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

CIVIL JURISDICTION

CIVIL ACTION NO.: 252 OF 2010
S.C.T NO.: 2032 OF 2007

BETWEEN:

METAL WORKS & JOINERY LIMITED
Applicant

AND:

EXCEL SECURITY SERVICE
Respondent

For Applicant: Mr. Faiz Khan 

For Respondent: Mr. Samuel K. Ram

RULING

Introduction 

The Applicant on 12th of January 2011, filed a motion to “Appeal out of Time” against the order of the “Small Claims Tribunal” dated 25th of January 2008 and also to set-a-side writ of “Fieri Facias” dated 25th of October 2010.

In support of the Applicant’s Motion an Affidavit was filed by one “Sailesh Singh” the Managing Director of Applicant Company.

The main ground advanced by the Applicant to support its motion is that the order of the “Small Claims Tribunal” dated 25th January 2008 is irregular since there was no service of claim/process on the Applicant.

The Respondent opposed the Application. He denies the fact that the order entered by the “Small Claims Tribunal” Referee dated 25th of January 2008 is irregular. An Affidavit was filed by “Munesh Kumaran” the owner of the Respondent named herein. He states that the claim was served on the Applicant and an Affidavit of service filed in the “Small Claims Tribunal”.

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

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 scaled 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 determined the questions in dispute in the claim or to grant the relief which it considers may be proper.

HEARINGS

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 circumstance to so allow and the Tribunal approves such representative.

Order 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. 

The Courts in Fiji have amplified the principles of granting or refusing leave to appeal out of time.

In the case of Rupeni Silimuana Momoivalu (appellant) v. Telecom Fiji Limited (respondent) the Fiji Court of Appeal at page four (4) stated as follows:

 "The case law on this question was set out clearly in the judgment of Pathik J. A. in Civil Appeal No. QABU0051 of 1994S – 1st Deo Maharaj v. Burns Philip (SS)Co.Ltd. I shall not repeat it here except to quote from the judgment of Marsack J.A. in Latchmi v. Moti & Ors. In F.L.R 138 at p. 145 when he said "in deciding where the justice demands that leave should be given, care must, in my view, be taken to ensure that the rights and interest of the Respondent are considered equally with those of the applicant".

Rules of the Court

The rules of the Court are to be obeyed as stated as follows by the Privy Council in Ratnam v. Cumarasamy 1964 3 All E. R 933 at the same case of Rupeni Silimuana Momoivalu at page 8 stated as follows:

"The rules of the Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation" (underlining mine for emphasis)

Similar statements as above were made by the Court in Kenneth Hart v. Air Pacific Ltd Civil App.23/83 and Tevita Fa v. Tradewinds Marine Civil App. ABU 40/94.

In the Momoivalu case at page 8 stated that: "as in all such cases, there is a need to establish satisfactory explanation for the delay before the Court will grant leave".

Discretionary Power

The grant or refusal of leave out of time is a discretionary matter for the Court and this has to be exercised judiciously. 

Lord Greene M.R in Gatti v. Shoosmith (1939) 3 All E.R916 at 919 said:

"The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised".

In Re Manchester Economic Building Society (1883) 24 Ch.D 488 at 497, Brett M.R said:

 "The Court has power to give the special leave. Exercising its judicial discretion, it is bound to give the special leave if justice requires that leave should be given".

How the discretion is to be exercised has been well stated by Lord Greene MR in Gatti v Shoosmith (supra) as follows;

 "The fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the court in exercising it's discretion. I say 'may be' because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What I venture to think is the proper rule which this court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

The discretion of the court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised."

In the case of Nadi Town Council (appellant) v. Kusum investments Limited (respondent) Appeal No. 023 of 2007 the Fiji Court of Appeal at page four (4), paragraph (14) stated as follows:

It has often been said that the discretion of the Court to grant or refuse an extension of time for appeal is unfettered.

 In the case of Latchmi and Another v. Moti and Others (1964) 10 FLR 138.the Court approved the statement of Lord Greene, M.R. in Gatty v.Shoosmith (1939) ALL E. R 916 at p 919 that:

 "The discretion of the Court being, as I conceive it, a Perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised".

