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Diamond Engineering Ltd v Prasad [2021] FJHC 394; HBA10.2019 (17 December 2021)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION


HBA 10 of 2019


BETWEEN:

DIAMOND ENGINEERING LTD

APPELLANT


A N D:

SATEN PRASAD

RESPONDENT


Appearances: Mr. R. Singh for the Appellant
Mr. Charan for the Respondent


Date of Hearing : 20 October 2020
Date of Ruling: 17 December 2021


R U L I N G

BACKGROUND


  1. The Respondent, Saten Prasad (“Prasad”) was the plaintiff in Magistrates Court Civil Action No: 176 of 2017. The Appellant, Diamond Engineering Limited (“Diamond”), was the defendant.
  2. From his statement of claim in the court below, Prasad had pleaded that he is a businessman. He claims that he is the Director of a car rental business which operates under the name and style of GO-Rent – A-CAR. He also runs a car racing garage. At some point between January and July 2017, Prasad bought an engine block and titan main caps from Australia. He wanted these to be fitted into one of his racing cars. He spent a total of $7,500.00 for freight and also for the modification of the engine block.
  3. Prasad delivered the engine block and titan main caps to Diamond. According to Prasad, Diamond was a “specialist in engine modification” including the modification of engine blocks and titan main caps of racing cars. He pleaded that he left the engine block and the titan main caps with instructions at Diamond’s with all his trust that Diamond would carry out the necessary work professionally and to the required standard.
  4. However, as it turned out, Diamond;

“.....acted professionally and negligently in disregarding the instruction and expectations given by the Plaintiffs and made a total blunder in defacing the rings hence damaging the whole engine”.


  1. In its statement of defence, Diamond conceded that Prasad had brought in the engine block and titan caps with some specific instructions for their modification. However, Diamond pleaded that it had carried out all work in accordance with Prasad’s instructions. After Diamond completed the work, Prasad came to inspect and have a look. However, Prasad refused to take the items. Instead, he claimed that the items were damaged by Diamond. Diamond claimed that Prasad reached that conclusion without even testing the engine block and titan caps. Diamond refuted Prasad’s allegations of negligence.
  2. In its counter-claim, Diamond seeks from Prasad the unpaid cost of work done which is $800-00.

TRIAL AT MAGISTRATES COURT


  1. The trial at the Magistrates Court happened on 30 January 2019. For the Plaintiff’s case, only Saten Prasad gave evidence (see pages 69 to 81 of copy records). For the Defendant’s case, only Malik Naveet Armond gave evidence (see pages 81 to 85 of Copy Record). Judgment was delivered on 06 March 2019 (pages 15 to 19 of Copy Record).

RULING


  1. In his ruling, the Learned Magistrate summarized the plaintiff’s claim as well as the defendant’s defence and then went on to define the issues as follows:
  2. The Learned Magistrate then analyzed the evidence in paragraphs 08 to 20 of his ruling. He then concluded as follows at paragraphs 21 to 26:
    1. based on the above analysis this Court finds that Plaintiff has established on balance of probability that he has spent $5600 in modification.
    2. that the Defendant has not carried out the job as of the provided specifications.
    3. the poor workmanship had caused non-reversible damages to the engine block.
    4. that the engine cannot be used in Plaintiff’s car for his expected purpose.
    5. defendant is not entitled and has not proved their counter claim.
    6. plaintiff suffers general damages such as inflation, time he waited over this defacing and the process of finding a new engine.
  3. The Learned Magistrate then gave the following Orders;
    1. Judgment in sum of $5,600 entered in favor of plaintiff.
    2. general damages at a sum of $500.
    3. plaintiff entitled for post judgment interest at the rate of 5% per annum on the judgment sum plus pre-judgment interest from the date of this judgment (sic)
    4. counter-claim of the defendant is dismissed.
    5. 30 days for appeal.

APPEAL


  1. The appellant now wishes to appeal the said decision on the following Amended Grounds of Appeal filed on 10 March 2020:

Learned Magistrate Failed to take Into Consideration Evidence of the Appellant Original Defence Witnesses


  1. So long as there is evidence which, if believed, would support a finding of fact of the Learned Magistrate, no appeal will lie on such a finding of fact.
  2. If the Learned Magistrate, as alleged, did fail to take into account evidence of the Appellant’s sole witness, it is possible that he may simply have decided not to give it any weight.
  3. In Wilson v. Lowery [1993] NTCA 127; 1893 110 F.L.R. 142, the Supreme Court of Northern Territory (Australia) said as follows:
    1. In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages. The first stage is to find the preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies.
    2. Regardless of the trial judge’s reasons, if there is evidence which, if believed, would support the finding, there is no error of law.
    3. If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute ... there is an error of law.

(my emphasis)


  1. It appears to me after reviewing the Court Records and the Ruling that the Learned Magistrate chose to accept the evidence of Prasad over the evidence of Armond. I will not allow the appeal on this ground.

