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Sanjay v Devi [2019] FJMC 37; Civil Appeal 18 of 2017 (22 March 2019)

IN THE MAGISTRATE’S COURT AT LABASA

APPELLATE JURISDICTION
Civil Appeal No. 18 of 2017

SCT Claim No. 224 of 2017

BETWEEN : SANJAY
APPELLANT

AND : VIKASHNI DEVI
RESPONDENT

Appearance : Appellant in person

Ms Devi. S for the respondent

Judgment : 22 March 2019

JUDGMENT

1. The Appellant is appealing the order of the Small Claims Tribunal (Tribunal) made on 24 April 2017. The notice of appeal was filed on 8 May 2017, and was within the 14 days required under section 33(3) of the Small Claims Tribunal Act (Act).
   
2. On 12 July 2017, both the Appellant and the Respondent have confirmed to the court that they have received the copy record for the Tribunal proceeding. Directions were issued for filing of submission.
   
3. The Respondent filed her submission on 8 August 2017. The Appellant filed his submission on 16 August 2017. The appeal was heard on 28 November 2017.
   
4. Both the parties gave oral submission on the hearing date.
   

Grounds of appeal

5. In perusing the notice of appeal, the only ground that can be identified is that the hearing was unfair and biased by favouring the other party without merit. The other write up are on the facts of the case.
   

Law

6. Section 33(1) of theAct state that the order of the Tribunal can only be appealed on the following two grounds ;-
   1. “the proceeding were conducted by the referee in a manner which was unfair to the appellant and prejudicially affect the result of the proceeding; or
   2. the tribunal exceeded its jurisdiction.”
      

Appellant’s case

7. The Appellant stated in his oral submission that the decision of the referee was not fair. He was not allowed to call the electrician and technician who repaired the items as his witness. The referee only listen to the Respondent story and he was not given the chance to present his case. The Tribunal did not deliberate on the returning of the product. He request for the claim to be referred back to the Tribunal for hearing before another referee.
   
8. They were not given any chance to response any if they were given the opportunity they would not appeal.
   

Respondent’s case

9. The Respondent submitted that the copy record shows that the Respondent case was heard. Usually, on the first hearing date, the parties are required to bring their witnesses. She will rely on the submission filed. The appeal does not meet the required threshold of the appeal. The grounds of appeal goes to the merit and the appeal must be discharged.
   

Analysis and determination

10. The ground of appeal that the hearing was unfair and biased by favouring the other party without merit comes under section 33(1)(a) of the Act. That is the referee conducted the proceeding in an unfair manner to the Appellant that prejudicially affect the result of the proceeding.
    
    11. The manner in which proceeding must be conducted are stated in Sheet Metal Plumbing (Fiji) Ltd v Deo [1999] FJHC 26,where Fatiaki.J stated;-.

“As to the manner or procedure required to be followed by the referee in conducting a proceeding under the Decree these are principally to be found in section 24 to 29 (inclusive) under the heading HEARING.”

12. In Singh v Koroi, Civil Appeal No. HBA 16 of 2014 (18 September 2015),Alfred. J, stated at paragraph 24 ;-

“With all respect, I do not think the Referee can take such attitude as evinced above. At the least, he should have asked the Appellant whether her witness were present and recorded her answer whether it be in the affirmative or the negative.”

13. The High Court further stated in Singh v Koroi in paragraph 22

“...the Tribunal is required to adopt a procedure that will meet the ends of justice....”

and in paragraph 15 it state

“Although the Tribunal is not a court, it still required by section 29 of the Decree to adopt such procedure as it thinks best suited to the ends of justice. In my opinion, the procedures best suited to the end of justice, is the procedure which complies with the lodestar for both civil litigation and the alternative system set up to give ready access to those with small claims to have them resolved, which are;

(i) Audi alteram partem which means requires a tribunal to hear the other side ....”

14. The minutes of the Tribunal proceeding are in page 27 and 29 of the copy record. The record shows that the claimant gave his statement or evidence to the referee and the same was recorded. The copy record stated that the hearing before the Tribunal was on 11 April 2017, but the original record of the Tribunal proceeding in the file, the hearing was on 24 April 2017. The difference in dates does not prejudice any parties to the proceeding.
    
15. The Appellant' oral submission that the referee was not fair by not allowing him to call his witness. The referee did not allowed him to call the electrician and technician who repaired the items as witness. There is nothing in the record to show that the Appellant did requested the referee to call his witness. According to the case of Singh (supra),it is the referee who should asked the Appellant if he had any witness to call and for the referee to record the witness statement as evidence if any. That was done in this case according to the record and accordingly the referee did not conducted the hearing fairly.
    
16. The submission that the referee only listen to the Respondent story and he was not given the chance to present his case has no substance as the copy record says otherwise. The copy record shows that the statement or oral evidence of the Applicant. That shows that the referee was listening to him and gives him the opportunity to present his case.
    
17. Though, the submission filed by the Appellant did not address the ground of appeal put forward, the error in the proceeding highlighted is sufficient to allow the appeal. In the written submission, the Appellant stated that the Referee did not consider any arguments of the Applicant’s goes to the merit of the case are not a permissible ground of appeal. The Referee was unfair by not ruling for the return of the items goes to the merit of the case and not a permissible grounds
    
18. I have considered the copy record, the written submission filed by the parties and the applicable laws and relevant case authorities in this judgment.
    
19. In this judgment, I allow the appeal and I make the following orders ;-
    
    1. The order of the Small Claims Tribunal made on 15 November 2017 is hereby quashed.
       
    2. I order a rehearing of the claim in the Tribunal before another Referee (other than the Referee whose order is now quashed).
       
    100. I make no order as to costs.
         

28 days to appeal.

C. M. Tuberi

RESIDENT MAGISTRATE