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Aziz v Kings Neon Sign [2012] FJMC 61; Civil Appeal 26.2011 (19 April 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Appeal No 26/11

BETWEEN

FARAHANAZ AZIZ
Appellant

AND

KINGS NEON SIGN
Respondent

RULING

1. This is an appeal against an order made by the Small Claim Tribunal on the 21st February 2011.
   
2. The notice of appeal filed on the 22nd February reads as follows;
   

"Hearing was conducted in a manner which is considered to be unfair as well as intimidating when the Referee advised the Respondent which is Media pacific Ltd that if this claim is not resolved at the Tribunal today it would go to a higher court which would cost up to $ 10,000."

3. The Section 33(1) stipulates the grounds on which an appeal against a Small Claim Tribunal order can be made. Accordingly any party to proceedings before a Tribunal may appeal against an order by the tribunal on the grounds that;
   
   1. the proceedings were conducted by the referee in a manner which was unfair to the appellant and prejudicially affected the result of proceedings or
      
   2. the Tribunal exceeded its jurisdiction
      
4. It appears that the Appellant has based his appeal on the first limb of Section 33(1). Further the Appellant has brought up a very serious allegation against the Tribunal in her Notice of appeal.
   
5. Thus the Court requested the Parties to file written submissions regarding this appeal. The Appellant has sought the following reliefs in the written submissions;
   

" The decision of the Small Claims Tribunal should be set aside with costs and matter should be listed for assessment of Damages for the breach and loss suffered.

In the alternative the Appellants appeal should be allowed with costs."

6. Section 35 of the SCT Decree is very clear regarding the orders that can be made in an appeal.
   

35.-(1) On the hearing of the appeal a Judge or Resident Magistrate may:

(a) quash the order of the Tribunal and order a rehearing of the claim in the Tribunal on such terms as he thinks fit;

(b) if the appeal is heard by a Resident Magistrate quash the order and invoke his authority under section 4 to exercise the jurisdiction of a Tribunal;

(c) quash the order and transfer the proceedings to a Magistrates' Court for hearing; or

(d) dismiss the appeal.

7. In any event I have considered the written submissions filed by both parties. It appears that the Appellant has mainly submitted facts regarding the original claim and has discussed about the legality of the order made by the Tribunal.
   
8. Section 33 of the Small Claim Tribunal Decree specifically sets out the grounds on which an appeal can be made to the Magistrate's Court. It has been stated in Wati v Waqabaca Truck Hire and Machinery 2005 FJHC 101 that an error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the case.
   
9. The Appellant has only submitted facts about the claim and about an alleged breach of a contract. Although a very serious and tenable ground of appeal is stated in the Notice of appeal that was not substantiated or even touched by the Appellant in the written submissions.
   
10. However I have perused the Small Claim Tribunal record pertaining to this case in the interest of justice. It appeared that the Tribunal has made its final order consequent to a settlement between the parties. Further it appeared that the parties have even signed the Tribunal record to endorse the settlement. I did not observe any irregularity or unfairness in the manner in which the proceedings were conducted at the Tribunal.
    
11. The Appellant failed to establish that the proceedings were conducted by the referee in a manner which was unfair to the appellant and prejudicially affected the result of proceedings as alleged in the notice of appeal.
    
12. In the circumstances I do not see any reason as to why this Court should interfere with the findings of the Tribunal. Accordingly I dismiss the appeal with 100 dollars cost. The cost to be paid to the Respondent within 28 days.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

19.04.2012