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Ali's Civil Engineering Ltd v Prasad [1995] FJHC 93; Hbc0003j.1994b (19 May 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 3 OF 1994

Between:

ALI'S CIVIL ENGINEERING LTD
Appellant

- and -

HARI PRASAD
s/o Bal Ram
Respondent

Mr. V. P. Ram for the Appellant
Mr. A. Kohli for the Respondent

JUDGMENT

The appellant (original Plaintiff - hereafter referred to as "P") appeals against the judgment of the learned Magistrate, Labasa delivered 30 November 1993 when he dismissed its claim against the Respondent (original defendant-hereafter referred to as "D") for the sum of $1710.

The details of P's claim as stated in the Amended Statement of Claim are as follows:

"The defendant requested the Plaintiff to supply to him and the defendant took delivery thereof on the 16th day of July 1990 the following:

2 only 900/20 tyres for truck No. BP 626

valued at 570.00

4 only 900/20 tyres for truck No. BP 626

valued at 1140.00

$ 1710.00

The Plaintiff says that D failed to pay for the said tyres.

The defendant denied being indebted as claimed or that he has taken delivery of the tyres in question on the said 16 July 1990.

The learned Magistrate in his considered judgment stated that the "plaintiff has not proved its claim against the defendant to the satisfaction of the Court" (Page 103 of Record) and he dismissed the claim with costs.

The Grounds of Appeal are as follows:

1. THE Learned Magistrate erred in Law and in fact in holding that the Plaintiff's claim was one for goods sold and delivered.

2. THE Learned Magistrate erred in law and in fact in dealing with the evidence before him on the basis that the Plaintiff had the burden of proof throughout when in fact and in law the burden of proof had shifted to the Defendant, hence the error in his final decision.

3. THE Learned Magistrate erred in Law and in fact in taking into account irrelevant matters and omitting consideration of important evidence which was closely relevant to the issues in the trial.

4. THE Learned Magistrate erred in Law and in fact in failing to find a partnership and/or mutual arrangement between the Defendant and Sahadat Khan which made the Defendant primarily liable to the Plaintiff's claim.

5. THE Learned Magistrate erred in Law and in fact in dealing with the evidence between the Defendant and Sahadat Khan as if the latter was a third party whereas the action was between the Plaintiff and the Defendant only.

6. THE decision of the Learned Magistrate is unreasonable in the circumstances and against weight of evidence tendered.

Mr. Ram made a very lengthy written submission (24 pages) on the Grounds of Appeal and Mr. Kohli elaborated on his skeleton arguments which he handed in to Court.

I have given careful consideration to the submissions made by both counsel.

Although the grounds of appeal state that the learned Magistrate "erred in law and in fact", the decision in this case rests essentially on the credibility of witnesses. In other words I am asked to review the findings of fact by the trial Magistrate. Very rarely would an appellate Court be justified in interfering unless the findings of fact could not be supported on the evidence or law or any other proper ground. The principles to be applied by an appellate court in this regard are laid down in the well-known and oft-quoted case of WATT (or THOMAS) v THOMAS (1947) 1 AER 582 at 587 and BENMAX v AUSTIN MOTOR CO. LTD (1955) 1 AER 326 AT 329. Similar observations were made in PAUL NAGAIYA v JAMES 15 FLR 212 FCA. On the approach to be adopted LORD THANKERTON in WATT (supra) at 587 said:

"I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.

2. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
   
3. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
   

Commenting on the above passage Lord Reid in Benmax v. Austin Motor Co. Ltd. [1955] 1 All E.R. 326 at page 329 observed:

"I think that the whole passage ...... refers to cases where the credibility or reliability of one or more has been in dispute and where a decision on those matters has led the trial judge to come to his decision on the case as a whole. If that be right, then I see no reason to doubt anything that was said by Lord Thankerton. But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

The judgment of the learned Magistrate which is quite comprehensive, sets out the facts surrounding the case. He has given his reasons for coming to the conclusion to which he did. He had the advantage of seeing and hearing the witnesses and watching their demeanour which this Court does not have. He has very carefully analysed all the evidence and has made certain findings of fact on the evidence before him. I find that he has taken into consideration matters to which he ought to have directed his attention to and I do not find fault with his reasoning whatsoever.

