IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 150 of 2019

BETWEEN

MANA ISLAND RESORT (FIJI) PTE LIMITED a limited liability company having its registered office at Suite 4 -6, Building 2 HLB House, 3 Cruickshank Road, Nadi Airport.

Plaintiff

AND

J KEVI REFRIGERATORS & AIR CONDITIONING 	SERVICES PTE LIMITED a limited liability company having its registered office at Suite 10, Level 1 Ganesha Complex, Lot 10, Nadi Back Road, Nadi.

Defendant

Before			:	U.L. Mohamed Azhar, Acting Judge.

Counsels		:	Mr. C. B. Young for the Plaintiff
				Ms. A. Swamy for the Defendant 

Date of Ruling		:	05 November 2024

RULING
(On inspection by judge- Order 35 rule 6)

01.	The plaintiff owns and operates the Mana Island Resort & Spa on Mana Island in the Mamanuca Islands. The defendant owns and operates a business selling buggy carts for transport of passengers. The plaintiff and the defendant entered into an agreement on 26 June 2019 whereby the defendant agreed to sell and deliver to the plaintiff five EZGO RXV custom built buggies for sum of $ 195,110.00. There was a trade-in value of $ 38,500.00. The plaintiff then paid a sum of $ 156,610.00 inclusive of VAT. The defendant represented to the plaintiff that, five buggies were new and not constructed from the cut-off parts from second hand buggies. It was also an express term of their agreement that, the five buggies were to be new buggies. The contract of sale by the parties was a contract for a sale of goods by description in terms of section 15 of the Sale of Goods Act and therefore it was an implied term that, good should correspond with the description.

02.	The plaintiff found that, the five buggies supplied by the defendant were not new; they could not properly and safely transport six passengers; they were joined together from the cut-offs from other second hand buggies; they were not properly structured to transport the passengers; and the defendant could not provide the services to repair them as if they were new. The plaintiff alleged that, defendant breached the express and implied terms of the contract, and also breached the provisions of Commerce Commission Decree 2010 and now known as Fijian Competition and Consumer Commission Act 2010.

03.	In addition, on or about October 2017, two eight-seater buggies and a “Bad Boy Buggy” that belonged to the plaintiff were delivered to the defendant for repair. However, it was alleged that, the defendant unlawfully and without the consent of the plaintiff removed the essential parts from them. Those three buggies, allegedly, became inoperative and irreparable. The plaintiff then sued the defendant for five causes of action in relation to the breach of terms and Fijian Competition and Consumer Commission Act 2010 and two causes of action in relation to removal of essential parts from the other three buggies given for repair.

04.	The defendant admitted supplying 5 buggies to the plaintiff. The defendant however stated that, delivery of the buggies was unconditionally accepted by the plaintiff after due inspection by its agents and or employees. The defendant further stated that, it supplied the buggies as identified and stipulated by the sale and purchase agreement between them. The defendant also stated that, the plaintiff is estopped from complaining about the structure and quality after accepting delivery upon inspection. The defendant also denied removal parts from other three buggies given for repair. 

05.	The counsel for the plaintiff, in the course of his opening speech, made an application that the court should visit Lautoka Wharf and view the two buggies that are still kept there. The counsel renewed his application at the end of the trial. The counsel for the defendant objected to it. Both counsels eventually filed their written submission on this issue.  

06.	The Order 35 rule 6 of the High Court Rules provides that:
The judge by whom any cause or matter is tried may inspect any place or thing with respect to which any question arises in the cause or matter.

07.	It is evident from the word used in the above rule that, it confers a discretion to the trial judge. Similar discretion is conferred on the magistrates by section 59 of the Magistrate’s Court Act. It is a matter for proper exercise of judicial discretion. The parties can neither compel the judicial officers to inspect a place or thing, nor can they prevent from inspecting such place or thing. The above rule is the verbatim of English RSC Order 35 rule 8 (1). Meggarry J explained the discretion under that rule in Tito and others v Waddell and others [1975] 3 All ER 997 and stated at page 1000 that:

The rule plainly appears to confer a discretion on the judge. The word ‘may inspect’ coupled with the facts that it is the judge who has to decide the case and the rule is dealing with the judge performing judicial duties elsewhere than in a courtroom, seem to me show that the matter is one for the proper exercise of a judicial discretion. No litigant can compel the judge to hold a view, and no litigant is given the right to prevent the judge from holding a view. Doubtless if all parties concur in submitting that the judge should, or should not, hold a view, the judge will normally act on the joint submission: for between them the litigants know more about what is involved than the judge. But the discretion is his, and even if the parties are united in opposing a view the judge may still regard a view as being essential to enable him to reach a proper conclusion; and vice versa. 

08.	The most important fact of this discretion is that, depending on the way it is exercised, it controls the reception of real evidence in a particular trial. The reason being is that, the observation by the judge during his inspection becomes part of the evidence. What a judge perceives on an inspection is the evidence like what he sees and hears in the courtroom. The adduction of real evidence has been, by virtue of Order 35 rule 6, made a matter of judicial discretion. Citing Denning L.J., Meggarry J further held in Tito (supra) at page 1002 that:

Denning LJ put the matter succinctly in an earlier case, Goold v Evans & Co, when he said: ‘Speaking for myself, I think that a view is part of the evidence, just as much as an exhibit. It is real evidence’; and it was this doctrine that was applied in the Buckingham case. What a judge perceives on a view is itself evidence, in the same way as what he sees and hears in the courtroom. Just as a portable object may be brought into court, and being made an exhibit, become real evidence, so if the judge duly views a place or object which cannot be brought into the court that place or object provides real evidence through the medium of the judge’s eyes, ears, touch, tongue or as in one recent case before me, nose. On this footing the tendering of real evidence no longer depends on the res being portable.  

