Devi v Director Ricky of Courts of Fiji [2023] FJHC 533; HBA04.2023 (4 August 2023)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL APPELLATE JURISDICTION

Civil Appeal No. HBA 04/2023

Magistrate Court of Nadi, Case No.07/2022

Small Claims Tribunal Claim No. 664/2021

BETWEEN : SAROJINI DEVI, of Sabeto, Nadi.

APPELLANT

AND : DIRECTO- RICKY OF COURTS FIJI, Head Office, Level -2. Vivrass Plaza, LAUKALA Beach Estate, Suva.

RESPONDENT

COUNSEL : Appellant in Person
Mr. Sailendra Krishna -for the Respondent

DATE OF HEARING : 28^th July 2023

WRITTEN SUBMISSIONS: On 30^th June 2023 by the Appellant
On 28th July 2023 by the Respondent

DATE OF JUDGMENT : 4^th August, 2023

JUDGMENT

1. This is an Appeal preferred by the Appellant hereof against the Ruling dated and pronounced on 7^th February 2023 by the learned Magistrate of Nadi in relation to the Small Claim Tribunal (SCT) Appeal bearing No- 07 of 2022, affirming the decision of the Referee thereof made on 27^th January 2022 in the SCT Application no. 664 /2021.
   
2. The Appellant had made a claim at the SCT of Nadi, seeking to recover $ 2,785. 45 from the Respondent, alleging that a refrigerator she had bought from the Respondent was defective, faulty and they had failed to attend to it.
   
3. The Respondent refuted the claim. The Appellant did not call any witness for evidence on her behalf though she was directed by the Referee. Both witnesses called by the Respondent were cross examined by the Appellant. Both parties had filed written submissions as well.
   
4. The Referee of the SCT, having heard and duly recorded the proceedings before him, by his decision dated 27^th January 2022 dismissed the Appellant’s claim.
   
5. Being aggrieved by the decision of the SCT , the Appellant Appealed to the Magistrate’s Court of Nadi and the same was dismissed by the learned Magistrate by her impugned Ruling dated 7^th February 2023. This Appeal is against the said Ruling of the learned Magistrate.
   
6. The Appellant relies on 13, purported, grounds of Appeal, which I have carefully perused and found to be with no merits at all. However, same are reproduced bellow for the sake of lucidity.
   

PURPORTED GROUNDS OF APPEAL:

1. That the Learned Magistrate’s erred in law was unjust in that its practical effects is
   unjustly to deprive the Appellant of its Claim.
   
2. That the Magistrate erred in law and in fact that the wrong principles of law in dismissing the Appellants/Original Plaintiff’s Summon for Ejectment filed on the 27^th January 2022 Want for Jurisdiction.
   
3. That the Learned Magistrate erred in law and in fact in failing to consider in depended of the Plaintiff’s evidence that were there was sufficient prima facie evidence and fail
   in discretion to accept the submission in evidence given by the Plaintiff as filed and
   issued by the Court Registry must pursue their application under the provisions.
   
4. That the Learned Magistrate failing to exercise her discretion properly ignoring the
   crucial ingredients of the claim and there was no proper hearing held which the matter
   had proceed.
   
5. That there has a substantial miscarriage of justice in that Learned Magistrate’s
   misconducted the fact put by the Appellant in her claim.
   
6. That the Learned Magistrate erred in law and fat by adjudging and pronouncing that the
   Appellant/Original Plaintiff’s evidence was unreliable simply because the
   Appellant/Original.
   
7. a. That the Learned Magistrate erred in law by given a Judgment by Appellant had read
   the copy record and submission what the Respondent had mention by bring the
   witness whose named is not mention in the documents in Small Claim Tribunal.
   

b. That the Defendant had entered the witness as she had entered in court of Small Claim
Tribunal and Referee had allowed it, the Defendant should have bought the person to
court for witness whose named had been mention in the documents of TECHNICIAN
to prove they came to Appellant’s place to check the fridge or not and the name of
the person on the Claim Summon.

c. That the Appellant would say that the Appellant request to High Court for the proper
Hearing and the person whose name had been mention in the Claim and the
Technician to prove.

