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Verma v Maharaj [2023] FJHC 83; HBA15.2019 (20 February 2023)

In the High Court of Fiji
At Suva

Civil Appeal No. HBA 15 of 2019

Sanjay Singh Verma
Babita K. Verma
Appellants

v

Mahendra Jeet Maharaj
Respondent

Counsel: Mr K. Singh for the appellants

Ms N. Raikaci for the respondent
Date of hearing: 14^th February,2020
Date of Judgment: 20^th February,2023

Judgment

1. The appellant filed a claim in the Small Claims Tribunal,(SCT) against the respondent to recover a sum of $ 5000. The particulars of claim stated that the parties entered into an agreement on 20^th December, 2013, in terms of which the first respondent borrowed a sum of $2000.00 from the first appellant. The sum was to be repaid within 30 days with a surcharge of $ 10.00 per day until the entire amount was paid. The Referee found that the respondent had repaid a sum of $1600.00. He was held liable to pay the balance $400.00 and a sum of $4030.00 as surcharge. The respondent was ordered to pay $400.00 per month until the total sum of $4030.00 was paid. The respondents appealed to the Magistrates’ Court on the ground that the SCT lacked jurisdiction to entertain and/or adjudicate the claim, as the claim is unenforceable.
2. On 28^th February,2019, the lower court held that the Agreement and particulars of claim indicate that the claimants,(appellants) acted as money lenders. The contract was unenforceable under section 15 of the Moneylenders Act and the SCT exceeded its jurisdiction.
   
3. The appellant appeals the judgment on the following grounds:
   1. That the Learned Resident Magistrate erred in law and in fact by allowing the Respondent herein appeal without properly addressing the two specific grounds under which the Small Claims Tribunal Act 1991 under section 33.
   2. That the Learned Resident Magistrate erred in law and in fact by coming to the conclusion that the Appellants were unlicensed money lenders.
   3. That the Learned Resident Magistrate erred in law and in fact failed to analyze the fact that the 2^nd Appellant is an employee at the University of the South Pacific.
   4. 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 1991 in the case of Sheet Metal and Plumbing (Fiji) Ltd v. Deo, HBA 07 of 1999.
   5. That the Learned Resident Magistrate erred in law when he took notice that the Appellants advanced money as an unlicensed money lender.
   6. That the Learned Resident Magistrate erred in law and in fact by holding that the Referee should have considered section 33(3)(1)(b) on its own without any application is totally a misconceived idea resulting in a miscarriage of justice.
   7. That the Learned Resident Magistrate erred in law and in fact by making a finding that the original agreement between parties appeared to be as such that the original claimant acted as a money lender is totally misconceived as there is no mention of any such terms like the interest charged to indicate as such. By doing so there is a gross misconduct and miscarriage of justice.
   8. That the Resident Magistrate erred in law and in fact by considering section 2 (Cap 234) and section 15 of the Money Lenders Act to determine that the original claimant lent monies to the original respondent as a money lender without making a finding that the lending was done under friend and/or close acquaintance and not as a money lender.
   9. That the Learned Magistrate erred in law and in fact when guiding himself to satisfy that section 9(c) of the Small Claims Tribunal Act that the Referee acted beyond its jurisdiction and misconceived the idea that the original claimant acted as a money lender when in fact the lending was otherwise as stated in Ground 8.
      
4. At the hearing before me, Ms Raikaci, counsel for the respondent took up the preliminary objection that the appellant had not complied with Or XXXV11, Rule 1 of the Magistrate’s Court Rules. The appellant filed Notice of Intention to Appeal on 6^th March, 2019, but did not serve the notice until 29^th March, 2019. It should have been served on the respondent on or before 7^th March 2019.
   
5. I find no document in the Copy Record to establish that service on the respondent was not made in time.
   
6. I proceed to consider the appeal.
   
7. The first, fourth and sixth grounds of appeal contends that the lower court failed to address the two specific grounds in section 33 of the Small Claims Tribunal Act,(Act). The second, fifth, eighth and ninth grounds that the Learned Magistrate erroneously came to the conclusion that the appellants were unlicensed money lenders.
   
8. Section 33 provides that an appeal lies against an order of the Tribunal on the following two grounds:
   1. 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
   2. the Tribunal exceeded its jurisdiction.
      
9. In Sheet Metal and Plumbing(Fiji) Ltd v Uday Narayan Deo, (Civil Appeal No. 0007 of 1999S (14 April, 1999) Fatiaki J (as he then was) said :

.As to the 'manner' or procedure required to be followed by the referee in conducting a proceeding .. A cursory examination of these provisions serves to highlight the informal, non-adversarial nature of the proceedings before the Small Claims Tribunal and militates against a general appeal on the merits or for errors of law. (emphasis added)

He stated further that the “non-legalistic nature of a Tribunal proceeding is further exemplified by the requirement in Section 15(4)”.

10. Section 15(4) provides that 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 actual forms or technicalities”.
    
11. Calanchini J(as he then was) in Aaryan Enterprise v Mehak Unique Fashion, [2011] FJHC 727; Civil Appeal 17.2011 (10 November,2011) stated:
    

The learned Magistrate correctly identified the limited grounds of appeal that are available to an aggrieved party. ..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 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 Respondent was required to identify some unfairness in the manner (form) of the hearing before the Tribunal and not simply the result. Put bluntly, there is no right of appeal on the merits even when there may be a clear error of law in the Tribunal's decision. (emphasis added)

12. In the present case, the Learned Magistrate concluded that “the Referee exceeded the jurisdiction of the Tribunal in enforcing an enforceable contract and as such the appeal should be allowed. The matter shall warrant a re-hearing since the initial amount of money advanced to the Appellant/Respondent, the $2000.00 can be demanded lawfully as there is no dispute over receiving this advantage. If not allowed it would amount to allowing the Appellant/Respondent to benefit.. which would certainly be an unjust enrichment”.
    
13. In my view, the conclusion that the sum of $2000.00 given can be demanded is inconsistent and contrary to the finding of the Referee that $1600.00 was repaid.
14. In my judgment, the matter cannot be remitted for a rehearing, as the hearing was not found to be conducted in an unfair manner. The finding that the contract was unenforceable under the Moneylenders Act is a matter of law in respect of which there is no appeal as held in the two cases I have referred to above.
    
15. Orders
    1. The appeal succeeds.
    2. The respondent shall pay the appellants costs summarily assessed in a sum of $ 750.
       

A.L.B. Brito-Mutunayagam
JUDGE
20^th February, 2023