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Sharma v Kumar [2010] FJMC 39; Civil Appeal Case 71 of 2008 (17 February 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

SCT Appeal No 71/08

Rajeshwar Sharma
Appellant

V

Manoj Kumar
Respondent

RULING

1. This is an appeal made against the order of the Small Claims Tribunal case No 466/08. The Appellant in this case is the Respondent in the Small Claim Tribunal case and the Respondent is the Claimant in that case.

2. The Small Claim Tribunal has ordered on the 31st July 2008;

1) that Rajeshwar Sharma pay Manoj Kumar one thousand one hundred seventy five dollars

2) that payment shall be made to the Magistrates Court Ba as follows

- Pay $ 587.50 before 29th August 2008 and

- Pay $ 587.50 before 30th September 2008

3) that default in any payment will make the total outstanding amount due immediately.

3. The Appellant has filed Notice of appeal against that order under Section 33 of the Small Claim tribunal Decree on 12th august 2008.

4. The grounds for appeal which the appellant has stated in Notice of appeal are as follows;

"That the claimants were not present on the date of hearing. I was ordered to pay $10 per month in Ba Court by the referee. Order served on me does not match with the referee's decision."

5. This case was first mentioned on 28th January 2009 in the magistrate's court and after few adjournments it was taken up for hearing on 10th February 2010. The appellant as well as the Respondent were unrepresented. The Appellant gave evidence and no other evidence was led. Thus the case was fixed for order.

6. The section 33(1) sets out the grounds on which an appeal against an order made by the small Claim Tribunal can be made. Accordingly, the grounds are 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.

7. Therefore it is crystal clear that the appellant has to prove at least one of those grounds to succeed in his appeal. In this case it appears that the Appellant has not said that the Tribunal has exceeded its jurisdiction. The Appellant seems to be relying his case on the first limb of Section 33(1).

8. I believe it is pertinent to look in to one matter before ascertaining whether the proceedings at the Small Claim Tribunal were conducted in an unfair manner. The appellant in his Notice to Appeal has mentioned that the claimants were not present on the date of hearing. Although he has mentioned as "claimants" it is obvious that there is only one claimant in this matter. Be that as it may, it is worthwhile to ascertain whether there is any substance in this statement made by the Appellant.

9. The journal entries of the 10th June 2008 of the Small Claim Tribunal Referees show that the matter had been adjourned to 2 pm on 31st July 2008. It appears that on the 31st July 2008 the Respondent had come at 12 noon and had said the case is at 12 noon. However it is very clearly recorded that the Claimant had come at 2 pm as ordered by the Tribunal and subsequently the Small Claim Tribunal had made the order.

10. The Respondent too disputed this fact in cross examination and suggested that he was present when the order was made and the following is an excerpt of the evidence recorded at the cross examination by the Respondent;

Q: I was there when the order was made?

A: No

11. It was clear from the journal entries that the Claimant was present at the time when the Order of the Small Claim Tribunal was made. Thus it appears that the Appellant was trying to mislead the court by denying a written fact on a Small Claim Tribunal record.

12. Hence I should state that I disbelieve the fact that the Claimant was not present on the date of hearing as per the journal entries.

13. At the hearing of the appeal the Appellant said in his evidence that the Referee had told him to pay 10 Dollars a month at the Ba Court. Further he said that after two weeks a different order came to him and the Referee had made a different order.

14. According to the journal entries of the Small Claim Tribunal dated 10th June 2008 the Respondent had offered to pay 20 dollars a month to settle the claim. Again on 31st July 2008 the Respondent had offered to pay 10 dollars a month until he gets a job. Nothing on the record suggests that the Referee has accepted his suggestion or that the Referee has suggested to him to pay 10 dollars a month.

15. Apart from merely saying that the Referee had a made a different order subsequently, the Appellant did not call any witnesses or did not produce any evidence to support his allegation. When a particular fact is clearly recorded during the proceedings of a tribunal or a court, any challenge regarding such facts so recorded has to be supported by credible and solid evidence.

16. In the absence of such material to support the Appellant's claim, I decide that the Appellant has failed to prove that the Referee has made a different order. Thus I decide that the Appellant has failed to show that the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings.

17. Accordingly I dismiss the appeal. I order the Appellant to pay 100 dollars Cost to the Respondent.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
17.02.2010.