or before the SCT at the inquiry to form a legal basis to support the other grounds of appeal.
    
12. I, accordingly, dismiss the appeal of the appellant. The appellant shall pay a sum of $ 200.00 being costs of this appeal, to the respondent. The respondent is now entitled to get the order of the SCT enforced forthwith.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
19 November 2012