2004
MICHAEL
DISHINGTON SCOTT B.A. (Lond.)
Of Gray’s Inn, Judge of the High Court of Fiji
FIJI COURT OF
APPEAL
2004
INDEX AND DIGEST
PARTIES SUBJECT DESCRIPTION FCA PAGE
NO. NO.
Abhay
Kumar Singh APPEAL Power of review
under Bail Act 1/04 04/144
v. The
State 26/02
only exercisable by full Court-
only available when no appeal
possible- application dismissed.
Ahilya Sharma & Anr
v. APPEAL Application for
leave to appeal out 27/03 04/352
Mahendra Pratap Singh of
time to Supreme Court- principles
applicable- no significant question
of public importance- no good reason
for delay in application- “hopeless”
application dismissed with indemnity
costs.
Ashwin Prasad v. APPEAL An application
must ordinarily be 4/2004 04/361
Carpenters
(Fiji) Ltd made
to set aside or vary an order
made ex parte before an appeal
against the order is filed- Mareva
Injunction- consideration of
applicable
principles- whether ancillary orders
too broad- whether writ ne exeat regno
available to a plaintiff suing in equity-
appeal dismissed.
Biu Irivi v. The State APPEAL NTR 4/04 04/137
Export
Freight Services (Fiji) APPEAL Application for
leave to appeal - 5/04 04/23
Ltd v. John
Beater Enterprises chances
of success “remote” – leave
Pty Ltd refused.
Fai Insurances (Fiji) Ltd v. APPEAL Proper approach
to be taken to decide 32/04 04/313
Rajendra
Brothers Ltd whether
an order is interlocutory or final-
split trial- whether the conclusion of each
part results in a final order- notice of
opposition dismissed.
Isikeli Kini v. The State APPEAL Section
22 (1) of the Court of Appeal 41/02 04/512
Act does not conflict with Section 28
(1)(e) of the
Constitution- when a
question of law is raised, the findings
of fact the conclusions at law and the
precise question of law must be
identified- appeal dismissed.
Josaia
Taka APPEAL NTR 13/04 04/142
v. The
State
Manasa Waqa APPEAL No question of
significant public 20/02 04/382
v. The
State importance-
leave to appeal to the
Supreme Court refused.
Mataqali Namatua v. Native APPEAL Interlocutory
injunction granted to 20/04 04/324
Land &
Fisheries Commission preserve
status quo of disputed Native
& Others Land
pending appeal.
Peceli Masidole
& Anr. APPEAL No error by High
Court in reaching 58/02 04/82
v. The
State findings
of fact- no
arguable grounds
of appeal- leave to appeal refused.
Peniasi Lee v. The State APPEAL NTR 54/02 04/1
South
Pacific Agriculture APPEAL Propositions of
law undoubtedly of 29/99 04/576
Development Ltd v. significant public importance but
Young Tae
Kim already
settled- no new issue raised-
leave to appeal to Supreme Court
refused.
South
Pacific Fertilizer APPEAL Appeal against
dismissal of action for 30/04 04/477
Ltd v. CBM Shipping want
of prosecution- no leave obtained-
Corporation & Anr. application out of time- damage to
administration of justice by inordinate
and inexcusable delay- need to comply
with rules of court- appeal dismissed.
Ratu Jope Seniloli & ASSESSORS Defence counsel in
criminal trial 41/04 04/428
Ors v.
The State had
previously acted for one of the
assessors - no likelihood of bias- delay
in charging- whether so exceptional as
to justify stay- right of prosecution
to
charge lesser offence where major
offence statute barred- refused application
for adjournment- whether right to
representation violated- appeal dismissed.
Abhay
Kumar Singh BAIL Power of
review under Bail Act 1/04 04/144
v. The
State 26/02
only exercisable by full Court-
only available when no appeal
possible- application dismissed.
