Nainiki v Riubin [2015] FJMC 134; Civil Appeal Action 15.2014 (21 October 2015)

IN THE MAGISTRATE'S COURT AT LABASA
APPELLATE JURISDICTION

Civil Appeal Action No. 15 of 2014
SCT Claim No. 122 of 2014

BETWEEN :

MESAKE NAINIKI
APPELLANT

AND:

ZHANG RIUBIN [TOM]
RESPONDENT

Appellant : Mr. Lomaloma. P
Respondent : No Appearance

Judgment : 21 October 2015

JUDGMENT

1. The Appellant is appealing the decision of the Small Claims Tribunal (Tribunal) made on 5 March 2014. The Notice of Appeal was filed on 7 March 2014, and was on time. 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.
   
2. The Appellant listed seven paragraphs as his grounds of appeal when he filed his notice of appeal. The Appellant Counsel later on 12 August 2014, filed the amended grounds of appeal. There are two main grounds of appeal, the first is that the Referee had exceeded her jurisdiction and the second is that the Referee was unfair.
   
3. The Respondent filed his response to appeal on 26 November 2014, in summary, stating that the judgment made by the Referee was fair and justifiable and the Referee has acted within her powers. The Respondent further state that the Referee's judgment should stand.
   
4. On 19 March 2015, the case was called in court and there was no appearance from the Respondent. I noted from the court record that this is the third consecutive court dates in which the Respondent has fail to appear. The Court noted that the amended grounds of appeal has been filed and the response to appeal has been filed by the Respondent. On 19 March 2015, the Court gave directions for both the parties to file written submission within 21 days and the case was set for hearing on 2 September 2015. No submission was file by either party.
   
5. On 2 September 2015, when the case was called, there was no appearance from the Respondent. This will be the fourth consecutive court dates in which the Respondent is not appearing in court. The Court has noted the rights of the Respondent including the rights to be heard. The Respondent has been duly notified of this appeal and he has filed his response to the grounds of appeal and his last court appearance is on 13 October 2014. This is an appeal from the Tribunal, and need to be dealt with at the earliest possible opportunity. The case is for hearing and the Court is of the view that this case should proceed to hearing in absence of the Respondent. It is the duty of the Respondent to enquire at the court registry on the status of proceeding and the court dates.
   
6. The Counsel for the Appellant informed the Court on 2 September 2015, that he is ready to proceed for the hearing and the appeal was heard accordingly in the absence of the Respondent. There was no written submission tendered and the Appellant Counsel submit that this appeal is best to be argued orally. In my view the statement is made to justify the non compliance to the Court direction on the failure to file written submission.
   
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. I will first deal with the grounds of appeal filed under section 33(1)(b) of the SCT Decree. The first ground of appeal is that "the Referee exceeded her jurisdiction when she dealt with the issue of negligence in a motor vehicle accident when her jurisdiction is to settle disputes involving debts". At the hearing, the Appellant Counsel submit that the Tribunal was set up to settle debts. This is a case of careless driving and negligence and it is beyond the knowledge of the Referee. This case is beyond the jurisdiction of the tribunal and she should not have heard the claim as she has to establish liability. Further argued that the Referee cannot determine liability in a motor vehicle accident.
   
9. The claim filed by the Respondent at the Tribunal is for the cost of repairing the damages to the Respondent's Company Vehicle. The total amount claimed as per the Tribunal Form 1 claim filed by the Respondent is $2,700.00. The Referee's finding is provided in page 5 of the copy record. The Referee's finding is very clear on how the Tribunal find the Appellant liable to pay the amount ordered by the Tribunal. This Court will not interfere with this finding as it goes into the merit of the case. It is a well established common law in this jurisdiction that Tribunal decision cannot be appealed on merit. This position was held in the case of Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 26.
   
10. The jurisdiction of the Tribunal is provided in section 8 of the SCT Decree and some limitation to the jurisdiction of the Tribunal are provided in section 9 of the same Decree.
    
11. The case as presented before the Tribunal is a case that falls under section 8 and 9 of the SCT Decree which the Tribunal has the jurisdiction to hear and provide its orders based on its own finding. The amount claim is below $5000.00 and the claim is based on some undertaking and arrangement between the Appellant and the Respondent with the Police which the Tribunal has make its finding on the matter. The nature of the claim as presented before the Tribunal is well within the jurisdiction of the Tribunal. This Court cannot interfere with the Tribunal's finding and order as this case is within the jurisdiction of the Tribunal.
    
12. In regards to the second ground of appeal which is on unfairness, this ground of appeal falls under section 33(1)(a) of the SCT Decree. The manner in which the referee should conducted the proceeding are stated in the case of Sheet Metal (Supra) 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."

13. The Appellant, under the ground of appeal on unfairness listed seven sub paragraphs which challenges the evidence that were considered by the Tribunal and also challenges the finding of the Tribunal. At the hearing, the oral submission made by the Counsel for the Appellant goes to the merit of the case as he challenge and argued on the evidence adduced at the Tribunal and the consideration of those evidence that lead to the finding and orders of the Tribunal. It must make be noted that any challenge to the evidence and how the Tribunal consider those evidence and its finding based on those evidence goes to the merit of the case.
    
14. In this case the Appellant was given his right of audience as he was present on the hearing date and his evidence was recorded as appears in page 3 and 5 of the copy record. There was no argument that what is required in section 24 to 29 of the SCT Decree was not accorded to the Appellant. Therefore, I find that the Tribunal was in compliance to section 24 to 29 of the SCT Decree.
    
15. In regards to the challenge on the evidence, I refer to section 26(3) of the SCT Decree which state;
    

"A Tribunal may receive and take into account any relevant evidence or information, notwithstanding the provisions of the Evidence Act and whether or not the same would normally be admissible in a Court of Law".

16. In considering the documentary material filed in this appeal together with the oral argument from the Appellant Counsel, I find that the Tribunal has jurisdiction to deal with this case and there is no unfairness shown as the Tribunal conducted the proceeding according to section 24 to 29 of the SCT Decree.
    
17. In my judgment, I dismiss the Appellant's appeal and make order as to cost of $500.00 to be paid by the Appellant to the Respondent.
    

Cama M. Tuberi
RESIDENT MAGISTRATE