|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL APPEAL NO. HBA 03 OF 2015
BETWEEN:
NARESH KUMAR
APPELLANT
AND:
LOCAL WOODS & HARDWARE LTD
RESPONDENT
Appearance: Appellant - In Person
Respondent - Mr. A. Kohli
Date of Hearing : 8th June, 2016
Date of Judgment : 10th June, 2016
JUDGMENT
Introduction
[1] This is an appeal from the learned Magistrate’s judgment delivered on 6thMay, 2015. The Appellant had appealed to the Magistrate’s court against the decision of a Small Claims Tribunal (The Tribunal). The referee had made a decision against the Respondent-Appellant-Appellant (The Respondent) in favour of the claim of the Claimant-Respondent-Respondent (The Claimant) regarding non-payment of a sum of money. The said decision was taken in the absence of the Respondent in terms of Section 32(5) of the Small Claims Tribunal Decree 1991.When the matter was first called before the Tribunal, the Respondent did not appear and the Claimant obtained an order for the sum he claimed. Subsequently, the Respondent appeared before the Tribunal and a re-hearing was requested and the referee allowed the re-hearing. On the date fixed for re-hearing again the Respondent did not appear before the Tribunal and an order in terms of Section 32(5) of Small Claims Tribunal Decree 1991 was made. Being aggrieved by this order a purported appeal was filed to the Magistrate Court. The learned Magistrate dismissed the Appeal after considering the merits of the appeal. Having aggrieved by the said decision of the learned Magistrate this purported appeal was made to the High Court.
Analysis
[2] This is an appeal from the learned Magistrate delivered on 6th May, 2015.So this appeal to the High Court was filed in terms ofSection 36(2) of the Magistrate’s Court Act (Cap 14) as this decision of the learned Magistrate was a decision in the exercise of Appellate powers against the decision of the referee.
[3] The mode of an Appeal to the High Court against the decision of a Magistrate’s Court is contained in Order 37 of the Magistrates’ Court Rules (Cap 14, Subsidiary Legislation Revised 1985) and states as follows;
‘ORDER XXXVII. - CIVIL APPEALS
I. - Notice of Intention to Appeal
Notice of intention to appeal
Provided hat such notice may be given verbally to the court in the presence of the. opposite party immediately after judgment is pronounced.’
[4] So the Respondent who appealed against the decision of the learned Magistrate’s decision was required to comply with the provision of the above rule and ‘Notice of Intention of Appeal’ must be filed within the stipulated time period of 7 days. In this case the decision of the learned Magistrate was delivered on 6th May, 2015 and the ‘Notice of Intention of Appeal’ was filed on 1st June, 2015. So the said Notice was filed outside the time period laid down in the law.
[5] It should also be noteworthy that ‘Notice of Intention of Appeal’ need not be written and it can be made even orally after the delivery of the decision, in the presence of the opposing party, in terms of the proviso to the abovementioned provision.
[6] I have examined the minutes of the Magistrate’s Court and there is no indication of such intention given. The Respondent did not state that he gave such verbal notice.
[7] In the case of Crest Chicken Ltd v Central Enterprises Ltd [2005] FJHC 87; HBA0013j.2003s (unreported) decided on 19 April 2005, the High Court in an appeal held that the magistrate does not have jurisdiction to extend the time period of the notice of appeal . It was further held that the said provision was a mandatory provision, hence non-compliance is fatal for the appeal before the High Court.
[8] So this appeal should be dismissed for failure to comply with the provision of the Magistrate’s Court Rules.
[9] So this appeal can be dismissed for non-compliance of Order 37 rule 1 of the Magistrates’ Court Rules. In Crest Chicken(supra) it was held if a Magistrate’s Court had accepted a “Notice of Intention of Appeal” outside the 7 day time period the court below had acted ‘ultra vires’ hence the appeal should inevitably dismissed.
[10] Without prejudice to the above finding, I will further consider provisions of law relating to appeal below in the exercise of wide powers granted to High Court in Magistrates’ Court Rules
[11] The powers of the High Court sitting as an appellate court from a decision of a Magistrates Court are set out in Order XXXVII Rules 18 and 19 of the said rules and state as follow;
‘General Powers of Appellate Court
18. The appellate court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its finding on any question which the appellate court thinks fit to determine before final judgment in the appeal, and, generally, shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the appellate court as a court of first instance, and may rehear the whole case, or may remit it to the court below to be reheard, or to be otherwise dealt with as the appellate court directs.(emphasis is mine)
Power of appellate court to give any decision or make any order
19. The appellate court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other orders as the case may require, including any order as to costs. These powers may be exercised by the appellate court, notwithstanding that the appellant may have asked that part of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.’ (emphasis added)
[12] The power of the High Court regarding the Appeals from a Magistrate’s Court in terms of Rule 18 and Rule 19 included re hearing on the documents that are contained in the copy record.So any of the powers of court below can be exercised by the High Court in the exercise of Appellate powers.
