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Prasad v V.M. Bulsara & Co. Ltd [2010] FJMC 167; Appeal Action 34.2010 (11 November 2010)

IN THE FIRST CLASS MAGISTRATE'S COURT AT SUVA
CENTRAL DIVISION - SMALL CLAIMS TRIBUNAL

SCT CASE NO: 3010 of 2009
APPEAL ACTION NO: 34 of 2010

BETWEEN:

RAJNESH PRASAD
Appellant

AND:

V.M. BULSARA & CO. LTD
Respondent

Appellant: In Person
Respondent: In Person

JUDGMENT

1. This is an appeal against the order made by the referee of Small Claims Tribunal on 19th April 2010. The SCT order is to pay $ 2094 to the Respondent by $40 fortnightly installments commencing from 30th April 2010.
   
2. When this case was called on 16th July 2010, both parties were present in the Court and appellant sought time to find a counsel. Case was then adjourned to 19th August 2010 and appellant informed that he was unable to find a counsel. On 16th July appellant informed that he is relying on the appeal grounds he mentioned in the docket. Case then adjourned to 24th September 2010. Again on that day appellant informed that his lawyer is not in the Court. Respondent had filed his objections for appeal in the registry.
   
3. It was very clear to the Court that the appellant was trying to gain undue advantage by requesting time to find legal representation. This case was then fixed for Judgment.
   
4. According to the docket of the SCT, the first order of the SCT had been on 10th March 2010, for the appellant to pay $3094.40 by $40 fortnightly installments to the respondent commencing from 15th April 2010.
   
5. Appellant had then made application for a re-hearing where he stated that the order made against him was incorrect and he has new evidence. After the re-hearing the referee had considered to reduce the award by $1000.
   
6. Appellant is now before this Court against that order stating that the referee had not heard his side of the story
   
7. Appeal provisions regarding the Small Claim Tribunal matters are laid down under sec. 33 of the Small Claims Tribunal Decree, 1991 and read as follows:
   

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 proceedings; or

(b) the Tribunal exceeded its jurisdiction

8. According to the record of the SCT, it is clear that the appellant had two opportunities to place his grievances before the referee and referee in fact had reduced the claim on the second hearing. Therefore, the appellant's ground of appeal that is that the referee did not hear his side of the story must fail.
   
9. Following decided case law is very relevant in deciding an appeal.
   

Vidya Wati & Suresh Charan v. Waqabaca Truck Hire and Machinery [2005] HBA 0001/2005 on 04th May 2005 Per Singh J], where it was held that, "an error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the case – Sheetmetal and Plumbing (Fiji) Limited v. Uday Narayan Deo - 45 FL R 80, where Justice Fatiaki (now the Chief Justice) endorsed the principles expressed by Greig J in Hertz New Zealand Ltd. v. Disputes Tribunal - 1984 8 PRN2 at 151 as "there is no appeal on the merits even if there is clear and fundamental error of law in the conclusion of the tribunal". [Emphasis is mine].

10. When perusing Small Claims Tribunal docket it is clear that the appellant couldn't satisfy this Court that he did not receive a fair hearing at SCT.
    
11. Accordingly final orders are:
    
    • (a) Appeal Dismissed.
      
    • (b) Appellant is ordered to pay $250 as the cost to the respondent within 28 days.
      
    • (c) Respondent is now free to enforce the order of the SCT.
      
12. 28 days to appeal.
    

On this Thursday the 11th day of November 2010

Kaweendra Nanayakkara
Resident Magistrate.