INDEX & DIGEST
2002
MICHAEL
DISHINGTON SCOTT B.A. (Lond.)
Of Gray’s Inn, Judge of the High Court of Fiji
APPEAL
ARBITRATION
ASSESSORS
BAILMENT
BANKRUPTCY
BILLS OF SALE
COMPANY LAW
CONSTITUTION
CONTRACT
COURTS
CRIME: Defences
Offences
Procedure
CROWN PROCEEDINGS
CUSTOMS
DAMAGES
DEFAMATION
EMPLOYMENT
ESTATE
EVIDENCE: Civil
Criminal
FAMILY
IMMIGRATION
INCOME TAX
INSURANCE
INTERPRETATION
JUDICIAL REVIEW
LAND
LANDLORD &
TENANT
LEGAL PRACTITIONERS
LOCAL GOVERNMENT
MISCELLANEOUS:
Admiralty
Contempt of Court
Demurrage
Exchange Control
Value Added Tax
MONEYLENDERS
NTR (NOTHING TO
REPORT)
NATIVE LAND
NEGLIGENCE
PARTNERSHIP
PRACTICE: Civil
PUBLIC SERVICE
SENTENCE
TORTS: Miscellaneous
WORDS AND PHRASES
WORKERS
COMPENSATION
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FIJI COURT OF
APPEAL
2002
INDEX AND DIGEST
PARTIES SUBJECT DESCRIPTION FCA PAGE
NO. NO.
Air Pacific v. APPEAL Owing to a
misunderstanding by the intending 1/01 02/53
Lice Saumi appellant
the time for appealing expired. The
Court extended time
and granted a conditional
stay of the High
Court’s judgment.
A.K.K. Hussein v. APPEAL Leave to appeal to Supreme Court
refused- no 66/98 02/114
NBF question
of public importance.
Apisai Tora v. APPEAL No realistic
prospect of success- application for 36/02 02/649
Housing Authority leave
to appeal out of time dismissed.
Bahadur Ali & Ors APPEAL Substantial unexplained delay-
prospects of 30/02 02/602
v. Ilaitia Boila & Ors success
on appeal not apparent- leave to appeal
out of time refused.
Bank of Baroda APPEAL Application for
leave to appeal out of time- no 28/01 02/1
v. Champaneri clear
explanation of cause of “inexcusable” delay
- prejudice to
respondent – application refused.
CIR v. Jamandas APPEAL Income tax- allowable deduction of
business 51/99 02/291
expenses- power of
High Court to vary penalty
imposed by the
Commissioner- leave granted to
appeal to Supreme
Court.
Dominion Insurance v. APPEAL A
finding that Section 11 (3) of the Motor Vehicle 76/00 02/217
Bamforth & Ors (Third
Party) Insurance Act is directory rather
than mandatory raises
a question of public
importance- leave
granted to appeal to the
Supreme Court.
Eroni Saqayalo v. APPEAL Appeal against sentence summarily
dismissed. 51/02 02/623
The State
FAI Insurance v. APPEAL No demonstrable error- application
for leave to 39/02 02/656
Rajendra Prasad Bros. appeal
against interlocutory order of High Court
dismissed.
Ghim Lee Fashion v. APPEAL Interpretation of Value Added Tax
Decree 1991 56/01 02/798
CIR a
matter of significant public importance- leave
to appeal to Supreme
Court granted.
Josefa Nata v. APPEAL In the absence
of a question involving the 15/02 02/324
The State interpretation
of the Constitution a judgment of
the High Court in a
criminal matter which is not
final is unappealable
to the Court of Appeal.
Mesake Rabo v. APPEAL Application for leave to appeal out
of time 29/02 02/621
The State summarily
dismissed.
Nasoni Tamani APPEAL Leave
to appeal to the Supreme Court against 14/98 02/511
v. The State conviction
for robbery with violence refused.
Renuka Shankar v. APPEAL The law and practice relating to an
award of 3/01 02/185
Chandar Naidu interest
is not of significant public importance-
leave to appeal to
Supreme Court refused.