[13] In Fiji High Court case of Aaryan Enterprise v Mehak Unique Fashion[2011] FJHC 727; Civil Appeal 17.2011 (decided on 10 November 2011) (unreported) Calanchini J(as his Lordship then was) held:
‘In my judgment the jurisdiction conferred on this Court as an appellate court under Order XXXVII to hear appeals from the Magistrates
Court entitles the Court to consider the matter in question as a court of first instance (i.e. afresh) unfettered by the decision
of the learned Magistrate and as a result, I am entitled to exercise my own discretion. Under Order XXXVII I am not restricted to
reviewing the manner in which the learned Magistrate exercised herdiscretion. (See CM Van Stillevoldt BV -v- EC CaviersInc[1983]
1 All ER 699).’
[14] The general power of appellate court is discussed in a more recent decision in England , in Beacon Insurance Co Ltd v Maharaj Bookstore Ltd[2014] UKPC 21; [2014] 4 All ER 418 at 423 (Privy Council) and it was held:
‘It has often been said that the appeal court must be satisfied that the judge at first instance has gone 'plainly wrong'. See, for example, Lord Macmillan in Watt (or Thomas) v Thomas [1947] 1 All ER 582 at 590, [1947] AC 484 at 491 and Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45, 2004 SC (HL) 1 (at [16]–[19]).....’
[15] An appeal is against the final decision and not against the reasons given in the decision (See Fiji Court of Appeal decision Kaur v Singh (unreported ABU 11 of 1998; 13 August 1999) and Commonwealth of Australia and Others v Bank of New South Wales and Others [1949] 2 ALLER 755 at 763)[1].
[16] When a party is absent the powers of the referee to make orders are contained in Section 27 of the Small Claims Tribunal Decree 1991. It reads as follows;
‘Tribunal may act on evidence available
27.-(1) If the case of any party is not presented to the Tribunal, after reasonable opportunity has been given to him to do so, the issues
in dispute in the proceedings may be resolved by the Tribunal, or relief in respect of an undisputed claim may be granted by it,
on such evidence or information as is before it, including evidence or information obtained pursuant to section 26(2).
(2) An order made by the Tribunal in the circumstances described in subsection (1) shall not be challenged on the ground that the case of the party was not presented to the Tribunal, but the party may apply for a rehearing under section 32 on the ground that there was sufficient reason for his failure to present his case.’ (emphasis added)
[17] The Respondent did not appear before the Tribunal on the date of hearing on 4th June, 2013 and the referee had exercised the discretion under Section 27(1) of the Small Claims Tribunal Decree 1991 and the order was given in favour of the Claimant. The use of word ‘may’ in the said provision grants discretion to the referee and Section 27(2) of Small Claims Tribunal Decree 1991, grants protection against achallenge on the ground that a party was not present.
[18] After the order was made on 4th June, 2013, the Respondent applied for rehearing in terms Section 27(2) of the Small Claims Tribunal Decree 1991.
[19] The Section 32 of the Small Claims Tribunal Decree 1991, deals with the mode of rehearing in default of a party and it states as follows;
‘32.-(1) Subject to subsection (2), a Tribunal may, upon the application or a party to any proceedings, order the rehearing of a claim, upon such terms as it thinks fit.
(2) A rehearing may be ordered under subsection (1) only if an order has been made under section 15(6) or section 31(2) and, in the latter case, shall be limited to rehearing the enforcement proceedings taken under that section.
(3) Every application for a rehearing shall be in Form 5 of the first Schedule, shall be lodged together with the fee prescribed in
the Second Schedule and shall be made within 14 days after the Tribunal's order and shall be served upon the other parties to the
proceedings.
(4) When a rehearing is ordered:
(a)the Registrar shall notify all parties to the proceedings of the making of the order and of the time and place appointed for the rehearing; and
(b)the order of the Tribunal made upon the first hearing shall cease to have effect.
(5) Notwithstanding subsection (4)(b), if the party on whose application a rehearing is ordered does not appear at the time and place for the rehearing or at any time and
place to which the rehearing is adjourned, the Tribunal may, without rehearing or further rehearing the claim direct that the original
order be restored to full force and effect.
