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Fiji Islands - FLR Volume 10 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1964
VOLUME 10This Volume may be cited as “10 Fiji Law Reports”
Editor:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.)
Barrister-at-LawPrice: $8.75
DIGEST AND INDEX
PAGE
ACCOUNTS
Incorporated industrial association – members entitlement to accounts governed by constitution.
Alpati Tataiya v. Fiji Kisan Sangh
52
AGRICULTURE
See Industrial Association
APPEAL
See also Criminal Law – Appeal
Application for leave to appeal out of time – time runs from date of perfection of judgment – court having power to enlarge time – discretion of court – Court of Appeal Rules (Cap. 3) rr. 7, 20, 23, 30 – Rules of the Supreme Court (England) 0.58 r. 15, 0.41 r.3 (Annual Practice – 1934).
138
ATTORNEY-GENERAL
Properly joined as defendant in proceedings where Petition of Right formerly lay – or where proceedings lay against officer of Crown as such.
72
BANKRUPTCY
Non-compliance with Bankruptcy Rules – discretion of Court whether to direct proceeding rendered void-application for administration of estate in bankruptcy – necessity for verifying affidavit – Bankruptcy Ordinance (Cap. 37) ss. 7 (1), 8, 117 (1) (8) (10), 147 (1) – Bankruptcy Rules 1915 (Imperial) rr. 5 (1), 299, 319, 321, 385, Appendix Form 12 – Bankruptcy Act 1914 (Imperial) (4 & 5 Geo. 5, c. 59) s.130.
148
BILLS OF SALE
Non-renewal of registration – Bill of Sale void from expiry of registration – personal covenant to pay principal and interest not severable – possible action for money had and received – from what point time runs for purpose of limitation – Bills of Sale Act 1878 (Imperial) (41 & 42 Vict., c.31) s.8 – Bills of Sale Act (1878) Amendment Act 1882 (Imperial) (45 & 46 Vict., c.43) s.9.
275
COMPANIES
Agreement to lease – execution on behalf of company by manager duly authorized – Companies Ordinance (Cap. 185) s. 30.
229
162
CONTRACT
Building contract – default by builder – measure of damages.
Din Shiu Prasad v. Abdul Habib Sahu Khan
Consideration – antecedent debt – implication of forbearance to sue.
252
Illegality – parties in pari delicto – no entitlement to recovery of sums paid or credited to defendant prior to action.
252
Illegality – assignment of protected lease – false certificate by both parties – refusal of assistance of court to plaintiff – Crown Lands Ordinance (Cap. 138) ss. 15 (1), 41.
222
Sale of land – agreed draft – whether subject to contract – memorandum – authority of solicitor to provide – Indemnity, Guarantee and Bailment Ordinance (Cap. 199) s. 59 (d) – Statute of Frauds (Imperial) (29 Car.2, c.3).
212
CRIMINAL LAW
Accomplices
Corroboration – nature of – implication of accused.
241
Appeal
See also Criminal Law – Practice and Procedure
No appeal lies from refusal by Magistrate’s Court of bail pending appeal to Supreme Court.
235
No appeal against refusal by magistrate of application for enlargement of time for appeal – Criminal Procedure Code (Cap. 9) ss. 314 (1), 316 (1).
249
Bail
Bail pending appeal to Supreme Court by convicted person – refusal of bail by Magistrate’s Court – no appeal against refusal – right of fresh application to Supreme Court – Criminal Procedure Code (Cap.9) ss. 3 (3), 43 (2), 118, 158, 206, 314 (1), 321 (1), 329 – Supreme Court of Judicature (Consolidation) Act 1925 (Imperial) (15 & 16 Geo.
5, c.49) s. 31 (1) (i)- Supreme Court of Judicature Act 1873 (Imperial)
(36 & 37 Vict., c. 66) – Magistrates’ Courts Rules 1952 (Imperial) r.9 – Rules of the Supreme Court (Imperial) 0.54 rr.1, 2 – Indian Criminal, Procedure Code (V of 1898) – Tanganyika Criminal Procedure Code 1945 ss. 52, 132, 174, 312.
