IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

SCT Appeal No: - 2476/2010

ROHIT PRASAD TRIVEDI/ ORIAN ENTERPRISES
Appellant

V

BABITA KUMAR VERMA
Respondent

For Appellant: - Present in Person, 
Respobdent: - Present in Person.

JUDGMENT

1.	This is an appeal by the appellant against the two orders of the learned referee of the small claims tribunal dated 17th day of February 2011 and 6th day of April 2011 respectively, where according to the said orders the Appellant was ordered to pay sum of $ 350 to the Respondent. 

2.	Being aggrieved with the said two orders the Appellant filed his notice of appeal with the Small Claim Tribunal. This matter was first called before me on 31st of October 2011, I ordered the appellant to file his affidavit in support of his grounds of appeal within the 14 days with the Civil Registry of the Magistrates' court and the Respondent ordered to file her affidavit in response in 14 days thereafter with the Civil Registry of the Magistrates' court which both parties failed to follow. On 22nd of September 2011 the appellant did not appear and neither did the Respondent. Again on 31st of October 2011, the Appellant appeared but the Respondent did not appear before the court and the appellant was allowed to file his affidavit which he filed. Again the Respondent failed to appear before the court on 28th of November 2011, wherefore; I set this instance case for my judgment. 

3.	The Appellant merely stated in his affidavit the facts of the dispute but did not provide any material evidence or facts to support the two grounds of appeals as stipulates under section 33 (1) of the Small Claims tribunal Decree 1991. The section 33 (1) of the Small Claim Tribunal Decree states that 

"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.

4.	Upon considering the appellant's affidavit I now turn to examine the laws pertaining to the appeals against the order of the Small Claim Tribunals. 

5.	Section 33 (1) provide the right to appeal against the order of the small claims tribunal to the Magistrates' court under two limited grounds. 

i.	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, 

ii.	The Tribunal exceeded its jurisdiction.

6.	Fatiaki J held in "Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 25; [1999] 45 FLR 80 (14 April 1999), that 

"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.'

I am fortified in my narrow view of the appellant's right of appeal, by the observations of Thorp J. in N.Z.I. Insurance N.Z. Ltd. v. Auckland District Court [1993] 3 N.Z.L.R. 453 when he said of a similar right granted in the Disputes Tribunals Act 1988 (New Zealand), in identical terms to our ground (a) above, at p.458:

'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 prejudicially 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.'

and a little later in his judgment his honour said:

'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).'

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.'

Quite plainly in my view not only is this second ground of appeal misconceived in so far as it seeks to question the merits of the referee's decision without pointing to any procedural unfairness but further, in so far as it purports to be predicated on the difficult legal principle of unjust enrichment it fails to properly appreciate the function and nature of a non-legally qualified referee exercising what in effect is an equity and good conscience jurisdiction."

7.	Shameem J affirmed the position of the said ""Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 25; [1999] 45 FLR 80 (14 April 1999), where Shameem J held that "I am not satisfied that the error of law alleged by the Appellant is one which falls within the ambit of Section 33(1) of the Decree. As such I cannot agree that the learned Magistrate erred when she found that the appeal appeared to be on the merits of the decision of the Tribunal. It follows that therefore the appeal had no reasonable prospect of success". 

8.	In view of the aforementioned judicial precedents pertaining to the appeal against the Order of the Small Claim tribunals, I find the appellant has not provide any valid and material reason to satisfied that the learned referee in the Small Claim Tribunal conducted the proceedings in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings and / or, The Tribunal exceeded its jurisdiction. Moreover, I draw my attention to the report submitted by the learned referee in this appeal where he specifically stated that the appellant was given sufficient time and adjournments for him to support his claim with material evidence which he failed to do so. Considering the report of the learned referee, I am of the view that the appellant was given enough opportunity to present his evidence and support his claim with any material evidence which he failed to do so. 

9.	In view of these aforementioned judicial precedence I am of the view that this court has no jurisdiction to review or consider the merits of the decision of the learned Referee pursuant to section 33 (1) (a) of the Small Claim Tribunal's Decree 1991. 

10.	Accordingly, in view of the reasons set outs in above paragraphs, I hold that the appellant did not satisfied the court that the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceeding and /or the tribunal exceeded its jurisdiction. 

11.	For these reasons mentioned above, I dismiss the appeal. 

On this 6th day of January 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.