In the case of Nadi Town Council v. Kusum Investments Limited at page(4), Paragraph 15, it states that: "Before leave can be granted for an extension of time the Court must be satisfied that the applicant has a good arguable appeal". 

Tomkins, J.A said in BDO Spicers Auckland Trustee Company Ltd v. NLTB and others (2003) FJCA 67 at paragraph 35, 

 "To be a more difficult test to satisfy is the question
 Does the applicant have a good arguable case".

In the case of Hari Narayan (applicant) v. Chandar Lok (respondent) the Fiji Court of Appeal at page six (6) stated as follows:

 In Sundar v. Prasad (1997) FJCA 39; ABU 0022D, 97S, Sir Moti said at pg 4 of his decision:

"Nevertheless in the last analysis a Court cannot over look a determining factor namely that an Applicant will or is likely to suffer an irreparable serious injustice if an extension is not granted."

In this same case of Hari Narayan v. Chnadar Lok the Fiji Court of Appeal at page nine (09) quoted the case of Clarke v. Edinburgh & District Tramways Co. Ltd [1919] S.C.(H.L) 35,37 which was quoted with approval by Viscount Sankey L.C in Powell v. Streatham Manor Nursing Home (1935) A.C. 243, 250; Lord Shaw said:

 "In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, am I who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case- in a position, not having those privileges, to come to a clear conclusion that the judge who heard them was plainly wrong.

Lord Shaw had already pointed out that these privileges involved more than Questions of credibility and said: "Witnesses without any conscious bias towards a conclusion may have in their demeanor, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page."

In the exercise of discretion the factors which are normally taken into account in deciding whether to grant an extension of time are:

a)	The length of the delay;

b)	The reasons for the delay;

c)	The chances of the appeal succeeding if time for appealing is extended; and

d)	The degree of prejudice to the respondent if the application is granted (vide CM Van Stillevoldt BV v EL Carriers Inc (1983) 1 WLR 207 at 212; Norwich and Peterborough Building Society v Steed (1991) 2 AER 880 C.A.

According to the case of "Chans Long Chang vs Yen Yain Kai (1999) FJ HC 107, 45 FLR 217, the general principles governing the grant of leave to appeal out of time are as follows:-

(1)	The length of the delay.

(2)	The reason for the delay.

(3)	The chances of an appeal succeeding if the time for appealing is extended.

(4)	The degree of prejudice would cause to the respondent if the application is granted. 

In Bahadur Ali and Ors v Ilaitia Boila and Chirk Yam and Ors, Civil Appeal No. ABU0030 of 2002, Reddy P, then President of the Court of Appeal said at p.7 –

 "The power to extend the time for appeal is discretionary, and has to be exercised judicially, having regard to established principles (see Hart v Air Pacific Limited, Civil Appeal No. 23 of 1983). The onus is on the Appellants to satisfy the Court, that in the circumstances, justice of the case requires that they be given the opportunity to attack the Order …. And the judgment …. The following factors are normally taken into account in deciding whether to grant an extension of time

1. the length of delay

2. reasons of delay

3. the chances of the appeal succeeding if time is extended

4. prejudice to the respondent. 

In the case of the Official Receiver v Petrie Limited Civil Appeal No. ABUOO49 of 1997 on pages 3 and 4 where the Court in citing Sundar and Anor v Prasad No. ABU0022 of 1987 said as follows:-

 "…..that the factors that were normally taken into account when dealing with an application for leave to appeal out of time were the length of the delay, the reasons for the delay, the degree of prejudice to the respondent if the application was granted, and the prospect of the intended appeal succeeding if the application was granted".

His Lordship of the appeal Justice Sheppard added that every case must depend upon its own facts and circumstances and that the aforementioned factors ought to be considered.

Observation

The primary concern of this Court is whether the order of the "Small Claims Tribunal" dated 25th of January, 2008 is "regular".

Therefore, this Court has to decide whether there is a proper service of the Claim/Notice of hearing, on the Applicant.

I now examine the "Small Claims Tribunal" record.

The Respondent is the original Claimant in the Small Claims Tribunal Claim No. 2032/2007.

The Applicant is the Respondent in the Small Claims Tribunal Claim No. 2032/2007.