235
Direction to Assessors
See also Criminal Law – Evidence.
Misdirection of assessors on matter of fact – no miscarriage of justice.
153
Summing up – defence of alibi – adequacy of direction thereon to assessors.
37
Evidence
Accused not giving evidence – circumstances peculiarly within knowledge of accused – principle cannot be relied upon to fill lacuna in case for prosecution – Rhinoceros Beetle Regulations (Cap. 151) regs. 12 (1), 18 – Rhinoceros Beetle (Amendment) Regulations 1962, reg. 7.
171
Circumstantial evidence – alternative hypotheses consistent with guild or innocence – Penal Code (Cap. 8) ss. 327 (a), 328 (b), 329 (d) – Criminal Procedure Code (Cap.9) s.175.
266
Confession – custody of police – whether appellant at liberty to depart.
153
Confession – Voluntariness – confrontation of accused by witness.
153
Confession – threat or inducement – person in authority.
131
False information to police – proof of charge by evidence of admission by accused of falsity of statement charged – Penal Code (Cap.8) s. 132.
125
Previous inconsistent statements by witnesses – mode of reference to in direction to assessors – such witnesses not accomplices – application of proviso – court of Appeal Ordinance (Cap. 3) s.18 (1) – Criminal Appeal Act 1907 (Imperial) (7Edw. 7, c.23).
131
Statement on oath by accused during committal proceedings – evidence only against maker – Criminal Procedure Code 1961 (British Solomon Islands) s.255.
241
Unsworn statement by accused under s. 201 (1) of the Criminal Procedure Code (Cap.9) – probative value.
85
Interpretation
Headings and marginal notes form no part of Ordinance – meaning of “offence in connexion with the driving of a motor vehicle” – Traffic Ordinance (Cap. 235) s.26 (1) (a) – Motor Car Act 1903 (Imperial) (3 Edw. 7, s. 36) s.4.
196
Regulation – whether ambiguous or impossible of performance – competence of court to consider reasonableness – Traffic (Construction and Use) Regulations 1955, reg. 26A.
48
Regulation – whether ultra vires – whether offence disclosed – Traffic (Construction and Use) Regulations 1955, reg. 5 (2).
225
Judgement
See Criminal Law – Practice and Procedure
Onus of Proof
Accused not giving evidence – circumstances peculiarly within knowledge of accused – principle cannot be relied upon to fill lacuna in case for prosecution.
171
Practice and Procedure
Alternative counts – Criminal Procedure Code (Cap. 9) ss. 193, 206 – Penal Code (Cap. 8) s.38.
27
Amendment of charge – no plea taken to amended charge – proviso to s. 325 (1) Criminal Procedure Code applied – Criminal Procedure Code (Cap.9) ss.2045 (1), 325 (1).
125
Application for extension of time to appeal to Court of Appeal – grounds for application – Court of Appeal Ordinance (Cap. 3) ss.6 (2), 18 (1), 21 (1).
68
Bail pending appeal to Supreme Court – no appeal from refusal by magistrate – fresh application to Supreme Court – Criminal Procedure Code (Cap. 9) ss. 314 (1), 321 (1).
235
Election by accused whether to give evidence – to be made by accused personally – Criminal Procedure Code (Cap. 9) s.201
125
Enlargement of time for appeal – refusal of application by Magistrate’s Court – subsequent application to Supreme Court – Procedure Code (Cap.8) s.340 (1) – Criminal Procedure Code (Cap.9) ss.314 (1), 316 (1), 316 (2) ( c ).
249
Evidence of “Special reasons” – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) s.4 (1) (2).
206
Joinder of counts against different accused in one information – conspiracy – Criminal Procedure Code, 1961 (B.S.I.) s. 119.
241
Judgment – failure to comply with s.155 of Criminal Procedure Code – date omitted and section under which convicted not specified – no miscarriage of justice – Traffic Ordinance (Cap.235) s.32 (1) – Criminal Procedure Code (Cap.9) ss.155 (1) (2) (3), 325.
