|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Copyright]
[Privacy]
[Disclaimers]
[Help]
[Feedback]
Fiji Islands - FLR Volume 13 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1967
VOLUME 13This volume may be cited as “13 F.L.R.”
Editor:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.)
Barrister-at-law, Judge of the Fiji Court of AppealPRICE: $23.00
DIGEST AND INDEX
PAGE
ACTION
Action to set aside judgment allegedly obtained by fraud – necessity of showing discovery of new facts manifesting fraud – action stayed as vexatious where mere attempt to re-litigate.
109
AFFILIATION
See Bastardy
APPEAL
See also Criminal Law – Appeal
Civil appeal – application to call fresh evidence – proposed evidence inconsistent with appellant’s case – evidence not unavailable at time of Supreme Court hearing.
Ram Manohar v. Lallu Chaudhary
33
Leave to appeal – dismissal by magistrate of charge on ground of extenuating circumstances – no leave under s.315 (2) of the Criminal Procedure Code (Cap.9) necessary – Penal Code (Cap.8) s.38 (1) – Penal Code (Kenya) s.35.
Attorney-General v. Joveci Bale
190
Practice and procedure – no procedural provision in Ordinance – for appellate court to fix own procedure – not restrictive provision in section authorising appeal – appeal at large – Trade Unions Ordinance 1964, ss.3 (1) (5), 13 (1) (e), 16, 17 – Rules of the Supreme Court 1883, 0.16, r.9 – Trade Union Rules 1913 (Imperial) rr.3, 4, 5.
Medical Ancillary Workers Association v. Registrar of Trade Unions
182
Question of fact – partly inference and partly credibility – nothing overlooked in court below – not matter for Court of Appeal – new point of law raised for first time on appeal – raising further question of fact – not open on appeal.
Official Receiver (Trustee of Bukhan) v. Bhanabhai & Company
162
Second appeal – limited to grounds involving questions of law only – question of weight to be attached to evidence of witness – involves no question of law – Court of Appeal Ordinance (Cap.3) s. 17A
27
BANKRUPTCY
Bankrupt’s failure to hand to Official Receiver assets received during bankruptcy – whether contempt of court – Bankruptcy Ordinance (Cap.37) s.24.
In re BHAGTU – a Bankrupt
57
Bill of Sale securing past debt, present and future advances – whether within s.3 (1) (b) of Bankruptcy Ordinance (Cap.37) – intent of both grantor and grantee relevant – point of law not raised in Supreme Court – susceptible to further evidence – point not open on appeal.
Official Receiver (Trustee of Bukhan) v. Bhanabhai & Company
162
Discharge – failure by bankrupt to hand over to Official Receiver assets received during bankruptcy – application for discharge refused – Bankruptcy Ordinance (Cap. 37) s.24.
In re BHAGTU – A bankrupt
57
Fraudulent preference – Bill of Sale – intent – evidence of debtor – adverse inference arising from circumstances duly considered by judge – question of fact – matter for court of trial – Bankruptcy Ordinance (Cap.37) ss. 3 (1) (b), 3 (1) (c), 46 (1).
Official Receiver (Trustee of Bukhan) v. Bhanabhai & Company
162
Letters of Administration – person otherwise entitled to grant not precluded by fact that he is an undischarged bankrupt.
5
BASTARDY
Order for maintenance – invalid after attains thirteen years – power to direct continuation of payments until child when original order made – Bastardy Ordinance (Cap.33) ss.7 (1), 8.
9
Proceedings in bastardy – civil and not criminal in nature – summons served out of the jurisdiction waiver of defective service by appearance to defend on merits – Criminal Procedure Code (Cap.9) – Bastardy Ordinance (Cap.33) ss.16, 19 (2)
74
BRITISH SOLOMON ISLANDS PROTECTORATE
See Criminal Law – Evidence and - Proof - Criminal Law – Judgment - Criminal Law – Sentence
129
21
128
CONTEMPT OF COURT
See Bankruptcy
CONTRACT
Agency – breach of contractual duty by agent – liability in damages – duty of successful party to mitigate – concurrence by both parties in course of action resulting in failure to mitigate – Magistrates’ Courts Rules (Cap.5) 0.36 r.19
186
Sale of land – consideration – wife’s agreement to husband’s departure from Fiji without other financial provision – adequacy of consideration – Maintenance (Prevention of Desertion and Miscellaneous Provisions) Ordinance 1962, s.8.