Lasarusa Rakula BAIL NTR 18/04 04/140
v. The
State
Mohammed Yunus BAIL NTR 8/04 04/135
& Anr v. The State
Ratu Jope Seniloli & Ors BAIL Applications for bail pending
appeal- 41/04 04/318
v. The
State consideration
of principles- Bail Act
2002-
applications dismissed.
Ali’s Civil
Engineering Ltd COMPANY Crown (State) Land-
whether consent of 60/03 04/189
& Anr v. FDB & Ors Director
of Lands required before a
debenture is granted by a lessee- whether
amounting to a dealing in the land – (Crown
Lands Act – Cap. 132 – Sections 12 & 13)
- Plaintiff Company in liquidation- whether
security for costs required – (Companies
Act – Cap. 247- Section
402).
Abhay
Kumar Singh CONSTITUTION Application for constitutional redress- 37/03 04/166
v. The
State even
if pertaining to criminal matter
must be filed in the civil jurisdiction
of the High Court- where adequate
alternative remedy, application to be
refused- pending criminal trial is the
appropriate venue to seek exclusion
of evidence- appeal dismissed.
Attorney-General
& Anr v. CONSTITUTION The Sugar Industry
(Amendment) 50/03 04/16
Marika Vuki Silimaibau Decree
1992 was validly made and is
& Anr an
Act within the meaning of the 1997
Constitution.
Isikeli Kini v. The State CONSTITUTION Section
22 (1) of the Court of Appeal 41/02 04/512
Act
does not conflict with Section 28
(1)(e) of the
Constitution- when a
question of law is raised, the findings
of fact the conclusions at law and the
precise question of law must be
identified- appeal dismissed.
Ratu Inoke Takiveikata CONSTITUTION Refusal by High Court to adjourn trial to 30/04 04/259
v. The
State enable Accused to be represented
by
counsel of his choice- whether a “final
judgment”- whether refusal a breach of
the Constitution- no refusal of application
for constitutional redress- appeal dismissed.
Ratu Jope Seniloli & CONSTITUTION Defence Counsel in criminal trial 41/04 04/428
Ors v.
The State had
previously acted for one of the
assessors - no likelihood of bias- delay
in charging- whether so exceptional as
to justify stay- right of prosecution
to
charge lesser offence where major
offence statute barred- refused application
for adjournment- whether right to
representation violated- appeal dismissed.
Hassan Din & Anr v. CONTRACT Collective agreement-
construction of 66/03 04/502
Westpac
Banking Corporation retirement
clause- evidence relating to
negotiation leading to collective
agreement inadmissible- objective
approach to interpretation- declaration
granted.
Mary Maraia Petersen CONTRACT Plea of non est factum rejected- general 7/04 04/524
Hewitt
& Anr v. Habib power
of attorney not limited as claimed
Bank Ltd -
no fiduciary duty between the bank and
its client in the circumstances –
appeal
dismissed.
Abhay
Kumar Singh COURTS Application for
constitutional redress- 37/03 04/166
v. The
State even
if pertaining to criminal matter
must be filed in the civil jurisdiction
of the High Court- where adequate
alternative remedy, application to be
refused- pending criminal trial is the
appropriate venue to seek exclusion
of evidence- appeal dismissed.
Sahadatt Attai Khan COURTS Appeal against
exercise by High Court of 12/04 04/280
v. The
State of
revisional jurisdiction- rarely but
occasionally appropriate while trial part
heard- Criminal Procedure Code
Section 323.
Jovilisi Sovita v. COURTS
Serious
procedural errors in the conduct 6/03 04/61
The State MARTIAL of the trial- clear
denial of natural
justice- convictions quashed – application
for retrial dismissed.
Mosese Vakadrakala COURTS There is no
right of appeal against 20/04 04/138
v. The
State MARTIAL a sentence imposed
by a Court Martial.
Mithun Vimal Sami CRIME: Unlawful
sexual intercourse- under age 46/02 04/532
v. The
State DEFENCES victim- defence of
reasonable cause to
believe victim not under age- onus rests
on accused on balance of
probabilities-
appeal dismissed.
