|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Copyright]
[Privacy]
[Disclaimers]
[Help]
[Feedback]
Fiji Islands - FLR Volume 15 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1969
Volume 15This volume may be cited as “15 F.L.R.”
Editor:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.)
Barrister-at-law, Judge of the Fiji Court of AppealPrice: $17.40
DIGEST AND INDEX
PAGES
ABSCONDING DEBTOR
See Tort
ACTION
Pleading – leave and licence to occupy native leasehold land – transaction illegal, null and void under s.12 of the Native Land Trust Ordinance (Cap. 104-1955) – action for possession – plaintiff succeeding on strength of own title – unnecessary to plead unlawful transaction.
1
AFFILIATION
See Bastardy
AGENCY
Motor vehicle – whether driver agent of owner – owner having no interest or concern in use of vehicle at relevant time.
202
APPEAL
Findings of fact – assessment of credibility of witnesses by trial judge – proper advantage taken of seeing and hearing witnesses – court of appeal will not interfere.
47
Registered proprietor of land – whether a trustee – findings of fact of trial judge partly inference and partly based on credibility – position of appeal court.
212
Trial within a trial – evaluation of evidence – appeal court differing from trial judge where demeanour of witnesses not considered in relation to whole of evidence.
194
BASTARDY
See also Evidence and Proof – Corroboration
Evidence – admissibility – evidence to contradict testimony of party on a collateral matter – general rule – exceptions – evidence by neighbour that parties living together as husband and wife – whether evidence of opinion – Criminal Procedure Act 1865 (Imperial) s.6.
149
Practice and procedure – more than one child included in one summons – validity – nature of bastardy proceedings – submission of “no case to answer” – election – Bastardy Ordinance (Cap.46) ss.17, 19, 22 (2) – Criminal Appeal Act 1907 (Imperial) s.4 (1) – Criminal Procedure Code (Cap.14) s.300.
90
BILL OF SALE
Defeasance – nature of defeasance – bill of sale repayable by instalments – collateral promissory note payable on demand – collateral assignment of debts to be credited on receipt – neither collateral security mentioned in bill of sale – whether defeasances – Bills of Sale Ordinance (Cap. 202) s.11.
71
Failure to set forth true consideration – bill of sale fraudulent and void – effect upon security over chattels – Bills of Sale Ordinance (Cap. 193 – 1955) s. 7 – Bills of Sale Ordinance 1879 – Bills of Sale Act 1878 (Imperial) – Bills of Sale Act 1878 (Amendment) Act 1882 (Imperial).
77
BRITISH SOLOMON ISLANDS PROTECTORATE
See also Criminal Law – Evidence and Proof
Proof.
Injunction
Land – title – claim to ownership – whether land native customary land – one parcel subject to 99 year Government lease as “public” land – another parcel made subject of Commission of Inquiry – recommendations of Commission given legal effect – maxim omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium – Solomons Land Regulations 1914 – Solomon and Gilbert and Ellice Islands (Commission of Enquiry) Regulations 1914, Reg. 3-Solomon Land Claims Regulations 1923.
120
CONTRACT
Transfer of leasehold – statement of consideration and acknowledge of receipt – admissibility of parol evidence to show true consideration and real agreement between the parties – Court of Appeal Rules (cap.8) – Death Duties Act 1921 (New Zealand) s. 62.
29
COUNSEL
Application to withdraw from case – no authority in court to prevent withdrawal if counsel unable to continue to serve his client’s best interests.
220
COURTS
Jurisdiction Magistrate’s Court – action against trespasser – no jurisdiction under section 16 (1) (a) of the Magistrates’ Courts Ordinance to entertain action for the recovery of Land – Magistrates’ Courts Ordinances (Cap. 10) ss.16 (1) (a) (b) (e) (f) (Proviso), 16 (4), 27 (2) – County Courts Act 1888 (Imperial) ss.56, 59 – County Courts Act 1934 (Imperial) s.40.
1
Magistrate’s courts – jurisdiction – action for possession of land – trespass – estoppel.