Prem Prabha Azam v. Mohammed Azam
115
Waiver – employee’s entitlement to written notice of dismissal – conduct-meriting dismissal – waiver by conduct of right to written notice.
14
COURT
Jurisdiction – civil proceedings – defect in service – waiver of irregularity by appearance to defend on merits.
Dettke v. Miller
74
Jurisdiction – Magistrate’s Court – claim for amount in excess of jurisdiction – no power to amend claim to bring it within jurisdiction – Magistrates’ Courts Ordinance (Cap. 5) s.17 (1) – Magistrates’ Courts Rules (Cap.5) 0.16 r.1.
196
Jurisdiction – protected Crown Lease – counterclaim affecting – consent of Director of Lands required – Crown Lands Ordinance (Cap. 138) s.15 (1).
33
Jurisdiction – Supreme Court may in a proper case set aside earlier judgment obtained by fraud – action to set aside must be based on facts discovered since original hearing.
109
Magistrates’ Court – jurisdiction – title to any right – title to land – Magistrates’ Courts Ordinance (Cap.5) ss.17, 20.
19
CRIMINAL LAW
Appeal
Appeal by Crown against acquittal in Magistrate’s Court – no question of law involved – principles to be applied by appellate court.
51
Application to call fresh evidence – question whether available at trial or likely to have effect on verdict.
134
Charge
Defective particulars – whether charge a nullity – Criminal Procedure Code (Cap. 9) ss.120, 123 (a) (i), 123 (a) (iii), 325 – Explosive Substances Act 1883 (46 & 47 Vict., c.3) (Imperial) s.4 (1).
27
Keeping liquor in excess of reasonable personal requirements – some liquor in shop and some in adjoining building – charge alleging total quantity not bad for duplicity or uncertainty – consideration of question whether liquor “excess” limited to quantity found on premises specified in charge – Liquor Ordinance 1962, s. 96 (1) (b) – Criminal Procedure Code (Cap.9) s.123 (b) (i).
53
Conviction
See also Criminal Law – Judgment
Minor cognate offence in relation to offence specified in charge – Penal Code (Cap.8) s.197 (d) – Criminal Procedure Code (Cap.9) s.164.
121
Conviction of common assault on charge of wounding with intent – Penal Code (Cap. 8) ss.250 (a), 253, 256, 270 – Criminal Procedure Code (Cap.9) s. 164 (2).
105
Defence
Defective particulars in charge – whether prejudice occasioned thereby – Suva (Garbage Disposal) By-laws (Cap.124) By-laws 3, 9.
167
Self-defence – excessive force – appropriate verdict.
151
Withdrawal of consideration of manslaughter from assessors – question of mental illness in relation to intent.
156
Evidence and Proof
Appeal by Crown involving only questions of fact – principles to be applied by appellate court.
Attorney-General v. Sambhu Prasad
51
Burglary – proof of by application of doctrine of recent possession – Penal Code Ordinance 1963 (B.S.I.P.) ss.254 (1), 292 (a).
129
Corroboration – when lie by accused can amount to.
Attorney-General v. Madam Gopal
65
Fresh evidence on appeal – principles upon which admitted.
134
Identification parade – variation from normal practice – whether identification wholly vitiated.
Attorney-General v. Madam Gopal
65
Previous statements by witness inconsistent with his testimony – direction to assessors.
151
Standard of proof – criminal case – beyond reasonable doubt – not beyond the “slightest” doubt – Penal Code (Cap. 8) s.145 (5) – Criminal Procedure Code (Cap.9) ss.199, 201, 206.
