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Kumar v Tinai [2020] FJHC 789; HBA16.2019 (25 September 2020)

IN THE HIGH COURT OF FIJI
IN THE WESTERN DIVISION
AT LAUTOKA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.: HBA 16 of 2019

BETWEEN : RONALD ROHIT KUMAR

[APPELLANT]

A N D : ALOWESI TINAI

[RESPONDENT]

Appearances : Mr Aman Dayal for the appellant
(Ms.) Alanieta Bilivanua for the respondent

Hearing : Monday, 14^th September, 2020 at 9.00a.m

Judgment : Friday, 25^th September, 2020 at 9.00 a.m.

J U D G M E N T

(01) On the 29^th December, 2017 the respondent lodged a claim in the Small Claims Tribunal (SCT) seeking fire damages to crops alleging that the appellant lit fire to his sugar cane farm resulting the respondent’s farm catching fire. The appellant’s farm is adjacent to the respondent’s farm.

(02) On the 20^th July, 2018 the referee found in respondent’s favour and ordered the appellant to pay the respondent the sum of $1,153.10 being the cost of damage done by fire to crops on September 2017 in Busabusa Settlement, Ba.

(03) The appellant being aggrieved by the decision of the referee filed his Notice of Appeal in the Magistrate’s Court at Ba, relying on Section 33(3) of the Small Claims Tribunal Act 1991 (SCT Act) on the grounds that;

(A) That the proceedings conducted by the referee was unfair to the appellant and prejudicially affected the result in the proceedings.

(B) That the tribunal exceeded its jurisdiction.

(04) The learned Magistrate dismissed the appeal and affirmed the referee’s decision made in

favour of the respondent. The learned Magistrate held that the appellant has not satisfied the limited grounds set out in Section 33(1) of the SCT Act, 1991.

(05) The appellant then filed Notice of Intention to appeal against the decision of the learned Magistrate.

(06) The grounds of appeal filed on 27^th May, 2019 were stated as being;

1. The Learned Magistrate erred in law and in fact by coming to the conclusion that small claims tribunal Referee was procedurally fair and it was correct in arriving at the decision.
   
2. That the Learned Magistrate erred in fact and law by not considering the factor that there was no evidence before the tribunal to indicate who lit the fire.
   
3. That the Learned Resident Magistrate erred in law and in fact when he did not direct himself in regards to the principles of appeal from Small Claims Tribunal Act 1999 in the case of Sheet Metal and Plumbing (Fiji) Ltd v Deo, HBA 07 of 1999.
   

Ground 1

The Learned Magistrate erred in law and in fact by coming to the conclusion that small claims tribunal Referee was procedurally fair and it was correct in arriving at the decision.

(07) In support of the first ground of appeal, a number of challenges were ventured. It is the submission of Counsel for the appellant that; (Reference is made to paragraphs (6) to (12) of the appellants written submissions filed on 15-11-2019)

6. The Learned Magistrate did not take into consideration the fact that the appellant had raised an issue of alibi where he was not on his farm on the day the incident took place. According to the appellant he was at his employment on Vunibaka Island when the respondent’s farm was destroyed by fire. (Refer to page 7 of the SCT appeal records).
   

7. The respondent accepts in this matter that the farm of appellant was burnt

and harvested prior to him going on to the farm to burn the leaves (Refer to page 5 of the SCT record).

8. There was a finding made by the small claims tribunal referee that neither

the respondent or any other person had seen the appellant in this matter lighting fire to the sugar cane farm resulting the respondent’s farm catching fire. (See pages 11 of the SCT copy record in particular point 6).

9. The Learned Magistrate erred in law and in fact to hold that the appellant in this matter was the actual person committing lighting of fire which resulted in the respondent suffering damages. There was no direct evidence of this presented before the SCT tribunal.
   
10. This matter was struck out twice and re-hearing was ordered. The tribunal had indicated to the parties that whether they want to call evidence or will they be relying on the previous evidence before the tribunal. The appellant not being having the legal knowledge about the proceedings relied on the previous evidence.
    
