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Vulaono v Hassan [2015] FJMC 87; Appeal 27.2015 (22 July 2015)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Appeal No. 27/2015

BETWEEN:

CAMA VULAONO
APPELLANT

AND:

SHOBNA HASSAN
RESPONDENT

Counsel: Mr. Bosewaqa for the Appellant
The Respondent in person
Date of Judgment: 22nd July 2015

JUDGMENT

1. The appellant has filed this appeal against the decision of the Small Claim referee dated 30th April 2015 on the following grounds:

a. The proceedings were conducted by the Referee in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings;

b. That the respondent's car was fully restored at the cost of $350.00 that was paid by the appellant;

c. That the respondent had utilized the car and only sought the assistance of the referee after two weeks;

d. That the award made by the referee was inequitable because the appellant had paid for the repairs and now has to pay another $897.00 despite the fact that the respondent has full use of her vehicle.

2. Both parties appeared before this court and were directed to file written submissions with regard to this appeal.

3. The learned counsel appeared for the appellant concentrated his submission on the referee hearing this claim in the absence of the appellant even though this was not raised in earlier. By doing so the counsel submitted that the tribunal violated the constitutional rights of the appellant and prejudiced his rights for a fair hearing.

4. The respondent in her submission argued that the appellant repaired her vehicle in an unsatisfactory manner which prompted her to file this action in the small claim and asked to provide justice to her.

5. Having considered the respective submissions I would pronounce my ruling in the following manner.

6. Section 33 of the Small Claim Tribunal Decree states:

"Any party to proceedings before a Tribunal may 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."

7. His Lordship Justice Calanchini (as he then was) in Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 727; Civil Appeal 17.2011 (10 November 2011) stated ;

'In essence the ground allows for an appeal to the Magistrates on the grounds that the appellant has been denied natural justice in the form of procedural fairness which has prejudicially affected the result of the proceedings. The other allowable ground of appeal under the Decree is that the Tribunal exceeded its jurisdiction. Together they represent a limitation on the general principle that an appellant's right to appeal is as of right in respect of an error of law and/or fact. It is a right of appeal which requires the appellate court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine whether the applicant's complaint has any merit. There is certainly no right of appeal in respect of any error of law or in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing'.

8. Even though the appellant raised number of grounds in his appeal the counsel in his submission limited his appeal to the non- appearance of the appellant in the tribunal hearing. I accept his argument that if the tribunal proceeded with the hearing without the participation of the appellant, it would not only be a violation of the constitutional rights but also natural justice and this appeal has to be granted.

9. According the submission the appellant came to know about this award only when he called the registry to check about the hearing which I assume to be on or after 30th April 2015. Also from the tribunal record I note that the appellant was not present on the hearing date which would lend some credibility to the version of the appellant.

10. But having gone through the record I also noted the following points. This claim was first called before the tribunal on 02nd April 2015 where both parties were present. The claimant asked for an adjournment as she would be going abroad and the respondent agreed for that. The tribunal fixed the case for 20th April 2015 at 9am with the consent of both parties. But on that day the respondent was not present and the tribunal fixed the case again on 30th April 2015. On 30th April 2015 the appellant was again not present and the tribunal after hearing the claimant granted the award in her favor. The argument taken by the counsel for the appellant was that this procedure not correct and the tribunal should have called the appellant and informed the date.

11. But I find that the appellant was aware about the 20th April 2015 and he not only failed to appear but also failed to give an explanation for his non- appearance. And it seems like he called and inquire about his case only after 30th April 2015, which is nearly 10 days after that date. There is no obligation on the tribunal to inform the appellant of the dates when the fault is with him. The appellant has to take sufficient interest in his case and keep a track of his claim in the tribunal. In this case the appellant not only failed to appear on 20th April 2015, but also failed to give a valid reason for that. Also he did not take interest to inquire about that for nearly 10 days. Therefore he can't complaint about the referee proceeding for hearing without him.

12. Having considered the above reasons my view is that the referee has not violated the section 15 of the Constitution and also not acted in unfair manner. The failure to participate in the hearing was entirely on the fault of the appellant.

13. Also the other grounds submitted in the appeal were with regards to the merits of the case and not relevant.

14. After considering these reasons I decide that the there are no merits in this appeal and accordingly dismiss this appeal without cost.

H.S.P.Somaratne
Resident Magistrate, Suva