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Shah v Singh [2015] FJMC 29; Appeal 50.2014 (4 March 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Appeal No. 50 /2014

BETWEEN:

NADEAN SHAH
APPELLANT

AND:

LOCHAN SINGH
RESPONDENT

The Appellant in person
The Respondent in person
Date of Judgment : 04 March 2015

JUDGMENT

1. The appellant has filed this appeal against the decision from the Small Claim dated 27 August 2014 .The tribunal ordered him to pay $540.00 for the work done by the respondent.
   
2. In his notice of appeal the appellant raised the following grounds.
   
   1. The decision was biased as the referee conducted the case behalf of the respondent who was not present during the hearing
      
   2. The claim was not justified by the respondent.
      
   100. The wages claimed by the respondent does not fall within the Decree
        
   4. The referee was unfair and the appellant was not given an opportunity to present his case.
      
3. Both parties appeared before me and were given time to file their respective submissions with regard to this appeal . In his submission the appellant said on the 2nd hearing day even though the respondent was not present the referee continued with the hearing and questioned the witnesses called by the appellant and referee has no jurisdiction to hear this claim as this was with regard to recovery of wages .
   
4. The respondent in his submission said that he failed to appear on the 2nd day as he was attending a funeral in Labasa and this was informed to the tribunal.
   
5. Having considered the above submissions now I would consider the applicable law for this appeal.
   
6. 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.
      
7. His Lordship Justice W D Calanchini (as he then was) in Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 727; Civil Appeal 17.2011 (10 November 2011) stated;
   

"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. I have carefully perused the Small Claim Tribunal record as well as the respective submissions filed by both parties. From his submission I find that the appellant is relying on both grounds in section 33 of the Decree for this appeal.
   
9. For exceeding the jurisdiction the appellant submitted that the tribunal has no power to decide about the recovery of wages. His contention was based on the sections 22(3), 22(1) and 16 of the Decree.
   
10. Section 22(3) deals with agreements where it requires for disputes to be submitted for arbitration. But in this case there was no agreement between the parties for arbitration for their dispute. Section 22 deals with the claim to be forwarded to Magistrate Court where there is no jurisdiction for the tribunal and this would be mostly applying for matters where the claim exceeds the monetary limit. Also I find there are no provisions in the Decree to prohibit the parties to recover wages in the Small Claim for the work they performed. Therefore I find that this ground about jurisdiction has no merit.
    
11. The second ground taken in this appeal was that the referee was acting in unfair manner. In his submission the appellant submitted several factors to substantiate this claim.
    
12. On the 2nd day the respondent was not present but the referee continued with her hearing . The appellant did not object at that time to continue with the hearing. Also referee has given the witnesses for the appellant to give evidence and even though asked questions from them I do not find that would be constructed as being unfair. I also find throughout the hearing the appellant was given the chance to submit his version and to call his witnesses which in fact he did on the 2nd day. Even though the respondent did not call any other witnesses apart from himself the tribunal accepted his version. The referee after considering the evidence has accepted the version presented by the respondent and I find no fault in that. The tribunal has based this on the credibility of the witnesses . In an appeal stage this Court can't consider the merits of the case. Only things I have to decide is whether the referee acted unfairly or exceeded the jurisdiction in reaching his decision as per section 33 of the Decree.
    
13. Based on the reasons as set down in my decision I find that the referee has reached the correct decision based on the available evidence . Therefore I dismiss this appeal.
    
14. Considering both parties appeared personally in this appeal and the time taken I decide not to award cost for this appeal.
    
15. 30 days to appeal
    

H.S.P.Somaratne
Resident Magistrate, Suva