Abhay
Kumar Singh CRIME: The Criminal
Procedure (Amendment) 9/04 04/155
v. The
State PROCEDURE Act 13/03 does not apply
to charges for
electable offences pending in the
Magistrates
Court before the commencement
of the Act unless the accused consents-
appeal dismissed.
Lepani Vunisa CRIME: NTR 17/02 04/151
v. The
State PROCEDURE
Nanise Wati v. CRIME: No
satisfactory direction to assessors on 19/01 04/67
The State PROCEDURE meaning of aiding and
abetting- no
explanation of common purpose- mistaken
directions as to corroboration- conviction
quashed- credibility of principal witness
previously rejected – no retrial ordered.
Ratu Jope Seniloli & CRIME: Defence
counsel in criminal trial 41/04 04/428
Ors v.
The State PROCEDURE had previously acted for
one of the
assessors - no likelihood of bias- delay
in charging- whether so exceptional as
to justify stay- right of prosecution
to
charge lesser offence where major
offence statute barred- refused application
for adjournment- whether right to
representation violated- appeal dismissed.
Sahadatt Attai Khan CRIME: Appeal against
exercise by High Court 12/04 04/280
v. The
State PROCEDURE of revisional
jurisdiction- rarely but
occasionally appropriate while trial part
heard- Criminal Procedure Code
Section 323.
Semesa Roko & Ors CRIME: Judge
overruling assessors’ opinions- need 12/02 04/117
v. The
State PROCEDURE for cogent and detailed reasons to be 5/02
given- appeals dismissed.
Seremaia Balelala
v. The State CRIME: Violent rape- absence of
corroboration- 3/2004 04/457
PROCEDURE review of law of
corroboration- no
statutory requirement for corroboration-
rule of practice only- whether warning
or caution required is discretionary
and
depends on the circumstances- previous
rule of practice requiring corroboration
in all sexual cases abrogated.
Attorney-General v. DAMAGES Loss of goods- some
lent or donated- 21/04 04/481
Metuisela
Cama & Ors entitlement
of possessor with right of
possession- no evidence of market value
of goods lost- appeal dismissed- cross
appeal allowed- award of damages
increased.
Rohit Vikash
& Anr v. DAMAGES Serious personal
injuries including loss of 47/03 04/269
Suruj Mati Prakash arm-
assessment of future loss- need for
prosthesis- methods of calculation
discussed- appeal dismissed with minor
variation.
Coral Sun
Ltd v. Fiji Sugar EMPLOYMENT Industrial dispute-
Compulsory 8/04 04/205
&
General Workers Union Recognition
Order- failure by employer
to comply – whether injunction
available to compel performance of
positive statutory duty- insufficient
evidence to justify continuation
of mandatory relief- appeal allowed.
Fiji Public
Service Assn. v. EMPLOYMENT Permanent Arbitrator declined
to 10/03 04/27
Arbitration
Tribunal & Anr order
reinstatement following unfair
dismissal – discussion of correct
test to be applied when deciding to
order reinstatement- appeal dismissed.
Hassan Din & Anr v. EMPLOYMENT Collective agreement-
construction of 66/03 04/502
Westpac
Banking Corporation retirement
clause- evidence relating to
negotiation leading to collective
agreement inadmissible- objective
approach to interpretation- declaration
granted.
Penioni Bulu v. Housing EMPLOYMENT Finding by High Court that
appellants 57/03 04/243
Authority conduct
justified summary dismissal-
no procedural failure leading to
dismissal- appeal dismissed.
Karnail
Singh v. Dhanraji Singh ESTATE Breach
of trust by executor- orders by 41/03 04/328
High
Court after executor failed to appear-
appeal against order for sale of trust
property dismissed.
Hassan Din & Anr v. EVIDENCE: Collective agreement-
construction of 66/03 04/502
Westpac
Banking Corporation CIVIL retirement
clause- evidence relating to
negotiation leading to collective
agreement inadmissible- objective
approach to interpretation- declaration
granted.