168
Magistrate’s courts – pleadings in civil action – sufficiency of – Magistrates’ Courts Rules (Cap. 10) 0.6 r.6.
95
CRIMINAL LAW
Accessory
Clerk kept in employment after allegedly confessing to embezzlement – employer’s hope of obtaining restitution – employer’s hope of obtaining restitution – employer not accessory after the fact – active and personal assistance necessary – Penal Code (Cap. 11) ss.306 (a) (i), 306 (a) (ii) – Criminal Procedure Code (Cap. 14) s. 178.
198
Accomplice
Evidence amply corroborated – whether judgment of magistrate adequate – Court of Appeal Ordinance (Cap. 8) s.22 (1).
180
Whether witness as accessory after the fact – necessity for active act of assistance from which assent to felon’s going free can be inferred – Penal Code (Cap. 11) s.233.
185
Alibi
See Evidence and Proof
Charge
False pretence – indictment giving accused all reasonable information as to nature of offence – Criminal Procedure Code (Cap. 14) s.120.
115
Larceny by servant – wrong sub-paragraph of relevant section specified in Statement of Offence – charge not wholly bad – conviction of embezzlement – Penal Code (Cap.11) ss.306 (a) (i), 306 (a) (ii) – Criminal Procedure Code (Cap.14) ss.123, 175 (b), 178.
55
Withdrawal of charge by prosecution – Magistrate’s Court – magistrate’s discretion to refuse – Criminal Procedure Code (Cap.9-1955) ss.193 (1), 193 (2) (b) (i), 193 (2) (b) (ii), 201 – Fiji (Constitution) Order 1966, Schedule 2. s.38 (4).
12
Compensation
See Sentence
Evidence and Proof
Assessment of credibility of witnesses – demeanour of witnesses to be considered in conjunction with the whole of the evidence.
194
Defence of alibi – credibility of accused and witnesses – relevant to take into consideration failure by accused to inform police at earlier stage of existence of supporting witnesses.
180
Evidence of accomplice – duty of court to decide on credibility – decision to be arrived at in light of whole of evidence.
180
Lies told by accused person – significance of – direction.
185
Res gestae – words uttered by deceased admissible if contemporaneous with attach causing death – dying declaration – proof of settled hopeless expectation of death – declaration identifying assailant – identity not in issue at trial – no in the circumstances for judge to point out to assessors that declaration not subject to cross examination.
99
Stealing in dwelling house – theft of bank notes – unusual amount in notes in possession of accused on following morning – false explanation – doctrine of recent possession – Penal Code Ordinance 1963 (British Solomon Islands Protectorate) s. 262 (a).
51
Trial within a trial – ruling that admissions by accused after a certain point of time be excluded – judge’s discretion – consistency of ruling – possibility of evidence ruled inadmissible having effect upon judge’s mind at trial proper.
40
False Pretence
Attempting to obtain money by – claim for value of motor vehicle under insurance policy – vehicle deliberately damaged by insured – evidence negative attempt merely to obtain repair – false pretence comprising words and conduct – Penal Code (Cap. 11) s. 342 (a) – Criminal Procedure Code (Cap. 14) s.120.
115
Representation that vehicle unencumbered on sale – existence of bill of sale – consideration not truly stated – bill of sale void as security over chattels – representation not incorrect – Criminal Procedure Code (Cap. 14) s. 223 – Penal Code (Cap. 8 –1955) s. 335 (a).
77
Judgment
Magistrate’s Court – undue brevity – failure to refer to issues raised by defence – requirements of Criminal Procedure Code (Cap. 14) s. 154 (1) – Penal Code (Cap.11) ss.37 (2) (a), 381 (a).
136
Onus of proof – possible misdirection on – failure to deal with essential issue – application of Criminal Procedure Code (Cap. 14) s.154 (1) – Penal Code (Cap. 11) s. 279 (b).
165
Practice and Procedure
Charge containing alternative counts – all counts to be numbered consecutively – practice where alternative counts not proceeded with – Criminal Procedure Code (Cap. 14) s. 123 (a) (v) – Penal Code (Cap. 11) ss. 306 (b) (ii), 311 (1) (c) (v).