11. The Learned Magistrate should have taken into consideration that there was no direct evidence implicating the appellant in this matter to the loss suffered by the respondent.
    
12. Since the appellant had contended that he was away in the island on the day of the incident, the tribunal should have allowed appellant to bring evidence of this, namely time sheet to tribunal.

(08) Counsel for the appellant urged in the forefront of his argument that “since the appellant had contended that he was away in the island on the day of the incident, the tribunal should have allowed appellant to bring evidence of this, namely time sheet to tribunal”.

I cannot acknowledge the force of this criticism. I find the argument completely unconvincing.

(09) (Ms) Bilivanua, Counsel for the respondent submits and I agree that on the day of the re-hearing, both parties had agreed that the tribunal rule on the evidence already adduced before it. The referee then deliberated on the basis of evidence already adduced before it as agreed to by both parties.

(10) The appellant did not propose to call witnesses to establish his defence of alibi. The referee did not know the existence of the appellant’s time sheets. There was no refusal by the referee to have regard to the time sheets to establish his defence of alibi. As I said earlier, the appellant did not propose to call witnesses to establish his defence of alibi. As a result, the appellant cannot now in the appeal attach to the referee an obligation to fulfill the role of a Counsel. It is difficult to see how appellant could argue the natural justice point. It is in the light of these considerations, I feel that there is no basis for me to disturb the findings of the Magistrate’s Court that the proceedings of the SCT is not tainted by procedural unfairness. The referee had decided the dispute according to the substantial merits and justice of the case, after hearing both parties. Besides, procedural unfairness will not trigger a right of appeal unless it causes the result of the proceedings to be unfair to the appellant.

(11) Apart from the natural justice point, indeed both grounds of appeal [ground (01) and (02)] directly relates to the merits of the appeal against the decision of the SCT and not to the decision of the learned Magistrate. Counsel for the appellant did take the appeal on the merits further in arguing ground of appeal No. 2. In arguing ground of appeal No. 2, Counsel for the appellant submitted; (Reference is made to paragraphs 14 to 17 of the appellant’s written submissions filed on 15-11-2019)

(14) In the copy record there is no independent report by the respondent establishing that the crops were actually worth the sum claimed.

(15) The appellant admits lighting fire to the cane leaves after harvesting of the sugarcane. However, when his cane farm was initially lit with fire, he was away on Vunibaka island working. The appellant only came on to his farm after the harvesting of cane was completed.

(16) And since the farms are adjacent to each other, the respondent in this matter had claimed against the appellant for the damages.

(17) In the small claim tribunal, the respondent did not prove her claim against the appellant with all the necessary evidence.

(12) Appeals on the merits are totally inconsistent with the legislation. The appellant seeks to introduce a new form of appeal on the merits by the back door.

(13) Section 33(1) of the Small Claims Tribunal Act, 1991 provides that 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.

Under section 33(1) of the Small Claims Tribunal Act, 1991, an appeal could be made only on the grounds stated therein.

(14) The non-legalistic nature of a Tribunal proceeding is exemplified by the requirement in Section 15(4) of the Decree that:

“The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so.....shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.”

Greig J in Hertz New Zealand Ltd v Disputes Tribunal^[1] said in rejecting the appeal in

that case, at p.151:

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

In Aaryan Enterprise v Mehak Unique Fashion^[2], J. Calanchini held;

“There is certainly no right of appeal in respect of any error of law nor in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing.

Quite plainly, the first and the second grounds of appeal are misconceived as they seek to question the ‘merits’ of the referee’s decision without pointing to any ‘procedural unfairness’, prejudicially affecting the result. There is certainly no right of appeal neither in respect of any error of law nor in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re- hearing. Under the grounds of appeal relied upon, the appellant is required to identify some unfairness in the manner (form) of the hearing before the tribunal and not simply the result. There is no right of appeal on the merits even when there may be a clear error of law in the tribunal’s decision. The appellant failed to properly appreciate the function and nature of a non-legally qualified referee exercising what in effect is an equity and good conscience jurisdiction.

