Dutt v Chand [2015] FJMC 132; Civil Appeal Case 13.2013 (16 October 2015)

IN THE MAGISTRATE'S COURT AT LABASA
APPELLATE JURISDICTION

Civil Appeal Case No. 13 of 2013
SCT Claim No. 158 of 2013

BETWEEN:

BIJEN DUTT
APPELLANT

AND:

VINDRESH CHAND
RESPONDENT

Appellant : Mr. Sharma. S
Respondent : In Person

Judgment : 16 October 2015

JUDGMENT

1. The Appellant is appealing the decision of the Small Claims Tribunal (Tribunal) made on 30 April 2013. The Notice of Appeal was filed on 9 May 2013, and was on time.
   
2. The Appellant listed three grounds of appeal when he filed his notice of appeal and they are;-
   
   1. That the learned trial referee erred in law and in fact by making orders against the appellant which was biased.
      
   2. That the learned trial referee erred in law and in fact had made orders which is prejudicially affected the appellant.
      
   3. That the learned trial referee erred in law and in fact by conducting the matter which was biased and prejudicial to the appellant.
      
3. The Appellant filed another grounds of appeal on 22 November 2013. The grounds are;
   
   1. That the Referee of the Small Claims Tribunal in Labasa conducted the proceedings in a manner which was unfair to the Appellant and prejudicially affected the result of the proceedings in that he had arrived at the decision without any form of substantive evidence to support his decision.
      
   2. That the learned trial referee conducted the proceedings in a manner which was unfair to the Appellant and prejudicially affected the proceedings. The referee had made the decision without hearing both parties in particular the Appellant and without considering any form of evidence presented by each party to support his version. The learned trial referee was biased and made prejudgment remarks before hearing the matter and making orders.
      
   3. That the tribunal exceeded its jurisdiction.
      
4. The Respondent filed his reply to grounds of appeal on 5 November 2013, stating that the referee conducted the proceeding in a manner by considering all facts and evidence. The referee considered all the facts of both sides and make order based on the evidence.
   
5. On 24 July 2015, both parties agreed to file written submission and for the court to prepare and deliver its judgment based on the submission filed by the parties and there is no need to fix a hearing date. The Respondent filed his submission on 11 August 2015, and the Appellant filed his submission on 18 August 2015.
6. Apparently, the appeal was against an order made by the Tribunal under section 15(6) of the Small Claim Tribunal Decree 1991 (SCT Decree), though this was not specified in the Notice of Appeal.
   
7. According to section 33(1) of the SCT Decree, the order of the Tribunal can only be appealed on the following two grounds;
   

"(a) the proceeding were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affect the result of the proceeding; or

(b) the Tribunal exceeded its jurisdiction."

8. In regards to the first ground, section 33(1)(a), the manner in which the referee should conduct the proceeding are stated in the case of Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 26; where Justice Fatiaki. J stated;
   

"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 section 24 to 29 (inclusive) under the heading HEARING."

It was also held in this case, that no appeal can be allowed on the merit of the case.

9. The Applicant in his submission is referring only to the grounds of appealed filed on 25 October 2013. The first and second grounds of appeal falls under the ambit of section 33(1)(a) of the SCT Decree. These two grounds, the Appellant stated that the referee had made the decision without hearing both parties in particular the appellant and without any form of evidence.
   
10. According to the Tribunal copy record, on 30 April 2013, which was also cited by the Appellant in is submission, both the Appellant and the Respondent were present and they both gave their evidence as per the record as it was a re-hearing. This are evidence that both the parties were present and heard by the Tribunal. The Tribunal in doing so has complied with section 24 to 29 of the SCT Decree. I find that these two grounds of appeal were misleading, frivolous and exatious.
    
11. I also consider the three grounds of appeal filed together with the notice of appeal on 9 May 2013. The first and the third grounds also fall under the ambit of section 33(1)(a) of the SCT Decree to some extent. I reject and dismiss the second ground as it does not come under the ambit of section 33(1) of the SCT Decree.
    
12. The written submission filed by the Appellant relating to the grounds of appeal that fall under section 33(1)(a) of the SCT Decree is focusing on how the Tribunal reach its decision. This is a challenge to the merit of the case. In the case of Sheet Metal (Supra) it was held that there can be no appeal on merit.
    
13. I have considered the four grounds of appeal filed by the Appellant that comes under section 33(1)(a) of the SCT Decree, the Tribunal copy record, and the submission filed by the parties. I find that the Tribunal conducted the proceeding according to section 24 to 29 of the SCT Decree. Though the four grounds falls within the ambit of section 33(1)(a), the argument advanced by the Appellant goes to the merit of the case. Accordingly, I reject and dismiss all the four grounds of appeal.
    
14. I will now deal with the grounds of appeal filed under section 33(1)(b) of the SCT Decree, the claim is $5000.00 which is within the jurisdiction of the Tribunal. The claim arises from share farming oral arrangement which the Tribunal has the jurisdiction to adjudicate on. The Appellant is specifically referring to Tribunal order 3, where it says that failure to comply with the above will incur an extra $45.00 for further enforcement, this the claim soars to $5,045.00. The order is very clear that $45.00 will be incurred if the Appellant fail to comply with the above order which include order 1. Order 1, state that the total claim is $5,000.00 to be paid on monthly instalment of $300.00 beginning 24 May 2013. This order clearly state that the total claim is $5000.00 which is within the jurisdiction of the Tribunal.
    
15. In my judgment, I dismiss the appeal with cost of $500.00 in favour of the Respondent.
    

Cama M. Tuberi
RESIDENT MAGISTRATE