Learned Magistrate Failed to Take into Consideration the Material Contradiction in the Evidence of the Respondent Original Plaintiff’s Witness.


  1. I note that in his evidence, Prasad had said at page 71 of the copy records that he bought the engine from a local company but that he “had bought the other titan caps from USA”. He also said at page 72 of Copy Records that he had a friend coming in from the USA who purchased the component of the engine for him and which is why he does not have a receipt with him.
  2. In cross-examination, it was pointed out to Prasad that he had pleaded that he had bought the engine and the component part from Australia. His answer was:

I clearly see there is an error but the engine was imported from Australia but supplied by this company it was invoiced to me but the other component came in from United States but the engine was imported from Australia through this company and they supplied it to me.


  1. In cross-examination, Prasad was asked the following questions:

Q: The engine block and the titan main cap you give to Diamond Engineering was there any rings in it or on it any titan ring?

A: I couldn’t get you.


Q: When you give the engine block and titan main cap to Diamond Engineering was there any rings you know there are 3 types of rings only?

A: Yes piston rings.


Q: Exactly, so did you give any rings?

A: I have given it for a separate job but only one part of it was performed the other wasn’t but yes I gave the ring.


Q: You gave the ring?

A: Yes.


Q: Mr. Prasad is it true that you are claiming that your titan main cap and the engine toppers defaced?

A: It was lining board.


Q: It was?

A: It was called lining board.


Q: That means you are saying there are lines in it?

A: The process is called line boring.


Q: Main line boring, but did Diamond Engineering defaced your main cap and....?

A: Yes.


Q: They did?

A: Yes.


Q: Sir can I take the leave of the Court for him to read statement claim number 7?

A: “Defendant acted unprofessionally and negligently in disregarding the instructions and expectations given by the Plaintiff and made a total blunder by defacing the rings hence damaging the whole engine”.


Q: So according to the statement of claim the rings were defaced, rings there are only 3 rings in the vehicle you know very well it is in the piston the top and the oil one?

A: Yes.


Q: But you did not give the; according to you the titan cap and the block were defaced, but according to your claim the rings were defaced what do you have to say about it?

A: I am really sorry I am just looking at some of this details it has been entered incorrectly. I just been able to see this right now but as I explained the main purpose for this engine block was for line boring nothing so I think there’s a mistake made there.


Q: Mr. Prasad the court will consider what’s in that claim so clearly in the claim was the rings which was defaced what do you have to say about that because the first mistake was Australia the second was the ring. Do you accept that....?

A: I accept there is a mistake there. I totally haven’t really rad that document it was prepared by my lawyer and probably his understanding on how engine components work is very different and probably he didn’t put ti right so that is why I am a mechanic by profession and I have explained you thoroughly here as to what I gave the engine for today.


Q: The claim was on the rings, the defaced of the rings not the....do you agree with me?

A: But defacing I understand that there is an error but I gave for line boring.


Q: What have you to say about plenty errors here one is Australia another is rings, what you have to say to the court about this?

A: I am sorry there is a mistake and I have overlooked at those.


Q: So you did not take engine block and titan caps you did not fit it in your vehicle and you did no test it, is it true?

A: Yes.


Q: Did you take delivery of the items, did you fit it in your vehicles and did you test it?

A: No I didn’t.


Q: Then how come in your statement of claim no: 7 says; defacing the rings hence damaging the whole engine?

A: Because the component on which they have been marked on the picture is part of the block that cannot be replaced so in order to replace it you need to change the whole block.


Q: So you confirming the court, you did not test the engine?

A: I did not test the block unless.....


Q: Something you don’t know performing or not is it true?

A: No it is true.


Q: Unless you test an engine you don’t know whether it is performing or not?

A: No that is not true.


Q: So you can test the engine without a head and gaps and all these stuffs?

A: There are measurement given for the component to the machine and if the measurement is not correct it is no use assembling the whole engine and basically ruining it that is the small component there are so many other things we have process so it wasn’t as per the specification we had given then I didn’t even try and like I said I had taken the pictures for reference overseas and I was told by professional engineering shop that it was no use to repair or assemble the whole engine as it would be a waste of time.


  1. There were indeed inconsistencies between the pleading and the evidence which emerged during cross-examination. Clearly, Prasad did explain these in his last answer above. The Learned Magistrate obviously accepted that explanation despite it being inconsistent with the pleading.
  2. Credibility is an issue of fact and therefore not usually open to appeal. To say that the inconsistency itself was sufficient to tarnish the entire credibility of Prasad is to ignore that credibility is a much more complex question than what the appellant would have this Court believe. As Pearce LJ said in Onassisrgottis [1968] 2 Lloyds Rep 403 at 431http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2019/667.html?stem=&synonyms=&query=Arjun - fn9, a witness appearing generally to be truthful may be telling than the true truth on a particular point, yet be truthful on other points. Yet again, a generally untruthful witness may still be speaking the truth on that sasue, or, on any other particular issue. And yet again, stil still, a truthful person may tell the truth as he sees it, although, his recollection may be unreliable.
  3. I refuse to allow the appeal on this ground.

