II. The appellate coay take the view that, without having seen or heard the wite witnesses, it is not in a position to come to any
satisfactory conclusion on the printed evidence.
III. The appellate court, eitheruse the reasons given by the trial judge are not satisfactofactory, 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 in BENMAX (supra) at p329 observed:
<
"I think that the whole passage ..... refers to cwhere the credibility or reor 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."
In JAMES SUBHAIYA (supra) the court said:
"2. An appellate tribunal iuctant to interfere with findings of fact made in the courtcourt below, particularly those based on
the credibility of witnesses but it is less reluctant to interfere when the findings, or some of them, are inferences drawn from
accepted evidence."
Grounds of Appeal
I shall now consider the Grounds of Appeal. Ground I is a generaund stating to the effect tect that the decision to award damages
is against the weight of evidence. As I see it, it is this ground which has been elaborated upon in the subsequent grounds and I
shall consider it along with the other grounds.
Ground 2
New Charges
The appellant says that the learned Magistrate awarded $10,000.00 for the chabased on the quotation for for a new chassis without
any evidence that this amount was in fact paid by the respondent (p 33 of the Record) and despite the fact that the respondent admitted
in cross-examination that he paid $5000 for it without tendering receipt for payment of this sum.
The facts are that after the truck was registered on or about 30 March 1990, it was early April 1990 that the chassis of the said
truck was damaged allegedly due to no fault of the respondent and the appellant company refused to replace it with a new chassis.
When the truck was bought it had no 'tray' but had a hoist which was fixed by Asco Motors. This hoist was purchased separately but
the purchase price was for both the truck and the hoist. So the truck had a 'driver's cabin' and the chassis only and the hoist (p
31 of record).
On the evidence before him the learned Magistrate found as fact that a new chassis would $10,000.00 There was no evio evidence to
rebut this claim hence it went unchallenged. One cannot quarrel with this finding of fact as in any case the truck was under a Warranty
and the respondent had paid for a new chassis when he purchased the truck and not for a second-hand one.
Cost of fitting new chassis
The claim of $2000.00 for the fitting of hassis went unchallenged; here the learned Magistrate was jwas justified in awarding this
sum against the appellant.
Loss of use ofk
The learned Magistrate said that he holds that "the plaintiff's case has been prquot; and entered judgment ment for the Plaintiff
as prayed with costs. The Statement of Claim does set out what the claim is in this regard. I see no merit in this sub-ground of
Appeal.
Ground 3
There was sufficient evidence on the whole that the chassis was defective as rightly found by the learned Magistrate.
Ground 4
This ground deals with the subjf 'warranty'. I have considered Mr. Prasad's arguments in this regard and find that they arey are without
merits. The learned Magistrate found that there was a 'warranty' which he was entitled to do on the evidence before him of the Managing
Director who said that there was a "warranty". This witness further stated that "if anyone complained of damage that
would be looked into and if the customer had caused the damage then the warranty will not cover. But as the damage was due to manufactures
defect then the part must be replaced". The learned Magistrate said that the issue before him in this case was "whether
the chassis bent because of the owner's fault or due to manufactures defect". He said that the "warranty remained in force.
There is no evidence of misuse or overloading or even evidence that the truck was used on uneven ground".
The learned Magistrate then referred to the evidence of defence witness an engineer Mr. Pole who said that to "straighten"
the chassis "controlled heating is required" which means "using heat on to an area surrounding where the damage was
up to a temperature fixed by the metallurgical imposition of the chassis".
Evidently the proper pure was not followed in straightening the chassis.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On the evidence before him the learned Magistrate was correct in holding that rovisions of the "warr;warranty" applied in
this case. The appellant was well aware what the truck was going to be used for. The respondent who purchased trucks from the appellant
before said he had no problems with the chassis in the past. If there was anything wrong with the way the tray was fitted by the
respondent, the appellant should have picked it up by then as the truck was with them for a while. There was no complaint from them
in this connection.
It was held in KINYANJUI v D.T.DOBIE & KENYA) LTD (1975) E.A.C.A. that "the communicationation by the buyer to the seller of the purpose for which he requires goods is sufficient
to show that he relied on the seller's skill and judgment". There is therefore an implied condition that the truck shall be
reasonably fit for such purpose. Therefore the learned Magistrate's findings that the chassis was defective was supported by the
evidence applying the civil standard of proof.
Ground 5
On this ground, I reject Mr. Prasad's argument and fint the learned Magistrate has drawn the correct inference once on the evidence
before him in regard to the alleged "misuse" of the truck. The appellants were well aware as to the purpose for which the
truck was to be used as he was their old customer and had not complained about defects to the truck arising as a result of the truck
being used for carting gravel.
On a balance of bilities the learned Magistrate came to the conclusion to which he did and rightly so.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Grounds 6 & 7
I see no merits in thesunds arising out of the need to have a tray. If the chassis was to be fitted with a tray, aay, and invariably
it is, then surely if the chassis cannot withstand 'heat' or interference while fitting a tray then surely it was the appellant's
obligation to draw the respondent's attention to this aspect.
The learned Magistrate was justified in his findings on the appellant's 'obligation' in d to the fitting of the trae tray.
Grounds 8 & 9
p class=MsoN=MsoNormal style="margin-top: 1; margin-bottom: 1"> Mr. Prasad submits that there was no evidef application of heat on the chassis. This is not so as thes the "bent" chassis
was left with the appellant for repairs and later the respondent was told to take it as it was "repaired". After taking
delivery it was "bent" in the same place. How it was repaired is not in evidence but the fact remains that it was a defective
chassis.
I find that the learned Magistrate drew the correct inference on the evidence before him as to the reason for the chassis being 'bent'.
I reject Mr. Prasad's argument in that regard when he said that one could only draw the inference that the tray was shorter than
the previous trays fitted by the respondent and it did not bear the same capacity as other trucks to carry the loads which caused
damage to the chassis. If this was the cause the appellant would have adduced evidence in this regard but before that they should
have drawn the respondent's attention to this aspect when the truck was left with them for the repair of the chassis.
Conclusion
Upon a careful perusal of the record, I am satisfied that there was evidence to support the fihe findings of fact by the trial Magistrate.
He has given due consideration to the evidence of the appellant's witness and has given his reasons for coming to his findings of
fact and law which I accept. Here I must refer to LORD SHAW in CLARKE v EDINBURGH AND DISTRICT TRAMWAYS CO [1919] UKHL 303; (1919) S.C. (H.L.) 35 when he said:
"When ge hears and sees witnesses and makes a conclusion or inferinference with regard to what is the weight on balance of their
evidence, that judgment is entitled to great respect and that quite irrespective of whether the Judge makes any observation with
regard to credibility or not."
The learned Magistrate also was in a better position than the appellate Court to "from hitage point observe signs ofns of unfamiliarity,
lack of preparedness, laziness, incompetence and confusion with much greater perspicacity than an appellate court with only a transcript
to work on. Very rarely could an appellate court be justified in interfering" [SIR THOMAS BINGHAM M.R. in RIDEHALGH v HORSEFIELD AND ANOR (1994) 3 WLR p 462 at p 513 C.A.] For the reasons stated hereabove I feel that I should not interfere.
As for the damages awarded the trial Magistrate has given reasons for awa the amounts which he did adid and these I accept.
In the outcome I have come to the conclusion that none of the grounds of appeal has established.
The appeal is therefore dismissed with costs against the appellant to be taxed if not agreed.
D. Pathik
JUDGE
/p>
At Suva
5 August 1998
Hba0013.96S
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