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Faruk v Land Transport Authority [2022] FJHC 73; HAA33.2020 (25 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 33 OF 2020

BETWEEN:
MOHAMMED FARUK
APPELLANT

A N D:
LAND TRANSPORT AUTHORITY
RESPONDENT

Counsel: Mr. J. Singh for Appellant
Mr. V. Chand for Respondent

Date of Hearing: 10^th February 2022

Date of Judgment: 25^th February 2022

J U D G M E N T

1. The Appellant was issued with four Traffic Infringement Notices (TIN) for permitting another person to drive a motor vehicle with non-confirming mass plus load contrary to regulations 80 (a) (d), 87 (1) (a) and 122 of the Land Transport (Vehicle Registration and Construction regulations 2000). The Appellant elected to challenge the said Traffic Infringement Notices; hence, the proceedings was commenced in the Magistrate’s Court of Nasinu. The Prosecution presented the evidence of two witnesses, and the Appellant gave evidence for the Defence. The learned Magistrate, in his Judgment dated 27th of March 2020, found these four Traffic Infringement Notices are valid. Aggrieved with the said Judgment of the learned Magistrate, the Appellant files this appeal on the following grounds, inter alia;
1. That the Learned Magistrate erred in n failing to consider that provisions of the LTA Traffic Infringement Notice (TIN) are unco unconstitutional and hence, making the said TIN invalid;
   
2. That the Learned Magistrate erred in law when failing to consider that the Appellant is presumed innocent until proven guilty and that the burden of proof remains with the Respondent to prove the guilt of the Appellant beyond a reasonable doubt;
   

100. That the Learned Magistrate erred in law and fact when failing to consider the reasonable doubt raised as to the correct overweight permit for the Appellant’s vehicle.
     

3. According to Section 100 (4) of the Constitution, the High Court has original jurisdiction to hear any matter arising under the Constitution or interpretation of the Constitution. Section 44 (1) of the Constitution has outlined the procedure to institute matters of Constitutional redress in the High Court. Section 44 (5 ) of the Constitution states that the subordinate Court has to refer to the High Court any questions regarding the Bill of Rights Chapter of the Constitution that arises in any proceedings in the subordinate Court.
   
4. Accordingly, the Magistrate’s Court has no jurisdiction to determine any issues arising from any alleged brof rights stipulated under nder the Bill of Rights Chapter of the Constitution. In the Magistrate’s Court, this proceedings was instituted under Section 74 of the Criminal Procedure Act. If the Appellant wished to challenge the constitutionality of the TIN, he should have invoked the jurisdiction of the High Court pursuant to Section 44 (1) of the Constitution. Accordingly, I find no merit in the first ground of appeal.
   

>Ground Iund II

5. The second ground of appeal is founded on the contention that the leaMagistrate had failed to prto properly consider that the burden of proof is with the Prosecution and not with the Defence. The above contention of the Appellant is primarily based on paragraph 7 of the Judgment, which I reproduce as follow:

“The testimony mony of the accused and his defence is that he was unaware that his son was transporting items which wave the permissible weight is not a valid defence. On his issue with the fact that a similaimilar vehicle has a different weight exemptions is insufficient, in my opinion to justify a finding his favour.”

6. In paragraph 6 of the Judgment, the learned Magistrate had clearly stated that he had considered the evidence of both parties, including the documents that both parties tendered in evidence. The learned Magistrate had then concluded that the evidence of two Prosecution witnesses was correct, and their weighting was accurate. In view of the reasons stated in paragraph 6 of the Judgment, it is clear that the learned Magistrate had reached his conclusions based on the evidence presented by the Prosecution. In paragraph 7, the learned Magistrate had explained that the evidence presented by the Defence had failed to create any reasonable doubt in the Prosecution’s case. Accordingly, I do not find any merits in the second ground of appeal.
   

Ground III

7. The third ground of appeal is based upon the argument that the learned Magistrate had failed to consider the reasonable doubt raised by the Appellant as to the correctness of the overweight permit for the Appellant’s vehicle.
8. The learned Magistrate had found in paragraphs 6 and 7 of the Judgment that the weighing done by the two Prosecution witnesses were accurate. The Appellant’s contention of a different weight exemption of a similar vehicle was insufficient to create a doubt about the Prosecution’s case.
   
9. In view of the reasons set out in paragraphs 6 and 7 of the Judgment, I am satisfied that the learned Magistrate had correctly directed his mind to the evidence presented by both parties before he reached his conclusion. I, accordingly, find no merits in the third ground of appeal.
   >
10. In conclusion, I make the following order:

a) The appeal is dismissed.

11. Thirty (30) days to appeal to the Fiji Court of Appeal.

......................................................

Hon. Mr. Justice Rice R.D.R.T. Rajasinghe

At Suva
25^th February 2022



Solicitors
JK Singh Lawyers for the Appellant.
Land & Transport Authority for the Respondent.




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