Prasad v Punja [2008] FJMC 3; Civil Appeal No 10 of 2007 (15 February 2008)

IN THE RESIDENT MAGISTRATES COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL APPEAL NO.: 10 OF 2007

BETWEEN:

PREETIKA P. PRASAD
PUBLIC SERVICE COMMISSION
APPELLANT

AND:

JAGDISH PUNJA
RESPONDENT

1st Appellant: In Person
2nd & 3rd Appellants: Mr R. Green
Respondent: Ms Natasha Khan

Date of Hearing: 12/02/08
Date of Judgment: 15/02/08

JUDGMENT

[1] This is an appeal against the decision of the Small Claims Tribunal’s order made on 03rd April, 2007 where it ordered the 1st Appellant to pay a sum of $2,000.00 to the Respondent.

[2] The 1st Appellant is a Solicitor based at Attorney General’s office at Lautoka and this case relates to the renting of a flat belonging to the Respondent. Since she is employed by the Attorney Generals office both the Public Service Commission and Attorney Generals office were named Respondents in the original action.

[3] The Small Claims Tribunal only made an order against the 1st Appellant and not against the 2nd and 3rd Appellants and despite there being no orders against them Mr R. Green still appeared on their behalf. I am at a loss to understand as to why did he make this appearance when there was no cross appeal by the Respondent. He appeared without any objections from the counsel for the Respondent and effectively he supported the 1st Appellant and their joint submissions was that the Small Claims Tribunal should not have made any orders as the parties were still in the negotiation process and a tenancy agreement had not been concluded.

[4] Ms N. Khan very strongly submitted that the Appellants had not met the threshold set out in Section 33 (1) (a) & (b) of the Small Claims Tribunal Decree and that the appeal should not be entertained. This submission was made after the 1st Appellant and counsel for 2nd and 3rd Appellants had made their submissions. From my reading of Section 33 (1) (a) the appellant comes within the ambit of Section 33 (1) (a) and I shall consider the grounds of appeal.

[5] As I said earlier this appeal relates to the negotiation of letting of a flat by the Respondent to the 1st Appellant not in her personal capacity but as an employee of the Government of Fiji.

[6] The referee’s hearing report reads as follows at page 3:

"Further to the general agreement the Claimant and the 1st Respondent continued to negotiate on matters such as the payment of water and electricity, the list of furniture provided including a request by the 1st Respondent for the construction of a divider/book shelf and a separate book shelf. Also negotiated was the security of the flat as well as the shortfall of the $70.00.

All the above events from early March, 2006 when negotiations started, constructions completed flat furnished inspection and valuations done in early July, 2006 the Claimant was doing the best.

The excuse by the 1st Respondent that P.S.C. has the last say is correct.

It is the duty of those who negotiate to do so honestly. They should not be allowed to go too far and cause unnecessary duress for they do not have the last say.

The Claimant could have rented the flat to the other person but did not for he was negotiating in good faith.

The Tribunal finds that the parties general agreement and outcome of negotiations are as good as any written agreement in view of the parties backgrounds.

The Tribunal finds the 1st Respondent was at fault and should pay".

[7] The Small Claims Tribunal made the following findings:

1. That the parties were still negotiating;

2. That the Public Service Commission had the last say;

3. That the negotiations are as good as any written agreement and consequently found the 1st Appellant at fault and ordered her to pay a sum of $2,000.00.

[8] In my view the Small Claims Tribunal erred in coming to the conclusion that the negotiation was as good as a written agreement. There is absolutely no legal basis for the Tribunal to reach this conclusion and I therefore hold that the proceedings were held in such a manner that it has prejudicially affected the result of the proceedings and I therefore set aside the orders made by the Tribunal and allow the appeal. I do not make any orders as costs.

[Mohammed Shafiullah Khan]
Resident Magistrate

15 February, 2008