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Raj v Narayan [2015] FJMC 51; Civil Appeal 16.2013 (28 April 2015)

IN THE MAGISTRATE'S COURT AT LABASA
APPELLATE JURISDICTION

Civil Appeal Action No. 16 of 2013
SCT Claim No. 262 of 2013

BETWEEN:

DEO RAJ
APPELLANT

AND:

ADI NARAYAN
RESPONDENT

Appellant : Mr. Sharma. S
Respondent : Mr. Lomaloma. P

Judgment : 28 April 2015

JUDGMENT

1. The Appellant is appealing the decision of the Small Claims Tribunal (Tribunal) made on 21 May 2013. The Notice of Appeal was filed on 28 May 2013, and was on time. Apparently, the appeal was against an order made by the Tribunal under section 15(6) of the Small Claim Tribunal Decree 1991 (SCT Decree), though this was not specified in the Notice of Appeal.
   
2. According to section 33(1) of the SCT Decree, the order of the Tribunal can only be appealed on the following two grounds;
   

"(a) the proceeding were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affect the result of the proceeding; or

(b) the Tribunal exceeded its jurisdiction."

3. The Appellant filed three grounds of appeal which I summarise as follows:-
   
   1. The Tribunal conducted the proceeding in a manner which was unfair to the Appellant which prejudicially affect the decision. The decision was reached without any form of substantive evidence to support the decision.
      
   2. The Referee conducted the proceeding in a manner which was unfair to the Appellant and prejudicially affects the proceeding. The Referee made the decision without hearing both parties in particular the Appellant and without considering any form of evidence presented by each of them. The decision was biased against the Appellant as he had already made up his mind to blame the Appellant without any form of evidence to support the decision.
      
   3. The Tribunal exceeded its jurisdiction.
      
4. The Respondent filed his submission on 31 October 2013. It appears that parties were earlier directed by the court to file their submission. On 18 December 2013, the Appellant seek further time to file and serve his submission. The Appellant and his counsel failed to file written submission until 27 January 2015, when the Appellant finally filed his written submission.
   
5. The appeal was set for hearing on 19 March 2015.
   
6. At the hearing counsel for both the parties confirmed that they have filed their written submission and will rely on their respective written submission and will only submit their main argument in their oral submission.
   
7. When considering the grounds of appeal filed by the Appellant, the first and second grounds of appeal comes under section 33 (1)(a) of the SCT Decree and the third ground comes under section 33(1)(b) of the same Decree.
   
8. I will first deal with the third ground of appeal that "the Tribunal exceeded its jurisdiction". In pursuing this ground, the Appellant is relying on section 9 of the SCT Decree which state;
   

"A Tribunal shall have no jurisdiction in respect of any claim;

(a) for the recovery of land or any estate or interest therein;
(b) in which the title to any land or any estate or interest therein, is in question;

................................................"

These are the two subsection which more relevant to this case.

9. The Appellant submit that the Respondent's claim arises out of land issue where he is claiming for interests or share in the land. As such, pursuant to section 9 of the SCT Decree, the Tribunal does not have any jurisdiction to determine the Respondent's claim and in doing so, the Tribunal has exceeded its jurisdiction.
   
10. At the hearing Counsel for the Respondent submit that the claim is under a share farming and claimed for the work already done. The Tribunal copy record at page 33, state that the Respondent is claiming for $463.35 as his share from the proceeds of the share farming under the old agreement. The amount of claim was increased to $524.14, because of the other expenditures like transportation, photocopy and others which were not particularise in the copy record. Further at page 37 of the copy record, the old lease agreement provided by the Respondent (Claimant) clearly stated the share farming which was not fairly operated.
    
11. At page 27 of the copy record, paragraph 4 of the Deed of Trust provides for equal distribution of cane proceed between the Appellant and the Respondent. The Appellant submit that the claim is based on the Deed of Trust in relation to a lease land which has expired. The Tribunal correctly stated at page 33 of the copy record that though the lease has renewed the fact still remains that the Respondent owes something to the Claimant.
    
