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Verma v Cakacaka [2012] FJHC 8; Civil Action 286 of 2009 (19 January 2012)

THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

SCT Claim No. 1814 of 2008
Civil Action No. 286 of 2009

BETWEEN:

SANJAY SINGH VERMA and BABITA KUMAR VERMA
of Raralevu, Nausori, Businessman and Businesswoman.
Appellants/Claimants

AND:

SEMITI CAKACAKA
of Raralevu, Nausori, Bank Officer.
Respondent

Appearances: Appellants in person
Mr Vakoloma for the respondent

Date of hearing: 22nd September, 2011

JUDGMENT

1. Sanjay Singh Verma and Babita Kumar had claimed that the leaves and coconuts of a tree on the fringe of Semiti Cakacaka' s land had fallen and damaged a light on their fence post on 10 occasions. On 11th August,2009, the Small Claims Tribunal(SCT) had made order that Sanjay Singh Verma and Babita Kumar be paid $ 760 as damages.
   

On 16th September,2009, the Magistrates' Court had issued judgment debtor summons (JDS) on Semiti Cakacaka to appear on 1stOctober,2009 .Thereafter, Semiti Cakacaka had filed notice of motion to file appeal out of time.

This appeal lies from the decision of the Magistrate dated 31st December,2009, referring the matter back to the SCT for re-hearing before another referee.

2. Grounds of Appeal
   

This appeal has been filed on the following elaborated grounds, which provide the Learned Magistrate erred by:

1. failing to abide by the rules of the court, by not dealing with the issue of the Respondent's application "to file appeal out of time".
   
2. advancing to the next level that was yet to be made by way of application with relevant grounds.
   
3. holding the Small Claims Tribunal's referee was obliged to record the statement of Mr Amit Prasad.
   
4. ordering the referee of the Small Claims Tribunal to record the evidence of the Commissioner for Oath of Mr Amit Prasad's Affidavit date 06/04/10 whereas the order of Small Claims Tribunal is dated 11/08/2009.
   
5. not considering the Appellant's/Claimant's response to the motion of the Respondent by not putting any emphasis on the submission by the Respondent to the Small Claims Tribunal dated 23/02/2009 and Mr Amit Prasad's version was clearly stated in paragraph 2 and the referee at the time of the hearing fully considered the denial of Mr Amit Prasad carrying out any electrical work at the Appellant's residence and also came to a conclusion the statement by Mr Amit Prasad was false and his receipts had validity and awarded the claim.
   
6. not allocating a hearing date and neither conducting the same depriving the Appellants/Claimants to make applications in Court the Respondent brings in Mr Amit Prasad on oath in open Court to testify his various dubious versions of signatures and statements.
   
7. not realising the Small Claims Tribunal is not vested with the jurisdiction to bring in any parties and/or witnesses under executions whereas the Magistrate Court has powers to do so.
   
8. not consulting the referee of the Small Claims Tribunal and failed to consider taking any feedback on the attempts was made by the Appellants/Claimants and the referee of the Tribunal itself to call in Mr Amit Prasad on one of the various allocated hearing dates but the Respondent failed to present Mr Amit Prasad as an witness to the Tribunal and further what difference will it make this time.
   
9. not considering the application of the Appellants/Claimants to first consider if the application of requesting appeal out of time was appropriate and if so, the Magistrate to assume the role of the Tribunal under Section 35 (1) (b) and/or (c) of the Small Claims Tribunal Decree 1991 only if the Respondent firstly succeeded in his application to appeal out of time and secondly succeeded with his grounds of appeal in order to refrain all parties from wasting each others time.
   
10. simply going ahead and hearing an application that was not any time before Her Worship and failed to consider the application before her was merely to set aside the JDS and consider application to appeal out of time and in her ruling Her Worship also failed to mention anything on the applications were currently before her. The Appellants/Claimants are also of the view why there is a need to apply out of time when the Respondent had all the time in the world to argue his case out and application to appeal out of time merely on words of Mr Amit Prasad time and again will not any time change the facts of the initial matter.
    

The first and second grounds of appeal as complemented by the ninth and tenth grounds, provide the Learned Magistrate failed to consider in the first instance, the application to file appeal out of time by the respondent and had assumed the role of the Tribunal under Section 35 of the Small Claims Tribunal Decree,1991, despite grounds of appeal not being filed.

The third to eighth grounds of appeal take issue with the order of the Learned Magistrate deciding an appeal that was yet to be made by way of application with relevant grounds and directing the referee to record the statement and testimony of a witness, who was not presented before the SCT.

3. The determination

I have perused the order of the Magistrate. I find that the Learned Magistrate has not made a determination on the application for leave to appeal out of time.

Accordingly, the appeal on the ground that the Learned Magistrate failed to deal with the issue of the respondent's application to file appeal out of time, succeeds.

The powers of the High Court sitting on appeal from a decision of a Magistrates Court are contained in Order XXXVII of the Magistrates' Courts Act(cap 14, Subsidiary Legislation). Rule 18 provides the appellate court .., generally, shall have as full jurisdiction .. as if the proceedings had been instituted and prosecuted in the appellate court as a court of first instance, and may rehear the whole case or may remit to the court below to be reheard,...".

Accordingly, I remit the case to the Magistrates' Court to rehear and determine the application for enlargement of time.

The matter was called before the Magistrate in respect of a JDS and to consider the application to file appeal out of time.

The Learned Magistrate had however, proceeded to decide the appeal, although the respondent had not formulated his grounds of appeal to the Magistrates' Court, as foreshadowed in the ninth ground of appeal.

Moreover, there was procedural impropriety. The appellants had been denied natural justice and were not heard in respect of the appeal.

4. Striking out application
   

The respondent has filed an application to strike out this appeal, which the appellants opposed. The respondent's written submissions provide the application to strike out the "Statement of Claim" is made pursuant to Order 18 r 18(1) of the High Court Rules.

An appeal may be dismissed, if the respondent successfully demonstrates that there is no error of law made by the court of first instance. In my judgment, the application to strike out the appeal is misconceived .

5. Orders
   
   1. the matter is remitted to the Magistrates Court to determine the respondent's application for the extension of time to file appeal.
      
   2. the order of the Magistrate directing that a re-hearing be held in the SCT before another referee, is set aside.
      
   100. the application to strike out the appeal is dismissed.
        
   4. I make no order as to costs.
      

A.L.B Brito-Mutunayagam
Judge
19th January, 2012