IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBA0001 OF 2005

BETWEEN:

VIDYA WATI & SURESH CHARAN
APPELLANT

AND:

WAQABACA TRUCK HIRE AND MACHINERY
RESPONDENT

In person - For Appellant
In person - For Respondent 

JUDGMENT

This is an application for leave to appeal out of time and stay of a decision of Small Claims Tribunal.

BACKGROUND:

Proceedings in the Tribunal:

The respondent was claimant in the Small Claims Tribunal in claim number 1633 of 2001. The respondent had claimed a sum of $2000.00 for damages to its truck and hire charges for the truck. The claim was based upon an oral agreement made between the representative of respondent and one Anil Deo who represented the appellant. The respondent alleged the appellant had hired its truck to carry cargo between Suva and Labasa at $250 per trip. The truck was handed over and he made some trips to Labasa. It was later returned to the respondent in a damaged condition.

From the referees report it appears that he heard the witnesses for both parties. After that on 30th November, 2001, the Tribunal ordered the appellant to pay $2000.00 to the claimant/appellant.

Proceedings in the Magistrates Court:

The Appellant appealed to the Magistrate Courts pursuant to the provisions of Section 33 of the Small Claims Tribunal Decree 1991. Section 33 permits appeals on two grounds; namely, that the referee conducted the proceedings unfairly which prejudicially affected the outcome of the proceedings or on grounds of excess of jurisdiction. The learned Magistrate looked at the provisions of this section and formed the view that there was no procedural unfairness. She accordingly dismissed the appeal on 3rd April 2003. 

On 10th June 2004 the appellant filed a motion to set aside the judgment and to seek leave to appeal out of time and stay. The appellant in support alleged that the referee refused the appellant an appearance and heard matters in his absence. These allegations are again raised in grounds of appeal being grounds two and three in the present application so I consider it appropriate that I shall deal with them now. This was a serious allegation and is not borne out by the referee’s report. The referee’s report indicates that opportunity to be heard was given. Obviously the magistrate was bound to assume that the referees report was correct. Here the referee report is clear and the appellant was attempting by way of affidavit evidence to contradict the report. This option was not open to the appellant – Thompson v. Andrews - [1968] 2 ALL ER 419. Due administration of justice would be severely prejudiced if litigants could challenge court records by affidavit evidence of their own and make it a ground of appeal. Litigation would never come to end as a disgruntled litigant could challenge appeal record ad infinitum.

	The learned magistrate, different magistrate from the one who dismissed the appeal, quite correctly pointed out that it was not open to him to set aside the referee’s decision. The learned magistrate looked at the delay and the record of the tribunal and said the appeal had little chances of success. The ruling was delivered on 22nd December 2004.

The Present Application:

The appellant is now seeking leave to appeal out of time against the magistrate’s decision dated 3rd April 2003. It is not an appeal against the magistrates ruling dated 22nd December 2004 refusing leave to appeal out of time. The application was filed on 5th January 2005.

The present application is brought about 22 months after the ruling, an inordinately long delay for which no reason has been offered. Such delay is particularly unforgivable in view of the fact that one of the objectives of setting up small claims tribunal was to provide “prompt and inexpensive” means of resolving disputes.

I shall further also look at the other grounds of appeal to see if there are any prospects of success. I have already referred to grounds 2 and 3. The first ground is that the respondent had failed to show any contractual obligations on part of the appellant to pay so the referee committed an error of law in making the award. An error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the case – Sheetmetal and Plumbing (Fiji) Limited v. Uday Narayan Deo - 45 FL R 80, where Justice Fatiaki (now the Chief Justice) endorsed the principles expressed by Greig J in Hertz New Zealand Ltd. v. Disputes Tribunal - 1984 8 PRN2 at 151 as “there is no appeal on the merits even if there is clear and fundamental error of law in the conclusion of the tribunal”.

Nor can one lose sight of section 15(4) of the Decree which states:

“The tribunal shall determine the dispute according to the substantial merits and justice of the case, and in doing so shall have regard to the law but shall not be bound to give effect to strict legal rights or obligations or to legal form or technicalities”.

