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Kant v Kumar [2014] FJMC 128; Civil Appeal 424.2013 (28 July 2014)

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

Civil Appeal No. 424 of 2013
SCT Claim # 2889/2013

Between :

Visay Barun Kant
Appellant (Magistrates Court)/ Respondent (Small Claims Tribunal)

And :

Pradip Kumar
Respondent (Magistrates Court)/
Claimant (Small Claims Tribunal)

Appellant/ Original Respondent: Ms Noleen Karan (Pacifica, Barristers and Solicitors)
Respondent/ Original Claimant: Mr Shelvin Singh

Ruling

1). Introduction

The Appellant/Original Respondent (Visay Barun Kant) in this action has appealed the decision of the Referee, dated 17th October 2013 where the Referee ordered that the Respondent pay the Claimant $1230.00.

The Claimant had filed a JDS in this Court. The Respondent wanted to appeal out of time. This Court granted him leave to appeal out of time.

The parties chose to be heard by way of written submissions. They were given time to file the submissions. Both the Parties filed submissions which have been considered.

2). The Grounds of Appeal

The Appellant/Original Respondent's ground of appeal can be briefly summarized as follows:

(a) Referee only heard the complainant's evidence.
(b) Respondent had nothing to do with the alleged sum claimed.
(c) Referee made decision without considering the whole matter.
(d) Respondent was named wrongly in the matter.
(e) The Referee did not give the Respondent an opportunity to defend himself.
(f) The Referee made the order without amending the name of the Respondent.

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 stated herein.

The matter was heard in the SCT on 26th September 2013 both the Claimant and the respondent were present. From the records of the SCT this Court is satisfied that both parties were heard by the Referee. They were given opportunities to address the Referee. Therefore this ground of appeal by the respondent fails. The ruling was given on 17th October 2013 and the Respondent was not present.

The name of the Respondent is per the claim filed by the Claimant. The name of the Respondent can be rectified and should read as "Vishay Barun Kant". It is him who appeared in response to the claim filed. He should have brought it up with the Referee on the 1st instance and as the foremost issue. He did not do so. This Court will amend the name of the Respondent to read as is stated herein.

This Courts perusal of the records/file shows that the Referee fairly determined the claim. He considered all the issues that were before him in making a decision. He gave both parties a chance to put forward their arguments. The Referee fairly determined the claim.

For the above-mentioned reasons the appeal is dismissed.

5.) Conclusion

The appellant has not met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

For the given reasons given above, the appeal is dismissed. The name of the Respondent is to be reflected as "Vishay Barun Kant". Any party aggrieved with this Ruling has the right to appeal to the High Court within 30 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE
28th July 2014