IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
APPELLATE JURISDICTION

High Court Appeal No. 12 of 2018
(MC Civil Action No. 91 of 2016)

IN THE MATTER of an Appeal from the Decision of the Lautoka Magistrate’s Court in Civil Action No. 91 of 2016.
	
BETWEEN          

ALL FREIGHT LOGISTICS LIMITED a limited liability company having its registered office at Foster Street, Walu Bay, Suva.
	
APPELLANT/ORIGINAL DEFENDANT	
		
A N D                  

CHOICE RESOURCES LIMITED a limited liability company having its registered office at 2/36 Vitogo Parade, Lautoka.
	
RESPONDENT/ORIGINAL PLAINTIFF	

Appearances      :   Mr W. Mucunabitu for the appellant/original defendant
                                  Ms S. Ravai for the respondent/original plaintiff 
Date of Hearing:   29 October 2018
Date of Ruling  :   14 February 2019

R U L I N G
[on adducing new evidence on appeal]

Introduction 
[01]	This ruling is concerned with an application for adducing further evidence on appeal. The application states that it is made under O 55, R 7 of the High Court Rules 1988, as amended (‘HCR’).
[02]	By its application dated 12 October and filed under O 55 R 7 (2) (‘the application’) the appellant/original defendant (‘the appellant’) seeks the following orders:
1.	An Order that there be a Stay of Execution against the appellant/original defendant pending the determination of this application and/or delivery of the judgment of the appeal.
2.	An Order that leave be granted to the appellant/original defendant to adduce further and/or fresh evidence on the hearing of this appeal.
3.	An Order that costs of this application be costs in the cause.
4.	Any further relief or orders that this Honourable Court deems just and appropriate. 
[03]	The application is opposed. The respondent/original plaintiff (‘the respondent’) has filed an affidavit in opposition of Avin Raj sworn on 19 October 2018.
[04]	At the hearing, both parties orally argued the matter. In addition, they sought time to file their respective submissions. The court accordingly granted time for them to file and serve the submission. However, only the respondent had filed its submissions as ordered. The appellant did not file any submission. 
Background
[05]	Choice Resources Limited, the respondent brought an action against All Freight Logistics Limited, the appellant in the Magistrates Court claiming a sum of $11,000.00 on the ground that the appellant had failed to ship the container to Fiji from China for which the appellant was engaged for by the respondent. The appellant’s defence was that the container was seized by the China Customs as it contained branded items. At the trial before the Magistrate, the appellant did not produce the relevant documents-the Customs documents. During the cross examination, the appellant witness stated that such documents are in the office. At the conclusion of the trial where both parties called witnesses and produced documents, the Magistrate entered judgment against the appellant. The appellant appeals and also seeks leave of the Court to adduce fresh evidence (the China Customs documents) on appeal.
The Law
[06]	This is an appeal from Magistrate’s Court. Therefore, the relevant Rule is the Magistrates Court Rules, as amended (‘MCR’), O 37, R 16, not O 55, R 7 of the High Court Rules 1988, as amended (‘HCR’). HCR, O 55, applies to appeals to the High Court from Court, Tribunal or general person where rules governing appeals have not been made under any enactment and not to an appeal from the Magistrates Court to the High Court.
[07]	The MCR, O 37, R 16, provides:
“New evidence on appeal
	16. It is not open, as of right, to any party to an appeal to adduce new evidence in support of his original case; but, for the furtherance of justice, the appellate court may, where it thinks fit, allow or require new evidence to be adduced. A party may, by leave of the appellate court, allege any facts essential to the issue that have come to his knowledge after the decision of the Court below, and adduce evidence in support of such allegations”. 
[08]	The governing principle on new evidence on appeal Lord Denning in Ladd v Marshall [1954] 3 All 745 set out the principles applicable in considering whether leave should be granted at the appeal to adduce further or fresh evidence as follows:
“First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial.
	Second, evidence must be that, if given, it would probably have an important influence on the result of the case, although it need not be decisive.
	Third, the evidence must be such as is presumably to be believed or in other words, it may be apparently credible, although it need not be incontrovertible”. 
Discussion and Determination 
[09]	On appeal, the court has the discretion to allow in appropriate cases to allow or require new evidence to be adduced by any party to the appeal for furtherance of justice on any facts essential to the issue that have come to his or her knowledge after the decision of the court below (see MCR, O 37, R 16). The primary consideration when granting such leave is whether the alleged facts essential to the issue should have arisen after the decision of the court below. Any party to an appeal is not entitled to adduce new evidence as of right on appeal.
[10]	The appellant seeks leave of the court to adduce a 7 page-document issued by the China Customs Office; the translation of the document states that such document includes the Bill of Lading specifying the amount in detail and the number of the container and bank information which shows that the documents came from Asia Rapidness Freight Forward Services. 
[11]	The application to adduce new evidence on appeal is sought on the basis that the appellant was unable to produce the documents as they were in Chinese language. The appellant intends to adduce the documents to substantiate its defence that the container was seized by Customs Authority in China for non-disclosure of prohibited and/or branded items on the part of the respondent.
[12]	It is submitted on behalf of the respondent that these documents which the appellant is seeking to adduce was available at all times to the appellant and their solicitor at the time of the hearing (before the Magistrate’s Court) but in fact chose not to adduce the same for reasons only best known to them and that this was in fact admitted by the witness for the appellant at the time of the hearing upon cross-examination as per page 38 of the Copy Record. 
[13]	The rule in Ladd v Marshall applied to appeals from trial and final determination and not deliberately leaving over points for the purpose of appeals.
[14]	The discretion to admit fresh evidence on appeal has to be exercised in accordance with the overriding objective (Evan v Tiger Investment Ltd [2002] EWCA CN 161, [2002] 2BLLC 185).
[15]	Strong grounds have to be shown before fresh evidence will be admitted, and the Ladd v Marshall principles will be looked at with considerable care (Hertfordshire Investment Ltd v Bubb [2000] 1 WLR 2318).
[16]	It will be a rare case where the Ladd v Marshall conditions are not satisfied but the court nevertheless admits fresh evidence on appeal (Shakar v Al-Bedrawi [2002] EWCA Civ 1452).
[17]	Indeed, the appellant seeks leave of the court to adduce those documents, which were available at the time of the trial before the Magistrate’s court in support of his original claim, on appeal. The fact that the documents were in Chinese language is not an excuse for the appellant for not providing them at the trial before the Court below. Simply, the appellant could have provided translation of the documents or called a witness who is able to interpret the documents as it called in this appeal proceeding. 
[18]	Of the documents which the appellant intends to adduce on appeal, the appellant’s witness, during cross-examination at the trial before the Magistrate, stated as follows:
“Q:  You also clearly stated that you made payments to your agents. Do you have any receipt   confirming this? Confirming that your agents have indeed received payment from your company and have paid the Customs Authority in China?
		
