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Electronic Vision Ltd v Cakau [2013] FJMC 318; Civil Appeal 2719.11 (9 July 2013)

IN THE RESIDENT MAGISTRATES' COURT AT SUVA
CIVIL JURISDICTION

CIVIL APPEAL No.: 2719/11
S.C.T No.:35/12
BETWEEN:

ELECTRONIC VISION LIMITED
APPELLANT

AND:

LIVAI LABALOTO CAKAU
RESPONDENT

Appellant: Present
Respondent: Present

RULING

1. INTRODUCTION
   

This is an appeal against the decision of the "Small Claims Tribunal" referee dated 29thFebruary 2012. The "Small Claims Tribunal" (Tribunal) held that the Appellant in this litigation ELECTRONIC VISION LIMITED should pay the Respondent in this litigation LIVAI LABALOTO CAKAU the amount claimed that is One Thousand One Hundred and Sixty Nine Dollars ($1169.00) in Two Hundred Dollars ($200.00) monthly installment starting from March 2012.

2. The appellant appealed against that order in the "Small Claims Tribunal" by filing a "Notice of Appeal" and grounds for appeal and Respondent filed a response to the same.
   

The Grounds of Appeal are:

1. "The referee was biased and he did not consider my side of the case and I was not given the opportunity to present my case.
   
2. He only conceded the evidence given by the other party."
   

3. Further in the written submissions filed by the appellant states as follows; That;
   
   • "The submission dated 13/2/12 was not considered by this referee and failed to refer to the repair conditions
     
   • The claimant did not provide any evidence of the purchase price, the place of purchase and the date of purchase.
     
   • Also the claimant said it was a new item and if it was so then there should have been a warranty on that.
     
   • It is evident that in the absence of any of the above, the item was old, owner used and defective. He was told clearly that it cannot be repaired, upon his insistence an effort was made to have the eject mode function. The claimant should have collected the item within 14 days which he failed to do so.
     
   • the claim for his payment was overlooked due to change of the service clerk and also the receipt was made under the name of Mr. Vulaono and not under Mr. Livai Labaloto's name, upon through inspection of receipts it was discovered only $20.00 was paid as deposit.
     
   • the claimant was well aware of our conditions of repair, he should have taken the item back and pay the cost for diagnosing fault and payment of assembling. The referee failed to consider all this yet accepted a bogus quotation which is the price of a new item
     
   • the item is in the same condition as it was given for repair.
     
   • Further, the applicant states that the claim should be dismissed and the respondent should collect the item from his shop as soon as possible."
     
4. I consider Respondent' submissions and response to the grounds to appeal and in which is inter alia states that"... The referee was not biased and he considered all the evidence and it took 03 months to consider all the evidence and made decision...."
   
5. Both parties filed written submissions, since the matter could be decided on written submissions and I have taken into consideration the same. It is also prudent to note that the unrepresented appellant seems to be confused because in his submissions he identifies himself as the respondent. And also I note that on 3-5-13 and sought the court to dismiss the case. Further there is no particular relives has sought by the Appellant.
   
6. THE LAW
   
1. Small Claim Tribunal Decree 1991sec. 33(1) provides grounds for Appeals from Small Claim Tribunal. Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:
   
   • (a) 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.
     
2. Ground (a) is distinguishable from a general right of appeal discussed under Section 36 of the Magistrates Courts Act (Cap.14) and Section 12 of the Court of Appeal Act (Cap.12); In addition, ground (a) refers to the manner in which the referee conducted the proceedings as a fundamental concern of the right of appeal.i.e., the Referee conducted the proceedings violating the basic principles of 'procedural rules' such as not observing to the rules of natural justice, audialterampartem rule, etc.(the procedure to be followed by the referee in conducting a proceeding stated in Sections 24 to 29 of SCT Decree)A superficial analysis of these provisions helps to highlight the informal, non-adversarial nature of the proceedings before the Small Claims Tribunal contrary to general appeal on the merits or for errors of law.
   
