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Riyaz v Charan [2010] FJMC 43; Civil Appeal Case 40 of 2008 (18 March 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil appeal No 40/08

BETWEEN

KHAN ABDUL RIYAZ

AND

SHIU AJITYA CHARAN

RULING

1. This is an appeal against the Small Claim Tribunal order made on the 24th June 2008.
   
2. The Order of the Small Claim Tribunal reads as follows;
   

- Khan Abdul Riyaz and Shaheed Ali pay Shiu Charan three thousand and five dollars and sixty three cents (3005.63).

- Payment shall be made to the Magistrates Court Nadi, in full before 23rd July 2008 or face further court action.

- The order of 5th December 2007 is suspended.

3. The original Claimant at the small Claim Tribunal Shiu Aditya Charan is the Respondent in this appeal. Originally there had been two Respondents at the Small Claim Tribunal, namely Khan Abdul Riyaz and Shaheed Ali. However this appeal has been lodged only by Abdul Riyaz Ali.
   
4. In perusal of the Small Claim Tribunal file it appears that both Respondents have not appeared before the SCT on the 05th December 2007 and the small Claim Tribunal has made and order in the absence of the respondents.
   
5. However subsequently the Appellant in this case Khan Abdul Riyaz has made an application before the Small Claim Tribunal to intervene saying that he could not appear on the 12th December 2007 due to his medical conditions. Accordingly the matter has been taken up on the 24th June 2008.
   
6. Later the Small Claim Tribunal has suspended the order made on the 5th December 2007 and apparently the small Claim Tribunal has reduced the amount that has to be paid to the claimant by the two respondents.
   
7. However the Appellant, Khan Abdul Riyaz has filed Notice of Appeal on the 26th of June 2008.
   
8. It should be noted at this point that the other respondent, Shaheed Ali has not filed an appeal against the Order although it appears that at the outset of this case both respondents of the SCT case have appeared and represented by the same counsel.
   
9. However at the latter stages of this appeal it appears that only the Appellant Khan Abdul Riyaz has appeared and only he has been represented by the counsel.
   
10. Be that as it may, the Appellant in this case has set out his ground for appeal in Notice of appeal as "I as the above mentioned am not satisfied with the order issued on the above date" In furtherance to that he has attached a sheet of paper with his grounds for appeal. It says;
    
    1. First of all I was not driving the vehicle or neither was I in it when the accident occurred. I was also not charged.
       
    2. I did not make any promise to the opposite party to pay for his damages instead he himself suggested me to suffer our own expenses but later he sent a claim notice.
       
    3. On 21st of Nov 2007 I had gone to India for my treatment and there I had gone under a bypass surgery on 27.11.07. But here without my presence the order was made for me and the driver to pay FJD 4235.
       
    4. My condition is still very stable but since I returned from India I'd been attending every case even though I am unable to drive or sit for a long time. I used to hire taxis or take a bus to-fro.
       

I tried revealing my condition to the refree and also about my unemployment but he didn't listen to me instead as I threw a few words out he would interrupt by saying "sorry, NO MORE TALANOA".

11. The Small Claims Tribunal Decree clearly sets out the grounds on which an appeal can be made against an order of the Tribunal. According to Section 33(1) any party to proceedings before a tribunal may appeal against an order made by the Tribunal on the grounds that;
    
    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.
       
12. Thus it is crystal clear that any party who appeals against an order of the tribunal has to show one of those above mentioned grounds. Apparently the appellant does not seem to have come under the second limb of Section 33. Thus the court has to examine whether the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings.
    
13. The appeal was taken up for hearing on the 5th February 2010. The appellant was represented by a Counsel and the respondent was unrepresented. The appellant was called to give evidence and he said that he was not happy about the order of the tribunal because the referees were bias or unfair.
    
14. He said that although he tried to produce two quotations the referee failed to pay any consideration and when he tried to explain the referee told him not to talk. Further he said that he was not permitted to give evidence on oath. He said "that's why I say the hearing was unfair".
    
15. It should be noted that the written grounds for appeal and the evidence given at the hearing seems to be clearly contrary to each other. At the hearing the Appellant said that the referee has not allowed him to produce the quotations and to explain about it. But in the written grounds of appeal the appellant has not said any thing like that and he had only said that the Referee has not allowed him to explain about his medical condition and the unemployment.
    
16. Quite interestingly when the unrepresented Respondent cross examined the appellant he confronted the appellant with the written grounds of appeal and brought to the notice of the court that the Appellant is coming out with a different version. Further disputing what the Appellant says the Respondent suggested to the Appellant that;
    

Q: I was in the court too nothing of that sort happened?

A: Referee didn't listen to me

17. It should be noted here that the Small Claim Tribunal Decree requires any party who wishes to appeal against an Order made by the Tribunal to set out the grounds of appeal in the Notice of Appeal according to provisions in Section 33.
    
18. In this case quite clearly the Appellant has set out his ground to appeal as the fact that the referee didn't listen to him. How ever according to the written grounds of appeal it appears that his allegation seems to be that the referee didn't listen to his medical condition and unemployment. However at the hearing the Appellant has changed his position and said that the referee has not listen to him regarding the quotations.
    
19. It appears that in fact if the appellant was not given a hearing regarding a particular issue there could not be an ambiguity regarding such an issue. In such circumstances the appellant has to be persistent with the unfairness he alleges against the referee. But in this case it appears that the appellant has changed his version at his convenience. Further the Respondent disputed the fact saying that nothing of that sort actually did take place. The Appellant did not adduce any more evidence to support his allegation. It should be noted that merely on the evidence produced by the Appellant this court cannot be satisfied that the Appellant was not given a fair hearing.
    
20. After the hearing the parties were given an opportunity to file written submissions. Only the respondent has filed written submissions.
    
21. In these circumstances as it was discussed above the appellant has failed to show this court that the Referee of the Small Claim tribunal has conducted the proceedings in an unfair manner and prejudicially affected the result of the proceedings.
    
22. Thus I dismiss the appeal and order the Appellant to pay 200 dollars to the Respondent as costs.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
18.03.2010