1
Same magistrate president at trials of thieves and of receiver.
27
Submission of no case to answer – duty of court – burden of proof – Penal Code (Cap.8) ss.238, 250 (a), 253.
85
Witness – leave to prosecution to call witness after close of case for defence – new matter which the prosecutor could not have foreseen – Penal Code (Cap.8) s. 106 – Criminal Procedure Code (Cap. 9) s. 202.
174
Vexatious, scandalous or oppressive matter in application – striking out.
68
Principles of Criminal Liability
Agency – Licensed Agent authorized by importers under s. 113 of the Customs Ordinance – clerk of Licensed Agent transacting business under section 11 – importers not criminally liable for false declaration signed by clerk – Customs Ordinance (Cap.166) ss.11, 113, 116.
82
Parties – participation in offence – presence at scene of crime.
37
Receiving stolen property – acquisition by accused of joint possession with thieves – whether a sufficient receiving – felonious intent – Penal Code (Cap. 8) ss. 327 (a), 340 (1) (a), 416, 417.
27
Sentence
Need for reasonable degree of consistency in penalties – Traffic Ordinance (Cap. 235) s. 33 (1)
196
Traffic Offences
Disqualification – no power to impose for offence of failing to report an accident – Traffic Ordinance (Cap. 235) ss.26 (1) (a), 37 (1) (2) (3) (5) – Traffic (Amendment) (No.2) Ordinance 1957, s.5.
196
Driving in a manner dangerous to the public – speed as a factor in the manner of driving – Traffic Ordinance (Cap. 235) s.32 (1).
117
Load exceeding permitted width – regulation 5 (2) of Traffic (Construction and Use) Regulations 1955 intra vires – acts forbidden by such regulation misdemeanours by virtue of s. 133 of the Penal Code – appropriate penalty – Traffic Ordinance (Cap. 235) ss.6 (1), 38 (1), 65 – Traffic (Construction and Use) Regulations 1955, regs. 5 (2), 57 –Penal Code (Cap. 8) s. 133 – Interpretation and General Clauses Ordinance (Cap.1) s.2 (38)
225
Load exceeding permitted width – reg. 26A of the Traffic (Construction and Use) Regulations 1955 neither ambiguous nor impossible of fulfilment – Traffic (Construction and & Use) Regulations 1955, regs. 2, 5 (1) (2), 26A – Traffic (Construction and Use) (Amendment) Regulations 1959, regs. 3,6.
48
Using motor vehicle without third party insurance – disqualification – special reasons – discretion – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) s. 4 (1) (2).
206
Witnesses
Allegation of bias – question of possibility of infidelity by witness’ wife with one accused – unnecessary to arrive at positive preliminary finding.
37
Previous inconsistent statements by witness – allegation of conspiracy to give false evidence.
37
General
Customs duty – charge of being knowingly concerned in attempted fraudulent evasion – unmanifested parcel – circumstances consistent with contents being undutiable – proof of knowledge of nature of contents essential – Customs Ordinance (Cap. 166) s. 106 A (1) (b).
94
Failure to comply with notice to provide proper and sufficient supply of water – Public Health Ordinance (Cap. 124) ss.122, 123, 125 – Criminal Procedure Code (Cap. 9) s. 340 (1).
120
CROPS
See Landlord and Tenant
CROWN LANDS
See also Landlord and Tenant
Protected lease – consent of Director of Lands to assignment refused – false certificate on application – illegality – Crown Lands Ordinance (Cap. 138) ss.15 (1), 41 – Crown Lands (Leases and Licences) Regulations, reg. 34.
222
CUSTOMS
See Revenue
DAMAGES
Building contract – default by builder – measure of damages.
Din Shiu Prasad v. Abdul Habib Sahu Khan
162
Death from negligent driving – claim by widow – principles of assessment – Compensation to Relatives Ordinance (Cap.20) – Death and Interest) Ordinance (Cap.17).
