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Fiji Islands - FLR Volume 12 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1966
VOLUME 12This volume may be cited as “12 F.L.R.”
Editor:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.)
Barrister-at-Law, Judge of the Fiji Court of AppealPrice: $7.50
DIGEST AND INDEX
PAGE
ACTION
Arbitration clause in contract – application for stay – whether engineer appointed arbitrator by arbitration clause – engineer agent of one party to contract – discretion of court.
Fiji Builders Ltd. v. Tip Top Ice Cream Co. (Fiji) Ltd.
65
ADJOURNMENT
See Criminal Law – Practice and Procedure
APPEAL
See Criminal Law – Practice and Procedure
ARBITRATION
Dispute within arbitration clause in contract – application to stay action – construction of arbitration clause – whether engineer thereby appointed arbitrator.
Fiji Builders Ltd. v. Tip Top Ice Cream Co. (Fiji) Ltd.
65
Engineer agent of one party to contract – whether competent to act as arbitrator.
Fiji Builders Ltd. v. Tip Top Ice Cream Co. (Fiji) Ltd.
65
BANKRUPTCY
Evidence – records of Official Receiver form part of records of court – court will take cognisance of date of public examination and contents of statement of affairs.
70
Payment to creditor pursuant to Deed of Assignment – whether with intent to prefer creditor – material date is that of Deed of Assignment – Bankruptcy Ordinance (Cap. 37) s.39 (1).
70
CAVEAT
Equity creating no interest in land – relevance of caveat – Land (Transfer and Registration) Ordinance (Cap. 136) ss.29, 124 – Land Charges Act 1925 (15 & 16 Geo. 5 c.22) – Real Property Act 1900 (N.S.W.) s.43.
Fong Lee v. Mitlal and Ram Kissun
4
CONTRACT
Agreement to sell land – provision for obtaining consent of Director of Lands mistake – correct authority Native Land Trust Board – consent of Board obtained – absence of consent of Director of Lands not material – waiver.
Fong Lee v. Mitlal and Ram Kissun
4
Right of pre-emption of land – no price or means of fixing price specified – void for uncertainty.
Fong Lee v. Mitlal and Ram Kissun
4
CRIMINAL LAW
Accomplice
Attempted subornation of perjury – person in relation to whom charge laid accepting payment from accused and thereupon making false statement to police – failure by magistrate to treat such person as accomplice – Penal Code (Cap. 8) ss.112 (2), 132.
Babu Ram v. Reginam
59
Appeal
Powers of Court of Appeal – conviction on one charge set aside – substitution of conviction of another offence on facts found by magistrate – Court of Appeal Ordinance (Cap.3) s.17A.
191
Principles upon which fresh evidence will be admitted.
74
Assessors
Majority in favour of acquittal – necessity for judge to state reasons for rejecting majority opinion.
155
Attempt
Attempted subornation of perjury – payment made to person to induce false statement to police and in anticipated criminal proceedings – Penal Code (Cap.8) ss.112 (2), 132.
59
Causing a threat to be made – threat not communicated to intended recipient – conviction of attempt – Penal Code (Cap.8) s.359 (a) (b) – Penal Code (Amendment) Ordinance 1960 s.14 – Crimes Act (New Zealand) 1961 s.306 – Offences Against the Person Act 1861 (24 & 25 Vict., c.100) s.16 – Malicious Damage Act 1861 (24 & 25 Vict., c.97) s.50.
Mateo Rokovesa Tusega v. Reginam
168
Evidence and Proof
Evidence – application to adduce fresh evidence on appeal – question of availability at trial – whether likely materially to have altered course of trial or raised reasonable doubt.
74
Evidence – charge involving violence not of sexual nature – complaint by victim – whether or not fact of complaint being made is admissible, identification of accused as part of terms of complaint is not – Penal Code (Cap.8) ss. 250 (1), 271.
166
Evidence – failure of accused to give evidence – unjustified adverse inference by trial judge.
Olitulagi v. Reginam
185
Evidence of previous similar facts – admissible to show authority of company official, her relationship to the management and implementation of company policy by her acts.
95
Inference from behaviour of accused – direction to assessors upon question of reasonable doubt – Penal Code (Cap.8) s.300 (b) (i).
Ram Sundar v. Reginam
155
Interpretation – conversation with accused through interpreter – interpreter not called as witness – evidence of conversation inadmissible.
