Merchant Finance & Investment Co.Ltd v Ahmed [2011] FJMC 167; Civil Appeal 09.2010 (29 November 2011)

IN THE RESIDENT MAGISTRATE’S COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL JURISDICTION

CIVIL APPEAL No.: 09/2010
S.C.T No.: 434/09

BETWEEN:

MERCHANT FINANCE & INVESTMENT CO. LTD
APPELLANT

AND:

SAFI SAMIL AHMED
RESPONDENT

For Appellant: Mr. Gordon

For Respondent: In Person

RULING

Introduction

This is an appeal against the decision of the “Small Claims Tribunal” Referee dated 02nd of October, 2011

The “Small Claims Tribunal” ordered that the Appellant – “Merchant Finance & Investment Co. Ltd” pay the Respondent – “Safi Samil Ahmed” the sum of $2,798.65.

Being dissatisfied with the above mentioned order, the Appellant appealed against it in the “Magistrates Court” by filing a “Notice of Appeal”.

The Court invited both parties to file “Appeal Submissions” since the mater could be decided on submissions.

The both parties have filed submissions and I have taken into consideration the same.

The Grounds of Appeal

According to the “Notice of Appeal” filed by the Appellant, the grounds of Appeal are stated as follows:-

1. There is no requirement that if a Bill of Sale is not registered with LTA. It will become ineffective.

2. Merchant Finance registered unit in “BOS” Bill of Sale, which was only registered in Registrar of Companies Office.

THE LAW

The Small Claims Tribunal Decree 1991 provides:

Functions and jurisdictions of Tribunal (Section 15)

(1) The primary function of a Tribunal is to attempt to bring the parties to a dispute to an agreed settlement.

(2) If it appears to the Tribunal to be impossible to reach a settlement under subsection (1) within a reasonable time, the Tribunal shall proceed to determine the dispute.

(3) ...

(4) The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so shall have regard to the law but shall not be bound to give effect to strict legal rights or obligations or to actual forms or technicalities.

(5) Without limiting the generality of subsection (4), a Tribunal may, in respect of any agreement or document which directly or indirectly bears upon the dispute between the parties, disregard any provision therein which excludes or limits,

(a) conditions, warranties, or undertakings; or

(b) any right, duty, liability, or remedy which would arise or accrue in the circumstance of the dispute; if there were no dispute; if there were no such exclusion or limitation.

(6) To give effect to its determination of the dispute or in granting relief in respect of any claim, which is not disputed, the Tribunal shall make one or more of the orders which it is empowered to make under section 16 or under any other law.

CLAIMS

Lodging of claims

1. Proceedings shall be commenced by the lodging of a claim in Form 1 of the First Schedule to this Decree, together with the fee prescribed in the Second Schedule, with the appropriate Tribunal.

2. The appropriate Tribunal for the purpose of subsection (1) is the one nearest by the most practicable route to the place where the claimant resides.

Notice of claim and hearing

1. When a claim is lodged in accordance with section 18 of this Decree, the Registrar shall:

(a) immediately fix a time and place of hearing and give notice thereof in the prescribed form to the claimant by endorsing the details on Form 1; and

(b) as soon as reasonably practicable, give notice of the claim and of the time and place of hearing to-

(i) the respondent ; and

(ii) every other person who appears to the Registrar to have a sufficient connection with the proceedings on the claim in the capacity of a claimant or respondent by delivering

a scaled copy of the claim with the details of the hearing endorsed on it.

2. If a Tribunal finds that a person who appears to it to have a sufficient connection with the proceedings on a claim in the capacity of a claimant or respondent has not been given notice of the proceedings, it may direct the Registrar to give and the Registrar shall give to such person notice of the claim and of the time and place for hearing.

3. For the purposes of this section, a person has a sufficient connection with the proceedings on a claim if his presence as a claimant or respondent is necessary to enable the Tribunal to effectually and completely determine the questions in dispute in the claim or to grant the relief which it considers may be proper.

HEARINGS

1. At the hearing of a claim every party shall be entitled to attend and be heard.

2. Subject to subsection (3) and (6), no party shall appear by a representative unless it appears to the Tribunal to be proper in all the circumstance to so allow and the Tribunal approves such representative.

