Bukai v Chand - Judgment [2015] FJHC 984; HBA2.2015 (27 November 2015)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

CIVIL APPEAL NO.: HBA 2 OF 2015

BETWEEN :

SAULA BUKAI
Plaintiff

AND :

AVINESH AVIKASH CHAND
Defendant

COUNSEL : Mr. P.R. Lomaloma for the Plaintiff

The Defendant in Person

Date of Hearing : 12th October 2015

Date of Judgment : 27th November 2015

Judgment

[1] This is an appeal from the order of the learned Magistrate dismissing the appeal of the appellant from the decision of the Small Claims Tribunal.

[2] The facts of this case are briefly as follows. The appellant purchased a Yamaha on board engine for $ 5000. The appellant initially made a deposit of $ 950 and agreed to pay the balance sum at the rate of $ 500 per week. The position of the appellant is that since the engine was not working he got it repaired which cost him $300. When the appellant failed to make the payments regularly as agreed, the respondent repossessed the engine and sold it to a third party. The respondent thereafter instituted proceedings before the Small Claims Tribunal to recover the amount in arrears from the appellant.

[3] Respondent's position is that he did not repossess the engine.

[4] The learned counsel for the appellant submitted that the statement made by the respondent in his submissions at the hearing of the appeal is not evidence. But the appellant in an affidavit tendered to the Magistrate's Court has deposed that the respondent took over the possession of the engine in question.

[5] The findings of the Small Claims Tribunal read as follows;

One outboard engine Yamaha 40 HP was sold on 05/02/2010 the respondent for $ 5500.00 at a weekly repayment of $ 500.00. To date only $ 950.00 has been paid. In the ensuing period following the transaction, the respondent has incurred a lot of costs pursuing the matter.

[6] On the above findings the tribunal made the following orders;

1. The respondent to pay at the SCT the sum of $ 400.00 per month, starting on or before 15th of April, 2011.
   
2. The total to be settled, inclusive of travelling and phone call costs [$ 80.00], bailiff's costs to serve the order [50.00] and court fees [$ 5.75] is $ 4685.75.
   

[7] The appeal of the appellant to the Magistrate's Court was dismissed and the appellant appealed to this court against the said dismissal on the following grounds;

1. The learned Magistrate erred in failing to find that the applicant had breached the contract of sale of the engine and that the respondent was entitled to take back the engine or sue for breach but not both.
   
2. The learned Magistrate erred in failing to find that the compensation ordered to be paid by the Labasa Small Claims Tribunal in Claim No. 37 of 2011 ($4685.75) was the balance of the purchase price of the engine owed to the respondent by the applicant with costs and that therefore the respondent either had to return the engine or enforce the judgment but not both.
   
3. The learned Magistrate erred in failing to find that when the respondent enforced the judgment against the applicant and sold the engine to a third party for $ 4500.00 he was unjustly enriched at the expense of the applicant and the learned Magistrate should have ordered restitution for the unjust enrichment.
   
4. The learned Magistrate erred in law and in fact when he failed to take into account the fact that the respondent appeared several times but did not file a defence and this matter was formally proved and none of the evidence of the applicant was challenged and therefore the Court was bound to accept it.
   

[8] Before considering the grounds of appeal adverted to by the appellant, it is important to consider the law relating to appeals from the orders of the Small Claims Tribunal which is found in section 33 of the Small Claims Tribunal Decree.

[9] Section 33(1) of the Small Claims Tribunal Decree provides as follows:

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 results of the proceedings; or

(b) the tribunal exceeded its jurisdiction.

[10] The power of the Magistrate's Court or The High Court as the case may be, sitting in appeal from the orders of the Small Claims Tribunal is curtailed to a very great extent by the above provisions. The Court has no power to act in excess of the jurisdiction conferred upon it by the above provisions.

[11] It does not appear from the record that any of the grounds set out in section 33(1) of the Small Claims Tribunal Decree was raised before the learned Magistrate at the hearing of the appeal. The appeal of the appellant was liable to be dismissed on this ground alone by the learned Magistrate.

[12] I will now consider the grounds of appeal relied on by the appellant before this Court. The ground of appeal No. 04 is that the learned Magistrate erred in failing to take into account that although the respondent appeared in Court on several occasions he did not file a defence and the evidence of the appellant had not therefore being challenged. It is pertinent to note that since this is an appeal there is no requirement in law to file a defence or to adduce evidence. As I have stated earlier in this judgment the learned Magistrate sitting in appeal is only required to consider whether the appellant has established any of the grounds set out in section 33(1) of the Small Claims Tribunal Decree, to his satisfaction. At the hearing of the appeal the court will not make a finding on evidence, afresh. It will only consider whether the Court below has arrived at the correct conclusion on the evidence adduce before it. The parties are not required to file a statement of defence in an appeal. Therefore, failure on the part of the respondent to file a statement of defence will not prejudice the right of the respondent of being heard at the hearing of the appeal.

[13] The other grounds of appeal are based on the question of unjust enrichment. The learned Magistrate, although not required in law, has considered the question of unjust enrichment and arrived at a finding. The learned counsel for the appellant challenged the finding of the learned Magistrate on the question of unjust enrichment. In my view the appellant had no legal right to take up this argument before the learned Magistrate in view of the provisions of section 33(1) of the Small Claims Tribunal Decree. The question whether the engine was repossessed by the respondent or not was a matter which should have been brought before the Small Claims Tribunal at the hearing and not before the learned Magistrate for the first time in appeal. There is no material on record whether this matter was in fact brought before the Small Claims Tribunal.

[14] For the reasons aforementioned I hold that the appeal of the appellant is misconceived in law and liable to be dismissed.

ORDERS.

[15] The appeal of the appellant is dismissed.

[16] The appellant will pay the respondent $ 500 as costs (summarily assessed) of this appeal.

................................
Lyone Seneviratne
JUDGE