IN THE COURT OF APPEAL OF TONGA				
CIVIL JURISDICTION							
NUKU’ALOFA REGISTRY						

AC 14 of 2024
[AM 6 of 2023]
[CV 2 of 2023]

BETWEEN 		
RAZU RAHMUTTULLA SIDDIK 
Appellant

AND 			
TALA’OFA PULI’UVEA
Respondent

Hearing: 		
5 May 2025		
		
Court:			
Randerson, Harrison and Morrison JJ

Counsel:		
David Corbett for the Appellant
Fatai Vaihu for the Respondent 

Judgment:		
16 May 2025

JUDGMENT OF THE COURT
Introduction
[1]	The appellant, Mr Siddik, has been granted leave under s 74(2) of the Magistrates Court Act for a second appeal on a point of law.
[2]	Mr Siddik was convicted for reckless driving causing damage to Mr Puli’uvea’s bus.  The latter then filed a claim in the Magistrates Court for the damage to his vehicle.  Quantum was the only issue before the Court.  Mr Puli’uvea tendered a quotation from Asco Motors Ltd for the cost of repairs to the bus amounting to $7,346.78.  The quotation had been prepared by a Mr Rakesh Singh who was employed by Asco.  However, he was not available to give evidence in the Magistrates Court as he was no longer employed by the company and had moved to Fiji.  The quotation was produced in the Magistrates Court by a member of the staff at Asco who it is accepted has no specific expertise or experience in assessing the cost of repairing vehicles damaged in motor accidents.  In the Magistrates Court, Mr Puli’uvea was awarded $1500 although there is no record of the reasons for that decision.
[3]	Mr Puli’uvea then appealed to the Supreme Court.  He successfully challenged the award of damages in the Magistrates Court on the grounds that there was no evidence to support the award and no reasons had been given.  Acing Justice Langi quashed the judgment of the Magistrates Court and substituted an award of $7,346.78 based on the quotation from Asco Motors.  In doing so, she rejected Mr Siddik’s submission that the quotation was inadmissible hearsay, and that Mr Siddik had been denied the opportunity to cross-examine Mr Singh on the justification for his quotation.  The Court below found the quotation did not amount to hearsay.  Rather, it was a document that formed a record relating to the business of Asco Motors and had been compiled in the course of the business of the company by Mr Singh.
[4]	Leave to appeal to this Court on a point of law was restricted to the admissibility or otherwise of the quotation.
The appellant’s case
[5]	Mr Corbett submitted on Mr Siddik’s behalf that the onus of proof of the damage sustained was on Mr Puli’uvea; section 24(1) of the Evidence Act enabled expert opinion to be given on any matter requiring special knowledge or skill but had to be given by suitably qualified persons; the Judge in the Court below had failed to analyse ss 88 and 89 of the Evidence Act relating to hearsay evidence; and that, properly considered, the quotation was inadmissible hearsay.  Mr Corbett also made submissions about the award made in the Magistrates Court, but this is outside the scope of the leave granted. 
Consideration
[6]	In the ordinary course, opinion evidence on a new point of trade or any subject matter requiring special knowledge or skill may be given by persons who in the opinion of the Court are possessed of special knowledge or skill in the particular subject under consideration.  
[7]	By section 88 of the Evidence Act where it is sought to prove any fact by evidence except by an oral or written statement made by any person not called as a witness, it is deemed to be hearsay. Section 89 provides that the Court shall not admit hearsay evidence except in specified cases.  There are a number of exceptions but those potentially relevant to the present case are:
(a)	Where the statement forms part of the fact or transaction which is being investigated by the Court;
…
(n)	Where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, on production of the document, be admissible as evidence of that fact if-
(i) 	the document is, or forms part of, a record relating to any trade or business or finance or money operation and compiled in the course of that trade or business or finance or money operation from information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with in the information they supply; and
(ii) 	the person who supplied the information recorded in the statement in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, or cannot reasonably be expected (having regard to the time which has elapsed since he supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information he supplied:
Provided always that-
(A) 	For the purpose of deciding whether or not a statement is admissible as evidence by virtue of this paragraph, the court may draw any reasonable inference from the form or content of the document in which the statement is contained, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be a certificate of a registered medical practitioner or Medical Officer as defined under the Public Health Act;
(B) 	In estimating the weight, if any, to be attached to a statement admissible as evidence by virtue of this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular, to the question whether or not the person who supplied the information recorded in the statement did so contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not that person or any person concerned with making or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts.
…
[8]	If a statement is admitted under any of the exceptions to the hearsay rule, the Evidence Act enables evidence to be given to contradict or corroborate the statement:
90. 	Whenever any statement under section 89 is proved all matters may be proved either in order to contradict or corroborate it or in order to impeach or confirm the credit of the person by whom it was made which might have been proved if that person had been called as a witness.
[9]	It is not in dispute that the staff member from Asco Motors was not appropriately qualified to give evidence as an expert.  She was called simply to produce the quotation provided by Mr Singh, who, it is acknowledged, was suitably qualified to assess the damage to Mr Puli’uvea’s bus and to provide a quotation for the cost of repairs.  The exception in s 89(a) is drawn in very wide terms but we do not need to consider its application here. We accept Mrs Vaihu’s submission for the respondent  that the quotation was properly admissible under s 89(n).  In terms of subsection (i) it formed part of the record relating to the trade or business of Asco Motors and was made by Mr Singh who had direct personal knowledge of the matters dealt with in it. Subsection (ii) was also met because Mr Singh was overseas and not available.
[10]	In terms of proviso (A), the quotation was detailed. It itemised the parts of the bus requiring repair and specified the cost of  parts, labour and painting required. It may reasonably be inferred that Mr Singh had given careful attention to the assessment of damage and the cost of repairs.  In terms of proviso (B), it may be inferred that the quotation was supplied contemporaneously with the assessment carried out by Mr Singh and there is no suggestion he had any motive to conceal or misrepresent the facts he relied on to make his assessment.
[11]	Mr Siddik had the opportunity under s 90 to call evidence to contradict the quotation but did not do so. In that respect, Mrs Vaihu pointed out that a letter of demand with the quotation attached was sent to Mr. Puli’uvea on 17 February 2022 well before the Magistrate’s Court Hearing on 8 November 2023. Accordingly, we see no reason to discount the amount assessed.
Result
[12]	The appeal is dismissed with the result that the judgment in the Supreme Court is upheld. The appellant must pay costs to the respondent as fixed by the Registrar if not agreed.

Randerson J

Harrison J

Morrison J