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Fiji Islands - FLR Volume 19 - Digest & Index |
THE FIJI COURT OF APPEAL
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1973
VOLUME 19This Volume may be cited as “19 F.L.R.”
EDITOR:
R.S. FRY, B.A. (Oxon), Solicitor
Chief Registrar of the Supreme Court of Fiji and Fiji Court of AppealPRICE: $13.000
DIGEST AND INDEX
PAGE
ADOPTION
When court may dispense with consent of parent, guardian or person liable to contribute to maintenance of child – Adoption of Infants Ordinance (Cap. 48) s.7 (1) – persons to be made respondents – Adoption of Infants (Magistrates’ Courts) Rules 4 (3) – disclosure of confidential reports on welfare of child – Adoption of Infants (Magistrates’ Courts) Rules 7 (3).
108
APPEAL
Damages – appeal against award – circumstances in which appellate court will interfere with such award.
Damages – death caused by negligent driving – principles of assessment – Compensation to Relatives Ordinance (Cap. 22).
1
Finding of fact by magistrate – circumstances in which appellate court will disturb the finding of fact.
1
Misdirection on part of trial magistrate – whether court should exercise the application of proviso to Criminal Procedure Code (Cap.14) s.300 (1).
78
Practice and procedure – powers of Court of Appeal – appeal on question of law – Court of Appeal Ordinance (Cap.8) s.12 (1) (d) – whole matter at large once question of law is found to have arisen and to have been determined in favour of appellant.
117
BASTARDY
Evidence – conversation between respondent and court officer – whether privileged.
64
CHEQUE
Consideration – whether adequacy of consideration can be made subject of enquiry.
62
CONTRACT
Certainty – whether contract for lease unenforceable for lack of certainty of subject matter.
85
Illegality – agreement for sale of taxi-breach of Traffic (Taxis and Rental Cars) Regulations 1967 reg. 5(1) and 12 – effect and enforcement of such illegal agreement.
164
Lease and option to purchase beneficial interest in residuary estate – whether such disposition legally enforceable prior to the administration of the estate.
85
Novation - agreement by distributors to supply films to cinema – subsequent sale of cinema – written agreement between vendor and purchaser to which distributors not a party whether purchaser liable to distributors for breach of original agreement – whether novation of the agreement by conduct of the parties.
39
Performance – appropriation of payments – agreement to waive arrears of rent – appropriation by landlord of subsequent payments by tenants in satisfaction of rent outstanding prior to agreement – intention of parties regarding agreement and further acceptance of rents.
49
Sale of goods – f.o.b. contract – goods of unmerchantable quality on arrival at destination – whether risk falls on buyer or seller.
33
Validity – ostensible authority to enter into an agreement.
49
COURTS
Jurisdiction – criminal intimidation – Penal Code (Cap.11) s.366 (a) – threats contained in letters and telephone calls sent and made from abroad – whether such threats fall within jurisdiction of the courts of Fiji – Penal Code (Cap.11) s.5 & 6.
98
Jurisdiction – whether court can interfere with the internal proceedings of the House of Parliament.
140
Jurisdiction – whether Court of Appeal can review sentence of death imposed by trial judge.
127
CRIMINAL LAW
Assault on Police Officer
Police officer requested to enter premises at bidding of owner to evict trespasser – subsequent assault by trespasser – whether police officers acting in due execution of his duty – Penal Code (Cap.11) s.279 (b) - sentence.
Director of Public Prosecution v. Sataya Raj alias Dhurup Jai
6
Assessors
Criminal law – assessors – matters for assessors to consider probative value of a statement attributed to a prisoner after its admission by the judge.
127
Criminal Intimidation
Criminal intimidation – Penal Code (Cap.11) s.366 (1) – threats contained in letters and telephone calls sent and made from abroad – whether such threats fall within jurisdiction of the courts of Fiji – Penal Code (Cap.211) s. 5 & 6.
98
Evidence & Proof
Character – whether questions as to the previous convictions of the appellant justified – Criminal Procedure Code (Cap.14) s.145 (f).
101
Common design – whether evidence sufficient to show that both appellants had acted in convert throughout.
101
Common design in murder – whether both appellants acted in concert throughout.
101
Confession – admission of guilt on tape – whether obtained by a trick or trap.
133
Confession – whether voluntary – whether such confession must be reduced to writing.
127
Identity –identification of accused at police station – principles to be observed.
16
Lies told to police – whether inference of guild.
101
Refreshing of memory – circumstances in which witnesses may refresh their memory in and out of court.
16
Tape recorder – admissibility of recording of conversation made between husband and wife – whether privileged – whether obtained by a trick or a trap.
133
Judgement
Obligation of magistrate to give reasons for acceptance or rejection of evidence – compliance with Criminal Procedure Code (Cap. 14) s.154.
1
Murder
Common design – whether evidence sufficient to show that both appellants had acted in concert throughout.
101
Sentence of death – jurisdiction of court – whether Court of Appeal can review sentence of death imposed by trial judge.
127
Practice and Procedure
Charge – amendment of charge – compliance with Criminal Procedure Code (Cap.14) s.204 (1).
11
Variance between charge and evidence – amendment of charge – whether variance material – Criminal Procedure Code (Cap.14) s.204 (2) – whether charge defective – criminal Procedure Code s. 204 (1).
74
Sentence
See also Sexual Offences
Activation of suspended sentence with a reduced term – whether such a reduction justified – Penal Code (Cap.11) s.28 B (1).
