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Lata v Hassan [2012] FJHC 827; HBA19.2008 (27 January 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL HBA 19 OF 2008

BETWEEN:

ARUNESH LATA
Appellant

AND:

ALI HASSAN
Respondent

Mr R P Singh for the Appellant
Mr S Chandra for the Respondent

JUDGMENT

This is an appeal from a decision of the Magistrates Court at Suva dated 11 February 2008. The Court ordered the Appellant to pay to the Respondent the sum of $3,600.00 as money owing in respect of the use by the Appellant of the Respondent's taxi base. The Court also awarded interest at 5% from the date of the claim to the date of judgment together with costs fixed in the sum of $150.00. The Court indicated that the Appellant had 28 days to appeal.

In the Statement of Claim the Respondent alleged that at the request of the Appellant the Respondent had let to the Appellant his taxi base situated at 6 Waimanu Road Suva. The Appellant was to use the Respondent's base for his three taxis at a monthly rental of $150.00 per month for each taxi. The total monthly rental payable was $450.00. The Respondent claimed that the agreed period was from 11 December 2005 to 11 August 2006. The agreement was therefore for a period of eight months. The Respondent alleged that despite demand for payment having been made on 8 January 2007 the Appellant failed and/or neglected to pay the amount owing.

In his Statement of Defence the Appellant alleged that the Respondent had allowed him to use the taxi base from 12 July 2005 to 11 September 2005 free of charge. The Appellant also claimed that he paid to the Respondent on 10 November 2005 the sum of $900.00 for use of the base between 12 September and 11 November 2005. He stated that the Respondent did not provide a receipt. The Appellant claimed that he moved out of the base on 12 November 2005 without owing any rental payment to the Respondent. The Appellant stated that the Respondent's claim was "unjust and unfaithful."

The learned Magistrate concluded on the evidence before him that the Appellant and the Respondent agreed that the three taxis owned by the Appellant (and which he had earlier purchased from the Respondent) were to be based at the Respondent's taxi base for $150.00 per month per taxi. The learned Magistrate found that the Appellant did not pay the amount due to the Respondent for the use of the taxi base "because it was very expensive". Finally, the Magistrate concluded that the Appellant's three taxis were operating at the Respondent's base at all material times. As a result the Appellant was ordered to pay the balance owing of $3,600.00

The Appellant now appeals the decision of the learned Magistrate on a number of grounds that are set out in a document dated 29 February 2008.

The parties filed brief written submissions on the grounds of appeal. When the appeal was called for mention on 30 September 2011 Counsel indicated to the Court that they would rely on those written submissions and did not wish to present further oral submissions.

In general terms an appeal is the procedure by which an unsuccessful party seeks to have a court decision set aside, or varied in a manner which is favourable to him. However the nature of the appeal depends on the statutory provision that creates it. The term appeal can be used in different senses. It can be used to denote what is in law a rehearing by the appeal court and it can also refer to a proceeding which is strictly an appeal.

The right of appeal to this Court from a decision in the Magistrates Court is given by section 36 of the Magistrates Court Act. Under section 39 of the same Act this Court may entertain any appeal from a Magistrates Court on any terms which it thinks first.

The powers of the High Court sitting as an appellate court from a decision of a Magistrates Court are set out in Order XXXVII Rules 18 and 19. In particular, Rule 18 states:

"The appellate court _ _ _, generally, shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the appellate court as a court of first instance, and may rehear the whole case or may remit to the court below to be reheard, or to be otherwise dealt with as the appellate court directs."

The Rule 19 states:

"The appellate court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other orders as the case may require, including any order as to costs _ _ _."

It is clear that the nature of the appeal created by the legislation in this case is by way of rehearing. The object of a rehearing is to determine the legal rights and obligations of the parties as at the date of the rehearing. The Court is free to consider new circumstances and it may admit new evidence if it thinks proper to do so. Under the procedure for which Order XXXVII makes provision the court reviews the evidence before the Magistrates Court and reaches its own conclusions. The court is not confined to a determination of whether the learned Magistrate was wrong on the evidence before him.

An appeal by way of rehearing is not the same as a retrial (a hearing de novo). The court does not literally rehear the case in the sense that the parties have to start afresh as they did in the Magistrates Court or that the witnesses are heard afresh. The rehearing is conducted on the basis of the papers (the record) from the Magistrates Court. Witnesses are not called and new evidence can only be adduced with leave. However the High Court has the power to review the findings and inferences of fact and it may, if it considers it is warranted, substitute its own view of the facts for the view taken by the learned Magistrate. Where the only question in the appeal is as to the inferences to be drawn from evidence admitted to be truthful, then the High Court is in as good a position to decide as the learned Magistrate. Where, however, the decision depends upon a conflict of evidence, the High Court should usually defer to the opinion of the learned Magistrate. The reason for this latter proposition is that the learned Magistrate has had the advantage in assessing the evidence and making findings of fact. The learned Magistrate has observed the witnesses give their evidence which is an advantage not enjoyed by the High Court judge sitting on appeal. Therefore findings of fact should only be disturbed when it can be shown that the learned Magistrate erred in principle (See: Quilta –v- Mapleson [1882] UKLawRpKQB 114; (1882) 9 QBD 672 and Warren –v- Coombes [1979] HCA 9; (1979) 53 ALJR 293).

