| Fiji Islands - Nagaiya v Enktamma - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CIVIL APPEAL NO. 5 OF 1997
(Labasa Mag. Ct. C.A. 599/96)
BETWEEN:
1. NAGAIYA s/o Kamaiya
2. NATIVE LAND TRUST BOARD
Appellants/
Original Defendants
AND:
1. ENKTAMMA f/n Munsami
2. PERMAL GOUNDAR
f/n Nagappa Goundar
Respondents/
Original Plaintiffs
Mr. H. Robinson for the Appellant
A. Kohli for the Respondent
JUDGMENT
This is an appeal by NAGAIYA (the original 1st defendant - the "defendant") against the judgment of the learned Resident Magistrate Moses Fernando Esq., delivered at the Magistrate's Court, Labasa on 24 March
1997 in favour of the plaintiffs.
The Grounds of Appeal are as follows:
1. The Learned Trial Magistrate erred in Law and in fact in finding that the 1st Defendant was liable for paying damages to the Plaintiff.
2. That the verdict of the Learned Trial Magistrate cannot be supported having regard to all the evidence adduced.
3. THAT the Learned Trial Magistrate failed to take into consideration the counterclaim of the 1st Defendant.
4. That the Learned Trial Magistrate failed to take into consideration the defence, if any, of the 2nd Defendant.
5. That the Learned trial Magistrate failed to take into consideration that the first Defendant had an easement on the subject land
by prescription.
6. That the learned trial Magistrate failed to take into account that the 1st Defendant had a statutory easement on the subject land
by operation of Clause 7.1 of the Sugar Industry Master Award, an award conferred under Section 64 of the Sugar Industry Act 1984.
7. That the learned trial Magistrate failed to take into account the public policy and practic of the 1st Defendant's position.
8. That the learned trial Magistrate failed to take into account the practicality of the 1st Defendants position in that the judgement
encloses the 1st Defendant whereby it became impossible for him to harvest and transport his cane.
Background facts
The background facts are set out fully in the judgment. The relevant facts as per page 1 of the judgment are as follows:
"The two plaintiffs who are adjacent owners of native land leases state that the 1st defendant who is also the owner of a native
land lease adjacent to both the plaintiffs had on the 23rd of October 1996 trespassed into the plaintiffs land, damaged their land
and crops and also covered a drain running along the common boundary of the plaintiff's land which acts had been committed with the
concurrence of the 2nd defendant. The plaintiffs further aver that as a result of the said acts the plaintiffs have suffered damages
and losses and will continue to do so.
The plaintiffs are claiming from the defendants special damages in a sum of $670, general damages in a sum of $14000.00 with costs
of the action too. They are also applying for an injunction restraining the defendants from trespassing on to or interfering with
the plaintiff's peaceful possession of their land."
The defendant denies the claim and says that he constructed the access upon instruction from the second defendant (the NLTB) and counterclaims
$14759.00 for general damages arising out of the late harvest of sugar cane. The plaintiffs refute this and say that the defendant
is a trespasser on the said land of the plaintiffs.
The learned Magistrate has stated (p4 of judgment):
"This claim on the part of the two plaintiffs arises from the filling up of a drain on the common boundary of the two plaintiffs
by the 1st defendant with the concurrence of the 2nd defendant to provide access for the 1st defendant to transport his cane."
He went on to say that:
"It is common ground that the 1st defendant had filled up the drain on the instruction of the 2nd defendant. The defence of the
defendants is consent i.e. that the two plaintiffs had given their consent for the filling up of the drain."
Hence the issue before the Court was whether the plaintiffs had given their consent to the "filling up of their drain".
Consideration of Appeal
I have given careful consideration to the submissions made by both counsel in this Appeal.
This is a case in which the decision by the learned Magistrate depended largely on his findings of fact; and although some of the
grounds of appeal state that the learned Magistrate "erred in law and in fact", the decision in this case rests essentially on the credibility of witnesses. In other words the Court is asked to review the findings
of fact by the trial Magistrate. Some matters of law in the grounds were not raised before the trial Magistrate so they cannot now
be argued in this appeal. Very rarely would an appellate Court be justified in interfering unless the findings of fact could not
be supported on the evidence or law or any other proper ground. The principles to be applied by an appellate court in this regard
are laid down in the well-known and oft-quoted case of WATT (or THOMAS) v THOMAS (1947 1 All E.R. 582 at 587 and BENMAX v AUSTIN MOTOR CO. LTD (1955) 1 All E.R. 326 at 329. Similar observations were made in The Fiji Court of Appeal case of PAUL NAGAIYA v JAMES (15 FLR 212 FCA). On the approach to be adopted LORD THANKERTON in WATT (supra) at 587 said:
"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.
