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Fiji Islands - FLR Volume 8 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1962
Volume 8This Volume may be cited as “8 FLR”
Editor:
SIR TREVOR GOULD. Kt., LL.M. (N.Z.)
Barrister-at-law, Judge of the Fiji Court of AppealPrice: $8.00
DIGEST AND INDEX
PAGE
ACCOUNT STATED
See Cause of Action
ACTION
See also Cause of Action
Action – compromise – terms of settlement filed in court and action discontinued – fresh action on same issue – incompetent unless compromise first set aside in action brought for that purpose.
140
AFFILIATION
See Bastardy
Appeal
Civil appeal – evidence and proof – inferences of fact – Court of Appeal substituting own inferences for those of trial judge.
195
Criminal appeal – ground of appeal isolated passage of summing up taken out of context.
70
Criminal appeal – reasons of judge for not accepting opinion of assessors – position of Court of Appeal.
3
ARBITRATION
Insurance policy – damage by fire – reinstatement in wood not permitted by local authority – award limited to cost of reinstatement in wood – award not bad in law on face of it – Public Health (Building) Regulations 1959 reg. 21 (b) – Rules of the Supreme Court 1883 0.52 r.4.
169
BANKRUPTCY
Act of bankruptcy – fraudulent transfer within s. 3 (1) (b) of Bankruptcy Ordinance (Cap. 37).
184
Fraudulent preference – bill of sale – onus of proof on trustee – assessment of weight of evidence – conflict between direct and circumstantial evidence – Bankruptcy Ordinance (Cap. 37) ss. 3 (1) (b), 46 (1), 71, 133 (1) (a) – Bankruptcy Act 1914 (4 & 5 Geo. 5, c. 59) s. 1 (1) (b).
Champaklal Prembhai Mehta v. Official Receiver
184
BASTARDY
Evidence and proof – corroboration – evidence amount to – Bastardy Ordinance (Cap. 33) ss.6 (1) – Affiliation Proceedings Act 1957 (5 & 6 Eliz. 2, c.55) s.4 (2).
149
BILL OF SALE
Construction – whether party joined as guarantor surety or principal debtor – whether liable for moneys owing on separate account by borrower – Indemnity, guarantee and Bailment Ordinance (Cap. 199) s. 13.
179
CAUSE OF ACTION
Account stated – essentials thereof – mutual agreement as to sum due – absolute admission of debt due and payable – admission of part claim coupled with claim of set of insufficient – Rules of the Supreme Court 1883 0.14 r.3.
34
CONTRACTS
See also Moneylending
Agreement for sale and purchase – deposit – refundable if consent of local authority not given – refusal of consent – conditional consent given after action commenced – interpretation of agreement.
52
Consideration – contract unenforceable for lack of writing – moneys paid thereunder not recoverable on ground of failure of consideration.
209
Construction – obligation to pay maintenance – construed as importing obligation to maintain in a reasonable manner having regard to station in life.
91
Construction – supply of films – agreement to come into operation only if existing agreements successfully terminated – meaning of “successfully terminated”.
18
Guarantor – whether on true construction of bill of sale surety or principal debtor – indemnity, Guarantee and Bailment Ordinance (Cap. 199) s. 13.
179
Implied term – obligation to maintain – no implication of term that person maintained must reside in family home.
91
Subrogation – payment by insurer – insurer acquires no greater rights by subrogation than those of assured.
126
Unenforceable contract – moneys paid thereunder – no basis for finding of implied promise to repay – moneys irrecoverable – Indemnity, Guarantee and Bailment Ordinance (Cap. 199) s. 59 – Statute of Frauds (29 Car. 2, c.3) s.4.
209
COURT
Inherent jurisdiction – previous action on same issue settled and discontinued – stay of proceedings – abuse of court process.
140
CRIMINAL LAW
Appeal
See Appeal
Assessors
Reasons of judge for differing from their opinion – reason not approved by Court of Appeal - duty of Court of Appeal to examine whole of evidence – reasons for differing from assessors must be reflected in the evidence – Penal Code (Cap. 8) s. 242 – Criminal Procedure Code (Cap. 9) s. 306 (2).
3
Charge
Laid under wrong regulation – not curable on appeal by amendment or by application of the proviso – Criminal Procedure Code (Cap. 9) ss. 123 (a) (ii), 204 (1), 325 (1) – Traffic (Construction and Use) Regulations 1955; regs. 44 (1), 45 (1), 57 – Traffic Ordinance (Cap. 235) s. 2 – Food and Drugs Act 1938 (1 & 2 Geo. 6, c. 56) s. 24 (1) – Food and Drugs Act 1950 (14 Geo. 6, c. 35) s. 9 (1).