A:  They forwarded receipt but it was all in China [sic] language.
	Q:  But do you have proof there with you?
  A:  At the moment no. At the moment it is in the office [see page 38 of the Copy   Record].”

[19]	It is abundantly clear that the evidence sought to be adduced on appeal in support of the original claim was available at the time of the trial before the court below which the appellant had failed to adduce such evidence due to their own fault leaving over points for appeal purpose.
[20]	In my opinion, the Ladd v Marshall rule cannot be applied to the appellant’s application, for the evidence sought to be adduced on appeal was readily available for use at the trial.
[21]	The MCR, O 37, R 16 also does not apply to the appellant’s case. Rule 16 empowers the appellate court (High Court) to grant leave to any party to an appeal to adduce new evidence on appeal where it is alleged any facts essential to the issue that have come to his knowledge after the decision of the Court below.
[22]	The appellant alleges the documents they seek leave to adduce on appeal are essential to the issue that the container was seized by the Customs Authority in China. However, those documents were within their knowledge and under their custody before the decision of the Court below.
[23]	I am not satisfied that the evidence the appellant seeks leave of the court to adduce on appeal has not come to the appellant’s knowledge after the decision of the Court below. In fact, it was available for use at the trial. The appellant, it appears, had failed to use it at the trial for one reason or the other. In the circumstances, I would refuse to grant leave to adduce new evidence (the documents) on appeal with cost of $400.00 which is summarily assessed payable by the appellant to the respondent within 21 days of this ruling.
	Final orders
1.	Leave to adduce new evidence on appeal refused.
2.	The appellant shall pay summarily assessed costs of $400.00 to the respondent within 21 days of this ruling.

	DATED THIS 14TH DAY OF FEBRUARY 2019 AT LAUTOKA.

……………………………….
M.H. Mohamed Ajmeer
JUDGE
Solicitors:
For the appellant: M/s. Vijay Naidu & Associates, Barristers & Solicitors
For the respondent: M/s. Fazilat Shah Legal, Barristers & Solicitors