IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION
CIVIL JURISDICTION

CIVIL APPEAL No.: 13/2011
S.C.T No.: 1467/08

BETWEEN:

NIVIS MOTOR & MACHINERY CO LTD
APPELLANT

AND:

PRABHASH CHANDRA
RESPONDENT

Solicitor for the Appellant: Gordon & Co
Solicitor for the Respondent: Babu Singh & Associates

RULING

INTRODUCTION

This is an appeal against the decision of the “Small Claims Tribunal” referee dated 09th of December 2010.

The “Small Claims Tribunal” ordered that the appellant “Nivis Motors & Machinery Co. Ltd” pay the respondent “Prabhash Chandra” the sum of $4891.13.

Being dissatisfied with the above mentioned order, the appellant appealed against that order in the “Magistrates Court” by filing a “Notice of Appeal”.

[This is the second appeal brought by the appellant. The appellant already appealed once from the Small Claims Tribunal for a re-hearing.]

The Court invited both parties to file legal submissions since the matter could be decided on legal submissions.

The both parties have filed legal submissions and I have taken into consideration the same.

THE GROUNDS OF APPEAL

According to the “Notice of Appeal” filed by the appellant, the grounds of appeal are stated as follows;

1.	That the Referee was biased in that the appellant was denied an opportunity to put forward its defence and denial of the Respondent’s claim and / or to adduce, produce and tender evidence and documents in support of such defence and denial.

2.	That the Referee was biased in that, that during the course of the hearing in the Small Claims Tribunal the Tribunal exhibited bias towards the Appellant in that it refused to hear anything the Appellant wanted to say or put forward as its defence and denial of the Respondent’s claim and kept saying that the appellant was liable and had to pay the Respondent.

3.	That the Referee was biased in that during the course of the proceedings the Small Claims Tribunal did not carry out and adhere to its primary function to settle disputes but was adamant that the Referee was influencing the Appellant’s employee to alter the statement and did not consider important facts pertaining to the case.

4.	That the Referee was biased in that during the course of the proceedings the Small Claims Tribunal did not determine the dispute according to the substantial merits and justice of the case in that it failed to pay attention to the fact of the case and did not have regard to the law and in doing so conducted the proceedings in a manner which was unfair to the Appellant and prejudicially affected the result of the proceedings.

5.	That the Referee was biased in that during the course of the proceedings the Small Claims Tribunal did not take in to the account of the Appellant’s witness submissions and evidence.

THE LAW

The Small Claims Tribunal Decree 1991 provides:

Functions and jurisdictions of Tribunal (Section 15)

(1) The primary function of a Tribunal is to attempt to bring the parties to a dispute to an agreed settlement.

(2) If it appears to the Tribunal to be impossible to reach a settlement under subsection (1) within a reasonable time, the Tribunal shall proceed to determine the dispute.

(3) ...

(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.

(5) Without limiting the generality of subsection (4), a Tribunal may, in respect of any agreement or document which directly or indirectly bears upon the dispute between the parties, disregard any provision therein which excludes or limits,

(a) conditions, warranties, or undertakings; or

(b) any right, duty, liability, or remedy which would arise or accrue in the circumstance of the 
dispute; if there were no dispute; if there were no such exclusion or limitation.

(6) To give effect to its determination of the dispute or in granting relief in respect of any claim, which is not disputed, the Tribunal shall make one or more of the orders which it is empowered to make under section 16 or under any other law.

CLAIMS [Section 18]

Lodging of claims

1.	Proceedings shall be commenced by the lodging of a claim in Form 1 of the First Schedule to this Decree, together with the fee prescribed in the Second Schedule, with the appropriate Tribunal.

2.	The appropriate Tribunal for the purpose of subsection (1) is the one nearest by the most practicable route to the place where the claimant resides.

Notice of claim and hearing

1.	When a claim is lodged in accordance with section 18 of this Decree, the Registrar shall:

(a)	Immediately fix a time and place of hearing and give notice thereof in the prescribed form to the claimant by endorsing the details on Form 1; and

(b)	as soon as reasonably practicable, give notice of the claim and of the time and place of hearing to-

(i)	the respondent ; and

(ii)	every other person who appears to the Registrar to have a sufficient connection with the proceedings on the claim in the capacity of a claimant or respondent by delivering a sealed copy of the claim with the details of the hearing endorsed on it.

2.	If a Tribunal finds that a person who appears to it to have a sufficient connection with the proceedings on a claim in the capacity of a claimant or respondent has not been given notice of the proceedings, it may direct the Registrar to give and the Registrar shall give to such person notice of the claim and of the time and place for hearing.

3.	For the purposes of this section, a person has a sufficient connection with the proceedings on a claim if his presence as a claimant or respondent is necessary to enable the Tribunal to effectually and completely determine the questions in dispute in the claim or to grant the relief which it considers may be proper.

