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Fiji Islands - FLR Volume 9 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1963
VOLUME 9This Volume may be cited as “9 Fiji Law Reports”
Editor:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.),
Barrister-at-Law, Judge of the Fiji court of AppealPrice: $5.00
DIGEST AND INDEX
PAGE
ACCOUNTS
Account current – order of appropriation of payments.
1
BANKRUPTCY
Bankruptcy notice – necessity for timeous service
51
Petition – bankruptcy notice not served within prescribed period – petition dismissed – Bankruptcy Rules 142, 385.
51
BILLS OF SALE
Consideration – whether sufficiently set forth – recitals – Bills of Sale Ordinance (Cap. 1930 s.7.
Burns Philp (South Sea) Co. Ltd and Shell Company (Pacific Islands) Ltd. v. Munsami Naidu
102
COMPANIES
Winding Up
Liquidation – petition for continuance of voluntary winding up under supervision of the court – court’s duty as between creditors – companies Ordinance (Cap. 185) ss. 174, 222 (1) ( c ), 227 (1), 227 (3), 235 (1), 235 (4), 253.
Fiji Industrial and Plating Company Limited (In Liquidation), in the matter of
8
CONDITION PRECEDENT
See Insurance
CONSTITUTION OF FIJI
See Interpretation
CONTRACT
Illegality – false statement in application for consent of Director of Lands to transfer – transaction not tainted with illegality unless consent required by Ordinance – Crown Lands Ordinance s.41.
141
COSTS
See Practice and Procedure
CRIMINAL LAW
Accomplices
Corroboration – necessity for strict application of rule as to – Rule 23 Court of Appeal Rules.
25
Police Informer – not an accomplice.
12
Police trap – arms and ammunition – possession of without licence – corroboration of police witnesses unnecessary – Arms and Ammunition Ordinance 1961, ss. 4 (1) (a) (ii), 4 (2) (a) (ii).
89
Appeal
No power in Supreme Court to order retrial Criminal Procedure Code (Cap.9), s.325 (1).
158
Charge
Disqualification – necessity to specify the count in respect of which imposed – Criminal Procedure Code (Cap. 9), s. 155 (2).
48
Essential particulars – nullity – Traffic Ordinance (Cap.235), ss. 31, 37 (1), 37 (2), 65 – Criminal Procedure Code (Cap. 9), s. 325 (1).
48
Shopbreaking and larceny – charge not bad for duplicity – Penal Code (Cap.8), ss. 288 (1), 326, 327 (a) – Criminal Procedure Code (Cap. 9), ss. 123, 325 (1) – Larceny Act 1916 (Imperial), ss. 13 (a), 25 (1), 26 (1), 27 (2).
22
Construction of Legislation
Failing to close wholesale and retail premises – wholesale and retail licence and wholesale and retail store licence – meaning of – Early Closing Ordinance (Cap.205), ss. 2, 3, 8 – Licence Ordinance (Cap.174), ss.15 (1), 15 (2), 15 (3) – Closing of Premises (Wholesale and Retail) Ordinance 1919
64
Interpretation – Ordinance – in pari materia
64
Refusal to suspend sentence - Criminal Procedure Code (Cap. 9), s. 321 – Traffic Ordinance (Cap. 235).
53
Statute – Criminal Offence – Traffic Ordinance (Cap. 235, ss. 32 (1), 65 – Road Traffic Act 1960, (Imperial), s. 104 – Traffic Ordinance 1953 – Penal Code (Cap.8), s. 263 (a).
46
Conviction
Jurisdiction to convict of minor offence of cognate character – Criminal Procedure Code (Cap. 9), ss. 331 (1) (a), 325 (1).
129
Defence
Indecent assault on male – consent a defence – Penal Code (Cap. 8), ss. 145, 165, 166, 167.
129
Negative averment – onus on accused – Penal Code (Cap.8), s.124 – Criminal Procedure Code (Cap. 9), s. 205.
55
Provocation – defence not raised by accused – duty of court to consider if supportable on the evidence.