Attorney-General v. Madan Gopal
65
Whether witness accomplice – evidence giving rise to suspicion – magistrate’s finding to contrary – Court of Appeal Ordinance (Cap.3) s.17A – Criminal Procedure Code (Cap.9) s.325.
193
Witness called by court – case for defence closed – discretion of court – Criminal Procedure Code (Cap.9) s.136.
170
Witness giving evidence at Preliminary Inquiry – discretion of prosecution whether to call such witness at trial – mode of exercise – duty to have witness in court at trial.
44
Homicide
Mental illness – no defence of insanity – whether possibility of manslaughter on ground of lack of intent should have been left to assessors.
156
Judgment
Omission of statement that accused convicted or found guilty – incurable defect – Criminal Procedure Code Ordinance 1961 (B.S.I.P.) ss.149, 150, 150 (2).
21
Offence
Attempting to conspire – whether an offence known to the law – relation between incitement and attempt to conspire – Penal Code (Cap.8) ss.3, 21, 41, 106, 112 (2), 120 (1), 125 (1) (i), 408, 409, 414.
138
Parties
Aider and abettor charged as principal offender – person aided not charged – no proof of fraudulent intent on part of person aided – Penal Code (Cap.8) ss.4, 21, 305 (1) (c) (i).
211
Common intention – aiding and abetting – doing grievous harm – Penal Code (Cap.8) ss.253, 270.
103
Perjury
Affidavit sworn before Commissioner for Oaths by party to civil proceedings prior to hearing – Commissioner not a person authorised to record or authenticate statement within s. 106 (2) of Penal Code – deponent not a person sworn as a witness in judicial proceedings – Penal Code (Cap.8) ss.106 (1), 106 (2), 107 – Sale of Goods Ordinance (Cap.198) S.6A – Magistrates’ Courts Rules (Cap. 5) 0.6 r.8.
1
No offence created by ss.(2) of s.106 of Penal Code – affidavit of service of notice to attend court – Penal Code (Cap.8) ss.106 (1), 106 (2), 107 – Criminal Procedure Code (Cap.9) s.81 – Perjury Act 1911 (1 &2 Geo. 5, c.6) (Imperial) ss.1, 1 (2), 1 (3) – Larceny Act 1916, 6 & 7 (Geo. 5, c.50) (Imperial).
123
Plea
Plea of guilty entered on charge of fraudulent conversion – statement of facts by prosecution – variance between facts so stated and particulars in charge – no unequivocal admission of facts as stated by prosecution – conviction a nullity – Penal Code (Cap.8) s.305 (1) ( c ) (i) – Criminal Procedure Code (Cap.9) s.315 (1).
79
Practice and Procedure
Case for defence closed – evidence called thereafter by direction of court – discretion wrongly exercised – Criminal Procedure Code (Cap.9) s.136.
170
Conviction of burglary – entry by night not sufficiently established by evidence substitution by Court of Appeal of conviction of breaking and entering with intent to commit felony – Penal Code Ordinance 1963 (B.S.I.P.) ss.4, 292 (a), 294 – Court of Appeal Rules (No. 2) 1956, r.36 (2).
David Kio v. Reginam
21
Inadmissible evidence given inadvertently – discretion of trial judge whether to discharge assessors or continue trial.
134
Minor cognate offence – conviction of behaving in a disorderly manner in a public place on a charge of being drunk and disorderly in a public place – Penal Code (Cap.8) s.197 (d) – Criminal Procedure Code (India) s.238 – Criminal Procedure Code (Kenya) s. 172 – Criminal Procedure Code (Tanganyika) s.181.
121
Minor cognate offence – conviction for common assault on charge of wounding with intent – Penal Code (Cap.8) ss.250 (a), 253, 256, 270 – Criminal Procedure Code (Cap.9) s.164 (2) – Offences Against the Person Act 1861 (24 & 25 Vict., c.100) (Imperial) s.18.
105
Perjury – whether offence under s.107 of Penal Code (Cap.8) a minor offence in relation to offence under s.106.