At first sight section 15(4) appears quite confusing and inherently contradictory. However it has three components to it:

(a)	Tribunal shall determine a dispute according to substantial merits
(b)	It cannot ignore the law
(c)	It is not bound by strict legal rights or technicalities.

The use of but as a conjunction in section 15(4) suggests the predominant objective of a decision is to achieve fairness in the equitable sense. Section 15 reinforces what Justice Fatiaki in Sheet Metal referred to lay referee “exercising what in effect is an equity and good conscience jurisdiction”.

The referees in the tribunal are not legally qualified. Barristers and solicitors are not allowed to represent parties in the tribunal. If parties could appeal against the orders of the tribunal on every legal technicality then that would frustrate the very purpose for which the tribunal was established. This is what the appellant is trying to do by saying Anil Deo lacked authority or why he was not joined as a party.

The appellant says that Anil Deo had no authority to bind the appellant. However that is contradicted by the appellant’s own documents on pages 21 and 22 of the record which shows that the appellant paid the respondent two sums of $250.00 each on two separate occasions. If there was no contract, then why were such payments made to the respondent by the appellant. It appears therefore that even on merits the referee was correct.

This appeal in view of the provisions of the Decree which only allows appeals on limited grounds has no prospect of success. Accordingly leave is refused. I note that under section 33(5) of the SCT Decree Notice of Appeal acts as a stay of enforcement proceedings.

EXCESS OF JURISDICTION:

I note from the claim form that the claim is for $2,000.00 for damages and unpaid account. This ground has no merit as the claim is within the jurisdiction of the Tribunal.

Accordingly final orders are:

(a)	Leave to appeal is refused.

(b)	In view of the protracted nature of proceedings pursued by the appellant, the appellant is ordered to pay the respondent $300.00 costs in 14 days.

(c)	The respondent is now free to enforce the orders of the Tribunal. 

Before I finally conclude there is one other matter of some considerable disquiet in these proceedings. The parties in the Small Claims Tribunal were Waqabaca Truck Hire Company (Claimant) and Inter Island Freight Ltd. In filing the motion in this court the name Inter Island Freight Limited was changed to Vidya Wati and Suresh Charan Trading as Inter Island Freight Services. In filing this Notice of Motion Suresh Charan clearly gave the impression that he is one of the partners in the Inter Island Freight Services. When questioned by court, it became apparent that he was not a partner in the firm. He tried to justify that by saying he held a power of attorney from Vidya Wati without disclosing the power of attorney to the court.

Mr. Charan is no stranger to courts. I am aware that Mr. Charan has on other occasions appeared in courts on strengths of powers of attorney without objection from opposing parties.

Justice Scott in Mosese Masirewa & Another v. Colonial Mutual Life Insurance Society Limited & Culden Kamea – HBC0273 of 2002 doubted that the holders of powers of attorney could represent parties in an action and at page 5 summarised the position as follows:

“Mr. Naco is not the only person who has attempted to secure a right of audience in the Courts of the basis of a power of attorney. It may therefore be helpful to summarise my conclusions:

(1)	A person whose repeated actions give rise to the reasonable conclusion that he is practising law must hold a current practising certificate.

(2)	A person who practises law but does not hold a current practicing certificate commits a criminal offence. (Legal Practitioners Act – Section 52(2)).

(3)	Only the holder of a current practising certificate has a right of audience in the courts to appear on behalf of someone else.

(4)	Any litigant in person may appear in the courts on his own behalf.

(5)	Save in exceptional circumstances and with the leave of the court, a person who does not hold a practising certificate may not appear on behalf of someone else in the courts”. 

Accordingly as Suresh Charan had managed to file the motion and obtain a hearing on it by incorrectly representing himself as a party, it is only proper that costs against him may be awarded but only after he is given an opportunity to address the court.

[ Jiten Singh ]
JUDGE

At Suva
4th May 2005