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Singh v Kumar [2011] FJMC 158; Civil Appeal 35.2008 (14 November 2011)

IN THE RESIDENT MAGISTRATE’S COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL JURISDICTION

CIVIL APPEAL No.: 35/08
S.C.T No.: 409/07

BETWEEN:

PRADEEP KUMAR SINGH
APPELLANT

AND:

RAJ KUMAR
RESPONDENT

For Appellant: Mr. Haroon Ali Shah

For Respondent: (Ms) Vokanavanua

RULING

Introduction

The Respondent “Raj Kumar” is the Claimant in the “Small Claims Tribunal”.

The Appellant “Pradeep Kumar Singh” is the Respondent in the “Small Claims Tribunal”.

This is an appeal against the decision of the “Small Claims Tribunal” dated 08th April 2008. The “small claims tribunal” referee upheld the order of the Tribunal dated 14th December 2007. On the 14th of December 2007, the Tribunal ordered that the Appellant “Pradeep Kumar” pay the Respondent “Raj Kumar” a sum of $1295.00.

The chronological order of events from small claims tribunal to this application is as follows

(i) 17th May 2007 - First hearing before the Small Claims Tribunal (SCT).

(ii) 25th May 2007 - Second hearing before the Small Claims Tribunal

(iii) 26th November 2007 - Third hearing before the Small Claims Tribunal

(iv) 14th December 2007 - Order against the Appellant (Original Respondent)

(v) 8th day of April, 2008 - Rehearing at the Small Claims Tribunal

(vi) 8th day of April, 2008 - Order upheld the previous order on the.

(vii) 8th day of April, 2008 - File (Form 6) “Notice of Appeal” on the 8th April 2008 Order.

The Claim

On the 06th of November, 2006, the Respondent’s car registration number DR 451 driven by one “Daya Wati” met with an accident with the car driven by the Appellant bearing No. DW 125 AT “Solevu” Sigatoka.

The Appellant failed to give way when coming out of Mobile Service Station – Sigatoka and collided with the Respondent’s car. The Respondent’s claim for damages is $1,295.00.

The grounds of Appeal

The grounds of Appeal advanced by the Appellant in his “Notice of Appeal” and written submissions are reproduced below,

1) The hearing was unfair.

2) The Tribunal was biased.

3) The Appellant requested the Referee at the Small Claims Tribunal during hearing if the Respondent could provide certain documents to support the receipt tendered by the Respondent.

See: SAKA AUTO SPARES (FIJI) LTD .v. VERMA (2010) FJMC 36;

“His Worship upheld the Appeal by stating fact that Referee erred by accepting the Respondent’s mere words without any proof”.

The Appellant puts before the Referee that the quotation was made by the previous owner of the Respondent’s vehicle, which is SAMI’S FAST SERVICES.

The Company do not specialize in selling body parts of vehicles but they are quoting body parts in their invoices.

This is a serious question of fact which should be clarified by the Referee before delivering his Judgment.

See: SHARMA .v. CHAND (2011) FJMC 18;

“Appeal was allowed whereby the Referee misconstrued the facts of the case.”

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 are reproduced below:-

1) The hearing was unfair.

2) The Tribunal was biased.

3) The Appellant requested the Referee at the Small Claims Tribunal during hearing if the Respondent could provide certain documents to support the receipt tendered by the Respondent.

See: SAKA AUTO SPARES (FIJI) LTD .v. VERMA (2010) FJMC 36;

"His Worship upheld the Appeal by stating fact that Referee erred by accepting the Respondent's mere words without any proof".

The Appellant puts before the Referee that the quotation was made by the previous owner of the Respondent's vehicle, which is SAMI'S FAST SERVICES.

The Company do not specialize in selling body parts of vehicles but they are quoting body parts in their invoices.

This is a serious question of fact which should be clarified by the Referee before delivering his Judgment.

See: SHARMA .v. CHAND (2011) FJMC 18;

"Appeal was allowed whereby the Referee misconstrued the facts of the case."

I carefully examined the "Small Claims 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 third ground of appeal is misconceived, since it seeks to question the merits of the 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).

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'.

Thorp J, in N.Z.I. Insurance N.Z Ltd, v. Auckland District Court [1993] 3 N.ZL. R453 he said

'The essential matter (in the words used)... is its specification of the basis for appeal against a referee's determination as being the conduct of proceedings in a manner that was unfair to the appellant and prejucially affected the result of the proceedings. This formulation is both specific and unusual. On its ordinary grammatical construction it provides only a limited right of appeal, and requires any intending appellant to direct the (Court) to some unfairness in the form, and not simply the result, of the tribunal's hearing'.

'read on (its) own, and on the basis of (its) ordinary grammatical meaning, (the section) would not leave any careful interpreter in much doubt that the right of appeal (it) created was a special type of appeal, limited to cases of procedural unfairness (and does not extend to the correction of errors of law)'.

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

'The Tribunal shall determine the dispute according to the

Sunstantial 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.

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 17th day of November 2011.

Jude Nanayakkara
RESIDENT MAGISTRATE

MAGISTRATE COURT-03
LAUTOKA.