1
Principles of Criminal Liability
Conspiracy – participation – one person agreeing to commit offence on persuasion by another – whether conspiracy formed – Penal Code (Cap.8) ss.3, 21, 41, 106, 112 (2), 120 (a), 125 (1) (i), 408, 409, 414.
138
Sentence
Arson – mitigating circumstances – act of arson committed upon instructions of person to whom obedience habitually rendered on religious grounds – purpose and theory of punishment – Penal Code (Cap.8) ss.35, 36 – Criminal Procedure Code (Cap.9) s.160.
Sosiveta v. Reginam
59
Attempt to break and enter – misdemeanour – in absence of other specific provision maximum punishment imprisonment for two years with or without fine – Penal Code (Cap.8) ss.41, 328 (b), 409, 410 – Criminal Procedure Code (Cap.9) ss.7, 211A – Criminal Procedure Code (Amendment) (No.2) Ordinance 1957 – Court of Appeal Ordinance (Cap.3) ss.18 (3), 27 (5).
Aminiasi v. Reginam
132
Causing death by dangerous driving – sentence increased on appeal – Penal Code (Cap.8) ss.263A, 319.
174
Dismissal by magistrate of charge on ground of extenuating circumstances – dismissal not equivalent to “a fine not exceeding $5 only” – leave to appeal unnecessary – Penal Code (Cap.9)_ s.315 (2) – Penal Code (Kenya) s.35 – Trade Unions Ordinance 1964 s.54 (1).
190
Perjury – police officer in course of official duties – appropriate sentence.
123
Rape – no circumstances of aggravation – no evidence offence prevalent – appropriate sentence.
128
Trial
Reference by witness to accused’s having been in gaol – decision whether to discharge assessors – discretion of trial judge.
134
Witness giving evidence at Preliminary Inquiry –duty of prosecution to have available at trial – discretion as to calling – interests of justice – fairness to accused.
44
Witness – persons present at scene of crime not called by prosecution – notice of intention not to call them given to the defence – no prejudice.
41
General
Assessors – direction to – previous statements by witness inconsistent with his testimony.
151
Traffic offence – failure to stop after an accident – duration of stop – must be sufficient for purpose for which stop required – Traffic Ordinance 1965 ss.29, 43 (1) (a), 43 (2), 85.
Vijay Singh v. Reginam
27
CROWN LAND
Protected Crown Lease – consent of Director of Lands to sale – whether application must be signed by purchases.
Shambhu Prasad v. Ali Hussein
98
Protected Crown Lease – consent of Director of Lands to action in relation to – counterclaim involving relief of different nature – jurisdiction – further consent to counterclaim required – Crown Lands (Ordinance) (Cap. 138) s.15 (1).
Ram Manohar v. Lallu Chaudhary
33
DAMAGES
See also Landlord and Tenant
Mitigation – duty to mitigate – delay in selling defective winch – concurrence in delay by party liable for damages – Magistrates’ Courts Rules (Cap.5) 0.36 r.19.
186
Personal injury – permanent disability – assessment of special and general damages.
199
ESTOPPEL
See Res Judicata
EVIDENCE AND PROOF
Gazette – proof of appointment appearing therein – necessity for Gazette to be put formally in evidence.
Ram Kirpal Hira v. Reginam
176
Maxim “omnia praesumuntur rite esse acta” – no room for operation of maxim where facts to the contrary become known.
Ram Kirpal Hira v. Reginam
176
Probate – whether testator of sound mind memory and understanding – circumstances raising suspicion – onus on those propounding will.
201
Separation and maintenance proceedings – finding of serious suspicion of adultery – insufficient basis for order.
82
FRAUD
See Action
GIFT
Imperfect gift – will not be perfected by equity – Indemnity, Guarantee and Bailment Ordinance (Cap.199) s.59.
Ram Manohar v. Lallu Chaudhary
33
HUSBAND AND WIFE
Matrimonial home – agreement by husband to transfer to wife – only consideration wife’s consent to husband’s departure from Fiji without other financial provision – adequacy – Maintenance (Prevention of Desertion and Miscellaneous Provisions) Ordinance 1962 s.8.
