Kumar v Sharma [2016] FJHC 699; HBA11.2016 (5 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Civil Appeal No.: HBA 11 of 2016

BETWEEN : SANJITESH KUMAR of Vuci Road, Nausori

APPELLANT

AND : HARISH PRASAD SHARMA
ARVINDRA SHARMA

RESPONDENTS

Appearance : Mr. S. Kumar for the Appellant
In person for the 2^nd named Respondent
Date of Hearing : 25^th July, 2016
Date of Judgment : 5^th August, 2016

JUDGMENT

INTRODUCTION

1. The Appellant Respondent (the Respondent) was the driver of Public Service Vehicle (Taxi) Reg No LT 1255 which was involved in a road accident that collided with a post by the side of a road at a main junction at Samabula. There was no visible damage to the property other than the vehicle concerned. Admittedly the Respondent was given the permission to drive the vehicle by the Claimants-Respondents (Claimants) on that day. The accident happened on 28^th June, 2015 and the Respondent’s statement was recorded at 17.26 hrs on the same day. He was requested to be present for a medical officer with Medical Examination Form, and was examined by a Doctor around 3pm (15hrs) where as the accident happened around 11 am. The Claimants filed action before Small Claims Tribunal and the referee had awarded the claim for a sum of $4,490. Having aggrieved by the said decision the Respondent Appealed to the Magistrate’s Court and the learned Magistrate delivered the decision on 23^rd May, 2016.
   
2. The Grounds of appeal filed on 6^th June, 2016 state as follows
   1. ‘That the learned Appellate Magistrate erred in law and in fact by failing to apply a proper principles of law to the trial by the Referee of the Small Claims Tribunal when the claim before him involved question of law.
   2. That the learned Appellate Magistrate failed in his duty to consider that when question of law was involved and the Tribunal exceeded its jurisdiction in the manner in which the Tribunal concluded the proceeding that was unfair and prejudicial to the Appellant in that the Referee called for police clarification and failed to ask for the caution interview and medical report of Appellant wherein it is stated that accident was caused by mechanical defect and therefore Appellant is not liable any damage or loss suffered and it should lie where it falls.
   3. That the learned Appellate Magistrate erred in law and in fact in disallowing the appeal despite there been no cross appeal filed and served by the Respondent.
   4. That the learned Appellate Magistrate erred in law and in fact in denying the Defendant/Appellant the rules of the natural justice by completely shutting him out from defending his case when an appeal is by way of rehearing.
   5. That the learned Appellate magistrate erred in law and fact in failing to do the appellate Courts duty to prevent the injustice caused to the Appellant ; When appeal was heard and argued before one Magistrate and decision given by another Magistrate who did not hear oral arguments.
   6. That the learned Appellate Magistrate failed in law and in fact in failing to comply with the Small Claims Tribunal Decree and section 37,38 and 39 of the Magistrates Court Act Cap 17(sic);’
      

ANALYSIS

3. This appeal to the High Court was filed in terms of Section 36(2) of the Magistrate’s Court Act (Cap 14) as the decision of the learned Magistrate was a decision in the exercise of Appellate powers against the decision of the referee.
   
4. 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

1. - Notice of Intention to Appeal
   

Notice of intention to appeal

1. Every appellant shall within seven days after the day on which the decision appealed against was given, give to the respondent and to the court by which such decision was given (hereinafter in this Order called "the court below") notice in writing of his 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.’(emphasis added)

5. So the Respondent who appealed against the decision of the learned Magistrate’s decision of 23^rd May, 2016, 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 there is no ‘Notice of Intention of Appeal’ filed, but grounds of appeal was filed on 6^th June, 2015.
   

6. 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.

7. 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, so this is not an issue before me.

8. 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.

9. So this appeal should be dismissed for failure to comply with the provision of the Magistrate’s Court Rules.

10. So this appeal can be dismissed for non-compliance of Order 37 rule 1 of the Magistrates’ Court Rules.

11. 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

12. 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)

13. 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.

14. 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 her discretion. (See CM Van Stillevoldt BV -v- EC Caviers Inc[ ] [1983] 1 All ER 699)11 C M Van Stillevoldt BV v El Carriers Inc [1983] 1 All ER 699 .’

15. 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]).....’

16. An appeal is against the final decision and not against the reasons given in the decision, so even if reasoning is wrong there may not be an appeal unless the final decision is wrong. (See Fiji Court of Appeal decision Kaur v Singh (unreported ABU 11 of 1998; August 1999) and Commonwealth of Australia and Others v Bank of New South Wales and Others [1949] 2 ALLER 755 at 763)^[2].

17. When a party is aggrieved by the decision of the Small Claims Tribunal Decree 1991 (SCT Decree) there is a right of appeal to the Magistrate’s Court. It reads 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.

18. The learned Magistrate considered the above two grounds and dismissed the said appeal from the decision of the Referee of the Small Claims Tribunal.

