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Singh v Devi [2013] FJMC 26; Appeal Case90.2010 (24 January 2013)

IN THE RESIDENT MAGISTRATES COURT OF FIJI
AT SUVA

MC App. Case No. 90 of 2010
SCT NO 2079/2008
(Civil Jurisdiction)

BETWEEN

PRAKASH SINGH
APPELLANT

AND

KOKILA DEVI
RESPONDENT

Appellant : In person.
Respondent : In person.
Written Submissions : 31st May 2012 and 12th December 2012

JUDGMENT

1. This is an appeal preferred by the Appellant against the order made by the learned Referee of the Small Claims Tribunal dated 29.10.2010.
   
2. The Appellant had initially filed this action as the Claimant in the Small Claims Tribunal claiming $ 350/- from the Respondent. This was for selling of an 'angle line' which belonged to the Appellant. He claimed that it was sold to a driver of a vehicle registration number CU 071.
   
3. After 11 days of the hearing, the learned Referee ruled that the Appellant has failed to prove his claim, thus he dismissed the action. The Appellant states following as the grounds of appeal.
   
   1. That the decision of the learned Referee does not merit his case;
   2. That the decision is wholly favorable to the Respondent;
   3. That the Referee did not take in to account of the eye witness called by the Appellant and further the Referee stated that the witness is not known to the Respondent;
   4. And, that his case is genuine.
      
4. It is opportune for this Court to make some general observations on the legislative intentions behind the creation of Small Claims Tribunals.
   
5. The most obvious intention is that expressed in the 'long title' of the Decree which reads:
   

A Decree To Establish Small Claims Tribunals in Fiji, To Provide Prompt and Inexpensive Relief to Claimants.'

6. From this title alone one can discern the following legislative intentions:
   

(1) The Decree establishes Tribunals not Courts;

(2) The nature of the cases with which the Tribunal is concerned is small claims;

(3) The purpose of the Tribunal is 'to provide relief to claimants'; and

(4) By a process that is both prompt and inexpensive.

7. Other distinguishing features of a tribunal are:
   

(a) That it is presided over by a referee who need not have legal qualifications and whose primary function is to attempt to bring the parties in dispute to an agreed settlement;

(b) Qualified and practising lawyers and professional advocates are excluded from its proceedings; and

(c) Evidence before a tribunal need not be given on oath nor need it be oral or even originate from the parties to the dispute.

8. According to Section 33 of the Small Claims Tribunal Decree, an order of a Referee can be challenge only on two limited grounds. They are,
   

(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.'

9. Having heard the oral submissions in court, both parties were directed by this court to file written submissions.
   
10. I will now address the grounds of appeal filed by the Appellant.
    
11. At the outset the court notes that it is only necessary to consider ground (a) of section 33 in this appeal since the Appellant had preferred the appeal on the basis of the manner which the Referee conducted the hearing. At no point the Appellant states that the Referee exceeded his powers.
    
12. Ground (a) specifically refers to the manner in which the referee conducted the proceedings. It is to be noted that not only the conduct complained about be unfair to the Appellant in addition, it must prejudicially affect the final outcome of the Tribunal.
    
13. The procedure required to be followed by the Referee in conducting a proceeding under the Decree are laid down in Sections 24 - 29. These provisions require an informal, non-adversarial proceeding before the Small Claims Tribunal.
    
14. Section 15(4) of the Decree states that;
    

'The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so ... shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.'

15. During the hearing of the claim, the Appellant called only one witness before the tribunal to prove his case. Ms. Aggie Veisa who was a tenant of Appellant's property stated that the Respondent also occupied the property as a tenant at the time of the incident. She stated on a particular day a truck came to collect the scrap metal from the Respondent's husband's garage and after collecting them the Respondent asked to take the 'angle line' which was on the ground. She stated that the Respondent received money for the 'angle line'.
    
16. The Referee has then invited the Respondent to speak on the matter. She has pointed out the discrepancy of the particulars of the claim and the evidence of Ms. Aggie Veisa. The claim states that she sold the 'angle line' to a driver of a vehicle and according to the information she gathered from the LTA, the one who received the 'angle line' is a person in the west and the vehicle registration number belongs to a taxi and not to a scrap metal collecting truck. Further the attempts of the Appellant's to call another witness on his behalf went futile. Therefore the Referee ruled that the Appellant claimant has not proved the claim.
    
17. Section 26(1) of the Small Claims Tribunal Decree states that the "evidence tendered to a Tribunal by or on behalf of a part to any proceedings need not be given on oath". However Rule 9(2) of the Small Claims Tribunal Rules states that "even if a respondent fails to appear at a hearing, the tribunal must not make an order (other than relating to an adjournment), unless it satisfies itself of the claimant's case by calling for evidence".
    
18. Therefore the Referee has to evaluate the evidence (either sworn or unsworn) before making an order in a matter before him. In the present case the learned Referee has correctly followed the procedure and ruled that the evidence adduced in support of the claim has been strongly shattered by the Respondent and therefore it is unsafe to act on such evidence.
    
19. There is nothing on record to conclude that the learned Referee acted prejudicial manner toward the Respondent during any of the stages of the proceedings. The Appellant was given ample opportunity by accommodating several adjournments to call any other supportive evidence.
    
20. Having considered the aforementioned findings, I am of the view that this court has no reasonable ground to consider any of the grounds of appeal raised by the Appellant.
    
21. Pursuant to section 33 of the Small Claims Tribunal Decree the Appellant failed to satisfy this court that the proceedings in the tribunal was conducted in an unfair manner which was prejudicially affected the final result of the tribunal.
    
22. Accordingly the appeal is dismissed.
    
23. Costs summarily assessed at $ 500 and it should be paid forthwith to the Respondent by the Appellant.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

24th January 2013