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IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL APPEAL NO. 31 OF 1998
BETWEEN:
:
GANESH NARAYAN
s/o Ram Narayan
Appellant
(Original Plaintiff)
AND:
PAULIASI IKANIVERE
Respondent
(Original Defe Defendant)
Mr. M. Razathe AppelAppellant
The Respondent in person
JUDGMENT
This is Ganesh Narayan's (the "Appellant"/Originalntiff) appeal against the 'Decision' of the learned Magd Magistrate Ms Gwen Phillips delivered on 2 October 1998.
The Grounds of Appeal are as follows:
1. That the learned Magistrate erred in law and in fact by dismissing the Appellant's Writ.
2. That the learned Magistrate erred in law and in fact by Ordering the Appellant to pay the Respondent damages in the sum of $1,500.00.
Since the respondent needed someone to speak on his behalf in this appeal, as in the lower Court, I allowed Mr. Meli Tikoicina who
is his relative to assist as and when required by the Court.
Background facts
The appellant is the registered proprietor of land known as Lot 79 at Vavalagi Place, Nasinu 9½ miles (the 'land'). Adjacent to that lot is Lot 78 which is owned by the respondent.
The appellant alleges that without his approval the respondent started illegal construction work on part of the appellant's land and
is therefore a trespasser.
In the Writ of Summons the appellant applied for an injunction restraining the respondent from encroaching on to the land and unlawfully
building his house thereon. He is also claiming general damages.
On an application ex parte an injunction as prayed for by the appellant was granted on 11 March 1997 by the then Magistrate Ms Aruna
Prasad. On 27 August 1997 the order for injunction was dissolved by the learned Magistrate Ms Phillips as she considered that it
should not have been granted. The hearing of this action concluded on 20 July 1998 and judgment was delivered on 2 October 1998 when
it was ordered that:
"(i) plaintiff to pay damages assessed in the sum of $1,500.00; (ii) the defendant is prohibited from conducting any structural
works on the portion of his property extending on to the plaintiff's lot. This includes roofing eaves which would clearly extend
the existing encroachment;
(iii) Plaintiff to pay defendant's costs of the proceedings; (iv) writ dismissed".
Determination of Appeal
On the facts and circumstances of this case, in considering the appeal the Court is required to review the findings of fact by the
trial court. The principles involved in dealing with an Appeal of this nature are as stated in the headnote to the well-known case
of Benmax v Austin Motor Co., Ltd (1905) 1 All E.R. 32 (HL) which is as follows:
"An appellate court, on an appeal from a case tried before a judge alone, should not lightly differ from a finding of the trial
judge on a question of fact, but a distinction in this respect must be drawn between the perception of facts and the evaluation of
facts. Where there is no question of the credibility of witnesses, but the sole question is the proper inference to be drawn from
specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge, and should form its own
independent opinion, though it will give weight to the opinion of the trial judge."
Further, on the principles I also refer to the following passage from the speech of Lord Thankerton in Watt (or Thomas) v Thomas [1947] 1 All E.R. 582 at 587 which is pertinent:
"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."
The appellant had alleged that the respondent, while in the process of the construction work on his dwelling house on Lot 78, was
encroaching on to the land. The respondent denies the allegation. After the hearing the learned Magistrate made orders as stated
hereabove.
I have given due consideration to the submissions made by the parties. I shall deal with the two grounds separately.
As to Ground 1
As found by the learned Magistrate, it is clear from the evidence before her that there was an encroachment. This is supported by
the evidence of Swaran Singh of the Lands Department (vide p.61 of Court Record) who said that "for Lot 79 the pegs found intact as per Survey Plan DP4021. I found the pegs in the right position". He also stated that the "encroachment not too much, only .8 - all measurements done in metric, lengthwise 5.3 metres - this was the measurement of encroachment".
Apart from a claim for general damages the only other substantive relief that the appellant was asking for in his writ was "an order restraining the defendant from encroaching the plaintiff's property on Lot 79 and unlawfully building his house thereon". In fact the Magistrate after trial granted him this relief as in '(ii)' above of the said Order.