185
Perjury – magistrate’s record of evidence interpreted to him by Court Interpreter – admissibility – Court of Appeal Ordinance (Cap.3) s.30A – Indian Evidence Act 1872 s.80.
145
Previous statement by witness inconsistent with testimony in court – direction to assessors.
141
Threatening letter – intent of author – subjective test – matter of inference from terms used and surrounding circumstances – Penal Code (Cap.8) s.359 (b).
168
Judgment
Reasonable doubt in judge’s mind – dispelled by accuser’s failure to give evidence – inference by judge unjustified.
185
Onus of Proof
Evidence of statement of appellant at confrontation before charge – summing up – adverse inference suggested by judge.
74
Plea
Plea of guilty by accused – entered as plea of not guilty – accused conviction after trial – no miscarriage of justice – duty of court to exercise vigilance in interests of accused unrepresented by counsel – Criminal Procedure Code 1961 (British Solomon Island Protectorate) ss.244, 245 – Court of Appeal Rules (No.2) 1956.
104
Practice and Procedure
Absence of witness for defence – application for adjournment – criteria included in exercise of discretion by the court – Criminal Procedure Code (Cap.9) s.201 (1) (2).
95
Appeal – application to adduce fresh evidence – appellant in person – evidence taken before court of appeal as to the availability of the evidence
at the trial.
74
Principles of Criminal Liability
Official corruption – section 95 (a) Penal Code – word “corruptly” refers to state of mind of recipient – unnecessary to establish corrupt intention in donor – Penal Code (Cap.8) s.95 (a) – Penal Code (Tanganyika) s.91 (1) – Public Bodies Corrupt Practices Act 1889 (52 & 53 Vict., c.69) s.1 (1).
141
Sentence
Dangerous driving – disqualification – previous conviction for speeding – first conviction for dangerous driving – endorsement of driving licence obligatory – Traffic Ordinance 1965 s. 38 (1) (2).
Phillips v. Reginam
163
Definite evidence that accused will suffer heavy financial loss by virtue of disciplinary action by employer – matter proper for consideration in courts discretion in passing sentence.
62
Desirability of preserving some measure of uniformity in sentences by Magistrates’ Courts – Penal Code (Cap.8) s.197 (d).
45
Previous convictions taken into consideration – list not proved as required or authorised by Code of Criminal Procedure – no record of previous convictions having been admitted by accused – Code of Criminal Procedure 1961 (British Solomon Islands Protectorate) ss.125, 227, 269.
100
Witness
Earlier statement inconsistent with evidence – direction to assessors.
141
General
Causing a threat to be made – threat not communicated to intended recipient – conviction of attempt – Penal Code (Cap.8) ss.359 (a) (b) – Penal Code (Amendment) Ordinance 1960 s.14 – Crimes Act (New Zealand) 1961 (24 & 25 Vict., c.100) s.16 – Malicious Damage Act 1861 (24 & 25 Vict., c.97) s.50.
168
Dangerous driving – disqualification – previous conviction for speeding – first conviction for dangerous driving – sentence – Traffic Ordinance 1965 s. 38 (1) (2).
163
Official corruption – “corruptly” – refers to state of mind of the recipient – Penal Code (Cap.8) s.95 (a).
141
Possession for forged – passport not issued under Ordinance as specified in relevant section – Immigration Ordinance 1962 s.19 (1) (e).
191
Perjury – interpreted evidence – magistrate’s record – admissibility.
145
DAMAGES
Negligence – collision with parked vehicle primary cause failure to light – contributory negligence by excessive speed – apportionment of responsibility.
Burns Philp (South Sea) Co. Ltd. v. Vishnu Deo
1
Personal injury – negligent driving – road without footpaths – contributory negligence without footpaths – contributory negligence by pedestrian – apportionment of responsibility.
Laitia Kori v. Sebar Ali
108
EQUITY
Right of pre-emption–mere equity distinguished from equitable interest in land.
Fong Lee v. Mitlal and Ram Kissun
4
EVIDENCE AND PROOF
See also – Arbitration
Bankruptcy
Criminal Law
Civil claim – standard of proof – preponderance of probability – standard not constant – commensurate with gravity of matter in issue and the subject matter.