3. The Small Claims Tribunal Decree 1991 further provides: Functions and jurisdictions of Tribunal. Section 15.
   
   • (1) The primary function of a Tribunal is to attempt to bring the parties to a dispute to an agreed settlement.
   • (2) ..,
   • (3) ...
   • (4) The Tribunal shall determine the dispute according to the substantial merits and justice of the case, and in doing so shall have regard to the law but shall not be bound to give effect to strict legal rights or obligations or to actual forms or technicalities.
     
7. The appellant states that the referee "The referee did not consider the submission dated 13/2/12. Failed to conduct a hearing proper on 13th August. The referee did not conduct a hearing, did not allow witnesses to be called or evidence to be given. He simply summarized the papers before him and gave a decision without giving the appellant any opportunity to be heard and to call evidence.
   
8. In relation to this claim it is it is noteworthy to draw my attention to the Referees appeal report dated 27thMarch 2012, which states inter alia that " both appellants were present at the 1st call on 16-1-10,1st hearing was held on 07-06-10 and both parties were present.Before the second hearing date both parties filed their written submissions and both parties were present on the 2nd hearing on 08-07-10.The report further reveals that on 12-07-10 the referee received a detailed police report. The matter was adjourned to 13-08-10". This clearly shows that the Applicant wereappeared before the tribunal and it is appears that on 13-08-12 referee delivered the order.
   
9. Pursuant to Section 16 a tribunal can make inter alias following orders;
   
   • A Tribunal may, as regards any claim within its jurisdiction, make one or more of the following orders and may include therein such stipulations and conditions (whether as to the time for, or mode of, compliance or otherwise) as it thinks fit:
     
   • the Tribunal may order a party to the proceedings to pay money to any other party;
     
   • the Tribunal may make an order declaring that a person is not liable to another in respect of a claim or demand for money, the delivery of goods or chattels, or that work he performed;
     
   • if it appears to the Tribunal that an agreement between the parties, or any term thereof, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, the Tribunal may make an order varying the agreement, or setting it aside (either wholly or in part);
     
   • if it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, the Tribunal may make an order varying or setting aside the agreement, or the writing (either wholly or in part);
     
   • the Tribunal may make an order dismissing the claim.
     
10. Pursuant to section 17 an order made by a Tribunal shall be final and binding on all parties to the proceedings in which the order is made, and subject to section 32 and except as provided in section 33, no appeal shall lie in respect thereof.
    
11. The non-legalistic nature of a Tribunal proceeding is further exemplified by the requirement in Section 15(4) of the Decree.The scope of appeals under this provision was discussed by Fatiaki J in Sheet Metal and Plumbing (Fiji) Limited -v- Uday Narayan Deo Civil Appeal No. 0007 of 1999. His Lordship referred to Section 15(4) of the Decree which provides;"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."
    
12. In Hertz New Zealand Ltd. v. Disputes Tribunal (1994) 8 PRNZ where Greig J. said in rejecting the appeal in that case, at p.151: '... there is no appeal on the merits even if there is a clear and fundamental error of law in the conclusion of the Tribunal.'
    
13. Justice W D Calanchini said (his lordship as then) in Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 720; Civil Appeal 17.2011 (10 November 2011) "Under the grounds of appeal relied upon the Respondent was required to identify some unfairness in the manner (form) of the hearing before the Tribunal and not simply the result. Put bluntly, there is no right of appeal on the merits even when there may be a clear error of law in the Tribunal's decision". Further, in VidyaWati& Suresh Charan v. Waqabaca Truck Hire and Machinery [2005] HBA 0001/2005 on 04th May 2005 Per Singh J], where it was held that, "an error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the cas" Sheetmetal and Plumbing (Fiji) Limited v. Uday Narayan Deo - 45 FL R 80, where Justice Fatiaki endorsed the principles expressed by Greig J in Hertz New Zealand Ltd. v. Disputes Tribunal - 1984 8 PRN2 at 151 as "there is no appeal on the merits even if there is clear and fundamental error of law in the conclusion of the tribunal". [Emphasis added]
    
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.' 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) and the primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) and (b) of the "Small Claims Tribunal" Decree.
    