Having granted the relief sought, the Magistrate could not and should not have said that the writ is 'dismissed'.
Therefore, the appellant succeeds on this ground.
As to Ground 2
In the second ground, it is in effect the appellant's submission that an order for payment of 'damages' should not have been made.
In considering this ground, on the facts and circumstances of this case, applying the principles stated hereabove the appellate Court
has no alternative but to look at the whole of the evidence adduced and ascertain whether the Magistrate has properly evaluated the
evidence before her or not to come to the conclusion to which she came. In other words, it is case where it is necessary to distinguish
between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found or, as has
sometimes been said, between the perception and evaluation of facts (BENMAX supra).
In this regard I have borne in mind the following words of Lord Halsbury, L.C. in Riekmann v Thierry (1896) 14 RPC 105 at 116 (cited in Benmax, supra at 370):
"The hearing upon appeal is a rehearing and I do not think there is any presumption that the judgment in the Court below is right".
The Lord Chancellor goes on to say (ibid.):
"Upon appeal from a judge where both fact and law are open to appeal, it seems to me that the appellate tribunal is bound to
pronounce such judgment as in their view ought to have been pronounced in the court from which the appeal proceeds, and that it is
not within their competence to say that they would have given a different judgment if they had been the judge of first instance,
but that because he has pronounced a different judgment they will adhere to his decision".
Mr. Raza for the appellant submitted that on 9 April 1998 (see p57 of Record) the Magistrate "told the Defendant to return to Court with evidence of loss whereby it is obvious that the Learned Magistrate had long before
made up her mind to give damages to the Defendant, irrespective".
It is pertinent to note, to start off with, that there never was any 'claim' for damages in the Defendant's Statement of Defence.
However, although a Court has an inherent discretion to allow what I would call in this case 'further evidence' on 'damages', this
discretion should be exercised very sparingly. On this aspect Phipson on Evidence (11th Ed). para 1559 sums up the proposition 'that the Judge has a discretion to admit further evidence either for his own satisfaction
or when the interest of justice require it' (Cooke J in Montgego Motors Ltd v Horn and Another [1974] 2 NZLR 21 at 25, Sup. Ct. Palmerston North). This case was not one such case to entitle the Magistrate to adopt the method which she adopted
in dealing with the matter of assessment of damages. It was clearly wrong and an error on the Magistrate's part to on her own initiative
add a relief which has never been properly raised at any time and where the appellant was never given a proper opportunity to respond
to any possible claim for damages. The proper thing to do for the Magistrate was to have ordered pleadings as allowed for in Order
XVI of the Magistrates Courts Act and then to assess damages properly like any assessment of damages and not making an arbitrary assessment despite having stated (on
page 74 of Record) that "the defendant has not met the standard of proof required for the losses of damage he says he has suffered."
In the face of the clear evidence and the Magistrate's finding that the defendant was clearly encroaching on to the land and was therefore
a trespasser, one may ask 'what damages could the respondent have possibly suffered or be entitled to'. The damages, if any, suffered
by the respondent was of his own choosing by stopping construction work in the face of a very clear order for injunction which was
initially granted.
The injunction was in the appellant's favour which was later dissolved only to be restored after trial. The respondent stopped construction
after the injunction; it was his own decision to do so. He says (at p62 of Record) that "when I got the Order I stopped building and because house exposed to elements, I lost about $2,000.00". The appellant was merely concerned with encroachment on the land and no more. The respondent did not have to stop work on his own
land. The Order for injunction dated 11 March 1997 clearly stated that the respondent 'be restrained to construct building or any development on Lot 79 occupied by the Plaintiff'. (emphasis mine)
In these circumstances no question of damages arises as a result of this Order for injunction to which the appellant can be made liable.
The Magistrate was clearly in error in law and fact in awarding damages.
The appellant succeeds on Ground 2.
The appeal is allowed. The Magistrate's orders, except for 'injunction', are set aside. The case file is remitted to the Magistrate's
Court to finally dispose of the case in accordance with the law. The respondent is ordered to pay the costs of this Appeal which
I fix at $200.00.
D. Pathik
JUDGE
At Suva
20 August 1999
Hba0031j.98s
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