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Denarau Investments Ltd v Hakim [2009] FJHC 276; HBM036.2007L (10 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Misc Action No: HBM 36 of 2007L
(Appeal from the Nadi Magistrates Court
Civil Action 71 of 2007)

BETWEEN:

DENARAU INVESTMENTS LIMITED
Appellant/Original Defendant

AND:

MOHAMMED NAUSHAD HAKIM
Respondent/Original Plaintiff

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr D S Naidu for the Appellant
Mr H A Shah for the Respondent

Solicitors: Pillai Naidu & Assoc. for the Appellant
Haroon Ali Shah Esq. for the Respondent

Date of Hearing: 8 December 2009
Date of Judgment: 10 December 2009

INTRODUCTION

[1] This is an appeal from a decision of the Nadi Magistrates Court delivered on 18 October 2007.

GROUNDS OF APPEAL

[2] Several grounds of appeal were filed by Mr Naidu, Counsel for the Appellant/Defendant, but they all revolve around the same issue. And that was whether it was proper for the learned Magistrate to deliver a judgment after hearing the Plaintiffs witness without giving any reasons whatsoever.

THE LAW

[3] I adopt the principles set out in J Santa Ram (Stores) Ltd Supermarket v Prasad [2009] FJHC 20; HBA17.2008 (29 January 2009) by Singh J:

[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. – [1999] EWCA Civ 811; (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 plaintiffs 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.

I acknowledge and fully agree with the sentiments expressed by Singh J in J Santa Ram:

[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.

I think it is absolutely necessary, especially now when the courts are under close scrutiny, and for the sake of transparency, that reasons, and well researched ones, be given.

[5] The Court Record for the date the Judgment was delivered, 18 October 2007, simply stated: "Judgment delivered $9,600 plus $800" and nothing else.

[6] The learned Magistrate was clearly in error. There were no reasons given whatsoever nor was there an analysis of the witness’ evidence. One is not even sure what the respective awards were for. It is true that at the hearing of the matter on 29 August 2007, the only witness called was the Plaintiff but he was examined, cross examined and re-examined and both Counsels made submissions at the end of the hearing. A Defence was filed.

[7] This was a claim under a contract of employment. The evidence given by the Plaintiff is not unequivocal. The answers given by him in cross examination to crucial questions were open to interpretation one way or the other. For example:

Q: Clause 16 does not talk of allowance?

A: Yes.

Q: No contractual relationship regarding $1200 allowance?

A: Yes.

[8] It is well known in this country that when a question is put in the negative form the "Yes" answer that is given often means that the proposal being put is not denied. This could be the case here. The Plaintiffs "Yes" answers, as noted in the Court Record, could mean that he was agreeing with the proposition that "Clause 16 did not talk of allowance" and that "there was no contractual relationship regarding the allowance". There is no way of telling whether it was the Magistrate or the witness that made the possible error.

[9] The appeal therefore succeeds and what is left for me to decide is whether to seek clarification and/or pass judgment myself or send it back to the Magistrates Court. As I have said, the oral evidence can be interpreted one way or the other. It needs clarification. But the matter was heard more than two years ago and the Magistrate that heard the matter may not be at Nadi any longer. The case should therefore be sent back to be tried again before a different Magistrate.

COSTS

This appeal succeeds but it was necessitated by the Magistrate’s error and not due to the fault of the Respondent/Plaintiff. I therefore make no order as to costs.

ORDERS

[11] The Orders are therefore as follows:

1. The appeal is allowed.

2. The matter is remitted to the Nadi Magistrates Court for re-hearing before a different Magistrate.

3. There is no order as to costs.

Sosefo Inoke
Judge