160
Charge of larceny by servant – conviction of embezzlement – Criminal Procedure Code (Cap. 14) ss. 175 (b), 178.
55
Contents of judgment – undue brevity – whether complying with Criminal procedure Code (cap. 14) s. 154 (1).
136
Evidence – “trial within a trial” – Magistrate’s Court – appropriate procedure.
165
Passing sentence – medical and social reports upon accused – contents to be made known to accused.
68
Practice of handing a volume of Ordinance to assessors to be deprecated.
174
Statement by accused – practice of taking accused before Justice of Peace to ascertain whether accused has any complaint concerning police conduct.
40
Principles of Criminal Liability
Accessory after the fact – assistance must be active and support inference of assent to felon’s going free.
185
Provocation
Question not left to assessors – no sufficient material capable of supporting finding of loss of self control commensurate with measure of retaliation.
99
Sentence
Act intended to do grievous harm – binding over – in circumstances calling for deterrent sentence wrong in principle – order for payment of compensation ultra vires where no fine imposed – Penal Code (Cap.11) s.36 – Criminal Procedure Code (Cap.14) s.159.
154
Embezzlement – offender place on probation – whether adequate penalty – Penal Code (Cap. 11) s. 306 (b) (ii).
160
Failing to stop after accident – failing to report to police – purpose of legislation – not to ensure that assistance rendered – callous conduct by driver – relevance – Traffic Ordinance (Cap. 152) ss. 43 (1) (a), 43 (2), 43 (4).
145
Summing Up
Direction to assessors – fraudulent conversion of property – necessity for direction on fraudulent intention as essential factor in offence – Penal Code (Cap. 11) s. 311 (1) (c) (i) – Larceny Act 1916 (Imperial) s. 20 (4).
125
Direction to assessors – self defence – belief by accused of imminent danger – based on reasonable grounds – assessors directed only on one aspect – Court of Appeal Ordinance (Cap. 8) s.22.
174
Witness of doubtful character – warning to assessors.
185
Traffic Offences
Driving while under the influence of drink – medical opinion evidence limited to state of accused fifty minutes after accident – whether sufficient alone to support conviction – Traffic Ordinance (Cap. 152) s. 38 (1).
157
Sentence – failure to stop after accident – failure to report to police – purpose of legislation – relevance of callous conduct of driver – Traffic Ordinance (Cap.152) ss. 43 (1) (a), 43 (2), 43 (4).
145
Trial
Magistrate’s Court – separate charges against different persons – joint trial by consent of persons charged – trial not a nullity – Criminal Procedure Code (Cap.14) ss.310, 319 – Criminal Procedure Code (Cap. 9-1955) ss. 193 (1), 193 (2) (b) (i), 93 (2) (b) (ii), 201, - Fiji (Constitution) Order 1966 Schedule 2, s. 38 (4) – Crimes Amendment Act 1963 (New Zealand) s.3.
12
Judge letting his view be seen on aspect of the evidence – earlier warning to assessors that not obliged to accept his opinion on facts.
198
Summing up – must be looked at as a whole.
40
General
Immigration – permit to remain in Fiji – subject to lawful conditions – effect of non-compliance with fundamental condition – Immigration Ordinance 1962, s.8 (1), 13, 14 (1), 19 (1), (i), 19 (1) (k), 19 (3).
12
CROPS
Claim of right to remain in occupation of land – protracted litigation – cane crops meanwhile grown cut and sold to millers by occupier – subsequently held to be trespasser – harvested crops acquiring character of goods – right to sale proceeds – interpleader – Native Land Trust Ordinance (Cap. 104-1955) – Sale of Goods Ordinance (Cap. 198-1955) – Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap. 20).
84
CROWN LAND
Leasehold – option to purchase protected Crown leasehold – whether consent of Director of Land essential to validity of option – Crown Lands Ordinance (Cap.113) s. 13 (1) – Native Land Trust Ordinance (Cap. 115) s. 12 – Land Clauses Consolidation Act 1845 (Imperial) s.68.