(6) This Decree shall apply to a rehearing in all respects as it applies to an original hearing’. (emphasis added)
[20] The Respondent failed to appear before the referee at the time of the rehearing on 9th July, 2013 and the referee had applied the Section 32(5) of the Small Claims Tribunal Decree 1991. The said provision is designed to prevent an errant party from abusing the process and resorting to delaying tactic. So if a party is absent for the first time he is given an opportunity to for rehearing and if he failed to attend to the Tribunal on the second occasion (i.e. at rehearing) the Tribunal can restore its earlier decision made in default. The use of word ‘may’ in the said provision gives the referee a degree of discretion, but this exercise of discretion cannot be appealed.
[21] Considering the low monetary value and the nature of the applications before the Tribunal and the powers of the referee, the Claimants need some protection against inordinatedelay which would further frustrate their claim, so that ultimately ADR introduced under Tribunal would be made nugatory. Considering the behavior of the Respondent the order made by the referee cannot be considered as unreasonable or unfair. In my judgment, thereferee’s exercise of discretion in terms of Section 32(5) of the Small Claims Tribunal Decree 1991, is not subject to right of appeal in terms of Section 33 of the Small Claims Tribunal Decree 1991.
[22] The power of the Magistrate Court regarding the orders of the Tribunal are specific and there is no general right of appeal against all orders of areferee. The powers are
contained in Section 33 of the Small Claims Tribunal Decree 1991, and it states as follows:
‘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.’
[23] So, the first requirement for an Appeal to the Magistrate Court in terms of the above provision is that the orderof the Tribunal should be a one made in terms of Section 15(6) or Section 31(2) of the Small Claims Tribunal Decree 1991.
[24] The next hurdle is that such an order made in terms of Section 16(6) or Section 31(2) of the Small Claims Tribunal Decree 1991 should have exceeded the jurisdiction or proceedings should have been conducted in unfair manner that it prejudicially affect the result.
[25] The Section 17 of Small Claims Tribunal Decree 1991 specifically state that the order made by the Tribunal are ‘final and binding’ on all parties to the proceedings subject to Section 32 and also for appeal in terms of Section 33 of Small Claims Tribunal.
[26] In my judgment there is no right of appeal conferred in section 33 of Small Claims Tribunal Decree 1991 for an order made in the exercise of the discretion in terms of Section 27(1) and or Section 32(5) of the Small Claims Tribunal Decree 1991 in this matter.
[27] The Respondent had appealed against the decision of the referee delivered on 9th July, 2013. On this day the Respondent was not present before the Tribunal. In the Appeal report the referee had stated that he was not given a chance to hear both parties. It is admitted fact that on the 9th of July, 2013 the Respondent did not appear in the Tribunal and it was a re-hearing of the matter as an order against the Respondent was initially made by the referee on 4th June,2013 on his failure to attend to the Tribunal on the date of hearing.So, having filed re-hearing of that decision before the Tribunal, the Respondent was absent again on 9th July, 2013 when it was fixed for re- hearing.
Conclusion
[28] There is no Notice of intention to Appeal filed within the stipulated time from the decision of the learned Magistrate. Without prejudice to the said ground the order of the referee subject to the appeal before the Magistrate’s Court was made in terms of Section 32(5) of Small Claims Tribunal Decree 1991. There is a discretion granted to the referee to act in terms of Section 27(1) and 32(5) of Small Claims Tribunal Decree 1991. If a party is aggrieved by an order made in terms of section 27(1) Small Claims Tribunal Decree 1991, the party can seek rehearing in terms of Section 27(2) of Small Claims Tribunal Decree 1991. But there is no right of appeal in terms of Section 33 against the orders made under Section 27(1) and Section 32(5) of Small Claims Tribunal Decree 1991. For the reasons given above, this appeal is dismissed with costs. Considering the circumstances of the case this is an appropriate case to grant a cost of $500 assessed summarily against Respondent. The Respondent had delayed the implementation of referee’s order for payment made on 4th June 2013 reaffirmed on 9th July 2013for more than 3 years, and this defeats the object of the quick, speedy and cost effective relief to successful claimant.
The Final Orders
[29] a. The Appeal is dismissed.
Deepthi Amaratunga
Judge
[1]This was applied in Australia Consolidated Press v Uren [1967] 3 All ER 523;Thomas (Arthur) v The Queen [1979] 2 All ER 142 (All of Privy Council decisions)
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2016/533.html