The Appellant has listed nine grounds of appeal. Grounds 4 and 6 raise the same issue. It is claimed in these 2 grounds that the learned Magistrate failed to consider evidence that was provided to the court during the hearing. Ground 4 refers to (a) a letter from the Ministry of Information and (b) a receipt from Elcom Services Ltd. Ground 6 refers again to the receipt from Elcom Services Ltd and also refers to evidence that the first defence witness had given at the trial.

The first observation I make is that the receipt from Elcom Services Ltd dated 9 November 2005 was not put into evidence at the hearing. It is apparent from the record that there were only three documents admitted into evidence as Defendant's exhibits and the receipt was not one of them. It appears to have been attached to the Defendant's written closing submissions to the learned Magistrate. There was no explanation in the written submissions filed by the Appellant to explain why this document was not made available to the learned Magistrate at the trial.

The second observation concerns the document that is referred to in ground 4 as "a letter from the Ministry of Information". This document was admitted into evidence as "Defence exhibit 3". It is correct that the learned Magistrate did not refer to this document in his judgment dated 11 February 2008. It is perhaps not surprising that the learned Magistrate did not attach any weight to the document. There is no indication on the document which appears to be a computer print out that the document emanated from the Ministry of Information. It is headed "Frequency Management System for Fiji Islands." It contains a list of stations/licences for Raymonds Taxi Account No. 1931. It would appear that the Appellant's taxis are included in the list. There is no printed date on the document. There is a handwritten notation to the effect that "All of the above were operating with Raymonds Taxis from 2006 – 2007." Below there is an illegible signature with a date 01/05/07. The document has not been certified or verified.

In his evidence the Appellant's husband stated that the document was a print out that "I was operating the said taxis from transceivers." Under cross-examination the same witness said that the note was by someone in the Ministry of Information office.

Although the learned Magistrate should have indicated the weight, if any, that he attached to this document, I have no hesitation in concluding that its probative value in respect of the facts which it purports to establish is extremely limited. For my part I have come to the conclusion that it is unreliable and although admissible as hearsay I attach no weight to it as I am not satisfied as to its authenticity.

The third observation relates to the claim in ground 6 that the learned Magistrate failed to consider the evidence given by the Appellant's husband that on 10 November 2005 he told the Respondent that they "will not operate any longer from the said base." However it is apparent that the learned Magistrate did consider that matter in paragraph 10 and made a finding as to credibility in paragraph 11.

I see no reason why the learned Magistrate's finding should be disturbed.

Grounds 3, 5 and 8 are essentially concerned with the joinder of the Defendant as a party to the proceedings. However no where in the Defence has the Defendant pleaded that she was not the proper party. In paragraph 2 of the Defence the following appears:

"The Defendant is running a duly registered business under the name of Avi's Taxis in association with Forum Taxi's from Vesi Street Flagstaff since 12 November 2006."

None of the matters raised in these grounds of appeal were put in issue by the Defendant in her Defence.

Ground 7 appears to be concerned with the observation made by the learned Magistrate in paragraph 5 of his judgment that the evidence of the second defence witness was immaterial. The record indicates that the evidence given by Alipate Matai was that he started driving in August 2005 for three months. As the period for which the debt was claimed started in December 2005, I agree that the evidence given by this witness whilst he was driving at Sanyo from August to October was not relevant to the Appellant's Defence.

Ground 2 raises an issue concerning the months for which the Respondent claimed $450.00. For a start the Defendant did not dispute that the monthly rental was $450.00 or $150.00 for each of three taxis. The Respondent claimed $450.00 per month for the period 11 December 2005 to 11 August 2006 being 8 months. The Magistrate accepted the Respondent's evidence in preference to the evidence given by the Appellant and her husband. I find no inconsistency in the material that was before the Court to indicate that I should reach a different finding from that which the learned Magistrate determined.

Ground 1 relates to the wrong address of the base. That is a non-issue and the point appears not even to have been raised at the hearing. It was never in dispute that the parties were at all times well aware of the location of the base.

Ground 9 raises the question of costs. The awarding of costs is at the discretion of the learned Magistrate. In awarding costs to the Respondent, the Magistrate followed the usual practice of awarding costs to the successful party. There is no error in the exercise of his discretion in this case.

Before concluding I should make three further observations about the material on the record. First, the Appellant's husband admitted they that there was no response to the Respondent's letter of demand. Secondly, Defence exhibit 2 is a letter 18 August 2007 from Elcom Services Ltd which states that the three taxis concerned belonged to the Appellant's husband. In cross-examination the witness said the letter was wrong and that he did not own any taxis. He stated the taxis belonged to his wife, the Appellant. Finally in proceedings before Resident Magistrate A.G. Khan on 10 September 2008 the Appellant admitted owing money to the Respondent and wanted to keep paying $100 per month from August. The Court so ordered on that day.

For all of the above reasons the appeal is dismissed. The Appellant is ordered to pay the Respondent's costs which are fixed summarily in the sum of $900.00 within 28 days.

W D Calanchini
Judge

27 January 2012
At Suva