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Sharma Rental Cars v Sovu [2004] FJHC 521; HBA0017J.2002S (12 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL APPEAL

C/A NO. HBA0017J OF 2002S

BETWEEN:

SHARMA RENTAL CARS
of Rewa Street, Suva.
APPELLANT

AND:

ANARE SOVU
of Narere Primary School, Delainavesi.
RESPONDENT

Counsel for the Appellant: In Person
Counsel for the Respondent: In Person

Date of Judgment: 12 February 2004
Time of Judgment: 9.30 a.m.

JUDGMENT

This is an appeal from the decision of the Magistrate Court in dismissing an appeal from the Small Claims Tribunal.

The brief outline of the facts are as follows. The Respondent hired a car from the Appellant on 2 November 2001 in Suva to take his family to Nadi. He paid $270.00 for the 3-day hire of the vehicle and a deposit of $500.00 to cover contingencies, including damages. The Respondent claimed that when he took delivery of the car, there was already a small crack on the windscreen. He subsequently noted this defect on his copy of the rental agreement, upon returning the car to the Company. The Appellant disputed the prior existence of the cracked windscreen and subsequently withheld $350.00 from the Respondent’s deposit, to cover the cost of a new windscreen and labour.

In the Court of the Small Claims, the Tribunal found for the Respondent and ordered that the Appellant repay the $350.00 withheld, to the Respondent through the Registry of the Tribunal, within 14 days.

On 18 January 2002 the Appellant filed its appeal on the grounds that:

'(a) the proceedings were conducted by the Referee in a manner which was unfair to the Appellant and prejudiciary (sic: prejudicially) affected the result of the proceedings,

(b) the Tribunal exceeded its jurisdiction,

(c) the Tribunal Referee erred in law and in fact not considering rental agreement No. 9393 as not valid agreement.'

In dismissing the appeal, the learned Magistrate found that the two essential ingredients namely, unfairness and exceeding of jurisdiction by the Tribunal, under section 33(1) of the Small Claims Tribunal Decree 1991, and upon which the appeals were based, did not have any merit or at any rate, had not been raised by the Appellant. Unfortunately, the Court did not fully explain how it arrived at such a decision.

The Appellant subsequently appealed the learned Magistrate’s decision setting down the grounds as follows:

'1. That the exhibit handed to the Referee of the Small Claim Tribunal was not fully attached in the Court Record compiled for His Worship The Resident Magistrate.

2. That His Worship erred in law and in fact by not considering the missing page No. 2 of the Rental Agreement A 9393 that was tendered by stating that the same is not attached to the Court Record.
   
3. That His Worship erred in law and in fact in adopting the ruling of the Referee and entering the judgment against the Appellant/Respondent.'
   

COURT’S CONSIDERATION

The right of appeal from the Small Claims Tribunal was extensively canvassed by Fatiaki J (as he then was) in Sheet Metal and Plumbing (Fiji) Ltd. v. Uday Narayan Deo (1999) Vol. 45 FLR 80. The Court concluded, after having examined the provisions of the Small Claims Tribunal Decree 1991, that the parties, upon submitting themselves to the jurisdiction of the Tribunal, possessed a restricted or limited right of appeal. These were, where the Tribunal had exceeded its jurisdiction or where the proceedings were conducted unfairly and which would have prejudiced the Appellant. Section 33(1) of the Decree is categorical. It states:

'(1) Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the Appellant and prejudicially affected the result of the proceedings; or

(b) the Tribunal exceeded its jurisdiction.'

Although the Appellant had included the issue of jurisdiction as a ground for appeal in the Magistrate’s Court, it does not appear from the record that he had in fact raised it at all. In any case, the grounds for his appeal to this Court does not now include the issue of jurisdiction, the second limb of section 33(1) of the Decree.

The sole ground of appeal is that the Referee had conducted the proceedings in a manner which was unfair to the Appellant and as a result it adversely affected the outcome. The learned Magistrate had found no basis to support the Appellant’s argument on this issue.

In its submission to this Court, the Appellant said that the learned Magistrate had failed to take into consideration the fact that the Referee had not considered page 2 of the all important Rental Agreement 'A 9393', which would have explained the liability of the car hirer for damages. The missing page 2, which in fact is the reverse side of the single sheet comprising the Agreement, was subsequently produced into Court and contained in the Appellant’s submission. I ruled it inadmissible. The fact that the Appellant had only tendered a photocopy of page one/front page of the Agreement before the Referee, omitting to include page 2 in the process, cannot possibly be relied upon by the Appellant as argument in support of unfair behaviour on the part of the Referee. The Tribunal is only expected and entitled to rely on the evidence, including documents, that are before it. That the Appellant may have failed to produce documents necessary to support its arguments, is not the fault of the Tribunal. Nor is it ground for appeal.

The appeal is dismissed. The order of the Tribunal as upheld by the learned Magistrate is confirmed. The Appellant is ordered to pay $350.00 plus $50.00 costs to the Respondent. The payments to be made to the Registry of the Small Claims Tribunal within 14 days.

F. Jitoko
JUDGE

At Suva
12 February 2004