IN THE MAGISTRATE'S COURT AT LAUTOKA
Civil Appeal No 52A/11

BETWEEN

THE GENERAL SECRETARY,
PUBLIC EMPLOYEES UNION
Appellant

AND

ADRIU NIUDAMU
Respondent

RULING

1)	The Appellant filed this appeal against an order made by the Small Claim Tribunal on the 16th August 2011. The order of the Tribunal reads as follows; 

a.	That the respondent, The General Secretary, Public Employees Union pay the claimant Adriu Niudamu the sum of $ 3314 being unpaid retirement benefit for the period 1969-2009.

b.	That the respondent to pay the full amount of $ 3314 on or before 31st August 2011.

c.	That payments to be made at the Small Claims Tribunal, Lautoka.

d.	That failure to comply with this order further court action will be taken.

2)	The Appellant filed the notice of appeal pursuant to section 33(3) of the Small Claim Tribunal Decree on the 19th August 2011. The Appellant alleged that the referee was biased in his ruling.

3)	The Section 33(1) stipulates the grounds on which an appeal against a Small Claim Tribunal order can be made. Accordingly any party to proceedings before a Tribunal may appeal against an order by the tribunal 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 proceedings or

b.	the Tribunal exceeded its jurisdiction

4)	When the appeal came up before this Court the parties were informed to file written submissions. The Respondent filed an affidavit setting out the facts and the Appellant filed written submissions.

5)	At the very out set it should be noted that this Court has no jurisdiction to look into the merits of the claim at this stage. All what this Court can consider is whether the proceedings were conducted by the referee in a manner which was unfair to the appellant and prejudicially affected the result of proceedings. In Wati v Waqabaca Truck Hire and Machinery 2005 FJHC 101 it was held that an error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the case.

6)	Bearing the above notion in mind I will now proceed to consider the grounds of appeal submitted by the Appellant. The Appellant has set out the following as the basis for the ground of appeal;

a.	That the Tribunal erred in law and in facts in awarding the Claimant $ 3,314 as claimed, when he was not entitled to the same either under the PEU Constitution & Benefits Policy in existence at the time of the Claimants retirement;

b.	That the Tribunal erred in law and in facts in making the decision based incorrectly on the Claimants unproven & baseless submission of being entitled to benefit from 1969-2009, whilst he was only a member of the Union from 1990-18th August 2008;

c.	That the Tribunal erred in law and in facts and did the Respondent Union a grave injustice by not properly considering its submission, nor asking the Claimant for proof of his full financial membership to the Union since 1969 as there was no proof of the same with the Respondent Union;

d.	That the Tribunal erred in law & in facts & was procedurally unfair & unjust, in not seeking proof from the Claimant to his claims of full financial membership of the Union from 1969 till 2008; and

e.	That the Tribunal was procedurally unfair in not considering the Respondent Union's submission & instead giving credence to the Claimants unsubstantiated claim.

7)	I have considered the affidavit filed by the Respondent and the written submissions filed by the Appellant. Further I have perused the Tribunal record pertaining to this case. 

8)	Upon perusal of the Tribunal record it appears that the claim had been taken up before the Tribunal on three days. Firstly on the 22nd July 2011 the case has been called and adjourned on the application of the Appellant to the 26th July 2011. On the 16th august 2011 the Referee has noted down the findings when both parties were present. However there is nothing on record which shows that the both parties were fully heard through oral testimony or through submissions except for the written submissions filed by the Appellant. It should be noted that when a claim is heard before the Tribunal it is of utmost significance that the parties should be heard in a manner convenient to the Tribunal and to the parties. . 

9)	There seems to be no hard and fast rule as to how the evidence should be heard, as in the Tribunal general rules of evidence has no application. Yet one should not forget that the basic principal of audi allteram partem or both parties should be heard, has to be necessarily followed even in the Small Claim Tribunal. Upon perusal of the minutes of the Referee I could not find when were the parties ordered to file written submissions although on the minutes of the 26th July 2011 it says that "submissions already in file." However I did not find any submissions filed by the Claimant apart from the submissions filed by the Appellant. Although the procedure in the Tribunal is expected to be very simple for the ordinary people to understand and to avoid delays, it is of utmost importance that the proceedings are conducted in a transparent and an unambiguous manner. 

10)	Secondly it appears that the Referee has assumed facts which were not presented by the Claimant at the Tribunal. In his findings the Referee has stated that the evidence only shows that the Claimant had contributed money to the Union only from 1990 to 2008. However in contrary to what the evidence shows, the Referee has assumed that the Claimant may have done contributions from 1969 when he started his employment and calculated the amount on that basis. 

11)	It should be noted again that although the strict principles of law of evidence are not applied in the Tribunal, the findings should not be based on hypothetical or speculative facts. The findings should be on merits and the Referee should be able to justify the findings based on the evidence presented by the parties. If the findings are not based on the facts and evidence submitted by the parties, it could lead to travesty of justice. It is very clear that unfounded conclusions could prejudicially affect the parties to a claim. 

12)	Further it appears that the original claim filed at the Tribunal is $ 3,190 whereas the Tribunal had awarded $ 3314 to the claimant. Again it appears that the enhancement of the award is a result of the speculations arrived at by the Referee when calculating the money contributed by the claimant. It should be noted that generally it would not be the practice to award more than what is claimed. 

13)	In the backdrop of the above mentioned issues I conclude that the Referee has conducted the proceedings in an unfair manner which has prejudicially affected the results of the proceedings. 

14)	In any event it should also be noted that upon perusal of the Tribunal record, it was evident that the Appellant has also not acted diligently at the Tribunal. The Referee has noted that the Appellant has not cooperated with the proceedings at the Tribunal. I emphasize that it is the duty of the parties to disclose the material possessed by them to assist the Tribunal to determine claims. 

15)	Be that as it may, for the reasons discussed in the preceding paragraphs I decide to squash the findings of the Tribunal and order a rehearing of the claim pursuant to Section 35(1)(a) of the Small Claims Tribunal Decree. 

16)	Further I order the claim to be heard by a different Referee and to give preference to this claim and to conclude the rehearing within three months from today to avoid further delay.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

18.07.2012