Prem Prabha Azam v. Mohamed Azam
115
Matrimonial proceedings – maintenance order – conduct of husband – same issues decided in earlier proceedings – res judicata – suspicion of adultery not proof – order for maintenance of child in custody of mother though mother in desertion – Matrimonial Proceedings (Magistrates’ Courts) Act 1960 (8 & 9 Eliz. 2, c.48) (Imperial) ss.1, 1 (1) (h), 2, 2 (1), 2 (3) (b), 4 (1) – Separation and Maintenance (Summary Jurisdiction) Ordinance (Cap.31) ss.3, 4, 4 ( c ), 8.
Chinsami v. Punamma
82
INCOME TAX
See Revenue
INTERPRETATION
By-law – construction – “Every owner or occupier …. Shall provide” – liability – Suva (Garbage Disposal) By-laws (Cap. 124) By-law 3.
167
Ordinance – delegation – power to make demand under s.60 of the Income Tax Ordinance 1964 not susceptible to delegation – to be exercised personally by Commissioner or Deputy Commissioner.
Ram Kirpal Hira v. Reginam
176
Ordinance – implied covenant for payment of rates by mortgagor – construction of covenant – Land (Transfer and Registration) Ordinance (Cap.136) ss.57 (b) (d), 58, 61, 62,63 – Local Government (Towns) Ordinance (Cap.78) ss.124, 125, 125 (2), 126.
Din Shiu Parshad v. Agricultural and Industrial Loans Board
90
Ordinance – whether retrospective – Agricultural and Industrial Loans Board Ordinance (Cap.200) s.23 – Agricultural and Industrial Loans (Amendment) Ordinance 1964.
Din Shiu Parshad v. Agricultural and Industrial Loans Board
90
INSURANCE
“Marine Certificate” – evidencing unconditional contract at common law – nondisclosure of fact by insured – whether material – tested of materiality – Marine Insurance Ordinance 1961.
203
Proposal – untrue answer in – truth of answer made by term of policy condition precedent to liability.
203
JURISDICTION
See Court
LAND
See also Crown Land
Prescription – claim by co-owners to title by adverse possession against remaining co-owners - undivided interests – absence of positive acts of dispossession – equivocal nature of possession relied upon – Real Property Limitation Act 1833 (3 & 4 Will. 4, c.27) (Imperial) s.12 – Real Property Limitation Act 1874 (37 & 38 Vict., c.57) (Imperial) – Supreme Court Ordinance (Cap. 4) s.35 – Land (Transfer and Registration) Ordinance (Cap. 136) ss.10, 29, 33, 34.
69
Title to land – right over land – jurisdiction of Magistrate’s Court – Magistrates’ Courts Ordinance (Cap. 5) ss.17, 20.
19
LANDLORD AND TENANT
Damages – forcible entry – high-handed action – aggravated but not exemplary damages.
Shambu Prasad v. Gurnam Singh
47
Power of re-entry – necessity for demand for rent – common law demand – whether power of re-entry can be conferred orally – Common Law Procedure Act 1860 (23 & 24 Vict., c.126) (Imperial).
Shambu Prasad v. Gurnam Singh
47
LOCAL GOVERNMENT
Garbage disposal – owner and occupier – liability – provision of garbage pans – Suva (Garbage Disposal) By-laws (Cap.124) By-laws 3.9.
167
MAINTENANCE
See Bastardy
Husband and Wife
MASTER AND SERVANT
Contract of employment – term entitling employee to written notice of dismissal – waiver of right by conduct – acceptance of oral dismissal.
14
MORTGAGE
Covenant for payment on demand – arrangement for payment of principal by instalments – no variation of mortgage registered – implied covenant for payment of rates by mortgagor – construction – Land (Transfer and Registration) Ordinance (Cap. 136) ss.57 (b) (d), 58, 61, 62, 63 – Local Government (Towns) Ordinance (Cap.78) ss.124, 125, 125 (2), 126 – agricultural and Industrial Loans Board Ordinance (Cap.200) s.23 – Agricultural and Industrial Loans (Amendment) Ordinance 1964.
