| Fiji Islands - Lingam v Chand - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction
CIVIL APPEAL NO. 0008 OF 2001
Between:
RAM LINGAM
Appellant/Defendant
- and -
SUKH CHAND
Respondent/Plaintiff
Mr. N. Shivam for the Appellant
Mr. G. O’ Driscoll for the Respondent
JUDGMENT
This is an appeal against the judgment of the Magistrate Court, Suva in which the learned trial magistrate awarded the respondent the sum of $5,884.00 with costs to be taxed.
The original Statement of Claim averred that the plaintiff (respondent) had paid the defendant (appellant) a sum of money for him to obtain visas and air tickets
for the plaintiff and he had failed to `carry out his part of the agreement’ and `wrongfully continues to retain the payment of $5,884.00' and the plaintiff seeks to recover the money. The Statement of Defence was a bare denial which the learned trial magistrate described as `...... lacking in any detail and hardly can be considered a defence’. Nevertheless the trial proceeded.
The plaintiff gave evidence and produced a handwritten slip of paper (Ex.1) in which he had recorded details of the three separate (3) cash payments he had made to the defendant, two (2) in 1991 and one (1) in 1994, and totaling $5,884.00. The plaintiff’s wife then testified and produced her two (2) Westpac Savings Account Passbooks (Exs. 2 & 3) out of which the monies were withdrawn, and finally, the plaintiff’s daughter testified and produced an A.N.Z. cheque leaf (Ex.4) belonging to the defendant’s business and a handwritten note allegedly written by the defendant (Ex.5).
The defendant in his evidence in chief denied receiving the sum of $5,884.00 claimed by the plaintiff and although he accepted that the cheque (Ex.4) belonged to him, he denied the writing on its reverse was his. Similarly he denied seeing, giving, or writing the note (Ex.5). More particularly, he claimed that : `1995 was first time I met plaintiff. Before that I did not meet him’ and presumably could not have received the monies that the plaintiff claims he had handed over to him in 1991 and 1994.
In his careful judgment the learned trial magistrate firstly sets out the evidence of the plaintiff’s witnesses and then the defendant’s
evidence which he admirably summarised in the following sentence : `The defendant’s case is that no payment as alleged were paid to him and that he did not agree to arrange migration visa for the plaintiff.’
The learned trial magistrate then deals with an incorrectly recorded date in the plaintiff’s handwritten note (Ex.1) which he accepts as `a genuine error’, and then quite properly warns himself that `withdrawal of money (from a passbook) is not itself evidence of payment to defendant’ moreso in the light of the defendant’s emphatic denials, and finally the learned trial magistrate concludes his judgment with the
following critical `findings’ (at p.31 of the record):
`I find that the money was withdrawn from the Bank as plaintiff and his wife allege and it was paid to the defendant.’
and later :
`I also find that this money was given to the defendant for him to obtain visa and to buy tickets. The defendant I find failed to do this so he must refund the money.’
(My underlining)
Implicit in those findings is the clear preference of the learned trial magistrate for the evidence of the plaintiff’s witnesses including
a specific preference for the evidence of the plaintiff’s daughter concerning the cheque (Ex.4) and the handwritten note (Ex.5) which he describes as `...... a link - a connection between the plaintiff and the defendant’.
Needless to say given the nature of the evidence before the learned trial magistrate, the determination of the case came down to an
assessment of credibility and his worship’s specific findings referred to above, plainly indicates that the learned trial magistrate disbelieved the defendant’s
sworn denials in favour of the plaintiff’s sworn assertions.
Given that this was a case where assessment of credibility was paramount and despite appellant counsel’s best efforts during the hearing
of the appeal, I remain unconvinced that the learned trial magistrate’s assessment was either unsupported by the evidence or so unreasonable
that this court should interfere with it.
Finally it is necessary to correct one misconception in appellant counsel’s submission to the effect that the credibility of a witness
is indivisible, i.e. either his entire evidence is accepted or it is entirely rejected as untrustworthy. In this regard I need only refer to observation of Moti Tikaram J. (as he then was) in Dayaram Sharma v. Northern Hotels Limited (1968) 14 F.L.R. 157 when his lordship said at p.159/160 :
`There is no rule of law that a witness credibility is indivisible.’
The appeal is accordingly dismissed with costs which are summarily fixed in the sum of $250.00 (inclusive of the Magistrates Court costs) to be paid within 14 days of the date hereof.
(D.V. Fatiaki)
JUDGE
At Suva,
18th October, 2001.
HBA0008J.01S
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