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Keteca v Koro [2015] FJMC 48; Appeal 2235.2013 (24 March 2015)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Appeal No. 2235/2013

BETWEEN:

LAVENIA RAITALE KETECA
APPELLANT

AND:

SILIVA NAKORO KORO
RESPONDENT

Counsel: Mr.Romanu in person
The Respondent in person

Date of Judgment : 24th March 2015

JUDGMENT

1. Being unsatisfied with the decision of the Small Claim Tribunal dated 11th December 2013 the Appellant filed a timely appeal based on the following grounds.
   

1. The proceedings were conducted in an unfair manner
2. The tribunal exceeds the jurisdiction in recognizing an illegal and unworkable agreement.
   

2. Both parties filed their submissions with regard to this appeal and also agreed that the decision can be given based on these submissions. The appellant in her written submission submitted that she gave her vehicle for repairs based on a verbal agreement that the respondent would obtain a mini bus permit from one Jone and after making inquiries and getting to know that the permit was not obtained by the respondent she initiated the safe return of the vehicle back to her residence . She rescinded her part of the agreement and the losses suffered by the respondent were result of her own fault which the referee wrongly decided the appellant was liable to pay .
   
3. In her submission the respondent said she repaired the vehicle of the appellant and without her consent the appellant took the vehicle back from the garage and the referee has given a fair decision which this Court should not disturb .
   
4. Having considered the both submissions I would consider the relevant law for this appeal. Section 33 (1) of the Small Claim Decree provide the right to appeal against the order of the small claims tribunal to the Magistrates' court under two limited grounds
   
   1. 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,
      
   2. The Tribunal exceeded its jurisdiction.
      
5. In this case main argument taken by the appellant was that the referee has considered an unlawful agreement and given an award for the repair done by the respondent based on that agreement. It was an agreed fact that was a verbal agreement between the parties where the respondent agreed to use the appellant's vehicle for mini bus business but this could not fulfilled as the respondent failed to obtain the permit. In the meantime the vehicle was taken for repairs by the respondent. After it was repaired the respondent's son took the vehicle away.
   
6. And based on the facts in this case I do not think that agreement would be relevant. Even if the agreement was invalid it was not disputed that the respondent took the vehicle for repairs with the consent of the appellant (as admitted in her submission) and incurred money for that . The appellant did not object when the vehicle was taken for repair and now resisting refunding the amount for those repairs . In fact if this appeal is granted it would be an unjust enrichment for the appellant . The referee has correctly decided that the respondent is entitled to recover the cost incurred on the appellant's vehicle and I do not find any fault in that decision.
   
7. Accordingly I dismiss this appeal without cost.
   

H.S.P.Somaratne
Resident Magistrate, Suva