Dharam Raj v. Abdul Hamid
126
Evidence – admissibility – magistrate’s evidence of what sworn Court Interpreter interpreted into English – not within hearsay rule – perjury proceedings – Penal Code (cap. 8) ss.106 (1), 116 – Magistrates” Courts Ordinance (Cap.5) ss.52, 61, 62 Magistrates’ Courts Rules 0.3 r.4 – Criminal Procedure Code (Cap.9) ss.185, 186 – Evidence Ordinance (Cap.27).
Ram Lagan v. Reginam
145
Evidence – admissibility – magistrate’s record of evidence – use to refresh memory of magistrate – production to court and counsel – not per se evidence of matters contained therein.
Ram Lagan v. Reginam
145
Evidence–fresh evidence on appeal–very wide discretion conferred by rule–to be exercised so as to avoid injustice–Pacific Order in Council 1893–Court of Appeal Rules (No.2) 1956 (Gilbert and Ellice Islands)–Rules of the Supreme Court 0.58 r.9(2)–Court of Appeal Rules (Cap.3) (Fiji).
Latasi Kamuta v. Resident Commissioner of the Gilbert and Ellice Islands Colony
130
Evidence – privilege – solicitor and client – privilege is that of client.
161
GILBERT AND ELLICE ISLANDS COLONY
See Practice and Procedure
HUSBAND AND WIFE
Divorce–desertion–animus deserendi–distinction between intention and desire–meaning of desertion “without cause”–cruelty and expulsive conduct– provision of proper matrimonial home in relation to just cause – custom of parties–conduct conducing to desertion–court’s discretion–Divorce (Summary Jurisdiction) Ordinance (Cap. 29)–Matrimonial Causes Ordinance (Cap.28) ss.2, 4 (2)–Matrimonial Causes Act 1950 (14 Geo. 6, c.25) s.4 (2).
47
INCOME TAX
See Revenue
INDUSTRIAL LAW
Prohibiting freedom of association of employee as a condition of employment – Trade Unions Ordinance 1964 s. 62 (1) (3).
95
INTERPRETER
See Evidence and Proof
INTERPRETATION
Ordinance–provision as to time limited by summons for appearance– construction–Land (Transfer and Registration) Ordinance (Cap.136) s. 187.
Kanji Jogia v. Bhagwandas Hargovind
180
Ordinance – section 3 (13) (d) of Income Tax Ordinance – “trading stock” includes “livestock” subject to limitation as to purpose of acquisition – Income Tax Ordinance (Cap. 172) s.3 (13) (d).
Commissioner of Inland Revenue v. Mackenzie
115
Ordinance–singular including–plural–whether section 2 (58) of Interpretation Ordinance (Cap.1) inconsistent with context of section 14 (1) (e) of Fair Rents Ordinance (Cap. 39)
Jiwan v. Ram Prasad
111
Ordinance–whether to be construed as exclusively concerned with immigration – Immigration Ordinance 1962 ss.4-21 (incl.).
Bishun Dutt v. Reginam
191
JUDGMENT
See Practice and Procedure
LAND
See also Sale of Land
Possession–recovery of–summary proceedings after expiry of legal notice to quit–Land (Transfer and Registration) Ordinance (Cap.136) ss.186, 189.
Morris Hedstrom Ltd v. Kanji Ratanji Jogia
176
LANDLORD AND TENANT
Application for possession by lessor under the Land (Transfer and Registration) Ordinance–omission to include description of land in summons under section 187 remedied by reference to description in affidavit in support–Land (Transfer and Registration) Ordinance (Cap. 136) s.187.
Kanji Jogia v. Bhagwandas Hargovind
180
Expiration of lease–holding over by agreement–monthly rend paid–notice to quit–whether intention to create annual or monthly tenancy–Land (Transfer and Registration) Ordinance (Cap.136) s.189.
176
Notice to quit – provision in agreement for notice by “the lessors” – notice given by only two of three lessors – ineffective.
Kanji Jogia v. Bhagwandas Hargovind
180
Protected premises – joint lessors – bona fide requirement by all for joint residence prerequisite to right of recovery of possession – Fair Rents Ordinance 1965 s.19 (1) (e) – Interpretation Ordinance (Cap. 1) s.2 (58) – Rent and Mortgage Interest Restrictions (Amendment) Act 1933 (24 & 25 Geo. 5, c.32) s.3 (1), Schedule 1.
Jiwan v. Ram Prasad
111
MAGISTRATE
See Evidence and Proof
NATIVE LAND
Agreement to sell – consent of Native Land Trust Board not obtained before agreement signed – agreement made subject to consent being obtained – executory instrument insisting upon compliance with Native Land Trust Ordinance – not void – Native Land Trust Ordinance (Cap.104) ss.3, 12, 35 – Native Lands Ordinance 1905.