Order of Tribunal (Section 16)

(1) A Tribunal may, as regards any claim within its jurisdiction, make one or more of the following orders and may include therein such stipulations and conditions (whether as to the time for, or mode of, compliance or otherwise) as it thinks fit:

(a) the Tribunal may order a party to the proceedings to pay money to any other party;

(b) the Tribunal may make an order declaring that a person is not liable to another in respect of a claim or demand for money, the delivery of goods or chattels, or that work he performed;

(c) ...;

(d) ...;

(e) if it appears to the Tribunal that an agreement between the parties, or any term thereof, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, the Tribunal may make an order varying the agreement, or setting it aside (either wholly or in part);

(f) if it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, the Tribunal may make an order varying or setting aside the agreement, or the writing (either wholly or in part);

(g) the Tribunal may make an order dismissing the claim.

(2) ...

Orders of Tribunal to be final (Section 17)

An order made by a Tribunal shall be final and binding on all parties to the proceedings in which the order is made, and subject to section 32 and except as provided in section 33, no appeal shall lie in respect thereof.
...

Appeals (Section 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.

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

At the outset it must be noted that the form of wording used in ground (a) is unusual and is plainly distinguishable from a general right of appeal such as that conferred under Section 36 of the Magistrates Courts Act (Cap.14); Section 12 of the Court of Appeal Act (Cap.12); and on the Supreme Court under Section 122 of the 1997 Constitution.

What is more ground (a) specifically refers to the manner in which the referee conducted the proceedings as the crucial concern of the right of appeal on that first ground. Furthermore not only must the conduct complained about be unfair to the appellant it must, in addition, prejudicially affect the result.

As to the manner or procedure required to be followed by the referee in conducting a proceeding under the Decree these are principally to be found in Sections 24 to 29 (inclusive) under the heading 'HEARINGS'. A cursory examination of these provisions serves to highlight the informal, non-adversarial nature of the proceedings before the Small Claims Tribunal and militates against a general appeal on the merits or for errors of law.

The non-legalistic nature of a Tribunal proceeding is further exemplified by the requirement in Section 15(4) of the Decree that:

'The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so ... shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.'

The section 33(2) of the "Small Claim Tribunal Decree 1991", requires appeals against the decisions of the referees to be brought in the Magistrate's Court while section 33(3) requires such an appeal to be brought within 14 days of the order against which it is desired to appeal.

In "Sheet Metal and Plumbing (Fiji) Ltd. vs Deo (HBA 7/99) "Fatiaki J" expressed the view that Order xxxvii R4 gave power to a Magistrate's Court to extend the 14 days period.

Observation
The primary concern of this Court is whether the Appellant has met the threshold set out in Section 33 (1) (a) and (b) of the "Small Claims Tribunal" Decree.

The ground of Appeal advanced by the Appellant is that the Referee based his decision that since Bill of Sale was not registered with the LTA, the Appellant was dishonest and is liable to pay the claim sum.

The Appellant contends that there is no law under the Land Transport Act 1998, where it says that every Bill of Sale whether its individuals or Company, the interest has to be registered with Land Transport Authority.

In my view, the above mentioned ground of Appeal is misconceived. Because it seeks to question the merits of the Referee's decision without pointing to any procedural unfairness.

Hence, they cannot be legally accommodated. There can be no appeal on merits. (Sheet metal and Plumbing (Fiji) Limited vs Deo – HBA 07 of 1999).

Even more trenchant is the view expressed by Greig J. in Hertz New Zealand Ltd. v Disputes Tribunal (1994) 8 PRNZ where his honour said in rejecting the appeal in that case, at p.151:

'... there is no appeal on the merits even if there is a clear and fundamental error of law in the conclusion of the Tribunal'.

Thorp J, in N.Z.I Insurance N.Z. Ltd, v. Auckland District Court [1993] 3 N.ZL. R 453 said.........................

'The essential matter (in the words used)... is its specification of the basis for appeal against a referee's determination as being the conduct of proceedings in a manner that was unfair to the Appellant and prejucially affected the result of the proceedings. This formulation is both specific and unusual. On its ordinary grammatical construction it provides only a limited right of appeal, and requires any intending Appellant to direct the (Court) to some unfairness in the form and not simply the result, of the Tribunal's hearing'.

'read on (its). own, and on the basis of (its) ordinary grammatical meaning, (the section) would not leave any careful interpreter in much doubt that the right of appeal (it) created was a special type of appeal, limited to cases of procedural unfairness (and does not extend to the correction of errors of law)'.

Conclusion

The Appellant has not met the threshold set out in Section 33 (1) (a) & (b) of the "Small Claims Tribunal" Decree.

Accordingly, the Appeal is dismissed.

30 days to Appeal.

Dated at Lautoka on the 29th day of November 2011

Jude Nanayakkara
RESIDENT MAGISTRATE

MAGISTRATE COURT-03
LAUTOKA.