Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Prasad v Shankar [2000] FJHC 140; Hba0010j.2000s (28 February 2000)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA 10/2000S

Between:

RAJENDRA PRASAD
(f/n Awadh Prasad)
Appellant

and

VIMAL SHANKAR
(f/n Not Known)
Respondent

R.P. Singh for the Appellant
D. Sharma for the Respondent

JUDGMENT

The Appellant is the registered owner of a motor van CF 714 which he bought in about 1996 for $3,704.79. By 1999 the van was in the actual possession of one David Levy who had by then been using it for over a year. Apparently Levy did some work for the Appellant for which he was not paid and accordingly the Appellant gave him the use of the van as a form of payment in kind.

On 15 January 1999 David Levy issued a letter (page 82 of the record) asserting that he had borrowed $3,000 from a firm “Above Designs”. In the event of not repaying the loan the Respondent who was the managing director of “Above Designs” was authorised to sell “my van registration CF 174 ... to recover his company money”. According to the Respondent he took the van in about April 1999.

On 6 July 1999 Mr. Levy issued another letter (page 83 of the record) authorising the Respondent to sell CF 174 which Levy stated he had bought from the Appellant for the sum of $8,500.

On 17 May 1999 the Appellant issued a writ and Statement of Claim in the Suva Magistrates’ Court seeking the return of the van to him, alternatively either $9,000 of $6,000 in damages. The Appellant’s case was that he was at all times was the proprietor of the van and entitled to its possession. He claimed that the Respondent had wrongly converted the van to his own use.

The hearing of the action took place in the Suva Magistrates Court on 27 September 1999 and 9 February 2000. The evidence is to be found on pages 41 to 59 and 65 to 76 of the record.

On 15 February the Resident Magistrate (Ms. Gwen Phillips) delivered a concise and comprehensive Judgment (page 77 et seq. of the record). She found that neither the Appellant nor Levy were witnesses of truth. She found that they had colluded with the aim of seeking the return of the van which by now had been substantially refurbished and repaired and was worth considerably more then when it was taken by the Respondent at which time (page 69 of the record) it was in a very poor condition, lacking even an engine.

In her Judgment the Resident Magistrate wrote that the Plaintiff “has not established that he is the owner of ... CF714” and this finding is the foundation for the Appellant’s first ground of appeal. Mr. Singh submitted that since it was not disputed that the Appellant was the registered owner of the van the Resident Magistrate had misdirected herself. I disagree. In my view the registration of ownership for the purposes of the Traffic Act or its successor is only prima facie evidence of ownership and in the circumstances of the case as found proved by the Resident Magistrate she was entitled to find that the presumption had been rebutted.

Essentially the Resident Magistrate based her Judgment on her evaluation of the truthfulness of the witnesses called.

She also however took into account the fact that the Appellant’s evidence was essentially unsubstantiated or merely unbelievable. It is only necessary to note the contrast between the purchase price paid by him for the van and the amount claimed (almost 3 times as much) to make the point.

Where a court reaches its decision essentially by evaluating the credibility of the witnesses whom it has seen and heard then, in the absence of any obvious self misdirection the appellate court will not interfere (see e.g. Benmax v. Austin Motor Corporation [1955] 1 All ER 326).

I can find no error in the Resident Magistrate’s approach to the evidence placed before her and accordingly the appeal fails and is dismissed.

M.D. Scott
Judge

28 February 00