206
DAMAGES
Assessment – damage to vehicle – bill for repairs increased by reason of poor condition of bodywork prior to collision – vehicle in better condition after repair than originally – action founded on tort – full amount of costs of repairs recoverable – loss of income – use of stand-by vehicle – mode of assessment.
23
EASEMENT
Right of way – lease of servient land expired – lessee continuing in possession as de facto occupier – obstruction of right of way – provision of alternative way – right to insist on original line – damages.
140
EVIDENCE AND PROOF
See also Basterdy – Evidence
Corroboration – bastardy proceedings – opportunity of intercourse – circumstances in which actions and failure to deny paternity may amount to corroboration – appropriate test.
90
Marriage certificate – judicial notice of contents – Births, Deaths and Marriages Registration Ordinance 1968, s.7.
224
Transfer of leasehold – statement of consideration and acknowledgement of receipt – admissibility of parol evidence to show true consideration and real agreement.
29
ESTOPPEL
Deed – statement of consideration – receipt – parol evidence.
29
Possession land – Magistrate’s Court – order for vacant possession in earlier proceedings on bases of trespass – subsequent action for arrears of rent – misapprehension by parties as to facts – whether plaintiffs estopped by record, election or representation – jurisdiction of Magistrate’s Court in action for vacant possession of land – Crown
Lands Ordinance (Cap. 138-1955) s. 15 (1).
168
FALSE IMPRISONMENT
See Tort
HUSBAND AND WIFE
Separation agreement – agreement by wife not to institute maintenance proceedings void – agreement not per se proof of connivance at husband’s adultery.
224
Separation and maintenance proceedings – evidence – proof of age of spouse – contents of marriage certificate – particulars therein recorded – Births, Deaths and Marriages Registration Ordinance 1968 (Summary Jurisdiction Ordinance (Cap.43).
Chinnaiya v. Parbati
224
IMMIGRATION
See Criminal Law - Immigration
INJUNTION
Land in British Solomon Islands Protectorate – defendant restrained from planting upon or removing trees from land of plaintiff – possible lacuna in chain of title to plaintiff’s land – actual possession sufficient basis for injunction against any who cannot show better right to possession.
120
INSURANCE
Fire insurance policy – insurable interest – retailer indebted to supplier for goods sold and delivered – supplier having no mortgage or lien over the goods insured – bare debt does not give rise to insurable interest – Rules of the Supreme Court 1934 (applied), 0.19 r.20.
62
Lapse of fire insurance policy – agreement to revive policy – agreement following non-disclosure by policy holder of material relevant information – avoidance of revival.
62
INTERPRETATION
Ordinance – jurisdiction of Magistrate’s Court – personal action – construction of Magistrates’ Courts Ordinance (Cap. 10) s.16.
1
Regulations – whether intra vires – unauthorised delegation of legislative powers – power to control and regulate an activity – limits of power – does not include absolute prohibition – prohibition – prohibition ensuring compliance with regulation permissible – Public Health Ordinance (Cap.91) ss. 6, 9, 10, 13, 39, 48, 52, 127 – Public Health Regulations (Cap. 91) regs. 45, 47, 49, 57-88, 92, 93-106, 108-116, 142, Part 8 – Local Government Act 1915 (Victoria) s. 198 (1) – Interpretation Ordinance 1967 s. 25 – Dangerous Drugs Act 1920 (Imperial) s.7.
Ba Rural Local Authority v. Ram Khelawan
127
JUDGMENT
Construction of – magistrate’s mind directed to correct matters of law – assumption by appeal court that law correctly understood and applied in absence of any indication to the contrary.
95
LAND
See also British Solomon Islands Protectorate
Registered proprietor – substantial onus on those alleging land held in trust – evaluation of evidence – position of appeal court – Land (Transfer and Registration) Ordinance (Cap.136-1955) s.14.
212
Sale by mortgagee – occupiers claiming tenancy from previous owner – protracted litigation – right to proceeds of crops grown harvested and sold during pendency of litigation by occupiers – Sale of Goods Ordinance (Cap. 198-1955).