HEARINGS [Section 24]

1.	At the hearing of a claim every party shall be entitled to attend and be heard.

2.	Subject to subsection (3) and (6), no party shall appear by a representative unless it appears to the Tribunal to be proper in all the circumstances to so allow and the Tribunal approves such representative.

Orders of Tribunal (Section 16)

(1) A Tribunal may, as regards any claim within its jurisdiction, make one or more of the following orders and may include therein such stipulations and conditions (whether as to the time for, or mode of, compliance or otherwise) as it thinks fit:

(a) the Tribunal may order a party to the proceedings to pay money to any other party;

(b) the Tribunal may make an order declaring that a person is not liable to another in respect of a claim or demand for money, the delivery of goods or chattels, or that work he performed;

(c) ...;

(d) ...;

(e) if it appears to the Tribunal that an agreement between the parties, or any term thereof, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, the Tribunal may make an order varying the agreement, or setting it aside (either wholly or in part);

(f) if it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, the Tribunal may make an order varying or setting aside the agreement, or the writing (either wholly or in part);

(g) the Tribunal may make an order dismissing the claim.

(2) ...

Orders of Tribunal to be final (Section 17)

An order made by a Tribunal shall be final and binding on all parties to the proceedings in which the order is made, and subject to section 32 and except as provided in section 33, no appeal shall lie in respect thereof.

...

Appeals (Section 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.

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

At the outset it must be noted that the form of wording used in ground (a) is unusual and is plainly distinguishable from a general right of appeal such as that conferred under Section 36 of the Magistrates Courts Act (Cap.14); Section 12 of the Court of Appeal Act (Cap.12); and on the Supreme Court under Section 122 of the 1997 Constitution.
 
What is more 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 cursory 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.

The non-legalistic nature of a Tribunal proceeding is further exemplified by the requirement in Section 15(4) of the Decree that: 

'The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so ... shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.'

The section 33(2) of the "Small Claim Tribunal Decree 1991", requires appeals against the decisions of the referees to be brought in the Magistrate's Court while section 33(3) requires such an appeal to be brought within 14 days of the order against which it is desired to appeal.

In "Sheet Metal and Plumbing (Fiji) Ltd. vs Deo (HBA 7/99) "Fatiaki J" expressed the view that Order xxxvii R4 gave power to a Magistrate's Court to extend the 14 days period. 

OBSERVATION 

The primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) and (b) of the "Small Claims Tribunal" Decree.

The grounds of appeal advanced by the appellant in his Notice of Appeal and Legal Submissions can be categorized under the following heading;

1.	The Referee was biased.
2.	The Referee conducted the procedings in a manner which was unfair to the appellant.
3.	The referee did not offer a full opportunity to the appellant to present his evidence/ his side of the case.
4.	The Referee did not take into account the evidence from the witnesses of the appellant.
5.	The Referee failed to address his mind on the complex issue of "Locus Stand".

The respondent (Claimant) has given evidence and cross examined by the appellant. The appellant's representation and two other witnesses have given evidence and they were cross examined by the respondent (Clamant).

I carefully examined the "Small Claim Tribunal" record. The record fails to show any evidence of; 

1.	Bias 
2.	Likelihood of bias.
3.	Procedural Unfairness.
4.	Breach of "Audi Alterain Partern" rule which is so fundamental to a conduct of fair hearing.

The referee's note (at page 08) of the record reads;

"The Tribunal has heard the evidence from both parties. The tribunal has perused and assessed the documentary evidence presented by the parties. The Tribunal base on both submissions from the parties……………"

The paragraph 16 of the appellant's legal submissions (page 04) reads;

"Furthermore the Referee should have stopped the proceedings upon seeing that the subject vehicle did not belong to the Claimant. The Claimant managed to persuade the Referee and found favour with the argument that he is the vehicle owner's husband so he can bring the case on behalf of his wife. There is clear authority that is incorrect and the Claimant has no locus".

The paragraph 17 of the appellant's legal submissions (page 05) reads;

"Therefore as the vehicle was not in the name of the Respondent and also upon hearing that the respondent was trying to conduct and bring this claim on behalf of his wife, both of which are not allowed in the Courts of this jurisdiction, the action should have been dismissed".

I am of the view that the grounds of Appeal advanced in paragraph 16 and 17 (as mentioned above) are misconceived since they seek to question the merits of referee's decision without pointing to any procedural unfairness.

Hence, they cannot be legally accommodated. There can be no appeal on merits. (Sheet metal and Plumbing (Fiji) Limited vs Deo – HBA 07 of 1999).

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.'

CONCLUSION

The appellant has not met the threshold set out in section 33(1) (a) & (b) of the "Small Claims Tribunal Decree".

Accordingly, the Appeal is dismissed.

30 days to appeal.

Dated at Lautoka on the 13th day of October, 2011.

……………………………………..
Jude Nanayakkara
RESIDENT MAGISTRATE
MAGISTRATE COURT-03
LAUTOKA.