IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBA0016 OF 2001

Between:

BIREND PRATAP SINGH and
REENA SIN
Appellants/Plaintiffs

and

PRANIL KUMAR
f/n Narendra Kumar
Respondent/Defendant

Mr. R. Chand for the Appellants
Mr. R. P. Singh for the Respondent

JUDGMENT

This is an appeal against the Judgment of the then learned Resident Magistrate Jiten Singh Esquire (now a Judge) given on 2 February 2000.

The Grounds of appeal are (as stated in Supplementary Grounds of Appeal dated 12 September 2001):

1.	THAT the Learned Trial Magistrate has erred in law and facts in dismissing the Plaintiffs claim that the vehicle was sold on “as is where is basis” but instead decided that it was sold subject to inspection by the Mechanic whose evidence is to the contrary.

2.	THAT the Learned Trial Magistrate has erred in law and facts in reading into the two documents P. 2 and P. 8 of list of documents words in order to make wordings in both the documents identical contrary to the evidence adduced in Court.

3.	THAT the Learned Trial Magistrate has erred in law and facts in ordering the Plaintiff to pay back to the Defendant the sum of $4,300.00 be paid plus costs on the counter-claim with absolute disregard of the vehicle and its condition which is in the care, possession and custody of the Defendant.

4.	THAT the Learned Trial Magistrate has erred in law and in fact in not evaluating the evidence of the Plaintiff fully as it clearly establishes that the sale of the subject vehicle was unconditionally concluded between the parties.

5.	THAT the Learned Trial Magistrate has erred in law and in fact in reading into the sale and purchase of the subject vehicle between the parties two conditions, that the sale was subject to inspection by a mechanic and that there was a subsequent arrangement on 17th day of January, 1998 that the Plaintiff would refund $4,300.00 and take back the car when evidence was to the contrary not conclusive and above all contradictory.

Very briefly, the facts surrounding the case are set out in the Learned Magistrate’s Judgment and it is not intended to reiterate them here suffice it to say that there was a sale of a motor vehicle for $9,300.00 and a deposit of $4,300.00 was paid to one Nand Singh allegedly as agent for the vehicle owner. The balance of $5,000.00 was to be paid later but because defects were discovered in the vehicle when it was inspected by a mechanic the balance sum was not paid to the plaintiffs/appellants. Hence the plaintiffs instituted proceedings in the Magistrate’s Court, and the defendant counterclaimed.

The plaintiffs’ claim was dismissed with costs to the defendant. Further the plaintiff was ordered to pay the said sum of $4,300 to the defendant. General damages as claimed was not allowed. The defendant was allowed costs on his counterclaim. The costs were to be taxed if not agreed.

On appeal this Court heard oral arguments; written submissions were also filed for my consideration in determining the issues.

Consideration of the grounds

Mr. Chand for the appellants (who are plaintiffs in the Court below) has made a very lengthy submission on each of the grounds of appeal filed by him. He has referred the Court to instances where the learned Magistrate had gone wrong in his findings on evidence presented to him.

I have given due consideration to all his submissions bearing in mind the function of an appellate Court on appeal brought to it and the matters which fall within its purview to consider.

I also have the written submission of Mr. Raza, counsel for the Respondent/Defendant. He agrees with the orders made by the Learned Magistrate as he made findings of fact on the evidence before him. He said that he had the advantage of observing the demeanour of witnesses. He also submitted that the plaintiffs’ agent had agreed to refund the said sum of $4,300.00. Mr. Raza further makes an important point that the plaintiffs did not adequately reply to paragraph 6 of the defendant’s Defence apart from stating ‘the Plaintiff denies the allegations made in paragraphs 6 and 7 of the Statement of Claim and puts the Defendant to strict proof of the same’. There is no question of having been forced to sign. There was no application to amend the pleadings.

The learned Magistrate dealt with the issues before him in his judgment.

On ground 1 Mr. Chand made a detailed submission why the Magistrate erred in law and fact. The Magistrate made findings of fact on the evidence before him. He stated: ‘Here I find that the defendant would only have paid the balance of purchase price if his mechanic had seen the vehicle and approved of its condition.’

I hold that this finding of fact rested essentially on the credibility of witnesses.

Counsel is asking this Court to review the findings of fact by the trial Magistrate. 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.

On matters raised in Ground 2 the Magistrate made certain findings of fact which he was entitled to do, in that after evaluating the evidence pertaining to p.2 and p.8 that he believes ‘the defendant and his witness Kishore Prasad when they say that Nand Singh agreed to refund $4,300.00 to the defendant’. In fact the Magistrate disbelieved the said Nand Singh when he said that he was forced to sign certain document.

I see no merit in this ground of appeal and I make the same observations on ‘findings of fact’ as in ground 1.

The remainder of the Grounds 3, 4 and 5 can be dealt with together. These grounds relate to the Magistrate’s Order for the refund of $4,300.00. I do not see anything wrong in his decision to order the refund of the said sum of $4,300.00. His decision is based on the evidence before him. As for Grounds 3, 4 and 5 my observations on them are as stated in Ground I.

I see no merit in any of the Grounds in this appeal. The submissions by plaintiffs’ counsel are detailed and they were also before the Magistrate when he heard the case and he considered the matters raised by him.

In coming to the conclusion to which I have come I have borne in mind the principles to be applied by an appellate court as laid down in the well-known and oft-quoted case of Watt (or Thomas) v Thomas (1941) 1 All ER 382 at 587 and Benmax v Austin Motor Co., Ltd (1955) 1 All E R 326 at 329. Similar observations were made in the Court of Appeal case of Paul Nagaiya v James Subhaiya 15 FLR 212 FCA. On the principles to be applied Lord Thankerton in Watt (supra) at p.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 mistakably 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 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.”

In James Subhaiya (supra) the court said:

“2.	An appellate tribunal is reluctant to interfere with findings of fact made in the court below, particularly those based on the credibility of witnesses but it is less reluctant to interfere when the findings, or some of them, are inferences drawn from accepted evidence.” 

Conclusion

Upon a careful perusal of the record, I am satisfied that there was ample evidence to support the findings of fact by the trial Magistrate. He has given due consideration to the evidence of the appellant’s witness and has given his reasons for coming to his findings of fact which I accept. Here I must refer to Lord Shaw in Clarke v Edinburgh and District Tramways Co (1919) S.C. (H.L.) 35 when he said:

“When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.”

The learned Magistrate also was in a better position than the appellate Court to “from his vantage point observe signs of unfamiliarity, lack of preparedness, laziness, incompetence and confusion with much greater perspicacity than an appellate court with only a transcript to work on. Very rarely could an appellate court be justified in interfering” [Sir Thomas Bingham M.R. in Ridehalgh v Horsefield and Anor [(1994) 3 WLR p.462 at p.513 C.A.] For the reasons stated hereabove I feel that I should not interfere.

In the outcome I have come to the conclusion that none of the grounds of appeal has been established.

The appeal is therefore dismissed with costs against the appellant in the sum of $400.00.

D. Pathik
Judge

At Suva
23 May 2003