120
Evidence
Confession – whether voluntary – cumulative effect of improprieties.
110
Corroboration
89
Corroboration – essentials of – indecent assault – Penal Code (Cap.8), s. 145 (1).
156
Crown witness’ previous conviction unknown at trial – duty of counsel – duty of court of appeal – Penal Code (Cap. 8), s. 288 (1).
158
Police informer – corroboration – need to scrutinize evidence.
12
Sexual offence – corroboration – distressed condition of complainant – Penal Code (Cap. 8), ss. 145, 273 (a).
162
Trial within a trial – reference to in summing up to assessors – improper.
110
Witness declared instead of being sworn-evidence ignored – Criminal Procedure Code (Cap. 9), s.137 – Oaths Ordinance (Cap. 13), s.2.
165
Witness – earlier conflicting statements – principles upon which judge and assessors must act.
105
Onus of Proof
See also Traffic Offence and Principles of Criminal Liability
Careless driving – defence of mechanical defect-onus on prosecution – Traffic Ordinance (Cap. 235), ss. 31, 65
154
Onus of proof – accused electing to remain silent – misdirection – Penal Code (Cap. 8), s.335 (a).
97
Parties
Aiding and abetting – possession – need for some activity in relation to act of possession.
85
Practice and Procedure
Care necessary before judge comments on failure of accused to give evidence.
25
Certificate of trial judge – necessity for notice of appleal thereafter – Court of Appeal Rules r.55 – Privy Council Appeal Rules r.9.
59
Consent of accused necessary for trial in Magistrate’s Court – trial without consent – nullity – Criminal Procedure Code (Cap. 9), s. 78 – First Schedule – Penal Code (Cap. 8), ss.305 (1) ( c ) (i), 300 (a) (ii).
98
Power to substitute verdict – Criminal Procedure Code (Cap. 9).
99
Ruling of case to answer – position of court of appeal.
42
Silence by accused when charged – adverse reference to – misdirection.
110
Principles of Criminal Liability
Duress – threat to kill – opportunity to escape – Penal Code (Cap.8), s.16.
92
Mens rea-possession of ammunition – change of onus – Arms and Ammunition Ordinance 1961, ss. 4 (1), 4 (2), 36 – Penal Code (Kenya), s.319 (1) – Dangerous Drugs Ordinance (Cap. 129), s.8 (b).
72
Possession – knowledge of accused.
72
Sentence
First conviction – discretion – adoption of standard punishment inappropriate – Traffic Ordinance (Cap. 235), ss. 26, 32 (1).
62
Need to give accused opportunity to plead in mitigation
48
Principles to applied – Penal Code (Cap. 8), s.300 (a).
69
Rape.
30
Sentence of death – jurisdiction – application for extension of time for leave to appeal to court of Appeal-Court of Appeal Ordinance (Cap.3), ss.17 (1) (b), 21 (1) – Criminal Appeal Act 1907 (Imperial), s.7 (1).
59
Traffic Offences
Careless driving – defence of mechanical defect – onus on prosecution – Traffic Ordinance (Cap. 235), ss 31, 65.
154
Careless driving – identification of driver – no change of onus on proof of ownership – inference from false evidence of owner – Traffic Ordinance (cap. 235), ss. 31, 37 (1), 37 (2), 37 (5), 65.
42
General
Failing to close wholesale and retail premises – wholesale and retail licence and wholesale and retail store licence – meaning of – Early Closing Ordinance (Cap. 205), ss. 2, 3, 8 – Licence Ordinance (Cap. 174), s.15 (1), 15 (2), 15 (3)– Closing of Premises (Wholesale and Retail) Ordinance 1919.
64
Larceny by servant – money order cashed – date of intent to deprive – Penal Code (Cap.8), ss.300 (a) (i), 285 (1).
99
Possession of unlicensed arm – joint possession – Arms and Ammunition Ordinance 1961, s.4 (2) (2) (a) (ii).
