IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
APPEAL JURISDICTION

Small Claims Tribunal File No. 154 – 17
Appeal Case No:  03 -  2017

YAQARA   PASTORAL
-v-
NITYA  NAND

For the Appellant                   :	 In person
 		For the Respondent               : 	 In person
Date of Appeal Hearing         :	 16th day of October, 2018
   Date of Judgment                   :  2nd day of November, 2018

JUDGMENT

Background

1.	The Appellant Co. is dissatisfied with the decision of the Referee who decided their case when it was before the Small Claims Tribunal [ SCT ].

2.	The Appellant Co. was the Defendant when the case was before the tribunal.

3.	The Respondent in this appeal was the Claimant when the case was before the tribunal.

4.	The Respondent/Claimant brought his action in the SCT against the Appellant in relation to the damage to the Respondent’s farm caused by the Respondent’s unconfined cattle. The Respondent/Claimant claimed $2,044.45 against the Appellant Co.

5.	During the hearing before the Referee, the Claimant said that the Co.’s unconfined cattle enter his property frequently. They come even when there is security provided by the Co. The Claimant has raised it with police and with the manager of the Respondent Co. The Claimant says that he has not harvested any crop for 3 years because of continued damage caused by the Respondent’s cattle. He is claiming for damage caused to 2 hectares of his sugar cane farm. The Claimant said that on average if it is a good season, he can harvest 50 to 80 tonnes of cane. If there is a drought, he can harvest up to 30 tonnes. He can get $2,000 to $3,000.

6.	The Claimant also produced a witness Mr Lakhan on his behalf. Mr Lakhan said he came to see the Claimant’s farm but he didn’t see any cattle there. Mr. Khan said that the ‘whole cane was damaged may be about 2 acres.’

7.	A witness was produced for the Appellant Co. when the case was before the SCT.

8.	This witness was Mr Ram, the acting CEO of the Appellant Co.

9.	Mr Ram said that he inspected the farm of the Claimant after being called. Mr Ram said that he only saw one cow. He accepted that there was damage to the Claimant’s farm but that it was not caused by the Appellant Co.’s cattle. The Co. hired another security to ensure there was no complaints.

10.	The other witness produced for the Appellant Co. before the Referee was Mr Saba. Mr Saba said that he is a neighbour of the Claimant. He too accepts that there was damage to the Claimant’s farm but only to the Claimant’s second field. He only saw one hoof print of one cow. 

11.	Another witness was Mr Baya. He said he went to inspect the Claimant’s farm and according to him, he says that the damage seems to have been caused by one cow or two and not more than that as claimed by the Claimant. Mr Baya says that he has visited the Claimant’s farm 3 times. The cattle may have made their way to the farm by an old track through the water.

12.	The Referee also went for a site inspection and adjourned for a decision.

13.	The Referee gave his finding on the 27-09-17. He was convinced that the hoof marks did not belong only to 1 cow. The Referee find in favour of the Claimant.

14.	On the 4th day of October, 2017 the Appellant was ordered to pay the Claimant the sum of $989 on or before 31-10-17. 

15.	The Appellant being dissatisfied with the decision appeals on the sole ground that the referee was unfair.

16.	The Appeal is out of time by 7 days. 

17.	The parties did not file any written submission before the matter was fixed for Appeal hearing before this court. 

18.	The parties were in possession of the court record prepared for the appeal and since they were content with proceeding with the appeal hearing since the matter has been pending for a while, the court held the hearing of the appeal on 16-10-18.

19.	The Appellant was advised that by pursuing the appeal, they risked having the orders of the Referee revisited and the court on appeal might even increase the amount owing to the Respondent/Claimant.

20.	Bearing in mind this risk, the Appellant maintained that they will pursue the appeal.

21.	Having heard the grievance of the Appellant, it is apparent to the court during the appeal hearing that the Appellant has come to accept that the Respondent/ Claimant’s farm was damaged by their cattle. 

