Pratap v Singh [2012] FJMC 291; Civil Appeal 9.12 (5 November 2012)

IN THE RESIDENT MAGISTRATES' COURT AT SUVA
CIVIL JURISDICTION

CIVIL APPEAL No.: 9/12
SCT Claim No.2264/11

BETWEEN:

NARENDRA PRATAP
APPELLANT

AND:

RAJENDRA SINGH
RESPONDENT

Appellant: Present in Person
Respondent: Present in Person

RULING

1. The appellant appeals the decision of the learned referee of Small Claims Tribunal (SCT) dated 18th of November 2011. The respondent lodged a claim for a sum of $ 619.60against the appellant before the SCT on the basis that the appellant who was the driver of the respondent failed to repair the car(taxi) as he promised for damages caused during an accident in Caubati on 26th July 2011.. The learned Referee, upon consideration of the evidence, reduced the claim andordered that the appellant NARENDRA PRATAP pay the respondent RAJENDRA SINGH sum of Three Hundred and fifty dollars ($350.00.) within 02 months with effect from 18th of November 2011.
   
2. On appeal, the applicant has filed grounds to appeal and the reply to the same by the respondent and subsequently both partiesmade written submissions.
   

3. The Grounds of Appeal filed by the Applicant states as follows;

1. "The Referee failed to consider the repairs that I made in passing his decision.
2. The Referee failed to identify that the documents provided by the respondent as the claim does not relate showing a lot of date discrepancies and document over writing.
3. The Referee failed to acknowledge the presence of false information on the documents.
4. The Referee fails to see the document provided by the claimant does not relate to the claim."
   

Further, states inter alia in his submission that "....The respondent the filed a claimed at Small Claim Tribunal against me for $619.90, attaching false documents with it. From that $619.90, the referee then ordered me to pay $350.00 which is not fair to me. For the above, I pray this honourable court that the labour cost of $150.00is granted for me to pay the respondent as this was the exact amount (Balance) which was owed to him."

4.THE LAW

Small Claim Tribunal Decree 1991 sec.33 (1) provides grounds for Appeals from Small Claim Tribunal. 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) 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.

Ground (a) is distinguishable from a general right of appeal discussed under Section 36 of the Magistrates Courts Act (Cap.14) and Section 12 of the Court of Appeal Act (Cap.12); In addition, ground (a) refers to the manner in which the referee conducted the proceedings as a fundamental concern of the right of appeal.i.e., the Referee conducted the proceedings violating the basic principles of 'procedural rules' such as not observing to the rules of natural justice such as audi alteram partem rule, etc.(the procedure to be followed by the referee in conducting a proceeding stated in Sections 24 to 29 of SCT Decree)A superficial analysis of these provisions helps to highlight the informal, non-adversarial nature of the proceedings before the Small Claims Tribunal contrary to general appeal on the merits or for errors of law.

1. The non-legalistic nature of a Tribunal proceeding is further exemplified by the requirement in Section 15(4) of the Decree.The scope of appeals under this provision was discussed by Fatiaki J in Sheet Metal and Plumbing (Fiji) Limited -v- Uday Narayan DeoCivil Appeal No. 0007 of 1999. His Lordship referred to Section 15(4) of the Decree which provides; "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."
   
2. In Hertz New Zealand Ltd. v. Disputes Tribunal (1994) 8 PRNZ Greig J. 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.' Sheetmetal and Plumbing (Fiji) Limited v. Uday Narayan Deo, Justice Fatiaki endorsed the principles expressed by Greig J in Hertz New Zealand Ltd. v. Disputes Tribunal.
   
3. Justice W D Calanchini said (as he then was) in Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 720; Civil Appeal "Under the grounds of appeal relied upon the Respondent was required to identify some unfairness in the manner (form) of the hearing before the Tribunal and not simply the result. Put bluntly, there is no right of appeal on the merits even when there may be a clear error of law in the Tribunal's decision." Further, in Vidya Wati& Suresh Charan v. Waqabaca Truck Hire and Machinery [2005] HBA 0001/2005 on 04th May 2005 Singh J held that, "an error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the case"
   
4. Section 15(4) of the Decree states 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.' This court is not required to go in to the merits of the claim in an appeal under the SCT Decree. All what is required is to see whether the Appellant can satisfy the court regarding any of the grounds set out in Section 33(1) and the primary concern of this Court is whether the appellant has met the criteria set out in section 33(1) (a) and (b) of the "Small Claims Tribunal" Decree.
   

Hon. Justicce W D Calanchini (as he then was) more elaborated on this regard in Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 727; Civil Appeal 17.2011 (10 November 2011) as follows;

"In essence the ground allows for an appeal to the Magistrates on the grounds that the appellant has been denied natural justice in the form of procedural fairness which has prejudicially affected the result of the proceedings. The other allowable ground of appeal under the Decree is that the Tribunal exceeded its jurisdiction. Together they represent a limitation on the general principle that an appellant's right to appeal is as of right in respect of an error of law and/or fact. It is a right of appeal which requires the appellate court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine whether the applicant's complaint has any merit. There is certainly no right of appeal in respect of any error of law nor in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing."

5. I referred the learned referee's minutes and report which reads inter alia that hearing was held on 07-11-11 both parties were present and it is evident from the report that both parties was given opportunity to present their respective evidence and submit documents. Wherefore, I hold that the appellant was present before SCT and an opportunity had given to be heard and to call evidence.
   
6. According to the Appellant's submission which largely revisited the merits of the decision of the presiding referee, and it is obvious that he is simply unhappy with the said decision of the referee.
   
7. According to the record of hearing of the SCT proceeding, the appellant was afforded natural justice and both parties allowed for "direct discussions" by the learned referee to come to a "settlement." Further The record fails to show any evidence of; Bias, Likelihood of bias, Procedural Unfairness, Breach of "Audi Alterain Partern" rule which is so fundamental to a conduct of fair hearing.
   
8. In fact the appellant did not complain about the procedural fairness or otherwise exceeding its jurisdiction by The Tribunal.
   
9. CONCLUSION
   

The scope of appeals from SCT is limited as described above. 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.I find the Appellant has not provide any valid and material reason to satisfied the learned referee in Small Claim Tribunal conducted the proceedings in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings (and or tribunal exceeds its jurisdiction and there can be no appeal on merits. (see-Sheet metal and Plumbing (Fiji) Limited vs Deo(supra)).

I am of the view that the grounds of Appeal are referring to question the merits of referee's decision In view of the reasons set out in above paragraphs and as this Court not satisfied that the Small Claims Tribunal proceedings were conducted in manner which falls within any of two limbs set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree.

10. Accordingly final orders are:
    
    • (a) Appeal Dismissed,
    • (b) I make no order with regard to costs.
    • (c) Respondent is now free to enforce the order of the SCT.
      

28 days to appeal.

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Lakshika Fernando
Resident Magistrate
On this 05thNovember 2012