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Ali v Lovolevu [2017] FJMC 22; Civil Appeal 06.2014 (15 February 2017)

IN THE MAGISTRATE’S COURT AT LABASA

APPELLATE JURISDICTION

Civil Appeal No. 6 of 2014

SCT Claim No. 67 of 2014

BETWEEN : IMRAN ALI

APPELLANT

AND : ASERI LOVOLEVU

RESPONDENT

For the Appellant : Mr Reddy. J

For the Respondent : No Appearance

Judgment : 15 February 2017

JUDGMENT

1. The Appellant is appealing the order of the Small Claims Tribunal (Tribunal) made on 31 January 2014. The notice of appeal was filed on 6 February 2014, and was on time.
   
2. The four grounds of appeal listed in the notice of appeal are ; -
   1. That the referee was biased towards the Appellant.
   2. That the Referee failed to hear what the Appellant was telling him.
   100. That the Referee failed to follow the rules as prescribed in the Small Claims Tribunal Decree 1991.
   4. That the Referee was biased on his decisions.
      
3. The following documents were filed for this appeal ;-
   1. Respondent Response to Grounds of Appeal field on 6 February 2014.
   2. Appellant submission filed on 1 May 2014.
   100. Respondent submission filed on 15 July 2014.
        
4. The appeal was heard on 27 April 2016. The Appellant through his counsel submitted that he is rely on his submission already filed. He is not challenging the jurisdiction of the Tribunal. He appeal on the ground of bias that the Referee failed to listen to him. Most of the things he stated and explained was not in the record of the Tribunal proceeding. His Submission is for the order to be set aside and for the case to be referred to another referee for re-hearing. The Referee was unfair and bias when conducting the hearing by not listening and recording what were stated and submitted at the hearing. The Appellant was not heard as very little of what he submitted was recorded.
   
5. The wife of the Respondent was present during the hearing. She has been attending all the mention date as the Respondent is bedridden at his home. At the hearing she said that she had nothing to say.
   
6. In this judgment, I have considered all the documents filed in this appeal and the oral submission made at the hearing.
   
7. Section 33(1) of the Small Claim Tribunal Decree,1991 (SCT Decree) provides that 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.”

8. The four grounds of appeal advanced by the Appellant comes under section 33(1)(a) of the SCT Decree. The counsel for the Appellant has confirmed in his oral submission that they are not challenging the jurisdiction of the Tribunal.
   
9. The manner in which the referee should conduct the Tribunal proceeding are stated in Sheet Metal Plumbing (Fiji) Ltd v Deo [1999] FJHC 26,where Fatiaki. J, stated;-

“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.”

10. In this case, the Appellant was given his right of audience as he was present on the hearing date and his evidence was recorded as shown in the copy record at page 3, paragraph 5 and page 17 and 19 on the minutes of the proceedings on 30/01/14. There was no argument that what is required in section 24 to 29 of the SCT Decree was not accorded to the Appellant.
    
11. The Appellant argued that some of his submission was not heard by the referee. The Appellant was offering some explanation which does not reconciled or appeared in the Tribunal minutes of the proceeding.
    
12. The issue is whether the explanation now offered by the Appellant in his written submission and through his counsel on the hearing date were submitted to the Referee during the hearing. The common law position requires this court to follow the minutes of the Tribunal proceeding. I will accept the minutes of the Tribunal proceeding as provided in the copy record. I 302find that the Tribunal was in compliance to section 24 to 29 of the SCT Decree.
    
13. The consideration given to the evidence produce by the parties goes to the merit of the case. The Appellant correctly stated in his submission that there can be no appeal on merit as state in the case of Sheet Metal (supra).
    
14. The grounds of appeal advanced by the Appellant have no merit.
    
15. In my judgment, I dismiss the Appellant’s appeal and I order the Appellant to pay costs of $500.00 to the Respondent within 31 days.
    

28 days to appeal.

C. M. Tuberi

RESIDENT MAGISTRATE