Kamoe v Whippy [2018] FJMC 127; Small Claims Tribunal File 56 of 2016 (14 September 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
APPEAL JURISDICTION

Small Claims Tribunal File No. 56 – 16
Appeal Case No: 05 - 2016

JONE KAMOE
-v-
ROLAND WHIPPY

For the Appellant : Ms Henao [ Legal Aid Commision ]

For the Respondent : In person
Date of Appeal Hearing : 20^th day of August 2018

Date of Judgment : 14^th day of September 2018

JUDGMENT

Background

1. The Appellant is claiming $600 from the Respondent for unfinished works at the Appellant’s home which was damaged after a cyclone.
   
2. As is usual in this jurisdiction for small scale building or maintenance or renovation works like this, the works to be done was largely agreed upon verbally by the parties.
   
3. The evidence reflects that the Appellant was not directly engaged in the talks. It was his daughter and son in law from New Zealand who provided the finance and did most of the discussion with the Respondent.
   
4. There was some pressure on the Respondent to complete the works in a timely manner because the Appellant’s daughter and son in law were to return to New Zealand.
   
5. Some building materials were purchased and the work began.
   
6. The Appellant claims that his veranda was not completed as agreed and some roofing iron or left over material un-used by the Respondent had to be fitted by the Appellant himself and his son.
   
7. Their mediation before the referee in the Small Claims was unsuccessful and so the matter proceeded to hearing.
   
8. Amongst other things, the Referee believed the Respondent that he had completed what he was paid to do and was not satisfied that the Appellant had shown that the Respondent had breached their verbal contract.
   
9. The claim was dismissed by the referee.
   
10. The Appellant appeals against that decision.
    
11. The Appellant in his ground of appeal raises that the Referee failed to consider that the Respondent had lied as the he [ the Appellant ] had written testimonies to prove the truth.
    
12. The decision by the referee was given on the 27^th day July 2016.
    
13. The Appellant filed his appeal later on the same day.
    
14. The Appellant is now represented by counsel.
    
15. His counsel has filed submissions on his behalf.
    
16. The appeal asserts unfairness on the part of the Referee and the arguments are outlined in the submission filed on behalf of the Appellant.
    
17. Failure to fully consider the scope of the work; rejection of hearsay evidence; contradiction in the Respondent’s evidence and lack of corroboration of the Respondent’s evidence are some of the points argued in the appeal submission in support of the appeal ground.
    
18. A written submission was filed in reply and on behalf of the Respondent too by the Legal Aid Commission.
    
19. It is argued by the Respondent that the Appellant was not a party to the agreement although the Appellant had approached the Respondent to repair the damage; the Respondent’s evidence is not contradictory; both parties had adduced or relied upon hearsay evidence and the real question was its weight. In totalilty, the Appellant was not treated unfairly.
    
20. On the 20^th of August 2018, I held a hearing of the appeal before me and the parties were content with relying upon the written submissions filed.
    
21. There was a considerable delay in the provision of a judgment because of the unavailability of a Magistrate.
    

Law

22. The Appellant’s appeal is within the 14 day appeal period required pursuant to section 33 ( 3 ) of the Small Claims Tribunal Act 1991. The appeal is within time.
    
23. Section 33 ( 1 ) of the same Act allows an appeal against a referee’s decision if:
    
    • (a) The proceedings were conducted by the Referee in an unfair manner to the Appellant and prejudicially affected the result of the proceedings;
      

or

(b) The tribunal exceeded its jurisdiction.

24. Section 35 ( 1 ) of the same Act prescribes the following powers on appeal. The Magistrate on appeal may:
    
    • (a) quash the order of the tribunal and order a rehearing of the claim in the tribunal on such terms as he or she thinks fit;
      
    • (b) if the appeal is heard by a Resident Magistrate, quash the order and invoke his authority under section 4 to exercise the jurisdiction of the tribunal;
      
    • (c) quash the order and transfer the proceedings to a Magistrates’ Court for hearing;
      

or

(d) dismiss the appeal.

Analysis

Contradiction In The Respondent’s Evidence

25. I am unable to accept the submission that the Respondent gave contradictory evidence in relation to stopping the work.
    
