Saheem v Warehouse Stationery [2014] FJMC 114; Civil Appeal 3.2014 (25 June 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
CIVIL JURISDICTION

Civil Appeal No. 3 of 2014
SCT Claim # 2673/2013

Between :

Mohammed Saheem
Appellant (Magistrates Court)/
Respondent (Small Claims Tribunal)

And:

Warehouse Stationery
Respondent (Magistrates Court)/
Claimant (Small Claims Tribunal)

Appellant/ Original Respondent: KS Law
Respondent/ Original Claimant: In Person.

Ruling

1). Introduction

The Appellant/Original Respondent (Mohammed Saheem) in this action has appealed the decision of the Referee, dated 29th November 2013 where he was ordered to pay the Respondent (Warehouse Stationery) a sum of $2500 within 21 days of the date of the SCT Order.

The parties chose to be heard by way of written submissions. They were given time to file the submissions. Only the Appellant through his counsel has filed submissions.

2). The Grounds of Appeal

The Appellant/Original Respondent's amended ground of appeal is that "the Referee conducted the proceedings in such a manner which was unfair to the Appellant and the conduct has prejudicially affected the results of the proceedings".

3. The Law
   

Section 33 of the Small Claims Tribunal Decree 1991 provides that:

"(1) Any party to proceedings before a Tribunal 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.

4). Observations

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 grounds of Appeal advanced by the Appellant have been reproduced above.

This Court has noted that the Appellant in this matter has submitted that the Referee was unfair. The Appellant has cited and this Court has noted it's Ruling in the Osaka Auto Spares Case where it found that a private conversation at a hearing in the absence of another party amounted to presumption of unfairness and could prejudicially affect the matter. In this matter the Appellant has submitted that as he "was climbing the stairs, he saw the Referee and the Claimant/Respondent coming down together and it appeared that they were conversing". The Appellant who was late was immediately asked to attend to the re-hearing.

This Court notes from the Appellants submission that he Appellant is not certain from his submission if actually a conversation was taking place between the Referee and the Claimant. It appeared to him that they were conversing. The Appellant is assuming a conversation was taking place. Only an appearance that a conversation was taking place is not a ground to allege bias in this matter. The converse would be that no conversation might have actually been taking place. It only appeared so to the Appellant. This Matter is clearly distinguished from The Osaka Case where the Referee at a hearing had a private conversation with one party in the absence of the other. This is not the case in this instance. The Appellant is inferring that the Referee and the Respondent were conversing. Given the set up at the SCT and the need to move within and around the premises and direct parties to different rooms and for the Referees to move it would be unreasonable parties alleged that the Referee appeared to converse with one party.

The Appellant was late and he had not been previously appeared at the hearings of the matter. He was previously represented by one, Deo Raj. From the records of the proceedings in the SCT this Court notes that the Referee was fair at all instances and accorded the Appellant the opportunity to present his case. Even a request for re-hearing was accorded to the Appellant. The Referee who had the benefit of hearing both sides made his decision on the merits of the submission and the evidence before him. This Court will not go into the merits of the case. This Court does not find any unfairness on the part of the Referee or Unfairness in any consideration or determination made by the Referee.

5.) Conclusion

The appellant has not met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

For the given reasons given above, the appeal is dismissed. Any party aggrieved with this Ruling has the right to appeal to the High Court within 30 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE
24th June 2014