85
Selling arms not being licensed dealer – need to plead and prove “by way of trade or business” – Arms and Ammunition Ordinance 1961, s. 10 (1) (iii).
89
Theft – animus furandi – taking with purpose of extracting ransom – Penal Code (Cap. 8), s. 285 (1) – Larceny Act 1916 (Imperial), s.34 – Cap. 55, 9 Geo. IV, s.51 (Ireland).
55
CROPS
See also Land Landlord and Tenant; Native
Future proceeds – assignment of – unlimited in amount – valid
76
Sharefarming – validity of agreement – Native Land Trust Ordinance (Cap. 104), s. 12 (1).
163
CROWN LANDS
See Landlord and Tenant
ELECTIONS
Election petition – returning officer – public declaration – meaning of “publicly” – Electoral Regulations 1962, Regulations 62, 63 – 69 (inc.), 71, 72.
81
EMBLEMENTS
See Landlord and Tenant
EVIDENCE
See also Criminal Law
Assignment – extrinsic – inadmissible where no ambiguity.
76
INSURANCE
Policy – evidence of value – condition precedent to claim.
34
INTERPRETATION
See also Criminal Law – Construction of Legislation
Constitution – order by Governor intra vires – Fiji (Constitution) Order in Council 1963, ss.1 (2), 63 (2) – Determination (Elected Members) (Seats) Order, 1963.
133
Statute – construction – effect of permissive provision – specific power unaffected – Fiji (Constitution) Order in Council 1963, ss. 37 (1), 37 (3), 42.
133
LANDLORD AND TENANT
Crown Lands – consent of Director Lands to transfer of tenancy-at-will – not required except in case of protected tenancy – Crown Lands Ordinance (Cap. 138) s.15 (1).
141
Emblements – nature of.
36
Tenancy-at-will – unharvested sugar cane on land at termination thereof – second ratoon – no right in tenant thereto.
36
LEGISLATIVE COUNCIL
Vacation of seat – person certified to be insane – meaning and effect – Fiji (Constitution) Order in Council 1963, ss. 33 (1) (d), 34 (3), 37 (1), 37 (3) – Mental Treatment Ordinance (Cap. 128), ss. 16, 35, 39.
133
LICENSING
See Criminal Law – Construction on Legislation
MASTER AND SERVANT
Workmen’s Compensation
Independent concurrent conditions – arising out of employment – sleeping in dangerous place – Workmen’s Compensation Ordinance (Cap. 93).
144
General
Vicarious liability – negligent driving – servant driving purely for own purposes.
32
MONEYLENDING
Unenforceable security – appropriation of payments towards reduction of – Moneylenders Ordinance (Cap.207), s.16 (1).
1
NATIVE LAND
Consent of Trust Board to alienation or dealing – sever ability of provisions of deed – Native Land Trust Ordinance (Cap. 104), s.12
95
Share farming agreement – validity – alienation or dealing with land.
163
NEGLIGENCE
See also Master and Servant – General
Tort – findings of fact of court below – primary facts and inferences – Law Reform (Miscellaneous Provisions) Ordinance (Cap. 17) – Compensation to Relatives Ordinance (Cap. 20).
144
PRACTICE AND PROCEDURE
Action
Action against joint defendants – evidence discloses individual actions – counsel’s refusal to amend pleadings – judgment for defendants – Magistrates’
Courts Rules, Order 8, rr. 5 (2), 5 (3), 8, 9.
5
Appeal
Application for extension of time to file grounds of appeal – appellant must elect whether to apply to Magistrate’s Court or Supreme Court – Magistrates’ Courts Rules, Order 36, rr.3, 4.
139
Costs
Appeal under s. 13, Townships Ordinance (Cap. 79) – Magistrates’ Courts Rules, Appendix C, Order 1, r. 5.
155
Pleadings
See Action
TORT
See Negligence
WORDS AND PHRASES
“Criminal offence”
46
“Wholesale and retail”
68
“Publicly”
84
WORKMEN’S COMPENSATION
See Master and Servant
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