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Feroz v Khatap [2007] FJMC 24; Civil Appeal Case No 26 of 2005 (24 August 2007)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL APPEAL CASE NO.: 26 OF 2005

BETWEEN:

ABDUL FEROZ
APPELLANT

AND:

MUSTAPHA KHATAP
RESPONDENT

RULING

[1] The Small Claims Tribunal made an order on 04/12/03 wherein it ordered the appellant to pay the respondent a sum of $542.00 within 7 days and the appeal was heard by me on 20/07/07 some 3½ years later.

[2] I think it is important that I shall explain the reasons for the delay in hearing this appeal. There was delay in preparation of the Small Claims Tribunal record. It was prepared on 07/02/05. There appears to be a delay of 2 years before the file was sent to the Lautoka Magistrates’ Court Registry and a notice was sent to the appellant and respondent on 23/02/07 advising that the case will be called for first call on 30/05/07 and on that day I fixed 26/07/07 for hearing of the appeal.

[3] The appellant’s grounds of appeal are that the referee was biased and unfair.

[4] At the hearing of the appeal the appellant submitted that he disagreed with the claim and order of the Small Claims Tribunal and he had evidence to prove it. He agreed that he did not place that evidence before the Small Claims Tribunal and the evidence was readily available and he left it at home.

[5] He also submitted that he paid $450.00 and not $200.00 and the stay in the hotel was 4 nights and not 10 nights as claimed by the respondent and awarded by the Small Claims Tribunal. He further submitted that the agreed rate for accommodation was $30.00 and not $45.00 per night as claimed and awarded by the Small Claims Tribunal.

[6] The appellant’s main contention is that he had the evidence and he did not produce it on the day of the hearing. According to the Small Claims Tribunal’s report he wanted to finish the case on the day itself and he did not seek adjournment to produce the evidence that he had available and in my view he cannot level any complaint against the referee. It was entirely his fault. He said he had the evidence and he did not adduce it and he left it at home. He is now precluded from adducing any further evidence see Maan Chand –v- Waliman Khan High Court Suva Civil Appeal No. HBA 5 OF 2000 decision of Scott J at page where it was stated:

"Although the Resident Magistrate’s decision to allow further evidence to be heard on the appeal was doubtless taken fro the best of motives my view, with respect, is that she was mistaken. Order XXXVII Rule 16 of the Magistrates’ Court Rules gives power to a Resident Magistrate to hear further evidence on appeal but as a general rule leave to hear further evidence must only be given if the three conditions set out in Ladd v. Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489; [1954] 3 All ER 745 are satisfied.

These are:

(i) that the evidence could not with reasonable diligence have been made available at the trial;

(ii) that the evidence would have had an important effect on the outcome of the trial; and

(iii) that the evidence must apparently be credible.

None of these three conditions is really applicable to an allegation that the Tribunal did not allow witnesses to be called at all and therefore it is necessary to turn to the record of the proceedings itself which, if the Appellant is to be believed, must be defective and misleading.

The Magistrate’s Court Rules do not give guidance in these circumstances (see Order XXXVII Rule 8) but in Thompson v. Andrews [1968] 2 All ER 419 the Court of Appeal rejected an application to consider evidence which tended to contradict the primary judge’s note on the proceedings before him. Where the record is silent on a matter then evidence suggesting that it was raised might more readily be admitted but in the appeal before the Resident Magistrate with which we are dealing the intention of adducing fresh evidence was to show that the Referee’s record and report were not correct. On the authority of Thompson v. Andrews (supra) my view is that this course was impermissible".

The respondent agrees that there was a verbal agreement of $30.00 as the rate of accommodation per night and since the appellant demanded a bill he showed the real rate of $45.00 per night. In my view if he agreed to a sum of $30.00 per night verbally then he is bound by that amount and I allow the appeal and reduce the amount to $30.00 per night for 10 nights which is $300.00 and the sum of $592.00 is reduced by a sum of $150.00 which leaves the balance of $442.00.

Apart from reducing the amount from $45.00 to $30.00 I find that the appeal has no merit and is dismissed and since both parties appeared in person I do not make any orders for costs.

[Mohammed S Khan]
Resident Magistrate

24 August, 2007