|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Copyright]
[Privacy]
[Disclaimers]
[Help]
[Feedback]
Fiji Islands - FLR Volume 21 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1975
VOLUME 21This volume may be cited as “21 F.L.R.”
EDITOR:
R.S. FRY, B.A. (OXON)
Solicitor and former Chief Registrar of the Fiji Court of Appeal
and
Supreme Court of Fiji
DIGEST AND INDEX
PAGE
AGENCY
Insurance proposal form signed in blank by proposer and completed by agent – non disclosure of material facts – whether insurer able to deny liability – whether agent acting on behalf of insurer or insured.
Vishnu Deo Sharma v. Union Assurance Society of Australia Ltd.
61
APPEAL
Application for leave to appeal out of time – whether good cause shown to enable court to enlarge period of limitation – Criminal Procedures Code (Cap.214) ss. 289, 291.
115
Criminal appeal – objection raised on appeal to original charge – whether Supreme Court has power to entertain such objection if not originally raised before the Magistrate’s Court – Criminal Procedure Code (Cap.14) s.323.
98
Practice and procedure – powers of Court of Appeal to substitute a verdict of guilty for some other offence than that found in the Supreme Court if it appears to the Court of Appeal that the trial judge was satisfied of facts which proved accused guilty of that other offence – Court of Appeal Ordinance (Cap.3) s. 24 (2) – Criminal Procedure Code (Cap.14) s.176.
32
Practice and procedure – whether application for leave to appeal out of time to be signed by Director of Public Prosecutions in person – whether successive applications for leave to appeal out of time can be made to Magistrate’s Court and Supreme Court – Criminal Procedure Code (Cap.14) ss. 70, 71, 72, 74, 75, 295, 296 (1) – Fiji Constitution s.65 (5).
115
Public Service Commission – appeal by officer to respondent Board against the applicant’s promotion – applicant neither given notice of appeal nor opportunity to be heard – appeal successful and promotion revoked – whether breach of natural justice – public Service Act 1974 ss.13 (9), 14 – Public Service Commission (Statutory) Regulations 1974 r.13.
53
Refusal of Supreme Court to allow appellants to apply for order of certiorari – whether Court of Appeal, on allowing the appeal, has power to hear and adjudicate upon whole matter – Court of Appeal Rules r.7 – Court of Appeal Ordinance (Cap.8) s.13.
195
BASTARDY
Observations on lengths of period of gestation.
128
Opportunity of sexual intercourse – whether sufficient corroboration of complainant’s evidence.
128
BILL OF SALE
Insurance clause therein containing covenant by owner to insure motor vehicle – policy taken out by mortgagee initially for full insurable value of car – subsequent renewal by mortgagee for proportion only of its value – whether mortgagee had power to continue insurance for anything less than full insurable value – Property Law Act 1971 s.5 (Schedule).
202
CAVEAT
Negligence of solicitors in failing to advise clients in respect of the lodging of a caveat – measure of damages.
158
Purchase price payable by unsecured instalments – whether vendor entitled to lodge caveat to protect rights in respect of unpaid purchase monies – Land Transfer Act 1971 ss.106, 110 – Land Transfer Act 1885 (N.Z.) s.138.
182
CONTRACT
Sale of land – whether delay on part of purchaser in issuing proceedings a bar to specific performance – whether damages a more suitable remedy.
139
COURTS
Supreme Court – whether power to set aside judgment of Magistrate’s Court except on appeal or by way of prerogative writ – Magistrates’ Courts Ordinance (Cap. 10) ss.6, 10 (2), 33, 36 – Supreme Court Ordinance (Cap.9) s.18.
85
CRIMINAL
Aider and abettor
Person who aids another to commit an offence of rape may be charged with actually committing that offence as a principal offender – Penal Code (Cap.11) ss.21 (1) (b), 143 – Criminal Procedure Code (Cap. 14) s.170 irrelevant.
9
Burglary
Necessary to prove not only the breaking and entering but also the intent to commit a felony – Penal Code (Cap.11) ss. 302, 332 (a).
4
Charge
Obtaining by false pretences – Penal Code (Cap.11) s.342 (a) – whether “obtains” means obtains the property or merely possession of it.
32
Evidence and Proof
Accused charged with two offences of a similar character – accused acquitted during course of trial of one charge – whether magistrate entitled to take into account evidence already heard on that charge to determine guilt of accused on outstanding charge – Criminal Procedure Code (Cap. 14) s.121.
47
Accused in possession of stolen property shortly after breaking and entering – whether sufficient for court to infer that accused the housebreaker.
98
Confession – must be voluntary – discretion to exclude if in breach of Judges’ Rules.
98
Lies told to police – direction of assessors thereon.
32
Powers of police officers to search and seize goods reasonably suspected of having been stolen – cash and other exhibits found in possession of accused by police during investigation of robbery – whether admissible in evidence – whether seized in breach of Constitution – Criminal Procedure Code (Cap.14) s.18 (1) – Constitution of Fiji ss. 5(1) (e), 9 (1), 9 (2) (a) (b).
