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Tuvaduadua v Chand [2008] FJHC 129; HBA2.2008 (24 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HBA 2 OF 2008

BETWEEN:

JOSATEKI TUVADUADUA
Appellant

AND:

ANIL CHAND f/n SURUJ PAL
First Respondent

LAND TRANSPORT AUTHORITY
Second Respondent

Mr. V.M Daveta for Appellant
Mr. Ram Chand for First Respondent
Ms F. Kinivuwai for Second Respondent

Date of Hearing: 13th June 2008
Date of Judgment: 24th June 2008

JUDGMENT

Preparation of Records for Appeal – Order 37 of Magistrates Court Rules

Before I embark on the appeal proper I must comment on the preparation of records for appeal. The records in this case consisted of 221 pages. Of these 131 pages were irrelevant to the appeal. Both the appellant and the respondents must have paid for these irrelevant pages as well. And at $1.13 per page between the two parties, the total wasted money comes close to $300.00. There is absolutely no need to include irrelevant matters and documents in records for appeal. Order 37 Rule 7A(1) of the Magistrates Court rules makes this abundantly clear. It says that the court making up the record must restrict the record to documents or other matters relevant to the appeal and must exclude any document or matter the inclusion of which would result in unnecessary expense or delay. It goes on to say that a note describing any document or matter omitted must be attached to form part of the record.

On an appeal regarding the substantive matter the High Court would be only interested on the grounds of appeal, the writ of summons with statement of claim, defence, reply to defence, all the evidence of witnesses, documents tendered, submissions of counsels and the judgment. There is no need to put in the record affidavits of service, matters relating to setting aside of default judgment and all the adjournments and mention dates. Exclusion of the irrelevant matters speeds up the appeal process as the appellate court does not have to go through the irrelevant material. Shorter records also make the work of counsels representing parties on appeal less laborious when making their submissions. It also saves time and effort of secretaries attached to the Magistrates who have to type the record.

Factual Background to the Appeal:

The appellant owned two cars – registered numbers being DJ 440 and CX 705. The second vehicle CX 705 is the subject of litigation here. The two parties had known each other. The appellant in his statement of claim alleges that he had purchased this vehicle from Telecom Fiji Limited for $5,000.00 in March 2003. In his statement of claim he stated that on or about 24th September 2003, he had lent the vehicle to a third person. The respondent he alleges took away the vehicle from the third person without any colour of right.

The defence was that the appellant had borrowed $5,500.00 from the first respondent on 21st March 2003 to buy the vehicle CX 705 from Telecom. As security for the loan, the appellant gave signed vehicle transfer papers to him. He further stated in his defence in the form of affidavit that the appellant failed to repay him the loan so the vehicle CX 705 was transferred to him on 18th July 2003. The appellant alleged that this transfer of 18th July 2003 was fraudulently done. A report was lodged with police who found no substance in it.

The learned Magistrate dismissed the appellant’s claim as he accepted the version of events given by the first respondent which he said was supported by receipts, forms and documents. He found that forgery or fraud had not been proven.

On an appeal the burden of showing that the trial court was in error in his/her findings of fact lies on the appellant. Unless the appellate court is satisfied that the trial court was in error in his/her findings of fact, the appeal will be dismissed: Colonial Securities Company v. Massy – [1895] UKLawRpKQB 192; (1896) 1 QB 38 at 39. Where a trial courts estimation of the credibility of witnesses forms a substantial part of the reasons for the judgment, the conclusions of facts will generally be left undisturbed: Powell v. Streatham Manor Nursing Home – 1935 AC 243; Hewitt v. Habib Bank Limited – ABU 7 of 2004.

The grounds of appeal are:

"1) That the learned trial Magistrate erred in law and fell into error by not ordering the second respondent/defendant to give evidence in this matter to assist this Honourable court in reaching a just and fair decision instead of ruling that the second respondent/defendant as a nominal defendant;

2) That the learned trial Magistrate erred in law and fell in error by failing and/or neglecting to "order’ the second respondent/defendant to file a defence and give evidence on the matters that was within ambit of its statutory duties or powers thus culminating in the miscarriage of justice.

3) That the learned Magistrate’s erred in law and in fact and fell into error in upholding the first respondent’s evidence when in fact there was no agreement or any contract that was enforceable as such document was produced did not comply with the Indemnity guarantee and Bailment Act and therefore void unenforceable."

The grounds 1 and 2 are fundamentally same. These two grounds are borne out of misconception on part of the appellant and his advisers about the principles and procedures in a civil trial. The onus is on the plaintiff in a civil trial to prove his case on the balance of probability. It was for the appellant to adduce whatever evidence he considered necessary to prove the allegations he was making. If the appellant thought officers from the Land Transport Authority could provide relevant material evidence, he could have resorted to issuing witness summons from court. He could have used the process of discovery or administer interrogatories to find the nature of evidence the Land Transport Authority had. Order 25 of the Magistrate’s Court Rules provides for discovery and interrogatories.

The appellant was represented by a Counsel. It was for the Counsel to decide what evidence to call or not to call. It was not for the court to decide what evidence the appellant was to call or not call.

These first two grounds fail.

The third ground is that there was no contract or if there was, then such contract was unenforceable as it did not comply with Indemnity Guarantee and Bailment Act. Mr. Daveta submitted that the agreement was not in writing and therefore unenforceable. It is not disputed that the appellant gave signed transfer forms to the first respondent. The plaintiff in cross-examination admitted that the signature on the transfer form was his. In case of motor vehicle transfers, that is all the writing which is necessary to give effect to a transfer.

The learned Magistrate had before him bank statement of the first respondent showing withdrawal of a sum of $5,500.00 by the first respondent from his account. It is the same day he alleges he gave money to the appellant. It is the same day when the appellant bought the vehicle CX 705 from Telecom Fiji Limited. The learned Magistrate would therefore be quite entitled to conclude that the sum of $5,500.00 loan was given to the appellant to purchase CX 705, a fact denied by the appellant

The police who had investigated the allegation of fraud in the transfer of CX 705 elected not to charge the first respondent. The learned Magistrate having seen the documentary evidence and heard the parties and witnesses came to the conclusion that the first respondent’s version of events was credible. That was a conclusion he was quite entitled to come to given the nature of the evidence.

This ground accordingly also fails.

The appeal is therefore dismissed with costs. The appellant is to pay the first respondent costs of appeal in the sum of $400.00. This is in addition to any costs awarded in the Magistrates Court. I award no costs to Land Transport Authority which only played a minimal role on appeal. The Land Transport Authority can deal with this vehicle after the time for appeal has run out that is after expiry of forty-two (42) days from now.

[Jiten Singh]
JUDGE

At Suva
24th June 2008