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Yawainaibili v Deo [2014] FJMC 163; Appeal 42.2014 (18 December 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Appeal No. 42/2014

BETWEEN:

VILIKESA YAWAINAIBILI
APPELLANT

AND:

SHARESHANI DEO & RITA PRITESHANI CHAND
RESPONDENTS

The Appellant in person
Rigsby Law for the Respondents

JUDGMENT

1. The appellant has filed this appeal against the decision of the Small Claim referee dated 15th July 2014 where he held in favor of him. In his award the referee decided that the Dean & Associate (employer of the respondents) is liable for a sum of $1450.00 to be paid within 28 days.
   
2. In his notice of appeal the appellant raised following grounds.
   
   1. The decision was biased
   2. The letter tendered in Court was not the letter signed by the director and it was not dated and stamped.
   100. The Court relied on the letter and not even called anybody from the company side (current workers) to confirm that in Court.
   4. The parties should be Sherani Deo & Rita as in my application.
      
3. Both parties were given time to file their submissions with regard to this appeal. In his submission the appellant said two respondents in this appeal advertised in Fiji Sun and radio regarding work related visa for Australia and after visiting their office he paid $1450.00 to the respondents. When he visited the office on 06th November 2013 he found the office closed and after filing an action in police station lodged a claim in the tribunal. But the tribunal after considering a letter presented by the respondents ordered the company to pay this amount.
   
4. In their submission the respondents submitted all the parties were present during the tribunal hearing and after considering the receipts tribunal advised the appellant in I-Taukei language the proper respondent should be the company (Dean & Associate) and the appellant agreed to that. Also this amendment was done pursuant to section 20(2) of the SCT Decree. Therefore it was further submitted that this appeal should be dismissed.
   
5. Section 33 (1) of the Small Claim Decree provide the right to appeal against the order of the small claims tribunal to the Magistrates' court under very limited grounds.
   
   1. 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,
      
   2. The Tribunal exceeded its jurisdiction.
      
6. I have carefully perused the Small Claim Tribunal record as well as the respective submission filed before me. From the appeal and the submission I find the only grievance of the appellant is that the referee substituting the company as the respondent in the hearing and awarding the claim against the said company.
   
7. During the hearing all the parties were present and all the receipts tendered by the appellant shows that the payments were received by the company. Therefore even though the two respondents received these payments in the first instance this claim should have been lodged against the company.
   
8. Also the tribunal after considering the letter issued by the company decided to substitute as the respondent in that claim. Even though the original proceedings are not available to me I have gone through the Referee's appeal report where it was stated that the claimant (appellant) was advised by the respondent in native language that the proper respondent should be the company and he agreed for that. Therefore the name was amended pursuant to section 20(2) of the SCT Decree which states that:
   

"A Tribunal may at any time, order that the name of a person who appears to it to have been improperly joined as a party be struck out from the proceedings.

9. From the documents available to the tribunal it decided that the relevant party to this claim is the company and not it's employees. According to the appeal report this was also explained to the claimant and he also agreed to that. Therefore I do not see any merits in this appeal.
   
10. Accordingly I dismiss this appeal with a cost of $100.00 summarily assessed to be paid to the respondents.
    
11. 30 days to appeal
    

18th December 2014

H.S.P.Somaratne
Resident Magistrate, Suva