105
Manslaughter
Committed under provocation – whether life imprisonment appropriate – length of sentence.
12
Practice and Procedure
Right of prosecution to use an inadmissible statement from one accused to cross examine a co-accused on matters contained in that statement.
32
Statement of offence and particulars of offence to conform as closely as possible to the forms set out in second schedule of Criminal Procedure Code – Criminal Procedure Code (Cap. 14) s.123 (a) ) (iv).
4
Trial within a trial – essential to hear evidence in absence of assessors where statement of accused alleged not to have been made voluntarily.
32
Whether fundamental error in charge can be validated by Criminal Procedure Code (Cap.14) ss.80 (2), 323 – Magistrates Courts Act 1952 (15 & 16 Geo. 6 &1 Eliz. 2, c.55) (Imp.) s.100.
4
Whether substitution of a conviction for a minor or kindred offence exercisable by appellate court when original charge bad in law – Criminal Procedure Code (Cap.14) ss.163 (2), 174.
4
Rape
Aider and abettor – person who aids another to commit an offence of rape may be charged with actually committing that offence as a principal offender – Penal Code (Cap.11) ss. 21 (1) (b), 143 – Criminal Procedure Code (Cap.14) s.170 irrelevant.
9
Sentence
Breaking and entering – severity of sentence.
98
Manslaughter committed under provocation – whether life imprisonment appropriate – length of sentence.
12
Principles of sentencing – severity of sentence where offender has many previous convictions.
19
Whether accused able to call additional evidence on appeal against sentence – Criminal Procedure Code (Cap.14) s. 301 (1).
98
Traffic Offences
Driving whilst disqualified – imprisonment obligatory unless special circumstances of the case warrant fine – special circumstances special to case and not offender – Traffic Ordinance (Cap. 152) s. 30(4).
50
DAMAGES
Negligence of solicitors in failing to advise clients in respect of the lodging of a caveat – measure of damages.
158
EVIDENCE AND PROOF
Corroboration – bastardy proceedings – opportunity of sexual intercourse – whether sufficient corroboration of complainant’s evidence.
128
HUSBAND AND WIFE
Custody of child – whether parent fit and proper person to have such custody.
122
INCOME TAX
Trust deed – lease of property at unrealistically low rental by settlers to trust company of which they were directors – subsequent lease by trust company of property at market rental – whether transaction classed as family dealing and not a means of avoiding tax – whether transaction void as against the Commissioner of Inland Revenue – Income Tax Ordinance (Cap.176) s.103 – Australian Income Tax Assessment Act 1936 s.260 – New Zealand Land and Income Tax Act 1954 s. 108 – whether settlers liable to be assessed for tax in respect of income received – Income Tax Ordinance (Cap.176) ss. 10, 11, 15, 35.
171
INSURANCE
Bill of sale over motor car containing covenant by owner to insure the vehicle – policy taken out by mortgagee initially for full insurable value of car subsequent renewal by mortgagee for proportion only of its value – whether mortgagee had power to continue insurance for anything less than full insurable value – Property Law Act 1971 s.5 (Schedule).
202
Proposal form signed in blank by proposer and completed by agent – non disclosure of material facts – whether insurer able to deny liability – whether agent acting on behalf of insurer or insured.
Vishnu Deo Sharma v. Union Assurance Society of Australia Ltd.
61
INTERPRETATION
Criminal law – expressions used in Penal Code presumed as far as consistent with context to be used with meaning attaching to them in English law – Penal Code (Cap.11) s.3.
32
Criminal law – Penal Code (Cap.11) s.342 (a) – meaning of “obtain” – whether meaning obtains property or merely possession of it.
32
Ordinance – whether Interpretation Ordinance 1967 s. 24 enables powers under Hotels and Guest Houses Act 1973 ss. 4 & 5 to be exercised by Hotel Licensing Board prior to the Act itself coming into force – Interpretation Ordinance 1967 s. 24 – Interpretation Act 1889 (52 & 53 Vict., c.63) (Imp.) s.37.
195
LANDLORD AND TENANT
Premises protected by Fair Rent Ordinance – whether tenant forfeited protection of Act if he called no evidence at trial – Fair Rents Ordinance (Cap.241) ss. 19(1), 19 (2), 19 (5).
94
LAW PRACTITIONERS
Counsel should not act as both counsel and witness in same case.
50
Solicitors – negligence in failing to advise clients in respect of the lodging of a caveat – measure of damages.
158
LIBEL
Publication in newspaper of picture and article intimating that unsuccessful candidate for Manger of Native Land Trust Board was corruptible – whether reasonable readers, having regard for context, would consider words used as imputation against character.
149
LIEN
Outright sale and purchase of interest in land – purchase price unsecured and payable by instalments – whether vendor’s lien arises in respect of unpaid purchase monies – Property Law Act 1952 (N.Z.) s.28 – Land Transfer Act 1952 (N.Z.) s.137.