71
Murder – sentence of death – jurisdiction of court – Court of Appeal Ordinance (Cap.8) s.21 (c) and 23 (3) – Penal Code (Cap.11) s.229 – decision of trial judge as to whether to certify that case should not warrant the death sentence – whether Court of Appeal can review the sentence.
127
Sexual Offences
Recent complaints – when admissible in evidence – sentence
133
Summing Up
Directions to assessors essentially the same as to a jury.
127
Traffic Offences
Causing death by dangerous driving – accused falling asleep at wheel – whether constitutes dangerous or careless driving – Penal Code (Cap.11) s.269 (1).
81
Dangerous driving causing death – Penal Code (Cap.11) s. 269 (1) – speed – standard of care and skill.
1
Witness
Circumstances in which witnesses may refresh their memory in and out of court.
16
Evidence inconsistent with previous statements – whether such evidence should have been rejected.
133
DAMAGES
Appeal against award – circumstances in which appellate court will interfere with such award.
150
Death caused by negligent driving – principles of assessment – Compensation to Relatives Ordinance (Cap.22).
150
Landlord & Tenant – licensee legally in possession of land – contemporaneous lease to another – sole right of occupation and enjoyment of land – damages for breach of terms of licence.
55
ESTATE AND SUCCESSION DUTY
Shares – basis of valuation – Estate and Gift Duties Ordinance (Cap.178) s.62 (1) & (3).
91
ESTOPPEL
Equitable – promissory – payment of part of civil debt in satisfaction of whole – whether payment of balance can be later enforced.
121
EVIDENCE
Vehicle licence and vehicle licence sticker – whether vehicle licence sticker prima facie evidence of its contents.
68
EXECUTORS AND TRUSTEES
Powers of executors to sell and lease land for the purposes of administration – Succession Probate and Administration Ordinance 1970, s.11 (1) (2) (3) – whether purported lease and sale effected in course of administration.
85
HUSBAND AND WIFE
Maintenance order – complaint for variation – whether evidence had established a material change of circumstances – Maintenance & Affiliation Act 1971 s. 8 (1).
117
INDUSTRIAL ASSOCIATIONS
Failure of secretary of submit annual general statement to Registrar – Industrial Association Ordinance (Cap.79) s.11 (1) (a) (b) (c) – penalty – Industrial Association Ordinance (Cap. 79) Section 29 (1) (a) (c).
158
INSURANCE
Motor vehicle policy – oral report of accident whether such report constitutes notification under Motor Vehicles (Third Party Insurance) Ordinance (Cap. 153) s.16 (1).
36
LANDLORD AND TENANT
Licensee legally in possession of land – contemporaneous lease to another – sole right of occupation and enjoyment of land – damages for breach of terms of licence.
55
Rent – appropriation – agreement to waive arrears – appropriation by landlord of subsequent payments by tenant in satisfaction of rent outstanding prior to agreement – intention of parties regarding agreement and further acceptance of rents.
49
NEGLIGENCE
Damages for – death caused by negligent driving – principles of assessment – compensation to Relatives Ordinance (Cap.22).
150
OFFENCES
Continuing offences – categories thereof.
158
PARLIAMENT
Parliamentary proceedings – whether doctrine of separation of powers breached whether the English law that the House has absolute control over its own internal proceedings applicable to Fiji – to what extent affected or negatived by Constitution – Constitution of Fiji 1970 Article 54 (1) – Parliamentary Powers and Privileges Ordinance (Cap.3) s.17 & 23 – Supreme Court Ordinance (Cap.9) s.22 (1) & 23 – Fiji Independence Order 1970 s.5 (1) – jurisdiction of Courts in relation to the Constitution – Constitution of Fiji 1970 Article 97 – whether actions of respondents constitute breach of Constitution of Fiji 1970 Article 57 (1) – whether Supreme Court can interfere with the internal proceedings of the House if rights of person outside the House unaffected.
140
POLICE
Assault on police officer – lawful entry onto private property to evict trespasser – whether acting in due execution of his duty – Penal Code (Cap.11) s.279 (b).
Director of Public Prosecutions v. Sataya Raj alias Dhurup Jai
6
PRACTICE AND PROCEDURE
Parties to be joined in appeal under Estate and Gift Duties Ordinance (Cap. 178) s. 62 (3) – whether proper for official valuer to be joined as a party.
91
Whether order dismissing bastardy application an order of acquittal – whether such an order final – whether power to set aside order and remit case for new trial – Criminal Procedure Code (Cap.14) s. 300.
64
Writ of summons – Order setting aside – Rules of the Supreme Court o.12 r.8 and 0.18 r.19 – whether summary procedure under o.18 r.19 appropriate.
140
ROAD TRAFFIC
Driving a heavy goods vehicle without holding a licence to drive that class of vehicle – Traffic Ordinance (Cap.152) s.23 (1) – whether vehicle licence sticker prima facie evidence of its contents – Traffic Ordinance (Cap.152) s.11 (1). 14 (1) and 19 (1).
68
Driving while under the influence of drink – Traffic Ordinance (Cap. 152) s. 39 (1) – incumbent on prosecution to prove that accused under influence of drink to such an extent as to be incapable of having proper control of his vehicle.
78
Notice of intended prosecution – careless driving – whether place of accident specified with sufficient particularity – Traffic Ordinance (Cap.152) s.41.
31
SALE OF GOODS
F.o.b. contract – goods of unmerchantable quality on arrival at destination – whether risk falls on buyer or seller.
33
TORT
Vicarious liability – whether owner of car vicariously liable for negligence of driver – whether driver acting on owner’s behalf as his agent.
150
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