187
ESTATE AND SUCCESSION DUTY
See Revenue
ESTOPPEL
Building contract – employer’s representation by conduct – detriment to builder.
162
EVIDENCE
Extrinsic evidence inadmissible to contradict document – fraud not plead.
33
Negligent driving – proof of relationship of master and servant between owner and driver – evidence raising prima facie case.
Yasin Khan v. Ravinandan Kapil Vilash
101
Time for ruling on admissibility – omission by counsel to object when tendered.
33
EXECUTORS AND ADMINISTRATORS
See Bankruptcy
HUSBAND AND WIFE
Matrimonial proceedings – maintenance order – no evidence called before magistrate court may make order on admissions – Maintenance (Summary Jurisdiction) Ordinance (Cap. 31) s.6.
99
INCOME TAX
See Revenue
INDUSTRIAL ASSOCIATION
Constitution – no sufficient provision for accounts as required by Industrial Associations Ordinance s. 8 (g) – requirements of section not incorporated into constitution by implication – members bound by terms of constitution – Industrial Association Ordinance (Cap. 94) ss.6, 6 (1), 8 (g), 11, 11 (1), 11 (3), 19, 20 – companies Act 1948 (Imperial) (11 & 12 Geo. 6, c. 38) s.13 (2) – Industrial Associations Regulations (Cap. 94).
52
Objects – to preserve safeguard and promote interests of agricultural producers – no power to grow or deal in produce – object not incidental or implied – Industrial Association Ordinance (Cap. 94) – Banana Export and Marketing Ordinance, 1960.
Fiji Banana Planters and Agricultural Producers Association v. Banana Marketing Board
128
INSURANCE
Fire policy – breach of condition for supply of particulars of claim – misrepresentations made orally in course of preparation of proposal – “dash” in space for answer implying nothing to be disclosed – incorporation of proposal in policy – repudiation of liability by insurance company.
178
INTERPRETATION
See also Criminal Law – Interpretation
Implied repeal – Customs Ordinance (Cap. 156) – Crown Proceedings Ordinance (Cap. 14).
72
Ordinance – permissive or mandatory – Public Health Ordinance (Cap. 124) ss. 21 (2), 26, 27.
Gurucharan Singh v. Ba Township Local Authority
8
Ordinance – when income “received” – Income Tax Ordinance (Cap. 172) s.3 (1) (2).
89
“Protected lease” – when “dealt with” by court – Crown Lands Ordinance (Cap. 138) s.15 (1).
16
LAND
Partition – no order to be made where subdivision not permissible – Subdivision of Land Ordinance (Cap. 121 – Laws of Fiji, 1945) s. 11 – Partition Act 1868 (Imperial) (31 & 32 Vict., c. 40) – Supreme Court Ordinance (Cap. 2 – Laws of Fiji, 1945) ss. 36, 37.
272
Partition or sale – jurisdiction to order partition not affected by Subdivision of Land Ordinance – power to order sale in lieu of partition – plaintiff in partition action – necessity for an estate in possession – Subdivision of Land Ordinance (Cpa.121 – Laws of Fiji, 1945) – Partition Act 1868 Supreme Court Ordinance (Cap. 2 – Laws of Fiji 1945) ss. 36, 37 – Fair Rents Ordinance 1947.
268
Registration of Tile – registered proprietor not affected by notice of adverse claim against his vendor – title indefeasible except in case of fraud misrepresentation or adverse possession – Land (Transfer and Registration) Ordinance (Cap. 136) ss. 14, 63, 65.
192
Registration of title – transfer of lease – transferee having knowledge of unregistered sublease containing right of renewal – intention to deprive sublessee of benefit of right – fraud – Land (Transfer and Registration) Ordinance (Cap. 136) s. 29.
202
LANDLORD AND TENANT
Agreement to lease – execution thereof by tenant not essential to enforcement of his rights against third party in possession – execution of agreement by manager on behalf of company – Companies Ordinance (Cap. 185) s.30.
229
Crops – outgoing tenant – right to first and second ratoon crops in terms of notice from Native Land Trust Board.