182
MASTER AND SERVANT
Sale of goods – sale effected by servant of goods above maximum retail price fixed by counter inflation legislation – master vicariously liable as offence one of strict liability – Counter Inflation (Price Control) (No.21) Order 1973 – Counter Inflation Act 1973 ss. 11, 2(a), 33 (1).
Suva Co-operative Association Limited v. Prices and Incomes Board
1
Personal injuries received by employee in motor accident whilst driving employer’s van to his home from work – whether injuries received in accident arising out of and in the course of his employment – Workmen’s Compensation Ordinance (Cap. 77) s.5 (1).
133
PRACTICE AND PROCEDURE
Failure by counsel for landlord through inadvertence to adduce evidence in support of claim for rent due – submission by defendant of no case to answer – subsequent application to call fresh evidence after case closed – whether proper for Court to grant such application.
120
Judgment by consent – infant plaintiff – approval of court necessary to settlement or compromise – Rules of Supreme Court 1934 0.22 r.14 (1) – Rules of Supreme court 1968 0.80 r.10 – Magistrates’ Courts Ordinance (Cap.10) s.46.
85
Law practitioners – counsel should not act as counsel and witness in same case.
50
Order for trial of certain issues before others – circumstances in which such an order should be made – Rules of Supreme Court 1968 0.33 r.4.
65
Taking evidence outside jurisdiction – Rule of Supreme Court 1934 0.37 rs.5, 6, 6A, 6B, 6C, 0.38 r.9 (1) (2) – Rules of Supreme Court 1968 0.39 rs.1, 2.
65
Welfare report of Probation Officer – powers of courts to request such reports – Maintenance & Affiliation Act 1971 s.15 – Matrimonial Causes Act 1968 ss. 65, 86.
122
PRICES AND INCOMES
Selling article above maximum retail price – offence of strict liability – owner vicariously responsible for sale effected by servant – Counter Inflation (Price Control) (No.21) Order 1973 – Counter Inflation Act 1973 ss. 11, 23 (a), 33 (1), 35.
Suva Co-operative Association Limited v. Prices and Incomes Board
1
PRISONS
Provisions for release of offender on licence prior to completion of his sentence – Prison Ordinance (Cap.69) ss. 66, 67 (1) – Criminal Justice Act 1967 (9 & 10 Eliz. 2, c.80) (Imp.) ss. 60, 61.
12
PROBATE AND ADMINISTRATION
Onus of proof on party propounding will that testator knew and approved its contents.
65
Person who prepares will and also takes a benefit under same – suspicion created to be removed by person propounding will – righteousness of the transaction.
65
PUBLIC SERVICE COMMISSION
Appeal by officer to respondent Board against the applicant’s promotion – applicant neither given notice of appeal nor the opportunity to be heard – appeal successful and promotion revoked – whether breach of natural justice – whether Board appointed in contravention of the Constitution – Public Service Act 1974 ss.13 (9), 14 – Public Service Commission (Statutory) Regulations 1974 r.13 – Fiji Constitution s.10 (8).
53
SALE OF LAND
Purchase price payable by unsecured instalments – whether vendor entitled to lodge caveat to protect rights in respect of unpaid purchase monies – Land Transfer Act 1971 ss.106, 110 – Land Transfer Act 1885 (N.Z.) s.138.
182
Receipt given on payment of deposit only written document of transaction – subsequent default by vendor – whether receipt sufficient memorandum – Indemnity Guarantee & Bailment Ordinance (Cap. 208) s.59 – Statute of Frauds (Imp) (29 Car. 2, c.3) s.4 – Sugar Industry Ordinance (Cap.180) s.26.
139
SPECIFIC PERFORMANCE
Laches – effect of undue delay on grant of specific performance – remedy of damages.
139
TORT
False arrest and imprisonment – arrest as an absconding debtor – warrant issue pursuant to judicial process – action for damages – proof of malice – Magistrates’ Courts Rules 0.20 rs.2, 3.
22
WORKMEN’S COMPENSATION
Failure by employer to serve notice of accident on Commissioner of Labour within specified time – whether such failure constituted reasonable cause enabling employee to pursue claim after specified time had elapsed – Workmen’s Compensation Ordinance (Cap.77) ss. 13 & 14 – Employment Ordinance (Cap.75) s.8 (b).
190
Personal injuries received by employee in motor accident whilst driving employer’s van to his home from work – whether injuries received in accident arising out of and in the course of his employment – Workmen’s Compensation Ordinance (Cap.77) s.5(1).
133
WORDS AND PHRASES
- “arising out of employment” – Workmen’s Compensation Ordinance (Cap.77) s.5(1)
133
- “or otherwise howsoever” – Land Transfer Act 1971 s.106 (a).
182
- “reasonable cause” – Workmen’s Compensation Ordinance (Cap.77) s.13(b).
190
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/indices/cases/FLR_Vol21_Index.html