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Ram Singh Builders v Hansons Supermarket Ltd [2012] FJMC 101; SCT2050.2010 (24 May 2012)

IN THE RESIDENT MAGISTRATES COURT OF FIJI ISLANDS
AT SUVA

MC App. Case No. 04 of 2011
SCT NO 2050/2010
(Civil Jurisdiction)

BETWEEN

RAM SINGH BUILDERS

APPELLANT

AND

HANSONS SUPERMARKET LIMITED

RESPONDENT

Appellant : Mr. Tabuya.
Respondent : Mr. Singh (Parshotam & Co).

Date of Hearing : 15 March 2012
Written Submissions: 13 April 2012
Date of Judgment : 24 May 2012

JUDGMENT

1. This is an appeal preferred against the order dated 26.11.2010 made by the Small Claims Tribunal.
   
2. The Respondent had initially filed this action as the Claimant in the Small Claims Tribunal claiming $5000/- from the Appellant.
   
3. This was for the service provided by the Respondent. He had hired 16 pieces of steel mouldings to the Appellant for 5 months. The Appellant failed to return the items back to the Respondent.
   
4. After 03 days of hearing, the learned referee ordered the Appellant to pay the total claim to the respondent in $ 500 instalments.
   
5. The Appellant thereafter sought to appeal against the order of the learned Referee.
   
6. It is opportune for this Court to make some general observations on the legislative intentions behind the creation of Small Claims Tribunals.

7. The most obvious intention is that expressed in the 'long title' of the Decree which reads:
   

'>A Decree To Establish Smal Small Claims Tribunals in Fiji, To Provide Prompt and Inexpensive Relief to Claimants.'

8. From this title alone one can discern the following legislative intentions:
   

(1) The Decree establishes Tribunals not Courts;

(2) The nature of the cases with which the Tribunal is concerned is small claims;

(3) The purpose of the Tribunal is 'to provide relief to claimants'; and

(4) By a process that is both prompt and inexpensive.

9. Other distinguishing features of a tribunal are:
   

(a) That it is presided over by a referee who need not have legal qualifications and whose primary function is to attempt to bring the parties in dispute to an agreed settlement;

(b) Qualified and practising lawyers and professional advocates are excluded from its proceedings; and

vidence before a tr a tribunal need not be given on oath nor need it be oral or even originate from the parties to the dispute.

10. According to Section 33 of the Small Claims Tribunal Decree, an order of a Referee can be challenge only on two limited grounds. They are
    

(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.'

11. Having heard the oral submissions, both parties they were directed by this Court to file written submissions to the record.
    
12. I will now turn to the ground of appeal filed by the appellant.
    
13. The appellant states in his notice of appeal that he is not satisfied with the decision of the learned referee as he was not given a proper hearing and not allowed the witness to prove his side of the story.

It is only necessary in this appeal, to consider ground (a) of section nce the Appellant had preferred the appeal on that basis.
15. Ground (a) specifically refers to the manner in which the referee conducted the proceedings. It is to be noted that not only the conduct complained about be unfair to the appellant in addition, it must prejudicially affect the outcome of the Tribunal.
    
16. The procedure required to be followed by the referee in conducting a proceeding under the Decree are laid down in Sections 24 - 29. These provisions require, an informal, non-adversarial proceeding before the Small Claims Tribunal.
    
17. Section 15(4) of the Decree states 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.'

18. The failure of the referee to hear or allow the Appellant (respondent in SCT) to call his witnesses before his decision, amounts to a breach of the audi alteram partem rule which is fundamental to the conduct of a fair trial.
    
19. Although it is an attractive argument in the first instance, it is the Court's duty to consider whether there is any supportive material for it to be stand.
    
20. It is evident that on the first date in the Tribunal, the Appellant has requested the owner of the Respondent's company to call before the tribunal as a witness.
    
21. The Tribunal adjourned the case for two days for the same reason. On 26.11.2010 the witness was called and heard before the Tribunal made its Order.
    
22. But it was the contention of the Appellant's submission that the Tribunal has failed to give a detail description, or fair description of what transpired at the hearing. The Order is silent as to what reason, and procedural manner from which the Referee conducted the proceedings.
    
23. At this point the Court is guided by the maxim 'omnia praesumuntur rite esse acta'. This applies to public officers who are acting and discharging public duties. In the absence of any sworn evidence to the contrary, or any substantial reason. One cannot doubt the accuracy and authenticity of the referee's record.
    
24. The witness was called on the request of the Appellant. Thus there is no reason for this court to conclude that the referee did not allow the witness to give evidence.
    
25. Furthermore this witness has filed a statement in writing at the Tribunal. Although the counsel for the Appellant did not make any observations on this document, it appears that anyway this witness had nothing to testify in favor of the Appellant.
    
26. The Appellant had not requested from the Tribunal that any other witness to be called before the Referee's Order.
    
27. In view of aforementioned findings, I am of the view that this court has no reasonable ground to consider the ground of appeal tendered by the Appellant.
    
28. Pursuant to section 33 of the Small Claims Tribunal Decree the Appellant failed to satisfy this Court that the proceedings were conducted in an unfair manner which was prejudicially affected the final result of the proceedings.
    
29. The appeal dismissed accordingly. No cost ordered.
    

Pronounced in open Court,

YOHAN LIYANAGE

Resident Magistrate

24th May 2012