22.	The Appellant though was unhappy with the amount of $989 fixed by the Referee.

23.	The Appellant’s concern is that the Referee reached this amount without any ‘independent assessment’ of the damage.

24.	Having made an enquiry with the Appellant, the court is advised that the reason for the belated filing of their appeal was due to the Co. having to discuss their next course of action with Co. management.

Law

25.	The Appellant’s appeal should have been filed within the 14 days pursuant to section 33 ( 3 ) of the Small Claims Tribunal Act 1991. The Court can grant leave to a party to file an appeal out of time.

26.	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.

27.	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.

DISCUSSION

28.	The Appellant’s reason for filing the appeal late, which is that the management needed to discuss the result of the SCT is not that compelling.

29.	Despite this, I don’t find the delay [ which is 7 days ] in filing the appeal excessive and there seemingly is merit regarding the appeal which requires a closer examination.

30.	Leave is granted to the Appellant to appeal out of time.

31.	As for the appeal itself, I find no reason to interfere with the finding of fact made by the Referee.

32.	The Referee was satisfied that the cattle belonging to the Appellant Co. caused damage to the Respondent/Claimant’s farm.

33.	The Appellant too on the Appeal hearing date have come to accept that they are liable for the damages done to the Respondent/Claimant’s farm.

34.	The next question and which is the main grievance of the Appellant in this appeal is the sum of $989 the Referee awarded to the Respondent/Claimant.

35.	A court or tribunal should be cautious when arriving at the sum owed.

36.	I agree with the Appellant that the amount must be justified.

37.	Recently in Anasa Turaga v Ritesh Chand Rakiraki Small Claims Appeal No. 02 – 18 ( 11th October 2018 ), this court remitted or resent a matter before the Referee to rehear the parties about how much was owed to the Claimant. That case also involved the claim of damages done to a farm by unconfined cattle.

38.	I am not inclined to do the same thing here and I am not inclined to change the sum ordered by the Referee which is owed by the Appellant Co. to the Respondent/Claimant.

39.	Firstly, there is information or evidence adduced before the Referee about the size of the Respondent/Claimant’s farm, the tonnage usually harvested and the projected revenue the Respondent/Claimant might have received which is $2,000 - $3,000. This was given by the Respondent/Claimant on the hearing date and is encapsulated in page 5 of the SCT record prepared for this appeal.

40.	Secondly, the Referee has the discretion of accepting and rejecting the information he received. It is clear to me that he has rejected the approximately $2,000 claim made by the Respondent/Claimant and found that $989 was appropriate in the circumstance.

41.	Thirdly, the Referee made a site visit and I am sure this must have had a bearing on his decision to award such an amount.

42.	Fourthly, the amount claimed by the Respondent/Claimant does not need to be corroborated by having an assessment done. In some cases, the assessment or survey of the damage is done way too late after the fact. If there is an assessment and estimation done by an appropriate person with the training and experience, that may be helpful. Even if that is done, the assessment or recommendation by any party would not be binding on the Referee. The Referee if satisfied with the information or evidence of the Claimant alone, then that would be sufficient for the Referee to make a decision.

43.	Fifth, I don’t expect any tribunal or court to be able to quantify in monetary terms the sum that is truly owed. Perfection cannot be reached but it is reasonableness or what is fair that is the focus when a sum is awarded. 

44.	I do not think that the sum Referee found owing to the Respodent/Claimant was unreasonable or unfair. 

Conclusion

45.	For the aforementioned reasons, the appeal is unsuccessful and is dismissed. 

46.	The referees finding or decision that the Appellant Co. is at fault for their unconfined cattle causing damage to the Respondent/Claimant’s crops is upheld.

47.	The amount of $989 is owed by the Appellant to the Respondent/Claimant. 

48.	This amount is to be paid in 14 days from today.

49.	The parties have 28 days to file an appeal against my decision if they wish. 

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

At Tavua this 2nd day of November, 2018