IN THE FIRST CLASS MAGISTRATES COURT AT SUVA
CIVIL JURISDICTION

Civil Case No. 50/2014

JOSEFA KURUYAWA
[APPALENT]

v.

KEVIN Mc CARTNEY
[RESPONDENT]

Later Amended to

BSP BANK Ltd
[NEW RESPONDENT]

Judgment

[1] The Appellant file this appeal against the dismissal of his claim by SCT. Initially this case was filed against Kevin McCartney who was an employee of the bank. But at the appeal proceeding with the consent of appellant and BSP Bank caption amended and BSP Bank entered as the Respondent. 

 [2] This matter 1st filed by the respondent bank in 1998 under case number of SCT 0311/98. The appellant has appeared before SCT but Claimant Bank (then National MBF Finance) has failed to appear. Therefore the referee has dismissed the claim of $ 1126.49 being the alleged arrears of credit card issued to appellant of this matter.

[3] The respondent Bank did not appeal against the dismissal or file fresh case at Magistrate court until year 2014 which is after 17years when the appellant decide to switch to another bank. This time the Respondent bank did not take legal action but has deducted the arrears directly out of appellants Home Loan account.

[4] Since the appellant was not satisfied about this action of the bank made claim against the bank under case number SCT CLAIM 2002/2014. At the hearing both party has appeared and referee made the ruling in favor of the respondent Bank and dismissed the appellant claim on the ground that the Clamant has failed to prove that he does not owe any monies to Bank.
 
[5] This appeal filed with pursuant to section 33 SCT Decree.

"Sec 33.-(1) 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) 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.

(2) An appeal brought pursuant to subsection (1) shall be made:

(a) if against an order made by a Resident Magistrate exercising the jurisdiction of a Tribunal to the High Court; and

(b) in any other case, to the Magistrates' Court.............etc" 

[6]The main issue before this court is whether the referee errored in law when making decision to dismiss the claim or not? And for this issue at the hearing both parties make oral submissions. 

[7] At Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 727; Civil Appeal 17.2011 (10 November 2011). Hon. Justicce W D Calanchini (as he then was) more elaborated the meaning 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." 

[8] As per the appellant he has been disputing this claim of the Bank since 1998 due to the fact that he never used the credit card for the transaction in issue. The Bank failed to prove if and the claim was dismissed for nonappearance of Bank. Therefore this court thinks the Bank had no barrier to file fresh claim before SCT of appeal against it. But without involving in legal proceedings Bank had deducted the monies from his home loan account. 

[9] Further appellant added that this deduction has happened after 17 years which is against the Provisions of Limitation Act. He stated that after the matter was dismissed by SCT in 1998 the Bank issued another Credit card whilst the claimed was pending against him. He raised the issue that if he had pending due how the bank issued him new credit card as it is abnormal. 

[10] The appellant states that the referee errored in law when dismissing his claim as the bank had agreed on the fact of deduction of the said amount the burden is vested with bank to justified the deduction. But the Bank did not tender any document or evidence relevant to it using of the said credit card in year 1998 except bank statement which the appellant had disputed since 1998. 

[11] Therefor appellant states that his claim would have been granted. But in contrary the referee want him to prove the negative side. More specifically appellant was supposed to prove that he did not owe any money which is against the basic principle of evidence that one who relaying on any fact must prove it and the burden is vested with the same person and not with the opponent. 

[12] The Respondent Bank stated that as per practice of Banks they could deduct any outstanding amount as they wish. When requested this bench Failed to provide any statutory provision or contractual provision. The Bank was totally relaying on the same document the balance sheet which already challenged by appellant 17 years ago. 

[13] Respondent admits that they have no evidence to prove the fact that when or where or for what the credit card has been used or the transaction. The burden of prove any transaction is vested with the bank as the creditor. Further Bank has no explanation on issuing 2nd credit card to appellant whilst there was pending arrears on 1st credit card. 

[14] The bench called the file record of the 1998 SCT matter to see any information or document about the transaction in issue but there was none filed except the balance sheet. 
[15] According to Law the Burden of Proof is incumbent on the Plaintiff to prove its claim on the balance of probabilities. The Court in Narayan n Krishna [2012] FJMC 223, held that:

"11. The burden of proof lies upon the party who substantially asserts the affirmative of the issue (Robins v National Trust Co. (1927) A.C. 515). The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is "Ei qui affirmant non ei qui negatincumbit probation". It was held in Levy v AssicurazioniGenerali (1940) A.C. 791 that "this rule is adopted principally because it is but just that he who invokes that aid of the law should be the first to prove his case, and partly because in the nature of things, a negative is more difficult to establish than an affirmative".

[16] The standard of proof required in civil cases is generally expressed as proof on the balance of probability. Lord Denning in "Miller v Minister of Pensions (1947) 2 All E.R 372) held that "if the evidence is such that the tribunal can say "we think it more probable then not' the burden is discharged, but if the probabilities are equal it is not".

 [17] When evaluating the evidence placed before this court it is evident that the SCT has made an error of law by shifting the burden to appellant to prove the negative instead of the Bank to justify the deduction as they did not disputed the deduction of money. This is clearly breach of procedural fairness demand by SCT Decree. 

[18]Further even the other facts which agreed by both side more tend to think that there was no pending arrears or there was no transaction taken place or the bank has weave its rights of claim

 [19] Based on the above mentioned reasoning this court order;

a)	The SCT Order dated 24/10/2014 to be null and void as it based on error of law on burden of proof which is against the procedural fairness demanded by SCT Decree. 

b)	In addition the Respondent should repay deducted $ 1126.49 out of appellants Home Loan Account as respondent failed to discharged the burden of proof on relevant transaction.

c)	 The Respondent must pay $300 as cost of the appellant; including Court Fee, Bailiff Fee, Solicitor Cost within 14 days from the date of this judgment and; 

d)	Pursuant to Order 32 Rule 8 of the Magistrates Court Rules legal Interest at the rate of 5%, from the date of this judgment until the full sum is paid by the Respondent to the Appellant claimant, but total sum is limited to $50,000.

[20] Judgment to be entered accordingly.

On This 10th December 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate