IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL APPEAL NO. 002 OF 2002

Between:

RAJENDRA PRASAD
f/n Ram Asre
Appellant

and

DAYA WATI
f/n Hanuman
Respondent

Mr. G. Prasad for the Appellant
Mr. M. Sadiq for the Respondent

JUDGMENT

This is an appeal by Rajendra Prasad (the ‘Appellant’ – the original defendant) against the decision of the learned Magistrate Eparama Rokoika Esquire delivered 6 February 2002 granting vacant possession of the property in question to Daya Wati (the ‘Respondent’ – the original plaintiff).

The Grounds of Appeal (as filed) are as follows:

“1.	That the Learned Magistrate erred in law and in fact in ruling that the Defendant give vacant possession of the house to the Plaintiff;

2.	That the Learned Magistrate erred in law and in fact by not following the Rules of the Honourable Court as neither the Defendant nor his counsel was served with a notice to attend and hear the Court ruling on 6/2/02;”

Background facts

The background facts are clearly set out in the Magistrate’s Decision (page 83 of the Record) and are as follows:

“The Plaintiff filed a writ on 31/01/00 seeking vacant possession of a residential house owned by the estate of her late husband for which she is administratrix. The defendant is the younger brother of the deceased.

The building is at Valebasoga and was occupied by the late Deo Raj and his family until he died in 1997. The plaintiff has been granted the letter of administration. The defendant was living at Coqeloa and after the death of Deo Raj he asked the plaintiff for temporary accommodation while he looked for a permanent home to move into. Plaintiff granted the request but when she asked defendant to move out, he refused to. She is asking the court for an order for vacant possession of her house.

Defendant claims that before the death of Deo Raj, the deceased had asked him to move to Valebasoga to occupy the house when he (Deo Raj) retires from FSC and moves to Suva. Defendant’s witnesses have supported defendant’s story in that it was Deo Raj’s wish to let the defendant live in his house at Valebasoga. Because of this, defendant claims that plaintiff is stopped from removing defendant from the property.

In his Evidence in Chief, defendant claimed that Deo Raj and wife also invited him to come to Basoga after death of his two children and that he did move to Basoga 1½ months after the death of Deo Raj. He further claimed plaintiff invited him to come and live with her at Valebasoga after the death of his brother.”

Consideration of Appeal

I have pursued the Court Record and have considered the submissions made by both counsel on the hearing of the appeal.

As I see it the main ground of appeal is Ground I. Mr. Prasad raised the point that the learned Magistrate has no jurisdiction to hear or make an order for vacant possession against the defendant.

He relied on section 2(1)(a) and (c) of the Magistrates’ Courts (Civil Jurisdiction) Decree 1988 (which decree replaced Section 16 of the Magistrates’ Court Act dealing with jurisdiction). In so far as it is relevant the said section 2 reads as follows:

2(1)	A resident magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes-

(a)	(i)	………

(ii)	………

(b)	(i)	in all suits between landlords and tenants for possession of any land (including any building or part thereof) claimed under any agreement or refused to be delivered up, where the annual value or annual rent does not or did not exceed two thousand dollars;

(ii)	in all suits involving trespass to land or for the recovery of land (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof);

(c)	in any type of suit covered by paragraphs (a) and (b) whatever the value, amount, debt, damages sought to be recovered is, whatever the annual value or annual rent is, if all the parties or their respective barristers and solicitors consent thereto in writing:……………

Mr. Prasad submits that the said section does not apply to the respondent, and because she is a squatter she has no equitable or legal interest in the land and hence the Court has no jurisdiction to entertain that application.

In dealing with this aspect of the matter one cannot dispute the facts as admitted by the respondent and as found by the Magistrate. They are findings of fact. The Magistrate was quite right when he said:

“But the case before the Court has nothing to do with land. It involves a dwelling house which she owns and in which she had agreed to be temporarily occupied by the defendant without rent until he finds his own accommodation”.

The Magistrate who had the opportunity of hearing and seeing the witness, which the appellate court does not have, made his findings of fact and stated that he disbelieves ‘both of defendant’s claim and I believe plaintiff’s claim that defendant had asked and was granted temporary accommodation until he could find a permanent accommodation of his own”.

An appellate court does not interfere with findings of fact based on credibility of witnesses unless the findings could not be supported on the evidence or on the law or for some other reasons.

The approach that an appellate Court makes on an appeal is set out in the well-known passage from the judgment of Lord Thankerton in Watt (or Thomas) v Thomas [1947] 1ALL E.R. 582 at 587 which reads thus:

“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.

II.	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.

III.	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”.

For completeness I think I ought to refer to Lord Reid’s observation on the above passage in Benmax v Austin Motor Co. Ltd [1955], 1 ALL E.R. 326 at 329, particularly in cases where no question of credibility or reliability of the witness arises, when he said:

“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 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”.

On the facts as found, this first ground of appeal has been misconceived and it has no merits whatsoever. The Magistrate’s Court definitely has jurisdiction to entertain an application of this nature which merely involves vacant possession of the respondent’s dwelling house. Where else will she go? Is she without a remedy? The appellant definitely has no right to possession vis a vis its possession by the respondent who has been granted Letters of Administration of her husband’s estate and the land in question was the property of her late husband.

I further agree with the Magistrate that no question of estoppel arises in this case. I reject all arguments put forward by counsel on this aspect as devoid of any merits. The case of Sheila Maharaj v Jai Chand(1986, 18 F.L.R. 119, Privy Council) can be distinguished and has no relevance to the facts of this case.

The second ground does not raise any significant issue as affecting the decision in this case as it is merely a complaint that counsel was not notified when the Ruling was to be given. All that one can say is that it is only proper that counsel in a case ought to be notified.

For these reasons the appeal is dismissed with costs to the respondent’s solicitors in the sum of $300.00 to be paid within 21 days.

D. Pathik
Judge

At Suva
20 June 2003