113
Crown lands – “protected lease” – consent of Director of Lands to being “dealt with” by court of law – time at which consent may be obtained – Crown Lands Ordinance (Cap. 138) s. 15 (1).
16
Monthly tenant – notice to quit by tenant under three year agreement to lease – error in description of premises common to all parties – evidence admissible to identify premises.
229
Registered lease – unregistered sublease containing covenant for renewal – covenant running with the land.
202
Tenant holding over under Fair Rents Ordinance – nature of estate of landlord – Fair Rents Ordinance 1947.
268
LAW PRACTITIONERS
Counsel – agreement by – not embodied in court order.
64
Solicitor – professional misconduct – breaches of Supreme Court (Solicitors’ Accounts) Rules 1961 – no loss suffered by any client – appropriate order – Supreme Court Ordinance (Cap. 4) s.29.
23
LIMITATION OF ACTIONS
Time running from accrual of cause of action – Bill of Sale void for non-renewal of registration – when cause of action for money had and received would accrue.
275
LOCAL GOVERNMENT
Demolition order by local authority – undertaking by owner to repair – fitness for human occupation – adequacy of repairs – direction of local authority to make demolition order notwithstanding undertaking to repair – Public Health Ordinance (Cap. 124) ss. 21 (1) (2), 24, 25, 26, 27, 29 (1) (2) – Public Health (Building) Regulations 1959, regs. 15, 21 (b).
8
Proper and sufficient supply of water – notice to owner of premises to provide – owner’s private arrangement with tenants to pay water rates – primary liability of owner – Public Health Ordinance (Cap.124) ss. 122, 123, 125.
120
MASTER AND SERVANT
Vicarious liability – negligent driving – whether vehicle driven on owner’s behalf – evidence raising prima facie case.
101
MONEYLENDING
Loan fulfilling conditions of s. 30 of the Moneylenders Ordinance – Ordinance not applicable – loan secured by mortgage of lease hold – crop lien as collateral security not subject to Ordinance – Moneylenders Ordinance (Cap. 207) ss. 16, 30 (a).
5
MORTGAGE
Acting by mortgage for account – exercise of power of sale by mortgagee – title of purchases – Land (Transfer and Registration) Ordinance (Cap. 136) ss. 14, 63, 65.
192
NATIVE LAND
Illegality – dealing without consent of Native Land Trust Board – Native Land Trust Ordinance (Cap. 104) s. 12 (1) (2).
252
Land required for Fijian owners – outgoing tenant – right to crops in terms of notice from Native Land Trust Board.
113
Lease by Fijian owners to Crown for 99 years – agreement to lease to tenant by Native Land Trust Board pursuant to informal arrangement with Crown – land primarily native land and native land for the purposes of the Native Land Trust Ordinance – Law of Property Act 1925 (Imperial) (15 Geo. 5, c. 66) s. 136 (1) – Supreme Court of Judicature Act 1873 (Imperial) (36 & 37 Vict., c. 66) s. 25 (6) – Native Land Trust Ordinance (Cap. 104) s. 12 (1) (2) – Native Lands Ordinance (Cap. 103) – Crown Lands Ordinance (Cap. 138) – Land ( Transfer and Registration) Ordinance (Cap. 136) s. 9.
252
OFFICIAL REFEREE
See Practice and Procedure
PRACTICE AND PROCEDURE
See also Criminal Law-Practice and Procedure, Husband and Wife, Bankruptcy
Adjournment – discretion of trial court to grant or refuse.
19
Leave to appeal out of time – date from which time runs – perfection of judgment by entry.
138
Official Referee’s report – may be adopted by court wholly or partially – objections to be heard and decided – Supreme Court of Judicature Act 1873 (Imperial) (36 & 37 Vict., c. 66) ss. 56-59 – Supreme Court Ordinance (Cap. 4) s. 36.
64
Particulars – pleasing of fraud – lack of particulars alleged in reply – no application for particulars made – right to prove any material allegation in the pleadings.
202
Reference to Official Referee – agreement between counsels not embodied in order of court as sealed – sealed order taken as basis of reference.