12. The Respondent is clear on his claim as it based on the Deed of Trust and is only claiming for the proceeds which is just $463.35. The Respondent is not claiming for recovery of land or title to the land and he is not claiming for any interest to ownership or rights to the land. He is only asking for his share to the cane proceeds. The Respondent's interest is on the proceeds and not on the land. I find that section 9 does not restrict the jurisdiction of the Tribunal in exercising each jurisdiction under section 15(6) of the SCT Decree to determine the Respondent's claim. I accordingly dismissed the third grounds of appeal.
    
13. I will now consider the other grounds of appeal that comes under section 33(1)(a) of the SCT Decree on the grounds of unfair proceeding. In the case of Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 26, where Justice Fatiaki stated the manner in which the referee should conduct the proceeding where he state:
    

"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 section 24 to 29 (inclusive) under the heading HEARING."

14. The Appellant submit that the Referee conducted the proceedings in a manner which was unfair to the Appellant and prejudicially affected the result of the proceeding. In pursuing this ground, the Appellant submits that the;
    
    • (a) decision was reached without any form of substantive evidence to support the decision;
    • (b) Referee had made the decision without hearing both parties in particular the Appellant;
    • (c) Referee failed to consider any form of evidence presented by each of them; and
    • (d) Referee decision was biased against the Appellant as he had already made up his mind to blame the Appellant without any form of evidence.
      

15. When considering all these arguments advanced by the Appellant, the only argument that relates to the manner in which the Referee conducted the proceeding is 14(b). The other arguments advanced touches on the merit of the case and I refer to the decision of Greig J in Hertz New Zealand Ltd v Dispute Tribunal (1994) 8 PRNZ at page 151 which state;

"...there is no appeal on the merits even if there is a clear and fundamental error of law in the conclusion of the Tribunal."

This decision was considered and followed by Fatiaki J in Sheet Metal & Plumbing (Fiji) Ltd v Deo (supra). Accordingly, I dismiss the Appellant's argument in paragraph 14 (a), (c), and (d) above.

16. In regards to the argument that the referee had made the decision without hearing both parties in particular the Appellant, the Respondent submit that the records show that both the parties were present and represented at the hearing on 21 May 2013. Even though the Appellant did not personally present on the said hearing he did sent one Sandeep Raj to represent him. The Respondent further submits that the Appellant was not directed by the Tribunal not to appear but it was his own decision. Further the Respondent submits that both the parties were given opportunity to give their statements and evidence and the Referee made his finding on the evidence and made his order accordingly.

17. I find the Respondent submission to be very convincing as the argument or submission is supported or reflected in the record of the Tribunal in the copy record. It was surprisingly that when the Appellant pursue his argument on this ground the Appellant is submitting on the evidence that were tendered at the hearing which he argue that the Referee failed to take into account and again this was on the merit of the case.

18. The copy record shows that the Appellant filed his statement of defence where the Appellant stated that all portion of the Respondent's share has been fully paid. The Tribunal as shown in the copy record ruled against this evidence as no receipt were tendered by the Appellant to prove the payment.

19. I find and I am satisfied that the Appellant was represented at the hearing and was given the opportunity to give evidence. I am also satisfied that the Tribunal did conduct the proceeding in the manner required of the Tribunal under section 24 to 29 of the SCT Decree. I therefore dismiss the Appellant's argument in support of this ground. That concludes that this ground of appeal was not supported by the argument submitted by the Appellant and I dismiss this ground of appeal accordingly.

20. Accordingly, I make the following orders;

(i) The appeal by the Appellant is now dismissed.

(ii) Costs of $500.00 to be paid by the Appellant to the Respondent.

........................................
Cama M. Tuberi
RESIDENT MAGISTRATE