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March v Smith [2013] FJMC 423; Civil Appeal 50.2013 (10 December 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
CIVIL JURISDICTION

Civil Appeal No. 50 of 2013
SCT Claim # 1216/13

Between :

Edmund March
Appellant (Magistrates Court)/ Respondent (Small Claims Tribunal)

And:

Harry Smith
Respondent (Magistrates Court)/
Claimant (Small Claims Tribunal)

Appellant/ Original Respondent: In Person
Respondent/ Original Claimant: In Person.

Ruling

1). Introduction
The Appellant/Original Respondent (Mr. March) in this action has appealed the decision of the Referee that "The respondent pays $300.00 monthly starting from June 2013 until the total sum of $1800.00 claimed is fully paid."

Mr. Harry Smith had filed a claim for a sum of $1800.00 in the SCT. The sum claimed by Mr. Smaith was owed to Business Equipment Limited. Mr. Harry Smith on his letter-head was given authority by Business Equipment to recover the monies. The Letterhead of Mr. Smith states "Debt Collection Service (Fiji Wide), Registered Bailiff, Private Investigation and distress for Rent." Both Parties had appeared in SCT.

The parties have made written submission which this Court has considered.

2). The Grounds of Appeal
The Appellant/Original Respondent's grounds of appeal (as per the notice of appeal filed) are as follows "the decision made by the referee was unfair ..."

3). The Law
Section 33 of the Small Claims Tribunal Decree 1991 provides that:

"(1) Any party to proceedings before a Tribunal appeal against an order made by the Tribunal under section 15(6) or section 31(2) 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 the proceedings; or

(b) the Tribunal exceeded its jurisdiction."

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that 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: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

4). Observations
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. The grounds of Appeal advanced by the Appellant have been reproduced above.

This Court has carefully examined the Small Claims Tribunal records, the documents tendered in the Small Claims Tribunal and the submissions made by the parties.

The Claim arose out of a debt owing to Business Equipment Limited (hereinafter "the Company"). Mr. Harry Smith who is in the business of debt brought the claim in the SCT in his name to recover the monies owing to the Company.

The first issue that this Court would like to address is one of Locus Standi, which means the right to appear and to bring an action. This Court has noted from the records and submissions made that the Company has given authority to Mr. Smith to collect its debt and thereafter Mr. Smith filed an action in the Small Claims Tribunal in his name, as the claimant. Despite the fact that the Company has authorized Mr. Smith to collect its debt the primary function of the Small Claims Tribunal Decree is to attempt to bring the parties to a dispute to an agreed settlement (as per section 15). The parties in dispute in this matter are not Mr Smith and Mr. March. The Company needed to file the claim in the SCT against the party whom it alleges owed them money.Mr. Smith was not owed any money by Mr March and therefore he cannot bring an action in the SCT as if Mr. March owed him money.

This Court further notes that Section 24 (2) of the Small Claims Tribunal Decree provides that "Subject to subsections (3) and (6), no party shall appear by a representative unless it appears to the Tribunal to be proper in all the circumstances to so allow, and the tribunal approves such representative." The action should have been filed in the Company's name and the Company would then as per Section 24 (3) of the Small Claims Tribunal Decree appear through a representative whose appearance would need to be approved by the Tribunal. The representative appearing in the SCT could either have beeen an employee or a member of the company. Mr Smith in this action cannot bring an action in his name to claim on behalf of the company. The Small Claims Tribunal is not set up to allow action to be 'contracted out' as was in this case. This would simply defeat the purpose of the Small Claims Tribunal Decree, which is to bring the parties to a dispute to an agreed settlement. In simple terms the parties in dispute must appear themselves or file action in their names. If they are individuals, their personal appearance (filing in person) is necessary (except for minors or those with disabilities – provided for in the SCT Decree) and if they are corporations they can appear through an employee or member of the corporation. Mr Smith is neither an employee of the company nor a member. Furthermore, he cannot file an action as the claimant for monies owing to Business Equipment.

Apart from the issue of locus standi, This Court has noted that Harry Smith has attached a letter of authority (on his letterhead) purportedly given to him by the Company giving him authority to collect $580.00 and 20% collection amounting to $116.00. Making the total sum due and owing as $696.00. The total sum owing to the Company according to a letter from them dated 11th April 2012 is $580.00. The claim filed (as per Form 1) by Mr Smith in the SCT is for a sum of $1800.00. This Court is not able to understand why the claim was for $1800.00 when the sum owed to the Company was $580.00. In addition to the $580.00 claimed reasonable and justifiable expenses could have been added.

This Court notes from the letter by the Company (dated 11th April 2012) that the sum claimed is for photocopying, binding and inserting works done by a Law firm (Nacolawa & Co) however, the Company is not clear who owes them or who had acquired its services. Whether it was Nacolawa & Co, or Mr Vilitati and Mr Edmund March. They are different entities and persons. If the work was done for the law firm, then the law firm owes the money. If work was done for Edmund March and authorized by him then he would owe the monies to the Company.

This Court would also ike to address a Consent Agreement dated 7th day of June 2012 between Harry Smith and Vilitati Daveta which states as follows:

"This is to confirm that Edmund March owes monies to Business Equipment with $696.00;

Edmund March will pay through monies received from Court Cases;

Edmund March assures to pay $1000.00 to cover for his debt;

Harry Smith will collect the monies on behalf of Business Equipment."

This agreement purports to state that Edmund March owes the debt. What this Court finds odd about the agreement is that it is entered by Vilitati Daveta stating that Edmund March will pay the Monies. The first issue is does Vilitati Daveta have authority to enter into the agreement for Edmund March. Secondly, the Court notes the discrepancies in the sums in the agreement. It states that $696 is owed and the Edmund March will pay $1000 to cover the debt. Mr Smith in SCT claimed $1800.00. With such discrepancies the only reasonable conclusion this Court can draw from this agreement is that it was drawn up to show that Mr. March will pay the sum. No clause in the agreement states that Vilitati Daveta has authority to enter into the agreement for and on behalf of Mr. March. This agreement is not binding upon Mr. March. One cannot without any express authority granted to him enter into an agreement for another. Mr Daveta, a Legal Practitioner at that time should have known this.

Having noted the discrepancies, this Court finds that there was unfairness to the Appellant (Mr March). Having noted the documents and the submissions this Court finds that the Claimant had no locus standi to bring the action in the Small Claims Tribunal. Vilitati Daveta had no authority to enter into an agreement for the appellant to pay the debt, in the absence of express authority. The Company has a claim against Nacolawa and Co, which in fact is a law firm, which is not operated by the appellant, Mr Edmund March. Therefore to claim against Edmund March is unjust and wrong.

5.) Conclusion

The appellant has met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

For the given reasons given above, the appeal is allowed. The orders granted in the Small Claims Tribunal are quashed. Any party aggrieved with this Ruling has the right to appeal to the High Court within 30 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE

10th December 2013