IN THE SUPREME COURT OF TONGA 
APPELLATE JURISDICTION 
NUKU’ALOFA REGISTRY 

AM 02 of 2021 

BETWEEN:			TA’AI SIALE FINANCE
				MAKALITA TA’AI SIALE		
-	Appellants 

AND 	:			SELA MAFILE’O  
-	Respondent 

BEFORE HON. JUSTICE TUPOU

Counsel		 :	Mr. V. Latu for the Appellants
				Ms. A. Kafoa for the Respondent	 

Hearing date		 :	16 February 2021	

Judgement date	 :	23 February 2021

JUDGMENT

1.	This is an appeal against a judgment by Magistrate Tuita on 21 January 2021-

That the Appellant pays $1700.00 to the Respondent for a yam drilling machine
(machine) together with costs.

2.	In a one page agreement between the parties on 2 January 2020 the Appellants loaned $150 to the Respondent that was secured by the machine of the Respondent and the last day for repayment was 2 February 2020. The loan attracted interest of $7.50. The agreement also made a condition that if the loan is not paid by 2 February 2020, the Appellant can sell the machine to get back the money that was loaned.

3.	On Saturday 1 February 2020 the Respondent went to the Appellant’s office to pay her loan at about 7pm but was informed by the Appellant Makalita that it was too late and the machine had already been sold. 

4.	This resulted in the Respondent seeking the advice of the law firm of Siosifa Tu’utafaiva who filed a claim by summons in the Magistrates Court on 25 May 2020 claiming breach of contract by the Appellants and seeking the payment of $1300 for the machine plus $2000 costs. The hearing was to be on 11 June 2020. There is no record of the hearing in the documents submitted with the appeal but on 15 June 2020 the Appellant’s counsel Viliami Uasike Latu filed a Statement of Defence denying liability. On 29 June 2020 a statement in response to the Statement of Defence was filed by counsel for the Respondent Ms. Alyssa Kafoa. 

5.	On 24 November 2020 both counsel attended the Chamber of the Magistrate who directed the parties to file submissions by 4 December 2020 and he will make his decision based on those submissions. This was accepted by both counsel and counsel for the Respondent filed her submission on 3 December 2020 and counsel for the Appellants filed his submissions on 10 December 2020. 

6.	On 21 January 2021 the Magistrate gave his written decision which is now the subject of this appeal. 

GROUNDS FOR APPEAL

7.	That the judgment of the Magistrate was wrong in law and in facts particulars of which were as follows:

i.	The Magistrate in chamber on 24 November 2020 directed that both parties must file submissions on 4 December 2020 and he will base his Ruling on these submissions. 

ii.	On 21 January 2020 the Magistrate delivered to both parties his written judgment in favour of the plaintiff (Respondent).

iii.	The Magistrate made his ruling without hearing any evidence.

iv.	Section 86 of the Magistrates Court Act clearly states “that the hearing of every case shall be in open court.”

v.	In this case, no hearing in open court was carried out and the defendants (Appellants) were not given the opportunity to be heard and cross-examined as per usual practice. 

vi.	The direction of the Magistrate deprived the defendants (Appellant) natural justice and their constitutional rights.

RESPONSE BY RESPONDENT

8.	Counsel for the Respondent filed her Response to the appeal on 15 February 2021. She identified that the essential point in this appeal is whether the Magistrate was correct in ruling based on the submissions filed by the parties. 

9.	The issue she says are - 
i.	Whether or not there were no opportunity for the Appellants to be heard, give evidence and cross-examined as per usual direction.
ii.	Whether or not the direction of the Magistrate deprived the Appellant of natural justice and their constitutional rights.

10.	That when they appeared before the Magistrate (on 24 November 2020), both counsel agreed that the evidence pleaded in the statement of claim and defence will be the same when witnesses are called.

11.	The Magistrate then directed that the Respondent file her written submission and serve on counsel and for the Appellants to file and serve their response within a week.

12.	That the Appellants’ counsel did not oppose the direction given by the Magistrate on 24 November 2020 and only opposed it after judgment was given. 

13.	That the Magistrate did not err in law in giving his direction as section 59(4) and (5) of the Magistrates Court Act gave him that power.

14.	That with regard to section 86 of the Magistrates Court Act saying that “the hearing of every case should be in open court” - that the hearing was actually held in open court  even though it was in the Magistrate’s chamber. The reason is that there was no courtroom available and it was common practice in Tonga to conduct a trial in the Magistrate’s chamber as if it was conducted in open court. 

15.	That the failure of counsel to conduct a case in accordance with the instructions of the client should not be a ground for appeal. This was not raised in the Notice of Appeal nor taken up with the Magistrate and will be disregarded.

16.	That there is no indication in the Notice of Appeal of the disadvantages to the Appellant due to not having a formal hearing.