09.	Accordingly, when a judge is required to exercise his discretion under the Order 35 rule 6, such application should not be regarded as mere application for inspection, but it is an application to adduce evidence; the real evidence. The primary consideration, when considering such application should be whether such evidence is essential to enable the court to reach a proper conclusion. The proper approach as suggested by the Meggarry J in Tito (supra) is to consider not whether a sufficient case for holing the inspection has been made out, but whether there are sufficient grounds for rejecting the application to hold inspection.

10.	The main allegation of the plaintiff in this case is that, buggies supplied by the defendant were joined together from the cut-offs parts from other second-hand buggies and they were not properly structured to transport the passengers. The witnesses, who testified on behalf of the plaintiff, tendered several photographs depicting the condition of the buggies supplied by the defendant. The witnesses also pointed out in the photographs the places where the allegedly the cut-off parts were joined together. The counsel for the defendant submitted in her submission that, the inspection would not be necessary as there was number of photographs tendered in evidence. However, it would be useful to come to a proper conclusion if, at least, the remaining buggies are seen in the presence of the both counsels, instead of having the photographs only. 

11.	As pointed out by the counsel for the plaintiff in his submission, the judgment of Lord Denning in Goold v Evans & Company [1951] 2 T.L.R 1189 is cited in Buckingham v Daily News Ltd [1956] 2 QB 534 by Birkett L.J. Denning L.J said in that case that:

It is fundamental principle of our law that a judge must act on the evidence before him and not on outside information; and, further the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself, I think that a view is part of evidence, just as much as an exhibit. It is real evidence. The tribunal sees the real thing instead of having a drawing or a photograph of it. (Emphasis is added).

12.	The counsel for the defendant further submitted that, the parties closed their respective cases; the defendant would be prejudiced if the evidence of buggies is admitted without giving the defendant the right to cross examining on that evidence; the buggies could have been brought to the court during the trial and the buggies would have deteriorated since almost 7 years lapsed now.

13.	The inspection of a place or thing at the discretion of the judge is not resumption of trial if it takes place after conclusion of trial. It is judicial observation of the place or thing in relation to the question arises or have arisen in the matter or cause.  The purpose of inspection of a place or thing is to ascertain whether the issue in relation to a place or thing is compatible with the plaintiff’s version of evidence or that of the defendant. The observation simply helps the judge to assess and give weight to the evidence before him. Parker LJ in Buckingham v Daily News Ltd (supra) illustrated this proposition at page 549 in a simple way as follows:

But in a simple case where “A” says that something is dangerous, and “B” says that it is safe, the judge must be entitled to take into consideration  what he saw and the impression that he formed at the view. And it seems to me that it makes no difference if “B” calls no evidence and the only evidence before him is that of “A”. Again he is entitled to take into consideration the impression he had formed in assessing the weight to be given to the value of “A’s” evidence. 

14.	Furthermore, a judgment delivered by a judge, who had inspected and viewed the place or thing, is likely to be more explicit and firmly based. It will help the appellate court and reduce the risk of the litigant attributing his defeat to the judge’s refusal to permit him to adduce evidence, and possible order for re-trial considering all evidence. Megarry J in Tito (supra) stated at page 1002 as follow:

If in case of considerable complexity an appeal from the judge’s decision is brought… the Court of Appeal is likely to be assisted more by findings of facts if they are made by a judge who himself has viewed the locus in quo than if they are made by a judge who has not had a view. A judgment delivered by a judge who has not only heard and seen the witnesses but has also himself seen the complex subject-matter of their evidence is, ceteris paribus, likely to be the more explicit and firmly based. …… if the judge refuses a litigant’s application for him to view the site, and the litigant than loses the action, there is always a risk of the litigant attributing his defeat to the judge’s refusal to permit him to adduce evidence which, however mistakenly, he may have believed to have been capable of turning the scales.  

15.	In this case, the evidence adduced by the plaintiff and the defendant contradicts each other on the point whether the buggies supplied by the defendant were made out of the cut-off parts from other second-hand buggies or not. The inspection of buggies that are available at Lautoka Wharf by the court will help to assess the evidence before it on this crucial point and to give appropriate weight to it. In this sense the inspection is not going to be prejudice to any party. The court is mindful of the fact that, it has been 7 years since the delivery of buggies to the plaintiff and had been in use for some time. However, the fact whether they were built with the cut-off parts from other second-hand buggies could be ascertained even though they were in deteriorated condition. This evidence could help the court to come to a proper conclusion on the dispute between the parties.  

16.	Accordingly, I order that the buggies available at Lautoka Wharf should be inspected in the presence of the counsels for the parties. The matter to be fixed on a date convenient for both counsels to be present at the site for inspection.

U.L.Mohamed Azhar
Acting Judge

At Lautoka
05.11.2024