Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
SCT Appeal No. 25 of 2019
SCT Claim No. 592 of 2019
HBA No.01 of 2020
IN THE MATTER OF AN APPEAL from the Decision of Nasinu Magistrates’ Court in the SCT Appeal No. 25 of 2019.
BETWEEN : ROHIT NIRESH CHAND
APPELLANT
AND : VIJAY PRAKASH
RESPONDENT
Counsel : Appellant: Ms. Lutu I
: Respondent: Mr. Krishneel Chang
Date of Hearing : 22.04.2020
Date of Judgment : 22.05.2020
JUDGMENT
INTRODUCTION
FACTS
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; and
b)The Tribunal exceeded its jurisdiction.
3. Such further and/or other grounds as become apparent upon “Copy Record” being made available to him.
ANALYSIS
‘General Powers of Appellate Court
18. The appellate court may, from time to time, mak order necessary for for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may dirhe court below tlow to inqunto and certify its findingnding on any question which the appellate court thinks fit to determine before final judgment in the appead, generally, shall have as furisdictidiction over over the whole proceedings as if the proceedings had been instituted and prosecuted in the appellate court as a court of first instance, and may rehear the whole cb>e, or may remit it to the court below to be reheard, or to be otherwise dealt with as the appellate court directs.(emphasis is mine)
Powerppellate court to give any decision or make any oany order
19. The appellate court shall have power to give any judgment and make any order;#160that oughtought to have been made, and to make such fu or other orders as the case may require, including any order as to costs. These powers mays may be exercised by the appellate court,ithstg that the appellppellant mant may have asked that part of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.’ (emphasis added)
‘In my judgment the jurisdiction conferred on this Court as an appellate court under Order XXXVII to hear appeals from the Magistrates
Court entitles the Court to consider the matter in question as a court of first instance (i.e. afresh) unfettered by the decision
of the learned Magistrate and as a result, I am entitled to exercise my own discretion. Under Order XXXVII I am not restricted to
reviewing the manner in which the learned Magistrate exercised her discretion. (See CM Van Stillevoldt BV -v- EC Caviers Inc [1983] 1 All ER 699).’
Appeal Ground one reads;
;“The Learned Magistrate erred in fact and law in not failing to uphold the Appeal of the Appellant under section 33 of the Small Claims Decree;”
Section 33 of the Small Claims Tribunal Act 1991 reads
Appeals
33 (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.
...........” (emphasis added)
“In essence the ground allows for an appeal to the Magistrates on the grounds that the appellant has been denied natural justice in
the form of procedural fairness which has prejudicially affected the result of the proceedings. The other allowable ground of appeal
under the Decree is that the Tribunal exceeded its jurisdiction. Together they represent a limitation on the general principle that
an appellant’s right to appeal is as of right in respect of an error of law and/or fact. It is a right of appeal which requires
the appellate court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine
whether the applicant’s complaint has any merit. There is certainly no right of appeal in respect of any error of law nor in
respect of any factual error. The procedure to be adopted is clearly one of review and not one of re –hearing”.
“...ground (a) specifically refers to ‘the manner’ in which the referee conducted the proceedings as the crucial concern of the right of appeal on that first ground. Furthermore not only must the conduct complained about be ‘unfair to the appellant’ it must, in addition, ‘prejudicially’ affect the result.
As to the ‘manner’ or procedure required to be followed by the referee in conducting a proceeding under the Decree these are principally to be found in Sections 24 to 29 (inclusive) under the heading ‘HEARINGS’. A cursor examination of these provisions serves to highlight the informal, non-adversarial nature of the proceedings before the Small
Claims Tribunal and
militates against a general appeal on the merits or for errors of law.”
Additionally, he provides;
“Even more trenchant is the view expressed by Greig J. in Hertz New Zealand Ltd. v. Disputes Tribunal (1994) 8 PRNZ where his honour said in rejecting the appeal in that case, at p.151:
‘... there is no appeal on the merits even if there is a clear and fundamental error of law in the conclusion of the Tribunal.”
Quite plainly in my view not only is this second ‘ground of appeal’ misconceived in so far as it seeks to question the ‘merits’ of the referee’s decision without pointing to any ‘procedural unfairness’ but further, in so far as it purports to be predicated on the difficult legal principle of ‘unjust enrichment’ it fails to properly appreciate the function and nature of a non-legally qualified referee exercising what in effect is an equity and good conscience jurisdiction.” (emphasis added)
GROUND TWO
2. The Learned Magistrate erred in fact and in law in not accepting that the Referee had;
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; and
b) The Tribunal exceeded its jurisdiction.
15 (4) - The Tribunal shall determine the dispute according to the substantial merits and justice of the case, and in doing so shall
have regard to the law but shall not be bound to give effect to strict legal rights or obligations or to actual forms or technicalities.
FINAL ORDERS
a) The appeal is dismissed and learned Resident Magistrate’s decision is affirmed.
b) There is no order as to costs.
Dated at Suva this 22nd day of May, 2020.
.....................................
Justice Deepthi Amaratunga
High Court, Suva
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2020/343.html