64
REVENUE
Customs
Comptroller – action against officer of Crown as such – Attorney-General defendant – Crown Proceedings Ordinance (Cap. 14) ss. 12 (2), 18 (2) (3), 32 (2).
72
Duty – attempted fraudulent evasion – Customs Ordinance (Cap.166) s. 106 A (1) (b).
94
Duty allegedly wrongly levied – proceedings for refund – properly brought against Attorney-General – Customs Ordinance (Cap. 166) ss. 65, 67, 145, 157, 158 – Crown Proceedings Ordinance (Cap. 14) ss. 2, 12 (2), 16, 18 (2) (3), 32 (2) – Customs Regulation Ordinance 1881, ss. 4, 95, 101 – Customs Regulation Ordinance 1881 – 1895 (see Ordinance No. 1 of 1895) ss. 52, 53, 54 – Customs Regulation Amendment Ordinance 1922 – Law Revision Ordinance 1945, s. 15 (a) – Customs (Amendment) Ordinance 1947 – Petitions of Right Act 1860 (Imperial) (23 & 24 Vict., c.34) – Crown Suits Act 1908 (New Zealand) – Crown Proceedings Act 1947 (Imperial) (10 & 11 Geo. 6, c. 44) – Customs Consolidation Act 1876 (Imperial) (39 & 49 Vict., c. 36).
72
Licensed Agent authorized by importers under s.113 of Customs Ordinance – clerk of Licensed Agent transacting business under s.11 – importers not criminally liable for false declaration signed by clerk – Customs Ordinance (Cap. 166) ss. 11, 113, 116.
82
Estate and Succession Duty
Shares – restrictions on transfer – appropriate basis of valuation – presumed market value or net asset backing – Death and Gift Duties Ordinance (Cap. 171) ss. 3, 6 (1) (2), 66 (1) (3) – Finance Act 1894 (Imperial) (57 & 58 Vict., c. 30) s. 7 (5) – Finance Act 1940 (Imperial) (3 & 4 Geo. 6, C. 29) s. 55 – Estate Duty Assessment Act 1914 – 1950 (Australia) s. 16 A (1) ( c ).
105
Income Tax
Total income – includes profits accrued as well as those physically received – Income Tax Ordinance (Cap. 172) s. 3 (1) (2).
89
ROAD TRAFFIC
See also Criminal Law – Traffic Offences
Third party insurance – disqualification – existence of “Special reasons” matter of law – discretion of court an additional question – division of responsibilities between partners – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236) s. 4 (1) (2).
206
SALE OF LAND
Draft agreement for sale and purchase agreed – not as instrument intended to have efficacy as binding agreement – efficacy of bargain intended to rest on execution of formal contract – Indemnity, Guarantee and Bailment Ordinance (Cap. 199) s. 59 (d) – Statute of Frauds (1677) (Imperial) (29 Car. 2, c.3).
212
TORT
See also Damages
Negligent driving – ownership of vehicle as factor in proof of vicarious liability.
101
TRUSTS AND TRUSTEES
Industrial association – general assets not held as trustee for members
Alpati Tataiya v. Fiji Kisan Sangh
52
VALUATION
Shares – restrictions on transfer – Estate and Succession Duty – appropriate basis of valuation.
105
VENDOR AND PURCHASER
See Sale of Land
WORDS AND PHRASES
- “Action or suit”
75
- “Dealing” (Native Land Trust Ordinance (Cap.104) s.12).
264
- “Dealt with” (Crown Lands Ordinance (Cap.138) s.15).
17
“Fraud” (Land Transfer and Registration) Ordinance (Cap.136) s.29)
205
- “May” (Public Health Ordinance (Cap.124) s.21 (2) )
11
- “Officer of the Crown” (Crown Proceedings Ordinance (Cap14) s.18)
79
- “Profit” (Income Tax Ordinance (Cap.172) s. 3)
92
- “Value” (Death and Gift Duties Ordinance (Cap. 171) s. 6 )
110
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