It is clear from the evidence before the Court that it was one Sahadat Ali who took delivery of the tyres in question and signed for them. Although OM PRAKASH for P testified that arrangements were made by D for the supply of tyres he stated as follows (as stated in the learned Magistrate's judgment at p.91 of Record):

"Under cross-examination Om Prakash stated that prior to 1990 Hari Prasad had not worked for them. As regards the ledger card tendered to court in evidence he conceded that there is no payment recorded on it re BP626. The two tyres that had been issued for CA099 on 1/8/1990 was paid for. Re the 6 tyres for BP626 issued on 16/7/90 there is no entry in the ledger card until 5/10/90. It has been entered after that. He also conceded that in respect of the order for the 6 tyres in question no one has signed and it is the only order in the book that has not been signed either by the company secretary or by the boss. He also conceded that 31st August 1990 is the last entry on the 1st page of the ledger card and that there is no entry regarding the 6 tyres until October 1990."

The most unsatisfactory feature of the case is that there is a very late last entry at the end (vacant) portion of the ledger card (see Page 107 of Record) pertaining to this alleged transaction. I am of the view that it could have been entered there for any number of reasons and for a motive best known to the Appellant particularly bearing in mind the many disputed facts and the circumstances surrounding this case. To make an entry there for the reasons given cannot be accepted. How is it that this is the only Order that was not signed by the Company Secretary or by the "boss". The Order No. 336 dated 16/7/90 is in Sahadat's name (judgment at page 97 of the Record) and "there is no signature at the bottom of it unlike in all other". Up to October 1990 the only amount owing by D was $32.52; that is the last entry except for the said entry for $1742.52 for July 1990. Why was no entry made under July when other entries were made for goods supplied to D in July? This failure to enter has not been satisfactorily explained.

The evidence of D's witness VISWANATHAN was not challenged that it was Sahadat who was driving the vehicle and he was the one who paid all the charges for repairs due to BP626 since 1987.

Although the vehicle was registered in the name of D, it was Sahadat who was actually driving it at the relevant time and paying for repair charges. The D categorically denied that he either ordered the said tyres or took delivery of them. The learned Magistrate believed him in this regard. Hence the tyres were never "issued and delivered" or "supplied" to D. Also there is insufficient evidence that Sahadat acted as agent of D in taking delivery of the said tyres so as to make D liable to pay for them.

I agree with Mr. Kohli's submission that there is no evidence that the tyres were sold to D (if one goes by the words "tyres sold and delivered" as stated in the Particulars of Claim); similarly, there is no evidence of tyres having been "supplied" to D if one goes by the word "supply" used in the Amended Statement of Claim. The D has denied that he was ever supplied with the tyres and the learned Magistrate found that these claims have not been proved against D. I find that the learned Magistrate made no error in the manner in which he handled the burden of proof in this case.

Therefore on the above facts and the findings of the learned Magistrate, with which I agree, Grounds 1 and 2 have no merit whatsoever and they fail.

Similarly, ground 3 is devoid of any merits. The learned Magistrate has taken into account all that had to be considered. He has made a careful analysis of all the evidence adduced in this case.

As for ground 4 the evidence is not such as to find that there was a partnership between D and Sahadat Khan so as to attach liability to the Defendant.

As for ground 5, I agree with Mr. Kohli that there is nothing is the Judgment of the learned Magistrate that he treated Sahadat Khan as a "third party".

On ground 6, both counsel argued fully and I have considered their submissions. As already indicated hereabove, it all boils down to a question of fact and credibility of witnesses. The learned Magistrate has carefully analysed and shifted the evidence before him and came to certain findings of fact and it is not for the appellate Court to upset these findings unless for reasons I have already stated.

To sum up, the assessment of credibility of witnesses as I have stated is of prime importance; the trial Magistrate had carefully scrutinised all the evidence before him and took full advantage of having seen and heard the witnesses, and had come to the conclusion that the plaintiff has not proved its claim against the defendant with which I agree.

Accordingly the appeal is dismissed with costs to the defendant to be taxed if not agreed.

D. Pathik
Judge

At Suva
19 May 1995

HBC0003J.94B