IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBM015 OF 2003

BETWEEN

HOUSING AUTHORITY
APPELLANT

AND

HARDIP SINGH
RESPONDENT

Mr. A.K. Narayan & Ms A. Watkins for the Appellant
Mr. M.S. Sahu Khan & Ms S. Sahu Khan for the Respondent

Date of Hearing: 23 May 2005
Date of Judgment: 25 May 2005

JUDGMENT OF FINNIGAN J.

This is an appeal against a decision of a Magistrate in which he found against the Appellant in liability and awarded damages of $15,000. There is an interlocutory order in place staying execution of the judgment below pending determination of the appeal.

The stated grounds of the appeal include grounds that the Magistrate erred in law and in fact, that he failed to properly and/or adequately evaluate the documentary and other evidence against the Plaintiff's oral evidence and thereby further erred in accepting the evidence of the Plaintiff, that he made his finding of negligence and breach of contract against the weight of the evidence, that he failed to give sufficient weight to the defence submissions in arriving at his findings, and that he erred in law and in fact by awarding damages when the Plaintiff had failed to prove any loss or damage or the value of the land and its uses. A further ground is stated, that the award of damages is unreasonable and excessive.

At the outset, I think the Appellant is right to challenge the Magistrate's finding in breach of contract. So far as I can see in the pleadings and the record and the judgment in the Court below there was not a contract between these parties and the action was in tort, in particular negligence.

Neither party raised this minor point in their submissions and it is of little significance. As well as oral submissions, I received written submissions from the Appellant and a summary of the Appellant's argument, and copies of several authorities relied upon by the Respondent. I am bound to say that I was unable to discern a clear thread through the oral submissions of Counsel for the Appellant, but the written submissions and summary are more cohesive.

The principles guiding me are well known and appear in the many authorities placed before me, particularly by Counsel for the Respondent. It would be best if I divide the appeal into two parts, the challenge to the Magistrate's finding of facts from the evidence of the witnesses first, and second the challenge to the assessment in quantum of damages.

In assessing the witnesses, this Court must generally take second place to the Court of first instance. One authority is enough, Benmax v. Austin Motor Co. Ltd. [1955] 1 All ER 326. On appeal from a Judge sitting alone, this Court should not lightly differ from a finding of the Magistrate on a question of fact because he has seen and assessed the witnesses, decided which carried more weight and which, if any, he felt unable to accept. On the other hand where the challenge is to an inference which the Magistrate has drawn from specific facts then this Court is in as good a position to evaluate the evidence as was the Magistrate and should form its own independent opinion after giving weight to the opinion of the Magistrate.

In this case the Magistrate (at page 12 of his decision) stated that in his view "the most important issue is whether Defence Witness Peni Turaga showed the correct pegs to the Plaintiff in the first place. In this respect I have considered at length all evidence and facts before the Court including all exhibits." I think he was right in that.

Again at page 16 he states "The crucial issue is which pegs were shown by the Defendant to the Plaintiff when he bought the land in issue from the Defendant. In my view, the result of the case depends on whether the evidence of the Plaintiff is accepted or the evidence of the Defendant is accepted by the Court. Needless to say, in this regard the Plaintiff has to prove his case on the balance of probabilities." I think he was right in that.

At page 18 of his judgment he goes onto say "having considered all evidence before the Court. I am of the view that the evidence of Peni is unreliable. There are material contradictions in his evidence. His evidence has been discredited to a large extent through cross-examination. Furthermore, I have observed the evasive manner in which he answered some questions........".

Once he had made these findings, the Magistrate had in effect decided the issue of liability, and had decided it against the Appellant. This Court cannot revisit his assessment of the witness whom he evaluated in such clearly reasoned terms. There was no room for inference. If the Magistrate accepted the evidence of the Plaintiff then there was an end to it.

When it came to assessing quantum, the Appellant submits that the Magistrate proceeded without any proof of loss which needed compensation and in any event made his assessment too high. However, without setting out this relatively lengthy passage from his decision at pages 20, 21, 22 and 23, the Magistrate appears to me to have given, considerable thought to the evidence and the submissions about loss and injury suffered by the Plaintiff and directed himself in law by reference to McGregor on Damages and by reference to one decided authority on the nature of general damages and of special damages. He seems to have gone about his assessment in a deliberate manner taking account of loss and injury before he made his assessment.

The assessment itself was within his discretion and within his jurisdiction. It appears not insignificant that he assessed damages at the limit of his jurisdiction. I can find nothing in the evidence before him or in the law to say that he was wrong in fact or in law.

This appeal must be dismissed. Costs are to be paid to the Respondent and I assess these at $500.

I return now to the interlocutory order made on 8 July 2003. That order, staying further proceedings to enforce the judgment of the Magistrate until determination of the appeal is now discharged. The costs of and incidental to the application for that order being costs in the cause are now assessed in favour of the Respondent and fix these at a further $500.

D.D. Finnigan
Judge

At Lautoka
25 May 2005