Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

Sharma v House of Garments Ltd [2013] FJMC 270; Civil Appeal 18.2013 (25 June 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
CIVIL JURISDICTION

Civil Appeal No. 18 of 2013
SCT Claim # 2488/12

Between :

Sunil Sharma & Avinesh Reddy
Appellant/ Original Respondent

And:

House of Garments Limited
Original Claimant / Respondent in Appeal

Before: R.M. Chaitanya. Lakshman
Resident Magistrate

For the Appellant/ Original Claimant: In Person
1st Respondent/Respondent in Appeal: In Person.
2nd Respondent/: no appearance.

Ruling

1). Introduction
This is an appeal by the 1st Appellant/one of the Original Respondents. In this action the Referee, who amongst other orders, ordered on 7th February 2012 that the 1st Respondent pay a sum of $1561.39 and the 2nd Respondent pays $1561.40 within 30 days of the date of the order.

2). The Grounds of Appeal
The Appellant/ one of the Original Claimant's grounds of appeal is as follows: "second respondent Mr Aveenash Nand Reddy never summoned to appear before the tribunal on the hearing day. Referee being unfair to make decision without the presence of the said 2nd Respondent, who was the receiver of the goods supplied as confirmed by the claimant me Harsat, this is error by law." The parties were given time to file submissions and has been considered.

3). The Law
Section 33 of the Small Claims Tribunal Decree 1991 provides that:

"(1) Any party to proceedings before a Tribunal 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.

4. Observations
   

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 have been reproduced above.

The Court has carefully examined the Small Claims Tribunal records. This Courts perusal of the records shows that the Referee has considered all the matters before him in respect of the claim.

This Court finds that the 2nd Respondent was duly served and he failed to attend the Tribunal. By failing to attend the Tribunal he waived his right to defend the matter and the decision therefore was made in his absence. The issue by the appellant that the 2nd Respondent was "never summoned to appear before the tribunal on the hearing day" is incorrect as he was summoned but he did not attend. Furthermore the issue that of the "Referee being unfair to make decision without the presence of the said 2nd Respondent" is baseless as the 2nd Respondent waived his right after failing to appear before the Tribunal. The Grounds raised in appeal by the Appellant does not meet the threshold and the Records reveal that the Referee fairly considered all the matters that were before him and found that the respondents were jointly liable and he apportioned the sum to be paid by each.

5.) Conclusion

For the reasons given herein This Court finds that the appellant has not met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

The appeal is dismissed.

Chaitanya Lakshman
RESIDENT MAGISTRATE
25th June 2013