IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 1 OF 2003

Between:

MAHBOOB KHAN
f/n Akil Mohammed
Plaintiff/Appellant

and

VINOD PRASAD
f/n Bhaguti Prasad
Defendant/Respondent

Mr. S. Valenitabua for the Appellant
Ms R. S. Devan for the Respondent

JUDGMENT

The plaintiff Mahboob Khan had in the Suva Magistrate’s Court Civil Action No. 227/99 brought an action against the defendant Vinod Prasad seeking, inter alia, an order for specific performance of Clause 5 of the Sale and Purchase Agreement (the ‘Agreement’) entered into between the parties on 12 November 1997.

The plaintiff was the purchaser and the defendant was the vendor.

The relevant clause of the agreement is Clause 5 provides as follows:

‘The vendor has already provided possession of the said property to the purchaser and further undertakes to provide at his own costs such materials and fittings as will be necessary for the completion of the incomplete house, sewer line works and obtain Engineer’s Certificate for the same. The purchaser shall use his own labour to complete the said house, sewer line works and Engineer’s Certificate and shall further take all care necessary for the protection and maintenance of the house.’

The learned Magistrate’s judgment sets out the issue. There was a dispute as to quantum of material to be supplied by the defendant to the plaintiff.

The only issue before the Court was to decide the quantum.

Judgment was given for the plaintiff/appellant in the sum of $4126.97 to be paid by the defendant/respondent.

The Grounds of Appeal are as follows:

1.	The Learned Magistrate erred in law and in fact when he determined the Plaintiff’s case on 13.09.01 without hearing any evidence in support of the Plaintiff’s case.

2.	The Learned Magistrate erred in law and in fact when he did not address the Reliefs in the prayer in the Plaintiff’s Statement of Claim.

3.	The Learned Magistrate erred in law and in fact when he failed to address the issue of specific performance based on the Defendant’s breach of the Sales and Purchase Agreement between the Plaintiff and the Defendant.

4.	The Learned Magistrate erred in law and in fact when he ordered that the plaintiff paid $2,873.00 (Two Thousand Eight Hundred Seventy Three Dollars) to the Defendant’s lawyer’s trust account when judgment was in favour of the Plaintiff.

5.	The Learned Magistrate erred in law and in fact in failing to take into consideration the issue of breach of contract as pleaded by the Plaintiff.

Background facts

The appellant/purchaser and the respondent/vendor had entered into a sale and purchase agreement made on the 12th November 1997 for the sale of respondent’s property comprised in Housing Authority sub-lease No. 310511, lot 44 on DP 4107, which also comprised of a partly constructed residential dwelling. (vide p.50 of the Court record). As per clause 5 of the said agreement, the Respondent undertook to give the appellant possession of his property and also undertook to provide at his own expense such materials and fittings which would be required to complete the construction of the said dwelling. Consequent to a dispute arising between the parties in respect of the supply of the materials, the appellant filed a Writ of Summons on 22nd April 1999 claiming specific performance of the sale and purchase agreement by the respondent.

Issue before the Magistrate’s Courts

The issue before the lower Court was to ascertain how much the defendant was liable to pay the plaintiff for the completion of the dwelling. This was after the defendant had admitted liability and it was agreed by both counsel that the parties would proceed to have the matter heard on the issue of quantum.

Dealing with Grounds of Appeal

Ground 1

I see no merit on Ground I, for Joape Tiko (PW5) gave evidence as he was engaged by both parties to do a survey of the dwelling and carry out an assessment as to the value of the materials which would be required to complete the construction of the house. He stated in his Report that $4131.97 worth of material was required.

The Magistrate believed this witness and also took into account evidence given by the defendant who admitted that he will supply the material as required under the said clause 5.

Ground 2

Ground 2 must fall as it is also without merit, for the Magistrate did address his mind to be reliefs (ii) and (iii) in the Statements of Claim. There was no evidence adduced by the plaintiff in regard to relief (ii). He made an order that the sum of $4126.97 be deducted from the purchase price of $7000 which was in the trust account and the remainder to be forwarded to the defendant.

Grounds 3, 4 and 5

These grounds must also fail. The learned Magistrate’s Order was made on the evidence before him and he dealt with the issue as agreed between the parties. Hence there was no need for the Magistrate to address any issue relating to specific performance.

Conclusion

Having perused the Record and having heard both counsel and considering their written submissions, for the reasons given hereabove I find that the grounds of appeal are devoid of merits.

There was nothing wrong in the approach that the Magistrate made in deciding the agreed issue between the parties. On the evidence before him he made certain findings of fact. Credibility of witnesses also came into play and in this regard he had the opportunity to observe the demeanour of the parties and witness when they appeared before him which opportunity the appellate Court does not have.

In coming to the conclusion to which I have come I have borne in mind the principles to be applied by an appellate court as laid down in the well-known and oft-quoted case of Watt (or Thomas) v Thomas (1941) 1 All ER 382 at 587 and Benmax v Austin Motor Co. Ltd (1955) 1 All E R 326 at 329. Similar observations were made in the Court of Appeal case of Paul Nagaiya v James Subhaiya 15 FLR 212 FCA. On the principles to be applied Lord Thankerton in Watt (supra) at p.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 a 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 mistakably so appears from the evidence, may be satisfied that he had 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 these reasons I reaffirm the Resident Magistrate’s judgment and dismiss this appeal with costs against the appellant in the sum of $300.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
17 November 2003