Appeal Ground 1and 2
19. The counsel for the Appellant did not point out any error of law by the learned Magistrate in his decision. His argument was that the defence of mechanical defect was a question of law hence the Referee did not has jurisdiction to deal with the matter. For this the counsel could not rely on any case law or any of the provisions in the SCT Decree. He said since the Referee could not listen to legal arguments from the counsel, as legal practitioners are not allowed to represent parties in a Small Claims Tribunal, hence it could not have decided on a question of law.

20. I do not agree with the said contention. If that argument is accepted, when any defence is taken all such matters needs to be transferred to the Magistrate’s court as a plea of defence is a question of law. ^[3]If the SCT Decree precluded determination of all the matters that involve question of law by the Referee that could have stated there and there is none. This was not the intention and purpose of the SCT Decree.

21. The establishment of a special Tribunal for the small claims was to expedite matters under certain monetary limit and to provide access to settlement of such issues in cost effective mechanism. For that purpose, the representation of legal practitioners are not allowed. The jurisdiction and its limitations are contained in Section 8and 9 of the SCT Decree 1991 and there is no restriction of legal issue by the referee, specially when it involves the matters of facts, as in this case.

22. In any event, there is no evidence before me or in the court below that the Appellant had sought the matter to be transferred to the Magistrate’s Court. Section 22(2) of the SCT Decree 1991 empowers the Referee either on his own motion or on application of a party to refer a matter to the Magistrate’s Court.^[4] There is a discretion of the Referee in the exercise of said power and I can’t see that it had been wrongly exercised, considering the facts of this case.

23. The collision of the motor vehicle happened at a main junction where traffic lights control the movement of vehicles. So any vehicle arriving at such traffic control junction needs to be at a reduced speed and looking at the impact and damage caused to the vehicle from photographs submitted by the claimant on the balance of probability their negligence on the part of the driver of the vehicle. These photographic evidence were not denied by the Respondent.

24. The Police who investigated this accident did not produce the driver of the vehicle within stipulated time to a Medical Examination. At the same time the vehicle was also not examined before the release of the same to the owner for repair. The burden of proof of defence of mechanical defect was with Respondent.

25. From the evidence presented to the Tribunal the vehicle had approached a main junction controlled by traffic lights at an excessive speed. There is no evidence of Driver applying even hand brakes which should work even if the leg brakes failed. Considering the facts the Respondent’s negligence is proved on the balance of probability.

26. There is no evidence of allegations contained in the appeal ground 3.

Appeal Ground 4 and 5.
27. There is no evidence of Respondent being denied rules of natural justice. In the court below he was represented by a counsel, whereas the Claimant appeared in person throughout. So I can’t see merit in that argument.

28. It is pertinent to note that the Section 26 of SCT Decree 1991 state that application of evidence need not be in accordance with the law and states;

‘Evidence

26.-(1) Evidence tendered to a Tribunal by or on behalf of a party to any proceedings need not be given on oath, but the Tribunal may at any stage of the proceedings require that such evidence, or any specific part thereof, be given on oath whether orally or in writing.

(2) A Tribunal may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it thinks fit. All evidence and information so received or ascertained shall be disclosed to every party.

(3) A Tribunal may receive and take into account any relevant evidence or information, notwithstanding the provisions of the Evidence Act and whether or not the same would normally be admissible in a Court of Law.’(emphasis added)

29. The counsel for the Respondent argued that the Referee does not have power to investigate as to what had happened in the criminal prosecution. This is not the correct position, the Referee is not precluded from making such investigation and inquires as he ‘thinks fit’, but all such evidence and information so received shall be disclosed to every party. The communications received are contained in the file. In any event that issue was not decisive factor in this claim.

30. The determination of the Respondents negligence can be reached without such further evidence being considered.

31. In the circumstances the Appeal is dismissed. The Claimant should be entitled to the cost of this appeal summarily assessed at $200.

FINAL ORDERS

1. The Appeal is dismissed.
2. The cost is summarily assessed at $200.
   

Dated at Suva this 5^th day of August, 2016

......................................

Justice Deepthi Amaratunga

High Court, Suva

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^[2]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)

[3] Fiji Supreme Court decision (unreported) Naisua v State [2013] FJSC 14; CAV0010.2013 (decided on 20 November 2013) See paragraph 11 where English case R v Majewski [1976] UKHL 2; [1975] 3 All ER 296, [1977] AC 443, [1975] 3 WLR 401, (1975) 62 Cr App Rep 5, CA was applied and held that defence of voluntary intoxication was question of law.

^[4] See Section 22(2)of SCT Decree 1991 reads; If any proceedings have been commenced in a Tribunal which in the opinion of the Tribunal would more properly be determined in a Magistrates' Court, the Tribunal may, on the application of a party or of its own motion, order that proceedings be transferred to a Magistrates' Court in its ordinary civil jurisdiction.