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Ram v Hakim [2015] FJMC 88; Appeal 09.2015 (24 July 2015)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Appeal No. 09/2015

BETWEEN:

WALLAC RAM
APPELLANT

AND:

MOHOMMED HAKIM
RESPONDENT

Counsel : The Appellant in person
The Respondent in person
Date of Judgment : 24th July 2015

JUDGMENT

1. The appellant/Clamant (hereinafter referred as Appellant) has filed this appeal against the decision of the Small Claim referee dated 19th December 2014 . In his notice of appeal he said that he has a recorded conversation with the repair shop where he states that it is a temporary fix and the doors need to be replaced.

2. In his submission in this court the appellant submitted that the judge (referee) did not take in to consideration his evidence and was biased. Further he was not given an opportunity to ask questions from his witness (Frank Smith) and that witness was asked to leave the room. The Respondent appeared only on the first day and after that this court was informed that he is been remanded for another matter. Even though a production order has been issued the correction center has failed to produce him in the court and therefore I have no opportunity to hear his side in this appeal. But I am satisfied based on the submission of appellant I can give my judgment .

3. Section 33 of the Small Claim Tribunal Decree states:

"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."

4. His Lordship Justice 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 or in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing'.

5. From the record I note that the hearing was conducted on 02nd and 16th December 2014 with the participation of both parties. On the first day both parties presented their versions and the referee adjourned the hearing to another date to bring their witnesses.

6. The second day the witness (Frank Smith) was present and gave evidence. There is nothing in the record to show that that he was asked to leave the room or stopped from presenting his evidence. He was called by the appellant and I do not find any reason to allow the appellant to ask questions from this witness when he has already presented his version. Even though the appellant said he has a recorded conversation the referee considered that also for his decision.

7. After considering all the available evidence the referee has decided to dismiss the claim of the appellant. I do not see any reason to change his decision as that would be to consider the merits of his decision. From the record also I do not see the referee has exceeded jurisdiction or acted in an unfair manner.

8. Therefore I dismiss this appeal without cost.

9. 30 days to appeal

H.S.P.Somaratne
Resident Magistrate, Suva