214
Confession
Weight – to be tested in relation to the other proved circumstances
70
Defence
Automatism – wounding with intent to murder – proper foundation to be laid by defence.
23
Evidence and Proof
Defence of automatism – necessity for proper foundation to be laid by defence.
23
Discrepancies and contradictions in evidence of witness – reluctance of Court of appeal to interfere with findings of fact of court of first instance which had the advantage of seeing and hearing the witness.
42
Onus of proof – facts peculiarly within knowledge of accused – proof of existence of third party insurance policy where owner of vehicle not the driver – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) s. 4 (1).
163
Previous statement by witness inconsistent with his testimony – no credible explanation fir discrepancy – failure of magistrate to consider conflict – Penal Code (Cap. 8) ss. 132 (b), 335 (a), 346 (a), 409 – Criminal Appeal Act 1907 (7 Edw. 7, c. 23) s. 4 (1).
159
Proof of intent to cause alarm – nature of threat and other relevant circumstances – Penal Code (Cap. 8) s. 359 (a).
204
Sexual offence – evidence of age – birth certificate – need to identify person named in birth certificate as complainant – Penal Code (Cap. 8) s. 147 (1) (a).
249
Weight of confession – to be tested against other proved circumstances.
70
Weight of expects evidence – relative competence of judge and assessors to assess.
3
Judgment
Accused found guilty – no statement by judge that he was convicted – not incurable defect – Larceny Act 1916 (6 & 7 Geo. 5, c. 50) ss. 25 (1)(6), 27 (1) – Criminal Procedure Code (Cap. 4 – Laws of Fiji 1945) ss. 156, 157 – Pacific Order in Council 1893 (Schedule) rr. 101, 102.
12
Neglect by magistrate to include reasons – material on record sufficient for consideration on merits – defect not fatal – Criminal Procedure Code (Cap. 9) s. 155 (10.
103
Practice and Procedure
See also Judgment
Absence of accused from trial – jurisdiction – customs Ordinance (Cap. 166) ss. 101, 116 – Criminal Procedure Code (Cap. 9) ss. 155 (1), 184, 191, 196.
103
Adjournment – refusal of reasonable grounds – no application made at appropriate later stage – no application to set aside conviction – Criminal Procedure Code (Cap. 9) s. 196.
103
Bail – refusal by magistrate – application to Supreme Court – desirability of affidavit by prosecution – material required to support allegation defendant likely to interfere with witnesses – Criminal Procedure Code (Cap. 9) s. 109 (3).
240
Prosecution witness – not declared hostile – cross-examined by prosecutor at stage of re-examination – serious irregularity.
78
Sentence
Concurrent or consecutive sentences – principles applicable.
236
Different sentences imposed by Supreme Court upon persons participating jointly in offence – approach of Court of Appeal – manslaughter – sentence of life imprisonment.
42
Manslaughter – severe provocation – reduction of sentence.
16
Taking other untried but admitted offences into consideration – principles applicable.
236
Summing Up
Ground of appeal – isolated passage should not be taken out of context.
70
Traffic Offences
Driving motor vehicle without third party insurance – driver person other than owner – onus of proof of existence of valid policy – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) s. 4 (1)
163
Using motor vehicle without third party insurance – policy in existence – use of vehicle in breach of condition of policy – policy rendered voidable – in force at material time – Motor Vehicle (Insurance) Ordinance (Cap. 236) s. 4 (1) (2) – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) ss.9, 10 – Road Traffic Act 1930 (20 & 21 Geo. 5, c. 43) s. 38.
63
Trial
Assessors having no voice or vote in decision of court – assessors consulted by judge before judgement – fatal flaw in trial – Pacific Order in Council 1893 s. 98.
Binatake Tekai v. Reginam
78
Disclosure of previous conviction by newspaper report between trial and judgment – whether miscarriage of justice resulted – Penal Code (Cap.8) s. 300 (a) (ii) – Criminal Evidence Act 1898 (61 & 62 Vict., c. 36) s. 1 (f).
110
View by court – absence of accused there from – view part of trial – serious irregularity – Pacific Order in Council 1893.