8. That the Learned Magistrate erred in law in holding that application was made promptly
   in the light of the fact that default Judgment was entered on 7^th day of February,2023
   and the ought to be SET ASIDE.
   
9. That the Learned Referee erred in law and in fact in holding that the Respondent was
   put to considerable expenses when the application filed the summon in Small Claim
   Tribunal by unjustly and unfair.
   
10. That the Learned Magistrate erred in law and in fact awarding what appear to be
    indemnity costs when the circumstances of the matter does not justify in award of
    indemnity costs.
    
11. That the Appellant would say that the Defendant/Original Respondent had fail to do
    their duty and in the carelessness the Fridge had breakdown and the Appellant had lost
    plenty items since the next day the Defendant had not come to Appellant’s place to
    check their faulty items and according by the staff and other customer they had
    mention the product the Court Home Center had sold to Appellant plenty complains
    had gone to them and company IGNORED plenty customer to fixed to problem.
    
12. That the Appellant would say that the Defendant named Ricky the Director of Courts to appear in court and Two Technician had been mention that they had appeared at
    Appellant’s place to check the fridge.
    
13. That the Appellant request the High Court for a proper Hearing by the persons named
    mention in the documents of technician and the named mention in Claim Summon.
    
7. At the hearing of the Appeal, the Appellant appeared in person and opted to have the matter disposed by way of written submissions filed by her on 30^th June 2023. She did not make any oral submissions, though she was called up on by the Court. The Learned Counsel for the Respondent also intimated that he would also rely on the written submissions filed on 27^th July 2023 and will not be making any oral submissions. I thank the learned Counsel for the written submissions and the copies of reported authorities filed.
   

ANALYSIS

8. Under section 33(1) of the Small Claims Tribunal Act 1991, 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.

9. The proceedings held before the Referee, do not show that he conducted the proceedings in a manner which was unfair and/or prejudicial to the appellant. This Court carefully considered the proceedings held before the Referee. I find that he has given opportunity for both parties to present their respective cases before the Tribunal and duly considered the overall evidence led before him. Though, the Appellant was afforded an opportunity to call evidence, she failed to do so. The Referee, after considering the evidence of the parties has made his order, which in my view does not violates the relevant provisions of the Act.
   
10. The learned Magistrate, who heard the Appeal therefrom has taken all the above factors into consideration before arriving at her finding that the Appeal of the Appellant is without any merit. It is also important to note that there is nothing on record to arrive at a conclusion that the Tribunal has exceeded its powers in making its decision. In my view the learned Magistrate is correct in arriving at the conclusion that the decision of the Tribunal is within the powers conferred upon it by the legislation.
    
11. I find some of the purported grounds are totally unfounded, particularly, on the issue of indemnity costs, which was not a part of the Ruling of the learned Magistrate, while other grounds are devoid of merits and do not warrant any favorable consideration.
    

COSTS:

12. On careful perusal of the contents of the record from the Small Claim Tribunal, I find that the Appeals to both the Magistrate’s Court and this Court are frivolous and abuse of process on the part of the Appellant.
    
13. The Respondent seeks costs in a sum of $ 5,500.00 on an indemnity basis. The Respondent would, undoubtedly, have incurred a considerable amount, being the cost in taking defence at all 3 forums for last two years commencing from July 2021.
    
14. This Court is of the view, that the Appellant need to be dealt with appropriately as far as the costs are concerned. However, considering the circumstances, this Court makes no Order for Costs and the parties shall bear their own costs.
    
15. For the reasons aforementioned, this Court makes the following orders.
    

ORDERS:

1. The Appeal of the Appellant is dismissed.
   
2. The Ruling dated 7th February 2023 pronounced by the Hon. Magistrate of Nadi is hereby affirmed.
   

100. No cost ordered and the parties shall bear their own costs.
     

A.M. Mohamed Mackie
Judge

At the High Court of Lautoka on this 4^th day of August 2023

SOLICITORS:
For the Appellant In Person
For the Respondent: Messrs. S. Krishna & Company- Barristers & Solicitors