Sevuloni Keretabua APPEAL (see 02/720) 3/01 02/807
v. The State
Sikeli Tamani v. APPEAL Application for
leave to appeal to Supreme Court 30/00 02/572
The State dismissed-
no question of significant public
importance- fresh
evidence not available to Court
of Appeal- possibility
of successful application to
the Supreme Court for
leave.
Taniela Suliana v. APPEAL Little
prospect of success on appeal- leave to 29/02 02/615
NBF Asset Management appeal
out of time refused.
Bank
Tevita Malaseba APPEAL Application for leave to appeal out
of time 33/00 02/10
v. The State summarily
dismissed.
Tevita Malasebe v. APPEAL In the absence of a decision of an
interlocutory 33/00 02/720
The State nature
Section 35 (3) of the Court of Appeal Act
(Cap 12) does not confer a right to
a rehearing.
Graham Southwick v. CONSTITUTION Section 121 (2) of the Constitution does not 61/99 02/168
The State give
a right of appeal to the Court of Appeal
from a decision of the High Court
refusing an
award of costs under
Section 158 (2) of the
C.P.C. however Section
3 (3) of the Court of
Appeal Act (Cap 12)
grants such a right. The
Court queried the use
of a stay in criminal
proceedings in Fiji.
The Court also disapproved
The State v.
Rokotuiwai (1998)
44 FLR 28.
Mahendra Pal Chaudhry CONSTITUTION Section 99 (5) of the Constitution obliges the 1/01 02/16
v. Laisenia Qarase & Ors Prime
Minister to invite in unconditional terms
parties which have 10%
or more of the
membership of the
House of Representatives to
be represented in
cabinet.
Prem Singh v. CONSTITUTION Notwithstanding
the general right of appeal from 6/02 02/116
Krishna Prasad & Ors the
High Court the Constitution does not permit
an appeal from the
High Court sitting as a Court
of Disputed Returns –
Constitution (1997)
Sections 73 (7) and
121 (2).
Carpenters Fiji Ltd v. CONTRACT Unjustified repossession of vehicle under
bill of 82/00 02/286
Raj Kumar sale-
award in favour of purchasers varied.
Darrell E. Lee v. CONTRACT Specific performance-
“clean hands”- position 13/02 02/768
Joe Lee of
false fiduciary- whether parties contractually
bound- appeal allowed- cross appeal
dismissed-
directions given for specific
performance of the
contract.
Manubhai Industries Ltd CONTRACT Development
of land- breach of contract- estoppel- 43/98 02/338
v. Lautoka Land waiver-
breach of duty of care- awards of damages
Development (Fiji) Ltd varied-
law of negligent misstatement examined-
extent of liability
for negligence of public bodies in
Fiji queried. Interim
Judgment delivered.
Manubhai Industries Ltd CONTRACT (See
02/338)
v. Lautoka Land
Development (Fiji) Ltd
Seini Natuwawa v. CONTRACT Summary Judgment set aside- extent of right 57/99 02/257
National Bank of Fiji of
surety to avail herself of a set-off or
counterclaim possessed
by a principal debtor
against a creditor
explained.
Star Printery v. United CONTRACT Appeal against liability dismissed on the
facts. 83/00 02/191
Pacific Engineering Quantum
of damages varied. No deduction for
income tax should be made from an
award of
damages for breach of
a business contract.
Sun Enterprises Ltd v. CONTRACT Second appeal dismissed- no question of law
raised. 39/01 02/692
Guardforce Fiji Ltd.
Sunil Kumar v. CONTRACT Right of appellant to
terminate on reasonable 50/99 02/386
FPTL notice-
whether notice proved- no ground to set
aside finding of fact in lower
court.
Yashni Kaur v. CONTRACT Implied term of
contract of employment that 1/01 02/579
Central Manufacturing termination
procedure must be fair- implied term
Co. Ltd that
relationship one of confidence and trust-
summary dismissal
unfair- appeal allowed-
damages awarded.
Rajnesh Prasad v. CRIME: DEFENCES Previous inconsistent statement- no
explanation 13/02 02/561
The State or
warning by trial Magistrate- misdirection as to
corroboration – unsatisfactory
evaluation of the
evidence- conviction
quashed- retrial ordered.
Ajnesh Kumar v. CRIME: OFFENCES Appeal against conviction for
causing death 14/02 02/504
The State by
dangerous driving dismissed- elements of the
offence considered.
Babita Verma v. CRIME: OFFENCES Embezzlement- no misdirections by
the trial 25/01 02/411
The State Judge-
appeal against conviction dismissed.
Jonetani Sereka & Ors CRIME: OFFENCES Appellants charged with wrongful confinement- 33/01 02/705
v. The State High
Court’s substitution of a lesser offence set
aside- entire
proceedings a nullity- convictions
quashed.
Josefa Baleloa & Ors CRIME: OFFENCES (see 02/705) 34/01 02/710
v. The State
Kesaravi Tinairatu CRIME: OFFENCES Death of new born child- conviction
for murder 32/01 02/229
v. The State set
aside for want of direction on the Accused’s
defence- failure to direct on
possibility of
alternative verdict of infanticide-
retrial ordered.
Osea Baleasavu v. CRIME: OFFENCES (see 02/705) 35/01 02/708
The State
Suren Prasad v. CRIME: OFFENCES Appeal against conviction for
cultivation of 52/99 02/391
The State dangerous
drugs dismissed as without merit.
Waisake Bulewa v. CRIME: OFFENCES A charge of robbery with violence
includes a 36/02 02/747
The State charge
of theft and therefore a conviction of
receiving may be entered- CPC (Cap
21)
Sections 169, 181 & 185.
Adriu Volavola v. CRIME: PROCEDURE Failure adequately to sum up on intent and state 22/02 02/624
The State of
mind of the accused- conviction unreasonable-
verdict of manslaughter substituted.
Aiyaz Ali v. The CRIME: PROCEDURE A sentence passed in the absence of the
accused 30/01 02/211
State is
a nullity which cannot be cured by an appeal.
Sentence quashed.
Graham Southwick v. CRIME: PROCEDURE Section 121 (2) of the Constitution does
not 61/99 02/168
The State give
a right of appeal to the Court of Appeal
from a decision of the High Court
refusing an
award of costs under
Section 158 (2) of the
C.P.C. however Section
3 (3) of the Court of
Appeal Act (Cap 12)
grants such a right. The
Court queried the use
of a stay in criminal
proceedings in Fiji.
The Court also disapproved
The State v.
Rokotuiwai (1998)
44 FLR 28.
Rajendra Chaudhary v. CRIME: PROCEDURE Driving while disqualified- special reasons for 6/99 02/377
The State not imposing a term of
imprisonment- no
inflexible rule that special reasons
must be
established by evidence-
observations on
appropriateness of conducting
hearing in camera.
The State v. Dinesh CRIME: PROCEDURE Prosecution appeals against sentence where 27/00 02/198
Chand imprisonment
is sought must be given priority.
The record for appeal purposes may
not need
to include a full record of the
trial. Wounding
another person with a weapon should
almost
always be visited with immediate
imprisonment.
The State v. Ramesh CRIME: PROCEDURE The Court has no jurisdiction to award
costs 2/02 02/724
Patel against
or in favour of the State except when a
jurisdiction to do so
is expressly conferred by
statute.
The State v. CRIME: PROCEDURE (see 02/724) 26/02 02/736
Tony Bidesi
Watisoni Bainivanua CRIME: PROCEDURE Appeals against conviction and sentence
of 5 17/01 02/273
v. The State years
imprisonment for robbery with violence
dismissed on the
facts.
New India Assurance v. COMPANY LAW Appeal
against finding of right to indemnity 35/01 02/448
D. Gokal & Co. Ltd dismissed-
phrase “associated company”
considered-
application of contra proferentem
rule.
B.W. Holdings v. COMPANY LAW In the absence of a statutory
registered postal 27/01 02/421
Graham Eden & Ass. address
service on a company maybe effected
by delivery to a
postal address undoubtedly used
by the company.
Gosai Transport v. COMPANY LAW NTR 19/99 02/309
Shell Fiji Ltd
Treasure Island Ltd v. COMPANY LAW Where civil proceedings concerning the existence 14/01 02/698
Rups Industries Ltd of
an alleged debt are already in train it is an abuse
to raise the same
issue in winding up proceedings-
appeal allowed.
Jone Siqila v. DAMAGES Effect of Section 25
of the Workers Compensation 59/01 02/670
Fiji Development Bank Act
(Cap 84) explained.
Star Printery v. United DAMAGES Appeal
against liability dismissed on the facts. 83/00 02/191
Pacific Engineering Quantum
of damages varied. No deduction for
income tax should be
made from an award of
damages for breach of
a business contract.
Yanuca Island Ltd v. DAMAGES Breach of Occupiers Liability Act- awards
of 85/00 02/474
Peter Elsworth general
damages for personal injuries and
damage for loss of earnings varied. Contributory
negligence assessed.
Beni Naiveli v. EMPLOYMENT The Disciplined Services
Commission has no 59/99 02/129
The State power
summarily to dismiss a gazetted Police
Officer convicted of a
criminal offence prior to
a disciplinary hearing
held in accordance with
the Public Service
Commission Regulations.
FPSA v. Arbitration EMPLOYMENT A collective agreement restricting the right of 13/99 02/90
Tribunal & FTIB summary
dismissal is not ultra vires the
Employment Act (Cap
92) - purported dismissal
declared unlawful.
Susana Tuisawau v. EMPLOYMENT Withdrawal of offer of employment- Judicial 44/00 02/462
Fiji Institute of review
refused in the High Court- appeal
Technology dismissed
on the facts.
Yashni Kant. EMPLOYMENT Implied
term of contract of employment that 1/01 02/579
Central Manufacturing termination
procedure must be fair- implied term
Co. Ltd that
relationship one of confidence and trust-
summary dismissal
unfair- appeal allowed-
damages awarded.
Ali Ahmed v. ESTATE Whether
property part of estate or part of 81/00 02/755
Mohammed Ibrahim partnership-
removal and replacement of trustee-
Public Trustee
appointed- appeal allowed.
Viliame Taufa v. EVIDENCE: Second appeal against
conviction on ground of 31/01 02/470
The State CRIMINAL insufficiency of identification evidence
dismissed.
Alice Margaret Whippy FAMILY Circumstances
in which decrees of dissolution 38/01 02/636
v. Peter Spencer Kong of
marriage may be set aside- scope for Judicial
review- no appeal
against the decree- proceedings
by way of originating
summons misconceived.
Armogam Padayachi FAMILY Both
parties not heard in the Magistrates’ Court- 62/99 02/516
v. Anita Devi second
appeal dismissed.
CIR v. Jamandas INCOME TAX Deduction of business
expenses- whether properly 51/99 02/140
& Ors allowable-
distinction between personal and
business expenses-
Income Tax Act (Cap 201)
Section 19- appeal
allowed- decision of Court of
Review reinstated.
Imposition of penalty- whether
the Court of review
and the High Court have the
power to mitigate or
remit.
CIR v. Jamandas INCOME TAX Income tax- allowable
deduction of business 51/99 02/291
expenses- power of
High Court to vary penalty
imposed by the
Commissioner- Leave granted to
appeal to Supreme
Court.
United Touring Fiji INCOME TAX Representation fees- whether properly
deductible 69/01 02/849
Ltd v. CIR as
a business expense- whether transactions at
“arms length” – Income
Tax Act (Cap 201) Section
19(b). Appeal allowed.
CIR v. Ghim Li INSURANCE Insurance payments in
respect of destroyed 56/01 02/428
buildings etc are
related to loss incurred in the
supply of taxable
goods. Value Added Tax
Decree 1991 – Section
3 (8).
Dominion Insurance v. INSURANCE Whether sale of vehicle unconditional -
whether 76/00 02/61
Bamforth & Ors certificate
of insurance issued to previous owner
still in force- duty
of owner or user to notify insurer
of accident- whether
requirement for notice of
proceedings mandatory-
Judgment of the High
Court varied.
Dominion Insurance v. INSURANCE High Court’s assessment of quantum of damages 12/01 02/157
Ali Sher based
on findings of credibility upheld.
New India Assurance v. INSURANCE Appeal
against finding of right to indemnity 35/01 02/448
D. Gokal & Co. Ltd dismissed-
phrase “associated company”
considered-
application of contra proferentem
rule.
Beni Naiveli v. JUDICIAL Appeal against
refusal of leave to move for 59/99 02/106
The State REVIEW judicial
review granted- matter remitted to
High
Court for case to be stated.
Maharaj Buses Ltd v. JUDICIAL NTR 58/99 02/333
TCB & ANR REVIEW
Jennyne Gonzalez v. LAND (see
02/525) 54/98 02/802
Mohammed Akhtar Leave
to appeal to Supreme Court granted.
Mohammed Akhtar v. LAND Contract
for sale of land to non-resident- whether 54,
63 02/525
Jennyne Gonzalez unlawful
without prior consent of Minister- &
68/98
Whether
void- whether conditional contract
enforceable-
appeals from High Court allowed.
Land Sales Act (Cap
137).
Nemani Driu v. LAND Appeal
allowed against High Court’s order 29/00 02/664
Netherwood & Anr. permitting
registration of second caveat.
Dhirend Kumar v. LANDLORD Conditional stay of order for possession
granted 14/02 02/206
Prakashni Prasad & TENANT pending hearing of
the appeal.
Dhirend Kumar v. LANDLORD Appeal
against order for vacant possession 14/02 02/520
Prakashi Prasad & TENANT dismissed on the
facts.
Ram Padarath Holdings LEGAL High
Court’s Judgment that a notice of 23/00 02/240
v. Usman Ali PRACTITIONERS discontinuance be set aside on the ground of
undue
influence set aside.
K.W. March Ltd v. LOCAL Rates- appeal against finding of
liability to pay 46/97 02/220
Suva City Council GOVERNMENT rates dismissed- matter
remitted to High Court for
recalculation
of precise amount owed.
Wasawasa Fisheries Ltd MISCELLANEOUS: The purpose of scheduled daily fees is to cover 25/98 02/712
v. Admiralty Marshal ADMIRALTY costs following the arrest of a ship. Donald
Pickering v. Karims (1998) 47 FLR 76 disapproved.
Philip Jagdishwar Singh MISCELLANEOUS: Absent a date for compliance failure to obey an 18/01 02/834
v. Uma Kiran CONTEMPT OF order
of the Court cannot provide a basis for an
COURT order for
committal – appeal allowed.
RHC O 42 r 4 (1).
Nautical Pilots v. MISCELLANEOUS: Vessel docked- whether stored-
whether cargo- 34/02 02/817
Ports Terminal Ltd DEMURRAGE whether “premises” include sea in front of
wharf-
application of
Regulation 13 (1) of Ports
Authority of Fiji
(Tariffs) Regulation 1995
explained.
Gallagher v. Newham MISCELLANEOUS: An agreement to transfer shares pending consent 30/00 02/740
EXCHANGE of the Minister is not
prohibited by the Exchange
CONTROL Control Act (Cap
211).
CIR v. Ghim Li MISCELLANEOUS: Insurance payments in respect of
destroyed 56/01 02/428
VALUE
ADDED TAX buildings etc are
related to loss incurred in the
supply of taxable
goods. Value Added Tax
Decree 1991 – Section
3 (8).
Mesulame Narawa v. NATIVE LAND Native customary rights and obligations may be 12/99 02/311
NLTB & Ors recognised
by the common law and enforced in the
Courts. Mataqali and
Tokatoka are not institutions
alien to and
unrecognised by the common law.
Representative action-
on the facts the appellant
members of the
mataqali had established a right to
bring the proceedings
on a representative basis.
Domalco Ltd v. NEGLIGENCE Factory accident- appeal
against finding of 71/00 02/441
Subhash Singh negligence
by employer allowed.