78
General
Bail – matters to be considered in granting or refusing – Criminal
Procedure Code (Cap.9) s. 109 (3) – Arms and Ammunition Ordinance 1961.
240
Grievous harm – harm that seriously or permanently injures health or is likely so to do – finding of serious interference with health and comfort insufficient – Penal Code (Cap. 8) ss. 4, 253, 271.
145
Intimidation – proof of intent to cause alarm – nature of threat and other relevant circumstances – Penal Code (Cap.8) ss.78, 359 (a) – Conspiracy and Protection of Property Act 1875 (38 & 39 Vict., c. 86) s.7 – Indian Penal Code s. 503.
204
Misdirection – witness’ evidence accepted in spite of unexplained conflict with earlier statement – other evidence on record insufficient to establish guilt – miscarriage of justice – Penal Code (Cap.8) ss. 132 (b), 335 (a), 346 (a) 409 – Criminal Appeal Act 1907, (Edw. 7, c. 23) s. 4 (1).
159
Proviso to section 325 (1) Criminal Procedure Code (Cap.9) – not available to cure conviction on charge laid under wrong regulation.
214
Selling adulterated food – elastoplasts dressing in curried mutton and taro – Pure Food Ordinance (Cap. 131) ss.4 (a) (i), 5, 7 (2) (a), 7 (3).
114
Sexual offence – age of complainant in issue – production of birth certificate – need to identify complainant with person named in certificate – Penal Code (Cap. 8) s.147 (1) (a).
249
DAMAGES
Contributory negligence – child carried behind driver of tractor – apportionment of negligence to child to be determined having regard to age and knowledge he might be expected to have of risk.
74
Fatal accident – negligent driving – basis of assessment – plaintiff entitled to one fifth of estate of deceased – estate increased by damages awarded under the Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap.17) – one fifth of total estate deducted from damages under the Compensation to Relatives Ordinance (Cap. 20).
Waliamma v. Leylands Limited
49
Negligent driving – death caused – principles of assessment of damages – Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap. 17) – Compensation to Relatives Ordinance (Cap. 20).
173
ESTOPPEL
Res judicata – previous litigation between same parties – judgment in default of appearance – issue which could have been raised, not raised or decided – no estoppel.
121
EVIDENCE AND PROOF
See also Criminal Law
Allegations of fact in statement of claim – taken as established at hearing when order for filing statement of defence not complied with – Magistrates’ Courts Rules (Cap. 5) 0.16 r.3.
1
Bankruptcy – fraudulent preference – onus of proof – weight of evidence – Bankruptcy Ordinance (Cap. 37) s. 46 (1).
184
Bastardy proceedings – corroboration – evidence amounting to – Bastardy Ordinance (Cap. 33) s. 6 (1).
149
Inferences of fact – Count of Appeal may in proper case substitute own inferences for those of trial judge.
195
Questions only relevant as affecting credibility – attack on character of witness – necessity for reasonable grounds for thinking imputation well founded
Paras Rao Vyas v. Mahalatchmi
229
EXECUTION
Garnishee proceedings – attachment of money owing by sheriff to judgment debtor – order absolute opposed on ground insurer entitled to the money so owing by subrogation – insurer in no better position than judgment debtor – money not subject to trust in hands of sheriff.
121
Set off – cross judgments – no application or order for set off – whether Writ of Fieri Facias by one judgment creditor for full amount of his judgment irregular.
121
EXECUTORS AND ADMINISTRATORS
See also Probate and Administration
District Administrator – renunciation of administration by next of kin – necessity for writing and delivery to District Administrator – Administration of Estates Ordinance (Cap. 41) ss. 2 (1), 3 (1), (2).
217
Limitation – administrator plaintiff in action commenced prior to acquisition of title to administer – action incompetent – amendment unavailable if claim barred by limitation – Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap. 17) – Compensation to Relatives Ordinance (cap. 20) s.8.
217
FIERI FACIAS
See Execution
FOOD
Adulteration – elastoplast dressing in curried mutton and taro – whether food adulterated – Pure Food Ordinance (Cap. 131) ss. 4, 5, 7.
114
GARNISHEE
See Execution
INCOME TAX
Capital or income – sale of shares by investment company – whether resulting profits assessable to tax – test to be applied – same test applicable to investment company as to others – Income Tax Ordinance (Cap. 172) s.3.
94
INSURANCE
See also Road Traffic
Claim – accident report form – whether amounting to formal claim.