84
LIMITATION OF ACTIONS
Jewellery belonging to widow of testator coming into hands of executor – executor in position of bailee – onus on bailee to explain absence of jewellery and to establish defence of Statute of Limitations – Limitation Act 1623 (Imperial).
107
LOCAL GOVERNMENT
Regulations by Central Board of Health – whether intra vires – delegates non potest delegare – distinction between delegation of legislative and administrative powers – power to control and regulate activity – not inclusive of power to prohibit unconditionally – limitation of activity to conform with regulations – Public Health Ordinance (Cap. 91) ss. 6, 9, 10, 13, 39, 48, 52, 127 – Public Health Regulations (Cap. 91) regs. 45, 47, 49, 57-88, 92, 93-106, 108-116, 142, Part 8 – Local Government Act 1915 (Victoria) s.198 (1) – Interpretation Ordinance 1967 s.25 – Dangerous Drugs Act 1920 (Imperial) s.7.
127
MAINTENANCE
See Husband and Wife
Wills
MONEYLENDING
Memorandum of contract – retention by moneylender of part of stated principal sum – resulting inaccuracy of memorandum – Moneylenders Ordinance (Cap.210) ss. 16, 18 – Bill of Sale Ordinance (Cap. 202).
47
NATIVE LAND
Native leasehold – leave and licence to occupy part – breach of section 12 of Native Land Trust Ordinance (Cap. 104 – 1955) – recovery of possession by lessee – notice of revocation of leave and licence unnecessary.
1
NEGLIGENCE
See also Damages
Motor vehicle – personal injuries – driver negligent – whether owner vicariously liable – whether driver agent of owner at relevant time.
202
OPTION
Option to purchase protected lease – whether dealing in land – Crown Lands Ordinance (Cap. 113) s. 13 (1).
206
PRACTICE AND PROCEDURE
See also Bastardy
Evidence admitted at trial – rejected after judgment reserved and case re-opened – magisterial trial – procedure not irregular.
149
Onus – obligation to begin – action for probate alleging testator not of sound mind, memory or understanding at time of later will – Supreme Court Rules 1968, 0.35 r.7.
220
Pleading – Magistrate’s Court – sufficiency of general traverse in Statement of defence – Magistrates’ Courts Rules (Cap. 10) 0.6 r.6.
95
Pleadings in running down case making no point of condition of vehicle – evidence of condition admitted only as affecting question of speed – not permissible on appeal to base allegation of negligence on defective condition.
202
PROBATE AND ADMINISTRATION
Will executed day before death of testator – action by executrix of earlier will alleging testator not of sound mind memory or understanding – counterclaim – onus proof on party maintaining later will – obligation to begin – Supreme Court Rules 1968 0.35 r.7 – Rules of the Supreme Court 1965 (applied) 0.35 r.7 – Wills Act 1837 (Imperial).
220
ROAD TRAFFIC
See also Damages
Negligence
Driving while under the influence of drink – medical opinion evidence limited to state of accused fifty minutes after accident – whether sufficient to support conviction – Traffic Ordinance (Cap.152) s.39 (1).
157
SALE OF GOODS
Crops grown harvested and sold during pendency of litigation over right to possess land – whether goods – Native Land Trust Ordinance (Cap. 104-1955) – Sale of Goods Ordinance (Cap. 198-1955).
84
TORT
False arrest and imprisonment – arrest as an absconding debtor – warrant issued pursuant to judicial process – action for damages – plaintiff must prove issuing court misled deliberately or through reckless and rash allegations by creditor – Magistrates’ Courts Rules (Cap. 10) 0.20 r.3.
58
TRUSTS AND TRUSTEE
Land – claim that registered proprietor is a trustee – substantial onus on those asserting trust – whether discharged – Land (Transfer and Registration) Ordinance (Cap.136-1955) s.14.
212
WILLS
Direction in will that widow of testator be given proper maintenance – widow maintained by executor – variation of system of maintenance accepted as satisfactory by widow – sufficient compliance with terms of will.
107
WORDS AND PHRASES
- “fraudulent and void” – Bills of Sale Ordinance (Cap.193-1955) s.7.
83
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/indices/cases/FLR_Vol15_Index.html