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Kumar v Prasad [2019] FJHC 84; HBA01.2019 (13 February 2019)

IN THE HIGH COURT OF FIJI AT SUVA

APPELLATE JURISDICTION

Civil Appeal No. HBA 01 of 2019

Nausori SCT Appeal No. 16 of 2018

BETWEEN

DANIS ADWIN KUMAR

APPELLANT (RESPONDENTS)

AND

JAIANDRA PRASAD AND AHRUN BIBI

RESPONDENTS (CLAIMANTS)

Counsel : Appellant in person

Respondent in person

Date of Hearing : 06^th February, 2019

Date of Judgment : 13^th February, 2019

JUDGMENT

[1] The appellant made an application to the Small Claims Tribunal (the Tribunal) claiming $4954.06 being rent in arrears, overdue electricity and water bill payments and for the damages caused to the rented premises.

[2] The Tribunal after hearing the parties ordered the appellant to pay $3761.06 to the respondents. Being aggrieved by the decision of the Tribunal the appellant appealed to the Magistrate’s Court and the learned Magistrate dismissed the appeal and being aggrieved by the judgment of the learned Magistrate, the appellant appealed to this court on the following grounds:

1. The learned Magistrate did not properly consider the evidence of the applicant in regards to the rental arrears and damages from January 2017 to March 2017.
2. The learned Magistrate did not properly consider the facts and evidence from witnesses.
3. The previous tenant also can be my witness in regards to the damages that was already there.
4. The landlord told us to stay and he will repair all damages in the house within 2 weeks, but he was failed to do so, as agreement also not given to us.
5. I also have the deposit slip for November rent which we deposited in their account in November; as the owner was out of the country.
6. I have 10 eye witnesses who will come to witness about the house condition which was damaged before we enter.

[3] Section 33(1) of the Small Claims Tribunal Act 1991 (the Act) provides as follows:

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 results of the proceedings; or
(b) the tribunal exceeded its jurisdiction.

[4] As correctly observed by the learned Magistrate his powers to interfere with the findings of the Small Claims Tribunal are limited by section 33(2) of the Act. I will first consider whether the learned Magistrate has arrived at the correct conclusion that proceedings before the Tribunal was not conducted in an unfair manner.

[5] The Tribunal has given both parties a fair hearing and allowed them to call their respective witnesses. The appellant had called five witnesses to testify. His submission before this court was that he has another witness who could speak about the alleged damage caused to the building but at the time of the inquiry before the Tribunal the witness was out of the country. He waited all this time to make an application to have the matter sent back for a fresh hearing before another Referee and to allow him to call his witness. There is nothing on record to say that the appellant made an application to the Tribunal seeking time to call his witness who, according to him, was abroad at the time of the hearing.

[6] In the submission of the appellant he did not allege that the Tribunal conducted the proceedings in an unfair manner which prejudicially affected the results.

[7] I have carefully considered the decision of the Tribunal, the judgment of the learned Magistrate and also the submission made by the appellant at the hearing of this appeal and there is nothing to say that the Tribunal has exceeded its power in ordering the appellant to pay $3761.06 to the respondent.

[8] One of the grounds of appeal is that the learned Magistrate did not properly consider the evidence in regards to the arrears of rent. The learned Magistrate only heard the appeal and there is no duty cast upon him to consider the evidence. The law does not empower the Magistrate who is sitting in judgment from the decisions of the tribunal to consider the correctness of the findings of fact. As I already stated earlier in this judgment his powers are limited by section 33(2) of the Act.

[9] Another ground of appeal is that since the owner was out of the country he deposited the rent for the month of November in his account. The appellant could have tendered this evidence at the hearing before the Tribunal. I do not see anything in evidence which says that the rent for the month of November was deposited in the respondent’s account.

[11] For these reasons the grounds of appeal relied on by the appellant to challenge the decision of the learned Magistrate must necessarily fail.

ORDERS.

1. The appeal of the appellant is dismissed.
2. The appellant is ordered to pay the respondents $500.00 as costs of this appeal.
   

Lyone Seneviratne

JUDGE

13^th February, 2019