195
Claim – condition precedent to liability that no false statement be made in support of claim – whether statement false – whether made in support of claim.
195
Fire policy – reinstatement in original material not permitted by local authority – insurer not liable for additional cost of reinstatement in approved materials.
169
Third party policy – motor vehicle – liabilities required to be covered – exemption of liability arising solely by virtue of Workmen’s Compensation Ordinance – exemption limited to liability of policy holder to own employees – Workmen’s compensation Ordinance (Cap. 93) s. 25 – Motor Vehicles (Third Party Insurance) Ordinance (Cap.236) ss. 6 (1) Proviso (i), 11.
Queensland Insurance Co. Ltd. v. Colonial Sugar Refining Co. Ltd.
59
Interpretation
See also Contract
Agreement for sale and purchase – subject to consent of local authority – consent refused but later given conditionally – whether deposit refundable – construction of agreement.
52
Imperial statute – statute of general application – to be read with verbal alterations not affecting substance – forfeiture Act 1870 (33 & 34 Vict., c. 23) ss. 6, 8, 9 – Supreme Court Ordinance (Cap.4) ss. 35, 37.
152
Lease – extension – meaning of.
9
Magistrates’ Courts Rules 0.13 para. (b) – “may” having a compulsory meaning in first sentence of rule.
117
LAND
Lease – power of attorney given by lessee while serving sentence of imprisonment – lessee not a convict within s.8 of Forfeiture Act 1870 – prohibition against alienation of property by that section not applicable – power of attorney and transfer pursuant thereto valid – Forfeiture Act 1870 (33 & 34 Vict., c. 23) ss. 6, 8, 9 – Supreme Court Ordinance (Cap. 4) ss.35, 37 – Criminal Justice Act 1948 (11 & 12) Geo. 6, c. 58) ss.78, 83, 8th Schedule, 10th Schedule Pt. 1 – Penal Code 1944 ss. 24, 415, Schedule 1 – Malicious Damage Act 1861 (24 & 25 Vict., c.97) – Offences Against the Person Act 1861 (24 & 25 Vict., c. 100).
152
LANDLORD AND TENANT
See also Native Land
Extension of term – period unspecified – “extension” contrasted with “renewal” – construction of clause – right to reasonable extension.
9
LIMITATION OF ACTIONS
See Practice and Procedure
MASTER AND SERVANT
Implied authority – unauthorised mode of performing authorised act – slander – vicarious liability of master.
46
MAINTENANCE
See Contract
MONEYLENDING
Action settled and discontinued – terms of settlement filed in court – subsequent action on same issue incompetent unless compromise first set aside by action – Moneylenders Ordinance (Cap. 207).
140
Loan made when lender not a moneylender – payment of interest and new repayment date agreed after lender became registered moneylender – transaction not within Ordinance – Moneylenders Ordinance (Cap. 207) s. 16 (1).
176
Memorandum of contract – existing loan repaid from new loan between same parties – whether term of money lending contract – Moneylenders Ordinance (Cap. 207) s.16 (3) – Bills of Sale Act (1878) Amendment Art 1882 (45 & 46 Vict., c. 43) – Moneylenders Act 1927 (17 & 18 Geo. 5, c. 21).
29
Memorandum of moneylending contract – promissory note given as security but counter-signed by moneylender and containing all terms of contract a sufficient memorandum – loan not rendered irrecoverable by later cancellation of promissory note – Moneylenders Ordinance (Cap. 207) s. 16 (1) (4).
107
Moneylender’s account – entries not in proper sequence – entries made at one time shortly before court proceedings – not a regular account – loan irrecoverable – Moneylenders Ordinance (Cap. 207) ss.16, 17, 18.
83
Moneylender’s account – whether regular – question of fact in each case – Moneylenders Ordinance (Cap.207) s. 18 (1) – Moneylenders Ordinance (Nigeria) (c.136) s.19.
245
Pleading–failure to keep regular account–illegal act–court will take cognisance though not pleaded–Moneylenders Ordinance (Cap. 207) s.18–rules of the Supreme Court 1883 0.3 4.10, 0.70 r.1.
83
NATIVE LAND
Lease – consent to transfer – consideration misstated in application to Native Land Trust Board – consent granted – consent not vitiated in absence of withdrawal thereof by Board or declaration by court.
152
Lease – transfer executed – consent of Native Land Trust Board granted but not endorsed on transfer – purported revocation by transferor of lease ineffectual.