26. In-order for something said to be in-consistent, it must be materially different to something that was earlier said.
    
27. Even an omission can be counted as an inconsistency if that omission was so obvious but it was left out.
    
28. I have examined page 8 and 9 of the impugned Respondent’s evidence.
    
29. The answers or what he said must be examined in the light it was given. They were general statements and such must be given its general or flexible interpretation.
    
30. Stopping the works because he had fitted the fascia board and stopping the work because he was told to by the Appellant’s daughter since there was financial problem could mean the same thing. It could be he stopped work after fitting the board because he was paid only up to there. There are other ways to interpret these answers.
    
31. I don’t see any material inconsistency here. At best the answers are vague and it is understandably so as they were general statements.
    

Scope of Work

32. Scope of work is certainly relevant when it comes to completing a task like what the Respondent was contracted to do.
    
33. The submission of the Appellant suggests that the Referee ought to have enquired further into this and the failure to do so was unfair to the Appellant.
    
34. I agree that the Referee could have.
    
35. But I don’t think it is necessary in all instances. Otherwise, the burden will always be on the Referee to try and suss out the details or information which I expect, should be readily available with the Appellant or Claimant.
    
36. Generally, they, the Claimant and the Respondent would be more familiar with their case then the presiding judicial officer. They are the ones coming to court and they should bring the relevant information with them. It is they particularly the claimant, who must provide the information to assist the Referee.
    
37. Off course there are instances when the Referee should step in and try and elicit the information. This case is not one of them.
    
38. Besides, even if the Referee tried to elicit the information, the scope of work is hard to fathom or gauge without a written agreement. It made it more difficult for the Appellant or Claimant as he was not the one engaged directly in the talks. It was his daughter.
    

Hearsay

39. I agree that the Referee should not have dismissed the hearsay evidence given by the Appellant about his conversation with his daughter who was by then in New Zealand about whether any money was given to the Respondent to purchase any building material amongst other things.
    
40. In proceedings like the one held before the Referee, the hearsay rule is relaxed and is not as stringent as in a criminal trial.
    
41. This error in my mind is not a substantial prejudice.
    
42. The ultimate question was whether the Referee believed that the claim was made out. If the Referee believed the Respondent, that would mean then that the claim is not made out by the Claimant or the Appellant.
    
43. The Referee did and specifically mentioned in page 10 of the Court record ‘ I observed the demeanour of Respondent when giving evidence, he was calm and clear. I believed him.’
    
44. The rejection of certain evidence such as the phone conversation between the Appellant and his daughter is not necessarily a sign that the Referee is biased.
    
45. It could be that the Referee was ignorant of the law.
    
46. Ignorance is not bias.
    
47. Overall, determining whether the Referee is biased is arrived at by looking at for example how the proceedings was held or managed, whether an opportunity was given to both sides to tell their side of the story, the acceptance or rejection of the evidence and the reason for the rejection amongst other reasons.
    
48. The same principle in relation to hearsay also applies to the evidence of the Respondent.
    
49. Having examined how the proceedings was managed by the Referee and the reasons given for the his decision, I am unable to usurp the finding of credibility made by the Referee who had the opportunity of listening to the parties and observe them adduce and explain their side of the story.
    

Corroboration

50. It is also submitted by the Appellant that the Referee should not have accepted the evidence of the Respondent without corroboration.
    
51. If this submission is to be accepted, then the claim cannot be made out as the Appellant or Claimant also did not provide any corroborative evidence.
    
52. In any event, corroboration in this case was not necessary for either the Claimant or the Respondent. If they have independent evidence supporting their evidence, then that would be helpful but is not necessary.
    
53. The case rested on whether the Referee accepted the version of the Claimant [ or Appellant ] or that of the Respondent.
    
54. We know which version he preferred.
    

Conclusion

55. I don’t find the appeal ground is made out and I dismiss this appeal pursuant to section 35 ( 1 ) ( d ) of the Act for the aforementioned reasons.
    
56. The Appellant, you have 28 days to file an appeal if you wish.
    
57. If you wish to appeal, you can give a verbal notice now or you must give a written notice no more than 7 days from today.
    

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

At Tavua this 14^th day of September, 2018.