Khan v K [2017] FJMC 86; Civil Appeal 25.2016 (23 June 2017)

IN THE MAGISTRATE’S COURT AT LABASA

APPELLATE JURISDICTION
Civil Appeal No. 25 of 2016

SCT Claim No. 509 of 2016

BETWEEN : 1. AIYUB KHAN

2. TAITUSI YABAKI

APPELLANTS

AND:1. JOELI .K 7. TIKI .S 13. LAI .V

2.TURAGA .N 8. DYRI .M 14. JONE .V

3.TAGILALA .V 9. TEVITA 15. JITOKO .T

4. WINGA . V 10. URAIA .L 16. TUNIDAU

5. JOPE .V 11. CAMA .V 17. KOLONIO .S

. NAI .V 12. TAIKIKO .N 18. SIMELI .S

RESPONDENTS

For the Appellants : 1. In Person

2. No Appearance

For the Respondents : 10. In Person
15. In Person
No Appearance for the rest of the Respondents

Judgment : 23 June 2017

JUDGMENT

1. The Appellants is appealing the order of the Small Claims Tribunal (Tribunal) made on 11 October 2016. The notice of appeal was filed on 14 October 2016, and was on time.
   
2. The grounds of appeal provided in the notice of appeal are;-
   
   1. That the decision of the Tribunal was unfair and unreasonable.
      
   2. That the Tribunal did not listen to the Respondents or make a reasoned decision.
      
   100. That the decision is unfair as the Tribunal did not take into consideration the defence of the Respondent which should have been part of the court proceedings thereby rendering the entire decision unfair.
        
3. On 25 January 2017, the parties were directed to file submission. The same direction for filing of submission was issued on 15 February 2017, and 19 April 2017. On 19 April 2017, the hearing date was set. The Respondents filed their submission on 26 April 2017. There was no submission filed by the Appellants. The appeal was heard on 14 June 2017.
   
4. The Respondents are cane cutters from the Lau group. On 14 December 2016, they informed the court that they will not be able to attend the hearing as they will be returning back to their island. They undertake to file their submission and the court can give its judgment on the submission filed.
   
5. At the hearing, only the First Appellant, the Tenth and Fifteenth Respondents appeared. The First Appellant informed the court that his counsel Mr Sen told him to get another date. The matter was stood down to allow the First Appellant to arrange with his counsel to appear as the court is ready to hear the appeal.
   
6. When the case was recalled, the First Appellant informed the court that his counsel told him that he is on his way to court. The court told the Appellant that from the time the matter was stooddown and recalled if his counsel was on his way to court he would be in court when the matter is recalled which was agreed by the First Appellant. The hearing proceeded and concluded, where there was no appearance from Mr Sen.
   
7. The appeal was heard as any further adjournment will cause injustice to the case considering the purpose of the setting up of the Tribunal. Also on the circumstances of the Respondents as the number of the Respondents who appeared on each court dates were decreasing as they were not from this jurisdiction. That is evidence on the hearing date where only two Respondents appeared.
   
8. The order of the Tribunal can only be appealed on the following two grounds as provided under section 33(1) of the Small Claims Tribunal Act (hereinafter referred to as “the Act”)

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

(b) the tribunal exceeded its jurisdiction.”

9. The three grounds of appeal advanced by the Appellants all come under section 33(1)(a) of the Act.
   
10. The manner or procedure required to be followed by the referee in conducting the Tribunal proceeding is provided in section 24 to 29 of the Act. That was stated by Fatiaki. J, in Sheet Metal Plumbing (Fiji) Ltd v Deo [1999] FJHC 26.
    
11. At the Tribunal as per the copy records, the Appellants were given their rights of audience as they were both present on the hearing. Their evidence were recorded as reflected in the copy record. From the face of the court records it appears that the Referee had conducted the proceeding according to what is required of her in the Act.
    
12. The First Appellant in his oral submission, submit that he feels the referee did not hear or consider his statement. The referee fails to consider two of his letter which he tendered as AE 1 & 2. The First Appellant submits that it was tendered to the referee and on that basis I allow the documents to be tendered subject to further consideration. In this judgment, I rejected to consider these two letters as I do not see any reference of them in the copy record and it ament to introduction of new evidence which cannot be considered in this appeal.
    
13. The First Appellant further submit that there are 25 people for the amount due, he can divide it into two to be shared by the two Respondents that are present at the hearing. If the amount is less, he can give some more so the case can finish. This is a clear admission to the liability that he should pay for the amount ordered by the Referee.
    
14. I allow the First Appellant to tender his written submission. I have considered the submission prepared by Maqbool & Company for both the Appellants. The submission goes to the merit of the case. In the case of Sheet Metal (supra) the court said that there can be no appeal on merit. The second and the third grounds of appeal also touch on the merit and I will dismiss those grounds.
    
15. In assessing and analysing the Appellants grounds of appeal, I find that there are no merits on those grounds. There was no submission from the Appellants that what is stipulated in section 24 to 29 of the Act was not accorded or given to them.
    
16. In my judgment I affirm the order of the Referee and I dismiss the appeal with cost of $500.00 to be paid by the Appellants to the Respondents within 21 days.
    

28 days to appeal

C. M. Tuberi

RESIDENT MAGISTRATE