15. Appellant submits that the way the trail was conducted culminated in a denial of natural justice to the Appellant (Electronic Vision Limited). Failing to consider evidence adduced points to total disregard of the Appellants case.
    
16. I examined the "Small Claim Tribunal" record. Tribunal records reveal there were:
    

4 hearing was conducted in the tribunal from December 2011 to February. The minute dated 2012 24-01-12 reads amongst others that the case adjourned enabling the respondent to "bring the technician who was in Lautoka. But respondent has not done that."I also note that on all occasions before the tribunal the both parties were present.

17. These records reveal that the Appellant was given several opportunities to reply the claims of the Respondent .The Records also reveals that the Appellant provided documentary evidence to support the claim.
    
18. Section 24 reads that; the hearing of a claim every party shall be entitled to attend and be heard. Upon perusing the record I hold that the appellant was present before SCT and oopportunities had been given to heard and to call evidence.
    
19. Accordingly the record fails to show any evidence of procedural unfairnesspartiality and unfairness.
    
20. The rule against bias and the right to be heard is different concepts.(Nemojudex in causasua and Audi alterampartem)or simply Impartiality and Fairness. Which is so fundamental to a conduct of fair hearing? The principle of natural justice varies on the circumstances of each case and the subject matter under consideration.
    
21. The scope of appeals from SCT is limited. Therefore this court not wishes to analyse in detail about the above principles. The appeal only lies either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits:
    
22. The primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) and (b) of the "Small Claims Tribunal" Decree.I find the Appellant has not provide any valid and material reason to satisfied the learned referee in Small Claim Tribunal conducted the proceedings in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings (and or tribunal exceeds its jurisdiction). Hon. Justicce W D Calanchini (as he then was) more elaborated on this regard in Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 727; Civil Appeal 17.2011 (10 November 2011) as follows;
    

"In essence the ground allows for an appeal to the Magistrates on the grounds that the appellant has been denied natural justice in the form of procedural fairness which has prejudicially affected the result of the proceedings. The other allowable ground of appeal under the Decree is that the Tribunal exceeded its jurisdiction. Together they represent a limitation on the general principle that an appellant's right to appeal is as of right in respect of an error of law and/or fact. It is a right of appeal which requires the appellate court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine whether the applicant's complaint has any merit. There is certainly no right of appeal in respect of any error of law nor in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing."

23. Further, I am of the view that the grounds of Appeal are referringto question the merits of referee's decision without pointing to any procedural unfairness. Hence, they cannot be legally accommodated. There can be no appeal on merits. (Sheet metal and Plumbing (Fiji) Limited vsDeo – HBA 07 of 1999).
    

"In essence the ground allows for an appeal to the Magistrates on the grounds that the appellant has been denied natural justice in the form of procedural fairness which has prejudicially affected the result of the proceedings. The other allowable ground of appeal under the Decree is that the Tribunal exceeded its jurisdiction. Together they represent a limitation on the general principle that an appellant's right to appeal is as of right in respect of an error of law and/or fact. It is a right of appeal which requires the appellate court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine whether the applicant's complaint has any merit. There is certainly no right of appeal in respect of any error of law nor in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing."Even more trenchant is the view expressed by Greig J. in Hertz New Zealand Ltd. v.Disputes Tribunal (1994) 8 PRNZ where his honour said in rejecting the appeal in that case, at p.151: '... there is no appeal on the merits even if there is a clear and fundamental error of law in the conclusion of the Tribunal.'

24. CONCLUSION
    

The appellant failed to satisfy the Court that the proceedings were conducted in an unfair manner.Accordingly final orders are:

(a) Appeal Dismissed, In view of the reasons set out in above paragraphs and as this Court not satisfied that the Small Claims Tribunal proceedings were conducted in manner which falls within any of two limbs set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree.

(b) I make no order with regard to costs.

(c) Respondent is now free to enforce the order of the Small Claim Tribunal.

28 days to appeal.

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Lakshika Fernando
Resident Magistrate
On this 09th day of July 2013