152
Leasehold – declaration of trust amounting to licence to occupy and grow crops – dealing in Land – Native Land Trust Ordinance (Cap. 104) s.12.
121
Membership of tokatoka and mataqali – identity of persons to whom rent of native land to be paid – not questions to be decided by Native Land Trust Board – Register of Native Lands – Native Lands Commission – Native Land Trust Ordinance (Cap. 104) ss.2, 3, 4 (1), 14 (1), 32 – Native Lands Ordinance (Cap. 103) ss. 4, 6, 6 (4), 6A, 7, 8 – rules of the Supreme Court 1883 0.25 r.2 – Native Land (Leases and Licences) Regulations (Cap. 103) reg. 3(1).
223
POWER OF ATTORNEY
Executed by person serving sentence of imprisonment – distinction between penal servitude and imprisonment – prohibition against alienation of property in s.8 of Forfeiture Act 1870 inapplicable – power of attorney valid – Forfeiture Act 1870 (33 & 34 Vict., c.23) ss.6, 8, 9 – Supreme Court Ordinance (Cap. 4) ss. 35, 37 – Criminal Justice Act 1948 (11 & 12 Geo. 6, c.58) ss.78, 83, 8th Schedule, 10th Schedule Pt. 1-Penal Code 1944 ss.24, 415, Schedule 1.
PRACTICE AND PROCEDURE
Amendment – substitution of parties – no amendment after claim barred by limitation – Rules of the Supreme Court 1883 0.16 r.2.
Pleading – moneylenders – failure to keep regular account- illegal act – not pleaded by defendant – court will take cognisance – Moneylenders Ordinance (Cap. 207) s.18 – Rules of the Supreme Court 1883 0.3 r.10, 0.70 r.1.
83
Pleading – order for filing of statement of defence – no defence filed in fact – allegations of fact in statement of claim taken as established – Magistrates” Courts Rules (Cap. 5) 0.16 r.3.
1
Venue – action in tort in Magistrate’s Court at Suva – defendant carrying on business at Lautoka – special plea in objection to jurisdiction – duty of magistrate – Magistrates’ Courts Rules (Cap.5) 0.13 paras. (b) (c) (d) – Magistrates’ Courts Ordinance (Cap.5) s.33.
117
Witness – cross-examination – questions affecting credibility by attack on character – necessity for reasonable grounds for thinking imputation well founded.
229
PROBATE AND ADMINISTRATION
See also Executors and Administrators
Probate in solemn form – execution of will – circumstances of suspicion – proof of knowledge and approval by deceased of contents of will.
229
REVENUE
See Income Tax
ROAD TRAFFIC
See also Damages
Driving motor vehicle without third party insurance – vehicle driven by person other than owner – onus of proof – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) s.4 (1).
163
Third party insurance – using vehicle for purpose prohibited by policy – policy rendered void able and not void – policy in force at material time – Motor Vehicle (Insurance) Ordinance (Cap. 236) s4 (1) (2) – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) ss.9, 10 – Road Traffic Act 1930 (20 & 21 Geo. 5, c.43) s.38.
63
SALE OF LAND
See Contract
SUBROGATION
See Contract
TORT
See also Damages
Negligence – child permitted to ride behind driver of tractor – unlawful act – heavy-duty of care on driver – apportionment of negligence – Compensation to Relatives Ordinance (Cap.20) – Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap.17).
74
Slander – publication – publication to spouse of plaintiff sufficient.
46
Slander – vicarious liability – implied authority of employee to speak to person reasonably suspected of shoplifting – use of defamatory words unauthorised – employer liable.
46
WORDS AND PHRASES
“approval”
58
“consent”
58
“Convict” (Forfeiture Act 1870)
155
“extension”
11
“grievous harm” (Penal Code Cap8) s.4
146
“next of kin” (Administration of Estates Ordinance (Cap.41) s.3 (1))
219
“penal servitude” (Forfeiture Act 1870)
156
“renewal”
11
“successfully terminated”
21
WORKMEN’S COMPENSATION
Workman injured by negligent third party – compensated by employer under Workmen’s Compensation Ordinance – action for reimbursement by employer against insurer of third party – liability of insurer not one arising solely by virtue of Workmen’s Compensation Ordinance – included in policy – Workmen’s Compensation Ordinance (Cap.93) s.25 – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) ss. 6(1) Proviso (i), 11.
Queensland Insurance Co. Ltd v. Colonial sugar Refining Co. Ltd
59
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