IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Suva Magistrate’s Court Civil Case No.: 141 of 2005

CIVIL APPEAL NO.: HBA 17 OF 2008

BETWEEN:

J. SANTA RAM (STORES) LIMITED SUPERMARKET
Appellant

AND:

ARVIND PRASAD
Respondent

Mr. V. Maharaj for Appellant
Mr. A.K. Singh for Respondent

Date of Hearing: 1st December 2008
Date of Judgment: 29th January 2009

JUDGMENT
(Failure to give reasons 
Appeal allowed)

Background:

[1]	This is an application by the appellant for stay of all proceedings in the Magistrate’s Court and in the High Court Civil Action 279 of 2006 pending the outcome of appeal.

[2]	The appeal is against a remarkably short ruling delivered by Suva Magistrate’s Court on 17th July 2008. The full text of the reserved ruling reads:

"This is an application by the defendant to set aside the defendant judgment entered against him.

Both the parties have filed lengthy submissions. The defendant has also deposited $8,000 in court. The defendant’s submission has raised issues that can only be clarified at the full hearing.

I find that there is some merit in the application.

The judgment is set aside. Defendant to file the defence within 21 days."

[3]	Mr. Maharaj submitted that the ruling was fundamentally flawed as it failed to give adequate reasons. He stated that the ruling given to counsels is headed 12 of 2007 and therefore could relate to a different action. The Magistrate’s Court File Number is 141 of 2005. Secondly he submitted that the applicant had filed no submissions even though the ruling says parties have filed lengthy submissions. In that respect the judgment cannot be correct he said.

Failure to give reasons:

[4]	In the modern judicial practice, there is an increased insistence that one must give reasons for his/her decisions. A professional Magistrate owes a duty to give reasons for his/her decisions: Decisions on complex issues must always resolve the issues by reasons and be understandable especially to the interested parties. Public interest and confidence are involved. Decisions without reasons are, or can be seen, to be arbitrary.

[5]	In Post & Telecommunications Ltd. v. Krishna Brothers – HBA 1 of 2003 (Labasa) Justice Pathik gave two reasons for the need to give reasons. Firstly it ensures that a judicial officer has heard and considered the evidence and arguments and secondly that it enables the aggrieved party to appeal to a higher court if the reasons are at fault. The extent of reasons given will depend on the circumstances and complexity of each case.

[6]	More detailed reasons are given by the English Court of Appeal in Flannery v. Halifax Estate Agencies Ltd. – (2000) 1 ALL ER 373 which held that failure to provide a litigant with reasons is in itself a ground for appellate interference. There the appellate court allowed an appeal on the sole ground of failure to give adequate reasons. The trial had involved experts who gave conflicting evidence. The primary court preferred the evidence of the defendant’s expert to that of the plaintiff’s expert without explaining why it did so. The court ordered a retrial. At page 377 Henry LJ made certain observations on the duty to give reasons:

"[1]	the duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not."

He went on to say that if no reasons are given, the losing party cannot say whether the primary court made an error of law or misjudged facts. He concluded that without reasons being given it was impossible to say whether the primary court had adequate or inadequate reasons for the conclusions it reached.

[8]	Flannery suggested that there were three possible options open for the appellate court: – First was to seek clarification from the judge below, that is, if issues are still fresh in his/her mind; secondly to exercise its own judgment and decide the case and thirdly order a new trial.

Inadequacy of the Ruling:

[9]	In the present case I do not know what principles of setting aside were applied by the learned Magistrate. All the learned Magistrate stated was there was "some merit" in the application. What were the prospects of success? Was there credible material evidence about the proposed defence? The learned Magistrate should have considered the principles of setting aside in some detail. It did not consider any prejudice to the plaintiff. Mr. Singh had also raised the procedural issue that the defendant resided in the USA. There was substitute service. He says no leave was obtained to issue writ against a defendant residing overseas. Substituted service was done by advertisement in Fiji. Was this a proper procedure? Was it proper to advertise service in Fiji when the defendant lived elsewhere? That is an issue which should also have been addressed in the ruling but was not done. 

[10]	The Magistrates Courts have to decide numerous cases and the duty to give reasons may be onerous but I fear it is something which is inescapable because "… the judge has a duty as part of the exercise of his judicial office to state the findings and reasons for his decision adequately for that purpose. If he decides … not to do so he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law": Pettit v. Dunkley – (1971) 1 NSWLR 378, 382. This is especially so where a decision cries out for reasons and in this case a decision which was reserved for six months.

Reinstatement not done:

[11]	Of greater significance is the fact that the motion for setting aside had been struck out for non appearance. That motion should have been formally reinstated before there could be consideration of the setting aside application. Whether to reinstate or not and to set aside or not is a matter for discretion of the Magistrate’s Court.

[12]	The appeal is allowed. Judgment dated 17th July 2008 is set aside.

Final Order:

[13]	The Magistrate seized of the matter I believe has now retired so it has to be heard afresh by another Magistrate. Both the application for reinstatement of motion to set aside and the application to set aside to be heard afresh by another Magistrate.

[Jiten Singh]
JUDGE

At Suva
29th January 2009