Fong Lee v. Mitlal and Ram Kissun
4
NEGLIGENCE
Parked vehicle – failure to show proper lights – contributory negligence by excessive speed – apportionment of damages.
Burns Philp (South Sea) Co. Ltd. v. Vishnu Deo
1
Personal injury – negligent driving – pedestrian on road without footpaths - duties of driver and pedestrian.
Laitia Kori v. Sebar Ali
108
PRACTICE AND PROCEDURE
Appeal – evidence by Solicitor – privilege not claimed in the court below – cannot be relied upon on appeal.
161
Case without jury – submission of no case to answer – necessity for election whether to call evidence.
Attorney-General v. Verrier
81
Fresh evidence on appeal – Gilbert & Ellice Islands – principles to be applied.
Latasi Kamuta v. Resident Commissioner of the Gilbert & Ellice Islands Colony
130
Judgment – judgment in default of defence – defence filed containing counterclaim – failure to have regard to counterclaim in making order for entry of judgment on claim.
Ram Brij v. Audh Raji
173
Order for delivery of defence – defence delivered after date specified in order but more than three days before hearing – judgment entered for plaintiff in default of defence – judgment later set aside – Magistrates’ Courts Rules (Cap.5) 0.6 ff.6-10 – 0.32 r.11.
173
Summary proceedings – application for possession of land under section 186 of the Land (Transfer and Registration) Ordinance – scope of section – determination of validity of notice to quit – Land (Transfer and Registration) Ordinance (Cap. 136) ss.186, 189.
176
Time – summons for appearance “not earlier than sixteen days after the service of the summons” – construction of requirement as to time – Land (Transfer and Registration) Ordinance (Cap. 136) s.187.
Kanji Jogia v. Bhagwandas Hargovind
180
RENT CONTROL
Two or more joint lessors – recovery of premises – only permissible under section 14 (1) (e) of the Fair Rents Ordinance where required by all lessors as a dwelling house – Fair Rent Ordinance (Cap.39) s.14(1) (e) – Interpretation Ordinance (Cap.1) s.2 (58) – Rent and Mortgage Interest Restrictions (Amendment) Act 1933 (23 & 24 Geo. 5, c.32) s. 3 (1), Schedule 1.
111
REVENUE
Income tax – sale of cattle – whether “trading stock” or capital asset – purpose of acquisition – whether for sale or control of weeds and undergrowth – meaning of “trading stock” in section 3 (13) (a) (d) of Income Tax Ordinance – Income Tax Ordinance (Cap.172) ss.3 (13) (a) (d), 44 (1) (2), 43.
Commissioner of Inland Revenue v. Mackenzie
115
SALE OF LAND
Agreement for sale containing right of pre-emption of other land – contract-taking effect in person am – not barred by rule against perpetuities.
Fong Lee v. Mitlal and Ram Kis
4
Agreement to sell to purchaser having no notice of prior equity – notice of claim of right of pre-emption before payment of price – whether purchaser for value without notice.
Fong Lee v. Mitlal and Ram Kissun
4
SOLICITOR
See Evidence and Proof
SOLOMON ISLANDS PROTECTORATE (BRITISH)
See Criminal Law - Judgment
- Plea
- Sentence
TRESPASS
Justification – entry to disconnect water meter – circumstances in which statutory right of entry exists – Water Supply Ordinance (Cap. 89) ss.8, 9, 10.
81
WATER SUPPLY
Water charges – no account delivered – whether consumer in default – disconnection of meter – trespass – Water Supply Ordinance (Cap. 89) ss.8, 8 (a), (b), 9 (a) (b) (c) (d), 10, 14 – Water Supply By-laws 1955 By-laws 2,3,4,9,10,11 (7), 13 – Magistrates’ Courts Ordinance (Cap.5) ss.62 (3).
81
Whether statutory obligation upon Commissioner of Water Supply to supply and to continue to supply water – Water Supply Ordinance (Cap.89).
81
WORDS AND PHRASES
- “Any person” – Immigration Ordinance 1962 s.19 (1) (e)
194
- “Corruptly” – Penal Code (Cap.8) s.95 (a)
144
- “Default” – Water Supply Ordinance (Cap. 89) s.8 (b)
87, 91
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