The "Notice of Hearing" for claim No. 2032 of 2007 has been issued on 14th of December 2007. The hearing date endorsed in the "Notice of Hearing" is 16th of January 2008. The Notice of hearing has been duly served on the Applicant on 17th of December 2007. An Affidavit of Service has been submitted to the "Small Claims Tribunal" by the Respondent.

But according to the "Small Claims Tribunal" record the claim was not called before the Referee on the first hearing date namely on 16th of January 2008.

According to the "Small Claims Tribunal" record the claim has been called before the Referee on 25th of January 2008 and the claim has been formally proved by the Respondent, Since the Applicant was absent and unrepresented.

The claim has not been called before the Referee of the Tribunal on the first returnable date namely on 16th of January 2008, because the Respondent has failed to file/submit the Affidavit of Service on or before 16th of January 2008.

Subsequently the "Small Claims Tribunal" registry has allocated a new hearing dated namely 25th January 2008.

The "Small Claims Tribunal" registry has not issued another "Notice of Hearing" bearing the "New hearing date".

It is incumbent upon the Respondent to serve a Notice of Hearing on the Applicant bearing the "New Hearing date" because the Applicant is totally unaware of the New hearing date.

In my view, the Judgment entered by the "Small Claims Tribunal" Referee dated 25th January 2008 is "irregular", Since there is no proper service of the "Notice of Hearing" (bearing the New Hearing date) on the Applicant. The Applicant did not have knowledge of the "Small Claims Tribunal" proceedings dated 25th of January 2008.

The order against which the Applicant desires to appeal had been made on 25th of January 2008. The Applicant filed his application for leave to appeal out of time on 12th of January 2011. Hence, the Applicant's application is out of time for almost three (03) years. The reason for the delay is justifiable and plausible. The simple reason is that the Applicant has not been served with a copy of the "Small Claims Tribunal" order until he received the "Writ of Fieri Facias" in December 2010. It is incumbent upon the Respondent to serve a copy of the "Small Claims Tribunal" order on the Applicant. Since there is no service of the order in the Applicant; the Applicant could not apply for "Re- hearing" under section 32 of the "Small Claims Tribunal" Decree.

The next issue to be determined here is whether the Applicant has shown "Meritorious ground of appeal namely the chances of an appeal succeeding if the time for appealing is extended. The Applicant must show a real prospect of success. The Applicant's grounds of appeal would succeed because there is an irregularity in the service of process on the Applicant.

It appears to this Court that the Small Claims Tribunal Referee has made an adverse order against the Applicant on 25th of January 2008 without offering an opportunity to be heard.

This amount to a breach of "Audi Alteram Parterm" rule which is so fundamental to a conduct of fair hearing.

Due process requires that before an adverse decision is made against a person, that person should be afforded an opportunity to be heard. Due process is same as natural justice and is a vital component of judicial proceedings. The Court said in Foods Pacific Limited v. Lami Town Council HAR004 of 2009;

 "The accused was entitled to natural justice or due process of law before any order that adversely affected his rights was made. It is a fundamental principle that our justice system has been founded on".

Lord Bridge in Lloyd v McMhon (1987) AC 625 at page 702 said;

 "The so-called rules of natural justice are not engraved on tablets of stone. To use phrase which better expresses the underlying concept, what the requirements of fairness? Demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates".

In R v Commission of Racial Equality ex parte Cottrell and Rothon (1980) AER 265, Lord Lane at page 271 said;

 "Indeed, all that the rules of natural justice mean is that the Applicant should be treated fairly. Accordingly, before assessing the fairness of the manner in which the decision complained of was taken…., it is necessary to analyze the context in which it was made and the nature of the decision'.

The next issue is where the balance of convenience lies. Taking account of the consequences for the applicant if the leave to appeal is not granted against the consequences to the Respondent if the leave to appeal is granted, I am of the view that the balance of convenience favour the Applicant. 

Conclusion

The Order made by the "Small Claims Tribunal" Referee dated 25th of January 2008 is "irregular". Since there is no service of the "Notice of Hearing" on the Applicant.

Accordingly,

1) The application for leave to appeal out of time is allowed.

2) The writ of "Fieri Facias" dated 25th of October, 2010 is set-a-side.

30 days to appeal

Dated at Lautoka on the 23rd day of November…2011

Jude Nanayakkara
RESIDENT MAGISTRATE

Magistrate Court – 03
LAUTOKA