II. 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.
III. 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. It is obvious that 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."
Commenting on the above passage Lord Reid in Benmax (supra) at page 329 observed:
"I think that the whole passage ..... refers to cases where the credibility or reliability of one or more has been in dispute
and where a decision on those matters has led the trial judge to come to his decision on the case as a whole. If that be right, then
I see no reason to doubt anything that was said by Lord Thankerton. But in cases where there is no question of the credibility or
reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal
court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though
it ought, of course, to give weight to his opinion."
The judgment of the learned Magistrate which is quite comprehensive, sets out the facts surrounding the case. He has given his reasons
for coming to the conclusions to which he did. He had the advantage of seeing and hearing the witnesses and watching their demeanour
which this Court does not have. He has very carefully analysed all the evidence and has made certain findings of fact on the evidence
before him. I find that he has taken into consideration matters to which he ought to have directed his attention to and subject to
what I say hereafter on "damages" I do not find fault with his reasoning.
On the facts before him after analysing the evidence of each witness from both sides he came to the conclusion, in his own words:
"Hence considering the evidence led in the case on this point on a balance of probability I hold that the said drain had been
filled up by the defendants without the plaintiff's consent."
On damages the learned Magistrate found that as a result of the drain (which was 3 feet deep and 10 chains long) being filled up the
Plaintiffs' vegetable plantation and some sugar cane were damaged. This happened on 23 October 1996 by the defendant and his son
by the use of a bulldozer.
The learned Magistrate went on and awarded damages against the defendant as contained in the judgment i.e. $470.00 as special damages
and $5000.00 as general damages. He also granted an injunction against the defendants. The defendant counterclaim was dismissed as
it had no merits.
Consideration of grounds of appeal
Any interference with the respondent's land needs his consent and even the 2nd defendant (NLTB) could not have unilaterally directed
the appellant to do what he did. There was no defence filed by 2nd Defendant so it could not have been considered.
(a) As for ground 1, the appellants say that damages should not have been awarded.
The learned Magistrate was satisfied that damages were suffered by the plaintiffs. The drain was damaged by being filled up and 2
tons of sugar cane crops were damaged.
For damage to vegetable crops and sugar cane which was ready for harvesting the sum of $470 was awarded which I consider reasonable
on the evidence before the Magistrate which he accepted.
In regard to general damages of $5000 it appears to be on the high side; on the whole of the evidence $3000.00 would be more reasonable
in the circumstances. I did not consider it necessary to remit this aspect of the matter to the Magistrate's Court for reconsideration
as the learned Magistrate is no longer in the country.
(b) I shall deal with grounds 2, 3, 4 together. The learned Magistrate I find has considered all the evidence before him including
the counterclaim of the defendant, there being no defence filed by the second defendant, he came to the conclusion to which he came
and has drawn proper inferences from evidence before him.
I find no merits in these three grounds, they are therefore dismissed.
(c) As for grounds 5 and 6, Counsel concedes that the question of 'easement' by 'prescription' was not raised before the trial Magistrate
and hence it cannot be raised on appeal. Similarly, the matter of "statutory easement" by operation of clause 7.17 of the
Sugar Industry Master award was not raised in the Court below and therefore ground 6 will suffer the same fate as ground 5. The appellant
is bound by the conduct of his case and could not raise on appeal an issue not litigated below if that would disturb the settled
pattern of litigation (DOHERTY and ORS v MURPHY & ANOR. App. Div. 1996 V.R. 553).
These grounds are therefore also dismissed.
d) On grounds 7 and 8, the "public policy and practicality" of the Applicant's position (ground 7) and the fact that the
decision "encloses" him (ground 8) whereby it became impossible for him to harvest and transport his cane are matters for
agreement between the parties amicably as was evidently the case in the past. It is not for the law to create rights based on a long
user contrary to the description of the property in the lease.
In conclusion, for these reasons I find that there is no merit in the Appeal except for the reduction in the general damages. It is
therefore dismissed with costs against the Appellant which is to be taxed unless agreed.
D. Pathik
Judge
At Labasa
21 July 1998
Hba0005j.97b
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