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Kumar v Polycraft (Fiji) Ltd [1995] FJHC 155; Hba0006j.95s (20 October 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 0006 OF 1995

Between:

NARESHWAR KUMAR
T/A N.K. TRADING
Appellant
(Original Defendant)

- and -

POLYCRAFT (FIJI) LIMITED
Respondent
(Original Plaintiff)

Mr. M.V. Bhai for the Appellant
Mr. H.M. Patel for the Respondent

JUDGMENT

The Appellant (the original defendant) (hereafter referred to as the "defendant") has appealed against the decision of Resident Magistrate Karunairetnam Esq delivered on 9 November 1994 in this action. The Respondent (the original Plaintiff) will be referred to as the "Plaintiff" in this judgment.

Although the defendant has filed the following grounds, Mr. Bhai has argued them all together:

1. THAT the learned trial Magistrate erred in law and in fact in entering judgment against the Appellant.

2. THAT the learned trial Magistrate erred in law and in fact in not giving his reasons for his judgment.

3. THAT the learned Magistrate erred in law in not giving a fair hearing of all evidence of facts from both parties before making judgment.

4. THAT the learned Magistrate erred in fact and in law in giving judgment for the Plaintiff/Respondent for $4262=92 less $75=35.

5. THAT the learned Magistrate erred in failing to consider properly the grounds set forth in the Statement of Defence of Appellant filed on the 27th June 1994.

6. THAT the learned Magistrate erred in law and in fact by giving judgment as he did (as in paragraph 4 hereof), instead of giving judgment for only $2717=35 as admitted by the Appellant.

7. THAT the learned Magistrate erred in law and in fact in failing to consider properly the evidence of the Appellant.

8. THAT the learned Magistrate erred in fact and in law in failing to consider the value of the returned Plastic wares and the value of the three cartons of 10-wick stoves which the Respondent neglected to retake delivery from the Appellant.

The Plaintiff's claim and the defendant's defence are clearly and concisely set out in the learned Magistrate's judgment.

The claim was for the balance sum of $4262.92 for goods sold and delivered to the defendant. The learned Magistrate had carefully considered all the evidence adduced before him and said that he is "satisfied that the plaintiff's case had been proved. The defendant on the other hand has failed to prove his defence or claim". He then gave judgment for the Plaintiff for the amount claimed less $75.35 and costs.

Mr. Bhai for the defendant puts up the same argument which was before the lower Court and which had already been considered by the learned Magistrate. Even in this appeal Mr. Bhai admits that there was no signature for the alleged return of goods to the Plaintiff, which the Plaintiff denied were returned, amounting in value to the sum of $876. As to why the defendant did not obtain the signature of the plaintiff or his agent if the goods were returned has not been explained.

Mr. H.M. Patel for the plaintiff argues that the learned Magistrate had the opportunity to see the demeanour of witnesses who gave evidence before him; he examined the exhibits and then gave a written judgment. He said that the learned Magistrate did not believe the defendant on the question of goods alleged to have been returned to the Plaintiff except plastic bags (page 2 of his judgment).

He further argues that out of the sum of $4262.92 claimed, the defendant admitted $2717.35 but disputed the balance sum of $1544.94. The disputed claim was made up of (a) plastic ware goods ($876.00); (b) 10 cartons of wick (damaged) ($348.00), (c) free samples ($184.99) and (d) credit for "plastic bags lollies" ($135.95).

Mr. Patel says that there is no "acknowledgment of return goods produced" and "no evidence when it was returned". This was a question of credibility for the learned Magistrate to decide. As for stoves, although the defendant said they were damaged, they were not produced in Court. This was also a question of credibility. The Plaintiff had denied giving free samples to the value of $184.99.

Mr. Patel said that there is no manifest error in law or on facts on the part of the learned Magistrate.

I find that this was a simple case of a claim for the balance sum due for goods sold and delivered. It was all a question of fact involving the credibility of witnesses. The learned Magistrate was in a better position to decide on these matters than the appellate Court.

In this appeal the appellate Court is being asked to review the findings of fact by the trial Magistrate. The findings in this case were based on the credibility of witnesses. Very rarely would an appellate Court interfere on findings of fact unless they could not be supported on the evidence or law or any other proper ground.

In an appeal of this nature which calls for a review of the findings of fact by a trial Court based on the credibility of witnesses, the following passage from the speech of LORD THANKERTON in WATT (or THOMAS) v. THOMAS (1947) 1 AER 582 at 587 is worth noting.

"I Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.

2. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
   
3. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."
   

The value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. I find that in this case there is sufficient evidence to support the learned Magistrate's findings. He found the plaintiff's claim proved against the Defendant. It was all a question of fact for the trial Court than for the appellate court to determine.

He has properly evaluated the evidence before him and had come to certain findings of fact with which the appellate Court does not think fit to interfere.

Mr. Bhai complains that the learned Magistrate has not given reasons for his judgment. That is not so. There is ample reason given and there is nothing further a Magistrate is required to do. In this connection the headnote to JAN BARKAT ALI v REGINAM (18 FLR p. 129) states, inter alia:

"A magistrate is not obliged to give reasons in his judgment for his acceptance or rejection of the evidence of any particular witness, and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence, there has been no failure to comply with the requirements of section 154 of the Criminal Procedure Code."

For these reasons I find there is no merit whatsoever in any of the grounds and the appeal is therefore dismissed with costs to the Plaintiff (Respondent) to be taxed if not agreed.

D. Pathik
Judge

At Suva
20th October, 1995

HBA0006J.95S