Seremaia Balelala
v. EVIDENCE: Violent rape- absence
of corroboration- 3/2004 04/457
The State CRIMINAL review of law of
corroboration- no
statutory requirement for corroboration-
rule of practice only- whether warning
or caution required is discretionary
and
depends on the circumstances- previous
rule of practice requiring corroboration
in all sexual cases abrogated.
Filimone Raibosa
v. INSURANCE Claim for damage to
consigned cargo- 37/03 04/35
Air Pacific
Ltd whether
cargo damaged or destroyed-
claim statute barred- Warsaw Convention
1929
– Civil Aviation Act (Cap. 174).
Jetpatcher
Works (Fiji) Ltd v. JUDICIAL Performance of
contract by Major Tenders 63/03 04/213
The
Permanent Secretary for REVIEW Board a purely
private matter- not
Works and Energy & Ors susceptible
to judicial review- order of
the High Court- whether final or
interlocutory- proper approach to be taken.
Public
Service Commission JUDICIAL
Dismissal from
the public service- 31/04 04/394
v. Solomone Sila Kotobalavu REVIEW charges lacking
particularity- breach
of natural justice- dismissed person
retains right of appeal- existence of
right of appeal not an absolute bar to
proceedings for judicial review- flagrant
procedural shortcomings by the PSC-
questions of general public importance
and their relevance to mootness-
appeal dismissed.
Ahilya Sharma & Anr v. LAND Appeal
against order for specific 27/03 04/3
Mahendra Pratap
Singh performance
dismissed on the facts-
meaning of “fraud” considered- Land
Transfer Act (Cap 131)
Section 40.
Ali’s Civil
Engineering Ltd LAND Crown
(State) Land- whether consent of 60/03 04/189
& Anr v. FDB & Ors Director
of Lands required before a
debenture is granted by a lessee- whether
amounting to a dealing in the land – (Crown
Lands Act – Cap. 132 – Sections 12 & 13)
- Plaintiff Company in liquidation- whether
security for costs required – (Companies
Act – Cap. 247- Section
402).
Hardeo Prasad v. LAND Appeal
against order for summary 59/03 04/46
Abdul Hamid possession
of land- no reasonably
arguable defence- no satisfactory
particulars of fraud- appeal dismissed.
Jagindar
Singh v. Fiji LAND Expiry of
sublease- lessee holding over- 49/03 04/41
Adventists Farmers Co-op. uncertain terms of option to renew-
Soc. Ltd appeal
against order for possession
dismissed.
South
Pacific Agriculture LAND Oral
agreement to purchase land 29/99 04/285
Development Ltd v. ineffective- no prior consent obtained
Young Tae
Kim from
Minister of Lands- purchaser entitled
to repayment of purchase price- Land Sales
Act-
Cap 137 – Section 6.
Lasarusa Rakula v. The State LEGAL Mistaken
or unwise course of conduct 18/04 04/519
PRACTITIONERS by legal practitioner
insufficient to
found appeal- conduct of counsel must
have led to miscarriage of justice.
Peter Ian Knight v. LEGAL
Remittance
of funds from overseas- 3/2004 04/553
Donald Ross
& Robert PRACTITIONERS whether negligently handled by
Reilly & Anr. solicitors or the Bank- devaluation of
Fiji Dollar- whether consequent loss
forseeable- whether interest recoverable
although not pleaded- appeals partly
allowed- contribution varied.
Ratu Inoke Takiveikata LEGAL Refusal by
High Court to adjourn trial to 30/04 04/259
v. The
State PRACTITIONERS enable Accused to be represented
by
counsel of his choice- whether a “final
judgment”- whether refusal a breach of
the Constitution- no refusal of application
for constitutional redress- appeal dismissed.
Peter Ian Knight v. MISCELLANEOUS: Remittance of funds from overseas- 3/2004 04/553
Donald Ross
& Robert BANKING whether negligently
handled by
Reilly & Anr. solicitors or the Bank- devaluation of
Fiji Dollar- whether consequent loss
forseeable- whether interest recoverable
although not pleaded- appeals partly
allowed- contribution varied.
Raloga Tamudu v. The MISCELLANEOUS: Medical
negligence- action struck out 39/03 04/87
Medical
Superintendent LIMITATION by High Court- appeal
dismissed-
& Anr. shortcomings of Limitation Act
(Cap. 35) discussed.
Naipote Vere
& Anr v. MISCELLANEOUS: The entry into a contract for sale
by a 69/03 04/385
NBF Asset
Management Bank MORTGAGE mortgagee exercising
power of sale
suspends the mortgagor’s right of
redemption as long as the contract
subsists- law relating to exercise of
powers of sale discussed- appeal
dismissed.
Natural
Waters of Viti MISCELLANEOUS: Injunction- order to be clear and
definite- 11/04 04/539
Ltd v.
Crystal Clear Mineral PASSING
OFF injunction as
granted unacceptably
Water
(Fiji) Ltd broad-
danger to established business
by new product being passed off-
undertaking as to damages- parties
offering must provide sufficient evidence
of their financial position- appeals
allowed-
amended interim injunction granted.
James Satish Bachu & NEGLIGENCE The police are ordinarily
immune from 20/04 04/378
Anr v. The Commissioner actions
in negligence in respect of
of Police & Anr their
activities in the investigation and
suppression of crime- a duty of care is
only owed where there is a sufficiently
proximate relationship- appeal dismissed.
Peter Ian Knight v. NEGLIGENCE Remittance of funds from
overseas- 3/2004 04/553
Donald Ross
& Robert whether
negligently handled by
Reilly & Anr. solicitors or the Bank- devaluation of
Fiji Dollar- whether consequent loss
forseeable- whether interest recoverable
although not pleaded- appeals partly
allowed- contribution varied.
Raloga Tamudu v. The NEGLIGENCE Medical
negligence- action struck out 39/03 04/87
Medical
Superintendent by
High Court- appeal dismissed-
& Anr. shortcomings of Limitation Act (Cap. 35)
discussed.
Ashwin Prasad v. PRACTICE: An application must
ordinarily be 4/2004 04/361
Carpenters
(Fiji) Ltd CIVIL made to
set aside or vary an order
made ex parte before an appeal
against the order is filed- Mareva
Injunction- consideration of
applicable
principles- whether ancillary orders
too broad- whether writ ne exeat regno
available to a plaintiff suing in equity-
Appeal dismissed.
Coral Sun
Ltd v. Fiji Sugar EMPLOYMENT Industrial dispute-
Compulsory 8/04 04/205
&
General Workers Union Recognition
Order- failure by employer
to comply – whether injunction
available to compel performance of
positive statutory duty- insufficient
evidence to justify continuation
of mandatory relief- appeal allowed.
Fai Insurances (Fiji) Ltd v. PRACTICE: Proper approach to be
taken to decide 32/04 04/313
Rajendra
Brothers Ltd CIVIL whether an
order is interlocutory or final-
split trial- whether the conclusion of each
part results in a final order- notice of
opposition dismissed.
Jetpatcher
Works (Fiji) Ltd v. PRACTICE: Performance of
contract by Major Tenders 63/03 04/213
The
Permanent Secretary for CIVIL Board a
purely private matter- not
Works and Energy & Ors susceptible
to judicial review- order of
the High Court- whether final or
interlocutory- proper approach to be taken.
Mohammed Shameem & Anr PRACTICE: Appeal against refusal to set aside 42/03 04/222
v. Toyota
Isusho (S.S.) Ltd CIVIL Judgment
in default- decision on
credibility without hearing oral evidence
upheld- application not made within
reasonable time- no defence on the
merits advanced- appeal dismissed.
Native Land
Trust Board PRACTICE: Resort to inherent
jurisdiction of the 3/04 04/148
v. Munsamy CIVIL Court
where specific rule available-
unprecedentedly large order for
costs-
stay granted.
Natural
Waters of Viti PRACTICE: Injunction- order to
be clear and definite- 11/04 04/539
Ltd v.