Din Shiu Parshad v. Agricultural and Industrial Loans Board
90
PRACTICE AND PROCEDURE
See also Criminal Law – Practice and Procedure
Amendment – claim in excess of jurisdiction of Magistrate’s Court – no jurisdiction to make order for amendment of claim – Magistrates’ Courts Ordinance (Cap.5) s.17 (1) – Magistrates’ Courts Rules (Cap.5) 0.16 r.1.
196
Bastardy proceedings – civil in nature – defect in service – waiver by appearance to defend – Criminal Procedure Code (Cap.9) – Bastardy Ordinance (Cap.33) ss.16, 19 (2).
74
Non-suit in Magistrate’s Court – power to enter – County Court Rules 1936 0.5 r.18, 0.23 r.3 (1) – Magistrates’ Courts Ordinance (Cap.5) s.47).
New India Assurance Co. Ltd. v. Morris Hedstrom Ltd.
12
Pleading – claim of title by adverse possession not pleaded – no simple plea of possession – effect of Land (Transfer and Registration) Ordinance (cap.136) Pt. 22 – Rules of the Supreme Court 1883 0.21 r.21.
Ram Manohar v. Lallu Chaudhary
33
PRESCRIPTION
Clam by co-owners against remaining co-owners – no act of dispossession – equivocal nature of possession relied upon – Real Property Limitation Act 1833 (3 & 4) Will. 4, c.27) (Imperial) s.12 – Real Property Limitation Act 1874 (37 & 38 Vict., c.57) (Imperial) – Supreme Court Ordinance (Cap. 4) s.35 – Land (Transfer and Registration) Ordinance (Cap. 136) ss.10, 29, 33, 34.
69
PROBATE AND ADMINISTRATION
Letters of Administration – interstate survived by father and mother but no widow or descendants – father entitled to entire estate and to grant of administration – father’s bankruptcy no impediment – Supreme Court Ordinance (Cap.4) ss.32 35 (1), 37 – Rules of the Supreme Court 1883 0.25 r.4 – Statute of Distributions 1670 (22 & 23 Car. 2, c.10) (Imperial).
5
Probate in solemn form – whether testator of sound mind memory and understanding – circumstances raising suspicion – onus on persons propounding will.
201
RES JUDICATA
Separation and maintenance – same issues in previous proceedings between same parties – no new event bearing on issues.
82
REVENUE
Income tax – demand by Commissioner to furnish return – prosecution for non-compliance – necessity for personal signature of demand – signature by person purporting to be Commissioner but proved not to be Commissioner – reference to Gazette showing appointment of Deputy Commissioner – Gazette not put in evidence – lack of proof of identity of person signing – Income Tax Ordinance 1964 ss.4 (2), 60 (1), 100 (1) –Interpretation Ordinance (Cap.1) ss.9, 10.
Ram Kirpal Hira v. Reginam
176
TRADE UNIONS
Appeal from Registrar – refusal of application for registration – procedure on appeal – merits of application at large for consideration by Supreme Court – applicant unincorporated association – whether Registrar a party – Trade Unions Ordinance 1964 ss.3 (1) (5), 13 (1) (e), 16, 17 – Trade Union Act 1913 (2 & 3 Geo. 5, c.30) (Imperial) s.2 (4) – Rules of the Supreme Court 1883 0.16 r.9 - Trade Union Rules 1913 (Imperial) rr.3, 4, 5.
Medical Ancillary Workers Association v. Registrar of Trade Unions
182
VENDOR AND PURCHASER
Contract for sale of leasehold – written instructions to solicitor to prepare agreement – some material matters not specified – insufficient memorandum.
Shambhu Prasad v. Ali Hussein
98
Protected Crown Lease – consent of Director of Lands to agreement for sale – application for consent – whether signature of application by purchaser necessary.
Shambhu Prasad v. Ali Hussein
98
WAIVER
See Contract
WITNESS
See Criminal Law – Trial
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/indices/cases/FLR_Vol13_Index.html