The Finding of the Learned Magistrate Is Against the Weight of Evidence Given in the Court.

  1. In Wilson v. Lowery [1993] NTCA 127; 1893 110 F.L.R. 142, the Supreme Court of Northern Territory (Australia) added as follows:
    1. But, a finding of fact cannot be disturbed on the basis that it is ‘perverse’, or ‘against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence’. Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v. Leves (1987) 8 N.S.W. L.R. 442 at 479-470.
    2. The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.
    3. If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.
    4. It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd. v. Supabrase Ltd. [1969] 1 W.L.R. 519 at 521; [1969] 2 ALL E.R. 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v. Bairstow [1956] A.C. 1.'
  2. In Jas v Bharos [1969] FJSC 1; [1969] 15 FLR 95 (28 May 1969), Thompson J in dealing with an appeal on a similar ground had this to say:

The appellant's third ground is:

"Having regard to the circumstances of the case and especially in view of grounds 1 and 2 hereof the finding of the Learned Magistrate was against the weight of evidence generally."

The weight to be given to particular portions of the evidence depends essentially on the credibility of the witnesses. If the defendant is believed, that is the end of the matter. His evidence was not corroborated in any way; nonetheless the learned trial magistrate had the advantage not enjoyed by this Court of hearing him give his evidence and seeing the manner in which he respondent or reacted to cross-examination. I such a case it is unfortunate, as I have already observed, that the magistrate should not have followed the usual practice of reviewing the evidence and stating his reasons for his decision. However, it is clear that he must have believed the defendant otherwise he could not have decided the action as he did. That being so and in the absence of any strong reason for doing so, this Court cannot say that his decision was against the weight of the evidence.

Accordingly the appeal is dismissed.


  1. I refuse to allow the appeal on this ground.

The Learned Magistrate Erred in Law and in Fact in Allowing the Respondent to Lead Evidence on Facts Not Pleaded in the Statement of Claim such as Replacement Costs of the Alleged Loss and Purchase Details.

  1. Generally, as Winter J said in Nitya Ram v Alivereti Taito and Anor (HBA0020 of 2004;

The Magistrates Court is not a court of pleading. Civil matters can be disposed of summarily without pleadings. However, where parties embark on and maintain a claim or defence in that formal way, they are bound by O XVI Rules and common pleading practice.


  1. Prasad in his statement of claim had pleaded damages for the loss of $7,664.45 plus general damages. It would appear that the liquidated sum is pleaded as special damages. As a general rule, special damages must be specifically pleaded and proved. The replacement costs is Prasad’s evidence to substantiate his claim. I refuse to allow this ground of appeal.

Learned Magistrate Overlooked The Fact that the Respondents Claim was Statute Barred.


  1. The claim was not statute barred. Section 4(1)(a) of the Limitation Act provides

4.-(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(a) actions founded on simple contract or on tort;


  1. The limitation period of three years which is set out in section 4() which I set out below doew does not apply here because this was not a case where the damages alleged consisted or included damages in respect of personal injuries to any person.

Provided that-

(i) in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and


  1. I refuse to allow this ground of appeal.

The Learned Magistrate Erred in Law and in Fact Overlooking the fact that the Respondents Claim was Beyond the Jurisdiction of the Magistrates Court

  1. The claim was perfectly within the monetary jurisdiction of the court. I refuse to allow this ground of appeal.

The Learned Magistrate erred in Law and in Fact in Declaring and Awarding Cost for Damage to the Engine Block in the Absence of Evidence as to the Working of the Engine Block.

  1. It is clear to me that the Learned Magistrate had considered the photographs tendered by Prasad as well as Prasad’s account. The photographs tendered were of the engine block as Prasad found it at Diamonds workshop after works had been carried out. It appears from the records that Prasad had offered an explanation during cross-examination as to why it was not necessary that he test the engine to determine whether it worked. Prasad also said in cross-examination that he had sent the pictures to a person in Australia who advised that the engine was damaged. Clearly, the Learned Magistrate had accepted these. I refuse to allow the appeal on this ground.

The Learned Magistrate erred in Law and in Fact in Declaring the Applicants have Damaged the Engine Block in the Absence of Any Mechanical Expert Witness Testimony.

  1. As I have said, both parties called only one witness each. If the plaintiff failed to call an expert witness, then it was certainly open to the defendant to call their own expert witness to rebut the evidence given by Prasad. However, the defendant chose not to. It was open to the Learned Magistrate to simply decide the issue on the balance of probabilities. I refuse to allow the appeal on this ground.

There has Been a Substantial Miscarriage of Justice Against the Appellant.


  1. For all the reasons I have said above, I refuse to allow the appeal on this ground.

CONCLUSION


  1. In the final, I dismiss the appeal and award costs to the respondent which I summarily assess at $850-00 only.

..................................
Anare Tuilevuka
JUDGE
Lautoka


17 December 2021


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