Crystal Clear Mineral CIVIL injunction
as granted unacceptably
Water
(Fiji) Ltd broad-
danger to established business
by new product being passed off-
undertaking as to damages- parties
offering must provide sufficient evidence
of their financial position- appeals
allowed-
amended interim injunction granted.
Ocean Holdings Ltd v. PRACTICE: No power to grant
interlocutory 28/03 04/235
Olympic
Fiji Ltd & Anr CIVIL declaratory
relief- appeal against
refusal to grant injunction dismissed-
applicability of res judicata to
interlocutory judgments.
Suva City Council v. PRACTICE: Setting aside
interlocutory judgment by 55/03 04/296
Meli Tabu CIVIL default-
consideration of level of persuasion
to establish defence on the merits- no
arguable defence- inexcusable delay in
making application to set aside- appeal
dismissed.
Vivrass
Development Ltd PRACTICE: Two
different actions and causes of 44/03 04/109
v. The FNPF Board CIVIL action-settlement
of first claim not a bar
to pursuing the second – appeal
against
striking out of second claim allowed.
Fiji Public
Service PUBLIC SERVICE Challenge to Regulations
establishing 10/04 04/490
Association & Ors Senior
Executive Service- no excess of
v. Public Service jurisdiction-
Union’s legitimate
Commission expectation
to be consulted before
Regulations made-
declaration as
sought purposeless- appeal dismissed.
Public
Service Commission PUBLIC
SERVICE Dismissal from the
public service- 31/04 04/394
v. Solomone Sila Kotobalavu charges
lacking particularity- breach
of natural justice- dismissed person
retains right of appeal- existence of
right of appeal not an absolute bar to
proceedings for judicial review- flagrant
procedural shortcomings by the PSC-
questions of general public importance
and their relevance to mootness-
appeal dismissed.
Viliame Kubunavono & PUBLIC
SERVICE In the absence of a
delegation by the 64/03 04/153
Ors v.
The State & Ors Disciplined
Services Commission the
Commissioner
of Prisons has no
authority to remove any persons from
The Prisons Service.
Kalivati Veiba Vunisa & SENTENCE Appeals against
sentence of 8 and 15/03 04/347
Ors v.
The State 9
years for gang rape dismissed.
Manasa Waqa v. The State SENTENCE NTR 20/02 04/219
Mosese Vakadrakala SENTENCE There is no right of
appeal against 20/04 04/138
v. The
State a
sentence imposed by a Court Martial.
Neori Tamanivalu
v. The State SENTENCE Murder by juvenile- principles 35/03 04/226
applicable to sentencing- appeal
allowed- sentence reduced.
Raymond Sikeli Singh & SENTENCE Carefully planned
robbery of bank with 8/00 04/93
Ors v.
The State violence-
factors to be considered before
passing sentence- 10 years imprisonment
upheld subject to minor adjustments.
Attorney-General v. TORTS: Loss of goods-
some lent or donated- 21/04 04/481
Metuisela
Cama & Ors MISCELLANEOUS entitlement of possessor with
right of
possession- no evidence of market value
of goods lost- appeal dismissed- cross
appeal allowed- award of damages
increased.
Ahilya Sharma & Anr v. WORDS AND Appeal against order for
specific 27/03 04/3
Mahendra Pratap
Singh PHRASES performance
dismissed on the facts-
meaning of “fraud” considered- Land
Transfer Act (Cap 131)
Section 40.
Josaia Taka v. WORDS
AND “Sentence imposed
by the High Court” 24/04 04/133
The State PHRASES includes a
sentence imposed in a
Magistrates’
Court and confirmed by the
High Court in its appellate jurisdiction.
Ratu Inoke Takiveikata WORDS AND Refusal by High Court to
adjourn trial to 30/04 04/259
v. The
State PHRASES enable Accused to
be represented by
counsel of his choice- whether a “final
judgment”- whether refusal a breach of
the constitution- no refusal of application
for constitutional redress- appeal dismissed.
********************************************