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Sharma v Chand [2010] FJMC 65; Civil Appeal 78 of 2008 (6 July 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Appeal No 78/08

BETWEEN

Manoj sharma T/A Radio Paschim
APPELANT

AND

Ireen Chand
RESPONDENT

RULING

1. This is an appeal against an order made by the small Claim Tribunal on the 22nd September 2008 in SCT case no 755/08.
   
2. The Small Claim Tribunal made the following orders;
   
   1. Manoj Sharma pay Ireen Chand two thousand one hundred and fifteen dollars and sixty three cents
      
   2. Payment shall be made to Magistrate's Court, Ba in full before 9th October 2008 or face further court action.
      
   3. The order of 20th June 2008 is suspended.
      
3. It appears that the claim had been once dismissed by the SCT on the 20th June 2008 for want of evidence. However subsequently the case has been re opened and the claimant has produced witnesses and other evidence. Accordingly the above order was made by the SCT suspending the order of dismissal made on the 20th June 2008.
   
4. On the 22nd September 2008 the Appellant, Manoj Sharma filed a notice of appeal and the following grounds of appeal are stated;
   
   1. that the referee erred to note that the two witnesses Foca and Prakash gave unsworn evidence and were relatives of the claimant.
      
   2. That Irene claimed for the training period that she was on voluntary basis as explained by the programme director Satendra Singh before intake and no payments will be made.
      
   100. That radio Paschim had never committed to pay training allowances to any trainees on board.
        
5. When this case was called on the 04th March 2009 in this court the respondent had been given time to file the defence, which I consider to be the objections by the Respondent. The respondent filed her so called defence on the 7th May 2009. Then the appeal was taken up for hearing on the 17th February 2010. The appellant gave evidence and the parties were given time to file written submissions. The appellant was represented by a counsel but neither the Appellant nor the respondent filed written submissions. This is the ruling on the appeal made by the Appellant.
   
6. The section 33(1) sets out the grounds on which an appeal against an order made by the small Claim Tribunal can be made. Accordingly, the grounds are 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.

7. The evidence of the Appellant was led by the Counsel for the Appellant. The evidence in chief of the Appellant is reproduced below and a portion of his evidence was recorded in question and answer form;
   

"I am the Appellant. I appealed because hearing was not fair. I own a radio station in Ba town. That's Radio Paschim. From November 2007 I was recruiting presenters. She was with us for 8 months. She was a volunteer announcer.

Question: - Did the Respondent produce any documents to SCT?

Answer: - No

Question: - You mean tribunal made a mistake by making an order without evidence?

Answer: - Yes."

8. It should be noted that the grounds of appeal in the notice of appeal and the evidence led in court are not compatible with each other. Yet from the evidence given by the Appellant and the grounds stated in the notice of appeal it can be fathomed that the Appellant has intended to make this appeal under the second limb of Section 33(1) of the Small Claim Tribunal Decree. Accordingly the Appellant has to satisfy this court that the proceedings were conducted by the referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings.
   
9. The appellant said that the SCT hearing was not fair and the order was made without evidence. I have perused the file of the SCT case. It appears initially the case had been dismissed due to want of evidence. But later it appears that the Claimant has tendered evidence to the SCT. Based on the evidence the SCT has made the order. Further it appears that there have not been any written agreements between the parties. This is more buttressed by the following answers given by the Appellant when the Respondent cross examined him.
   

Q: How can you say the SCT made an error?

A: The case was dismissed at the first instance. Then it was called up again and a decision was made. There was no evidence for the SCT to make that order.

Q: Even you have not produced any documents?

A: There was no document signed by the parties apart from the agreement she was taken on board. There was nothing that was signed. It was only a verbal agreement.

10. Hence it is very clear that even the Appellant admits that there is no written contract between the parties to be produced at the hearing. It appears that the SCT has based its Order on the evidence given by the witnesses.
    
11. This court is not required to go in to the merits of the claim in an appeal under the SCT Decree. All what is required is to see whether the Appellant can satisfy the court regarding any of the grounds set out in Section 33(1).
    
12. It does not seem that the Appellant has a genuine interest in this case. Although he was given a chance to give evidence he did not try to convince the Court that the SCT proceedings were conducted in an unfair manner. The court further gave time for the parties to file written submissions. The appellant did not at least take that opportunity to satisfy court as to why his appeal should be allowed.
    
13. I decide that on the evidence placed before this court I cannot be satisfied that the proceedings of the SCT were conducted in a manner which falls within any of the two grounds stipulated in Section 33(1) of the SCT Decree.
    
14. In the circumstances I dismiss the appeal. I make no order with regard to costs.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
06.07.2010