(15) I therefore see no reason to interfere with the finding of the learned Magistrate that the appellant does not have a right of appeal against the findings of the referee on the merits.

(16) The ground of appeal (01) and (02) are misconceived. I dismiss grounds of appeal (01) and (02).

Ground (03)

That the Learned Resident Magistrate erred in law and in fact when he did not direct himself in regards to the principles of appeal from Small Claims Tribunal Act 1999 in the case of Sheet Metal and Plumbing (Fiji) Ltd v Deo, HBA 07 of 1999.

(17) It is the submission of Counsel for the appellant that; (Reference is made to paragraphs 19 to 24 of the appellants written submissions filed on 15-11-2019)

19. In the above mentioned case, it was highlighted by the Court that the

tribunal should take into consideration the substantial justice of the case rather over mere technicalities.

20. The substantial justice in the present case was that, the appellant was away at work when the incident and damages to the farm of the respondent took place. He only went to his farm to burn the cane leave to clear the farm after it was already burnt. (See page 10 and 11 of the SCT Coy record)

(21) The tribunal gave the respondent twice the chance for re-hearing of the matter without a proper application and without allowing the appellant in this matter to respond why tribunal should not hear the claim. The tribunal did not offer the appellant in this matter a chance to obtain the daily time sheet from his employer to establish his alibi.

(22) The tribunal should have allowed the appellant in this matter a chance to submit the time sheet report from his employer. The Learned Magistrate did not take into account that there was no direct evidence linking the appellant lighting fire to his sugarcane farm which resulted in respondent’s crops being damaged.

(23) There is no dispute that he did lit the fire to burn the cane leaves after the harvesting of cane was done. The appellant highlights this whilst cross-examining on page 5. The respondent had acknowledged that his cane had been burnt however they stated for a different portion of cane on the said land. Hence, defendant knew that his cane was already burnt on the day they allege the incident.

(24) At one point of the copy record (page 3) the respondent states that she met the appellant on the road whilst going to town near the bus stop at Busabusa road. The appellant was going to his farm. If the respondent was going to town with her produce, she cannot allege against the respondent lighting the fire on his farm on the said day. The dates on which fire destroyed is not clear from the records. Hence, this creates doubt.

(18) I turn to the decision of Fatiaki Justice in Sheet Metal and Plumbing (Fiji) Ltd and Uday Narayan Deo^[3]. Having perused the reasons for the decision of his Lordship, I opine that the decision indeed support the judgment of the Magistrate here in dismissing the appeal against the decision. Justice Fatiaki, after a cursory examination of the provisions of Section 24-29 said they serve to highlight the informal, non-adversarial nature of the proceedings before the SCT and militates against a general appeal on the merits or for errors of law. I adopt and apply his Lordship’s reasoning in this appeal.

(19) Magistrates hearing appeals are concerned with the result from a tribunal only to the extent that it is marred by procedural unfairness. The referee has not acted outside the boundaries of the jurisdiction given by the SCT Act. The determinations made within the jurisdiction will remain free from review, by the Magistrates, unless tainted by procedural unfairness.

(20) The appellant has not provided any grounds on which I can justifiably disturb the Magistrate’s decision. It bears reminding that the referee arrived at his decision after hearing both sides. In no way is it possible for the appellant to contend that there was any prejudice to him in the hearing or any unfairness on the part of the primary judge, the referee.

ORDERS

(01) The appeal is dismissed.

(02) There will be no order as to costs.

...........................

Jude Nanayakkara

[Judge]

High Court - Lautoka

Friday, 25^th September, 2020

^[1] (1994) 8 PRNZ
^[2] (2011) FJHC 727
^[3] (1991) FJHC 26 delivered at Suva on 14-04-1999