Manubhai Industries Ltd NEGLIGENCE Development
of land- breach of contract- 43/98 02/338
v. Lautoka Land estoppel-
waiver- breach of duty of care- awards
Development (Fiji) Ltd of
damages varied- law of negligent misstatement
examined- extent of
liability for negligence of
public bodies in Fiji
queried. Interim Judgment
delivered.
Manubhai Industries Ltd NEGLIGENCE In
the absence of gross negligence or reckless 43/98 02/370
v. Lautoka Land disregard
the Director of Lands is immune from
Development (Fiji) Ltd suit-
final judgment delivered.
Registrar of Titles v. NEGLIGENCE Negligent transfer of land in breach of
caveat- 31, 02/682
Sharda Prasad & Ors award
of damages varied. 41/01
D. Gokal & Co. Ltd PRACTICE: CIVIL “Unmeritorious” appeal against
refusal to set 13/01 02/299
v. Rajesh Prakash aside
award of damages assessed in the absence
of the appellant
dismissed.
Mesulame Narawa v. PRACTICE: CIVIL Native customary rights and
obligations may be 12/99 02/311
NLTB & Ors recognised
by the common law and enforced in the
Courts. Mataqali and
Tokatoka are not institutions
alien to and
unrecognised by the common law.
Representative action-
on the facts the appellant
members of the
mataqali had established a right to
bring the proceedings
on a representative basis.
Mohammed Khan v. PRACTICE: CIVIL No reasonably arguable Defence-
appeal 19/01 02/210
Argo Travel Ltd against
Summary Judgment dismissed.
Philip Jagdishwar Singh PRACTICE: CIVIL Absent a date for compliance failure to obey an 18/01 02/834
v. Uma Kiran order of the Court cannot provide a basis
for an
order
for committal – appeal allowed.
RHC O 42 r 4 (1).
Beni Naiveli v. PUBLIC The Disciplined Services
Commission has no 59/99 02/129
The State SERVICE power summarily to dismiss a gazetted
Police
Officer convicted of a
criminal offence prior to
a disciplinary hearing
held in accordance with the
Public Service
Commission Regulations.
Semi Talawadua v. PUBLIC
SERVICE Dismissal of police
officer without hearing- 54/01 02/398
Commissioner of Police appeal
against refusal by High Court to grant
Judicial review-
appeal allowed- declaration
granted- certiorari
and mandamus not issued.
Ilikena Bula SENTENCE Application
for leave to appeal against sentence 3/02 02/14
v. The State summarily
dismissed.
Inia Silinabaravi SENTENCE Appeal against
sentence summarily dismissed. 1/02 02/8
v. The State
Shashi Kapoor Rayan SENTENCE Appeal against sentence of 3 years
imprisonment 28/00 02/267
v. The State for
manslaughter dismissed.
S. Karan Construction SENTENCE Fines imposed for breaches of the Health
and 20/01 02/458
v. The State Safety
at Work Act 1996 reduced on appeal.
The State v. Dinesh SENTENCE Prosecution appeals against sentence where 27/00 02/198
Chand imprisonment
is sought must be given priority.
The record for appeal purposes may
not need
to include a full record of the
trial. Wounding
another person with a weapon should
almost
always be visited with immediate
imprisonment.
Watisoni Bainivanua SENTENCE Appeals against conviction and sentence of
5 years 17/01 02/273
v. The State imprisonment
for robbery with violence dismissed
on the facts.
Nautical Pilots v. WORDS & PHRASES Vessel docked- whether stored- whether
cargo- 34/02 02/817
Ports Terminal Ltd whether
“premises” include sea in front of wharf-
application of
Regulation 13 (1) of Ports
Authority of Fiji
(Tariffs) Regulation 1995
explained.
New India Assurance v. WORDS & PHRASES Appeal against finding of right to indemnity 35/01 02/448
D. Gokal & Co. Ltd dismissed-
phrase “associated company”
considered-
application of contra proferentem
rule.
Jone Siqila v. WORKERS Effect of Section 25
of the Workers Compensation 59/01 02/670
Fiji Development Bank COMPENSATION Act (Cap 84) explained.
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