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Fiji Islands - FLR Volume 22 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1976
VOLUME 22This volume may be cited as “22 F.L.R.”
EDITOR
R.S. FRY, B.A. (Oxon)
Former Chief Registrar of the Supreme Court of Fiji
and the Fiji Court of AppealPRICE: $20.00
DIGEST AND INDEX
PAGE
APPEAL
Application to enlarge period of limitation for appealing from a decision of the Magistrate’s Court – procedure – Criminal Procedure Code (Cap.14) s.29 (1).
80
Assessment of credibility of witnesses by trial judge – advantage taken of seeing and hearing witnesses – proper weight given to their testimony – Court of Appeal will not interfere with judge’s findings.
163
Sentence – whether Court of Appeal has jurisdiction under any circumstances to entertain an appeal against severity of sentence – Court of Appeal Ordinance (Cap.8) s.22 (10 – Criminal Procedure Code (Cap.14) s.289 (a) (3) (4) – Penal Code (Cap.11) s. 28(A).
100
Statutory discretion – principles to be considered – whether arbitrators on appeal entitled to override discretion properly exercised and substitute their own opinions – Mining Ordinance (cap.125) ss.10, 21 – Mining Regulations regs. 27, 30(1)(a) – Income Tax Act 1974 s.69 (9).
8
Supreme Court – functions when hearing and appeal relating to a confession of an accused challenged for want of voluntariness.
27
Supreme Court – appeal against acquittal – no power for court to order retrial – Criminal Procedure Code (Cap.14) s.300 (1) (b).
206
BAILOR AND BAILEE
Destruction of chattel whilst in bailee’s possession – onus of proof on bailee to establish that chattel not damaged as result of his negligence.
139
COMPANY’S LAW
Winding up – differences between shareholders – whether jus and equitable that company should be wound up – Companies Ordinance (Cap.216) s.167.
In re Bali Hai (178), In re Bali Hai (223)
178, 223
CONTRACT
Action for money had and received – part of contract price withheld – onus on parties withholding money to establish their authority for so doing.
36
Consideration – work done in family business by family members – whether contractual relationship arises – whether obligation to compensate for services rendered.
70
CRIMINAL LAW
Abortion
Onus on prosecution to satisfy court beyond reasonable doubt that operation not carried out in good faith for purpose of preserving the physical and mental health of the patient.
117
Accomplice
Doubt over witness’ involvement as participant in crime – directions to assessors thereon – