Nabalarua v Alfred [2014] FJMC 44; Civil Appeal 66.2013 (25 March 2014)

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

Civil Appeal No. 66 of 2013
SCT Claim # 487/2013

Between:

Eci Nabalarua
Appellant (Magistrates Court)/ Respondent (Small Claims Tribunal)

And:

Colin Alfred
Respondent (Magistrates Court)/
Claimant (Small Claims Tribunal)

Appellant/ Original Respondent: Mr S Valenitabua
Respondent/ Original Claimant: Nawaikula, Esquire

Ruling

1). Introduction
The Appellant/Original Respondent (Eci Nabalarua) in this action has appealed the decision of the Referee, dated 24th July 2013 that "the Respondent pay a sum of $1713.56 by monthly installments of $350.00 effective from end of August 2013 until the amount payable is fully paid."

The parties at the hearing had sought that the matter be heard and concluded by way of written submission. This Court has considered the submissions that were filed.

2). The Grounds of Appeal
The Appellant/Original Respondent's grounds of appeal (as per the notice of appeal filed) is as follows:

"1. That the Referee erred in law and fact in allowing the claim when it was accepted by both parties that the claimant was not a registered proprietor of the property at the material time and therefore had no legal standing to make the claim. The claim should be dismissed on this issue alone.

2. That the Referee erred in law and fact in finding the Respondent liable for the damages whilst accepting that the tree fell due to an act of good, being the strong winds of cyclone Evan in December 2013. An act of good is a defence established by Nichols v Marsland (1876) 2 Ex D 1 against the strict liability established in Ryland v Fletcher [1868] UKHL 1 and as such the Respondent should not have been held strictly liable for the unforeseeable damages caused.

3. That the Referee erred in law and fact in failing to consider and give due weight to the submissions of the Respondent that she took all manner of precautions prior to the cyclone and did not in any way forsee that the tree that had withstood many previous cyclones for 20 years would succumb in the manner that it did to the gale force winds of cyclone Evan of December 2012.

4. That the Referee erred in law and fact in failing to consider and give due weight to the submissions of the Respondent with respect to the defence of act of god and therefore found her liable for the full damages to the claimants house.

5. That the Referee erred in law and fact in failing to consider and give due weight to the submissions of the Respondent regarding the assessment of damages. That the claimants quote for the damages provided also included the costs of renovation to his house that were taking place before and after the material time.

6. That the Referee erred in law and fact in not ordering independent quotations and comparative costs on the amount of damages and instead relied on quotes by the claimant himself and additional quotes chosen by the claimant.

7. That the Referee erred in law and fact in failing to consider and give due weight to the submissions of the Respondent with respect to mitigation of damages.

8. That the Referee erred in law and fact in awarding damages in the sum of $1713.56 which sum the respondent believes is excessive and founded on the basis of quotations supplied solely by the claimant and independently verified to distinguish between cost to repair the damages and cost of renovations.

9. That the Referee erred in law and fact in considering and making findings on submissions of the claimant which was contested by the Respondents submission.

10. That the Referee erred in law and fact in that at the conclusion of appearances, the Referee would request the claimant to stay back to speak with him. The Respondent was not privy to these conversations nor afforded the same treatment and believes that these actions by the Referee to be unfair and prejudicial to the results of the proceedings.

11. That the Referee erred in law and fact in not properly evaluating the evidence based on the submissions in reaching his decision that the Respondent should be strictly liable for the damages caused as a result of an act of good when act of good is a defence to strict liability."

The appellant has filed an extensive list of grounds of appeal which is a mixture of fact and law. This Court will briefly summarize the grounds of appeal by the Appellant as follows:

(a) Claimant did not have locus standi to pursue claim.
(b) Act of God.
(c) Referee failed to consider all matters and proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings.
(d) Bias.

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 in full above.

This Court has carefully examined the Small Claims Tribunal records, the documents tendered in the Small Claims Tribunal and grounds of appeal advanced by the appellant. The submissions made.

One of issues raised by the appellant is that of locus standi of the claimant. This Court notes that one of the most important initial considerations (apart from jurisdiction) before any Tribunal or Court in any civil matter is whether the person or persons bringing an action has the Locus Standi. In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

The incident involving the falling of the tree whereby damage was caused to the house occurred on 17th December 2012. This Court has noted from the copy of Certificate of Title (CT 17620) that the Title was transferred to the Claimant on 7th January 2013. This Court further notes that on 18th July 2013 at the hearing in the SCT the Referee noted as follows:

"Claimant: tendered copy of the property title.

Respondent: raised the issue that damages were caused by the cyclone in December but claimant acquired the property in January 2013.

Claimant: I was not occupying the property but my father was until the paper work was completed and transferred to me on 7/1/13.

Tribunal: The issues before this Tribunal are to determine the cause of the damages and whether the Respondent is liable to pay.

As for ownership of the property it is noted that the claimant's father had owned the property since November 1988 and that the claimant became ownership from 7/1/13."

This Court finds that the Claimant was neither the owner nor in possession of the property that was damaged. This Court notes that the claimant did not state nor produce evidence that he had authority to act for and on behalf of his father. The Tribunal while noting that the Claimants father was the owner failed to check whether he had granted his son authority to act for him. The Claimant claimed when he became the new owner of the property. His Father did not claim for the damages that where caused when he was the owner. He was in a position to claim himself as the owner of the property, even if the property was transferred to his son in January 2013. The father of the Claimant for whatever reasons best known to him did not claim. He could have filed the claim in his name. By not claiming himself the father of the claimant has waived his right to pursue damages to his property. Then why the claim should be made by another, in this matter his son. If the father has decided not to pursue it and neither authorized his son to pursue it, then his son cannot claim. In this claim the claimant is claiming as it was a loss to him when in fact it was a loss to his father.

The Claimant cannot automatically in the absence of any express authority granted to him by his father bring an action as if the loss or damages were caused to his property, when in fact he was neither in possession nor the owner of the property at when the damage was caused to the property. The claimant in the SCT could not have assumed the position of his father. He cannot 'stand in his father's shoes' without any express authority being granted to him by his father.

This Court finds that the Claimant did not have the locus standi to institute the matter in his name. This is the first issue (together with jurisdiction) that the Referees at the Tribunal need to determine when they deal with the matter when it is first called before them. It is crucial that the Referees in the Tribunal on 1st appearances of the parties check whether matter before them falls within their jurisdiction and secondly whether the claimant has locus standi to institute the claim.

This Court has noted other grounds of appeal and as the first issue raised on appeal succeeds making it clear that the claimant did not have the locus this Court will not go onto the other issues and grounds raised.

5.) Conclusion
The appellant has 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 allowed. The orders granted in the Small Claims Tribunal are quashed. Any party aggrieved with this Ruling has the right to appeal to the High Court within 30 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE

25th March 2014