17.	That counsel for the Appellant did not indicate during the hearing before the Magistrate that there is a need to call and cross examine witnesses or that there is additional evidence to that provided in the pleading.

18.	That the Appellant did not challenge the decision of the Magistrate in his Notice of Appeal, and it is not necessary to re-hear the case, because the decision was based on the counting of days in the Interpretation Act. 

DISCUSSION

19.	It is important to keep in mind that this is an appeal and not a trial of the case. It is also important to remember that as required by section 79 of the Magistrates Court Act my decision “shall be given on the written evidence forwarded by the clerk.” This does not prevent me from hearing submissions from counsel, but no new evidence will be admitted except “on good cause shown by either party.”

20.	We see from the transcript of the hearing of the decision of the Magistrate made on 22 January 2021 and his written decision dated 21 January 2021 delivered to both counsel, that the Magistrate quickly identified that the contentious point argued by the parties is the day when the loan should be paid by, which is 2 February 2020 which was a Sunday.

21.	The Magistrate drew attention to section 18(3) and (4) which say that “on the happening of an event, and that day falls upon a Sunday……….then, unless the contrary intention appears………..it should be read as the day succeeding the Sunday.” Based on this, the Magistrate gave his ruling which is now appealed. 

22.	Considering the grounds of appeal, I see that the basis is the process, carried out by the Magistrate to arrive at his decision, was wrong in law and in fact. This is deciding the case on the written submissions and not having a hearing in open court when witnesses will be called and dealt with in the usual way.

23.	The question is, why did counsel not object to this process when the direction was made by the Magistrate on 24 November 2020. This is picked up by counsel for the Respondent in her reply to the appeal, and she goes on to say that both counsel agreed with the process directed by the Magistrate. In court, Counsel for the Appellants, when asked by me, why he did not ask the Magistrate to call witnesses and conduct the case in open court, he said he did, but there is no record of this and Counsel for the Respondents say that they both agreed with the direction by the Magistrate.

24.	To add to this, an opportunity was still available to Counsel for the Appellant when writing and submitting his submission. He should indicate that he is making his submission under protest that there should be a normal hearing of the case. His failure to do this leads to confirm that both counsel accepted the direction of the Magistrate and the ruling based on the written submissions. This was also referred to in the Reply from counsel for the Respondent.

25.	Both parties were directed to make written submissions and they did so. Hence there is no breach of natural justice as alleged in the ground of appeal. 

26.	The allegation that the Magistrate made his decision without hearing any evidence is correct if this means evidence from witnesses called to testify. But both counsel agreed to forego this when they agreed with the direction that the decision will be based on their submissions. Also, the pleadings filed in June 2020 were available to the Magistrate which formed the basis for his decision that there was only one matter to decide the outcome of this case and that was the ending date of the loan contract when that date falls on a Sunday. All the evidence concerning this key matter were present in the pleadings and the submissions of both counsel. 

27.	I asked counsel for the Appellant what was his clients’ constitutional right that he alleged the Appellant was deprived of and he said the right under section 10 of the Constitution which state -

“No one shall be punished because of any offence he may have committed until he has been sentenced according to law before a Court having jurisdiction in the case.”

The Magistrates Court has jurisdiction over this case and the Appellants were ruled to have breached their contract. There is no breach of section 10 and no denial of the constitutional rights of the Appellants. In addition, the claim is misconceived as section 10 refers to criminal cases and not civil like the present case. The words “offence” and “sentenced” clearly refer to a criminal prosecution. 

	CONCLUSION

28.	I find that the appeal is based on the process or procedure followed by the Magistrate in arriving on his decision. The decision was based on written submissions each party made as directed by the Magistrate. Both parties accepted the process and there was no objection raised or request for the case to be conducted in the usual way with calling of witnesses. 

29.	The appeal was not based on the merit of the case and the finding of the Magistrate on the date that the loan contract came to an end, 2 February 2020 being a Sunday meant, unless the contrary is otherwise proved, that the following day, being Monday 3 February 2020 is the day the contract came to an end, Interpretation Act S.18(3) and (4). The Appellants had breached the loan agreement by selling the machine on 1 February 2020 before the final day for payment by the Respondent was reached. 

30.	For completeness, I would like to say that even if I had to decide the case on its merit, I would still come to the same conclusion for the same reason as the Magistrate, that is, that the Appellants had breached the contract by selling the machine before the due date for repayments. 

31.	I have therefore come to the conclusion that the appeal fails and is dismissed and I make the following orders:

i.	That the appeal is dismissed.

ii.	That the decision of the Magistrate made on 21 January 2021 is confirmed.

iii.	That the costs of these appeal proceedings is awarded to the Respondent to be taxed by the Registrar if not agreed. 

										             	          Tupou J 
NUKU’ALOFA:  23 February 2021. 		              	            		  ACTING JUDGE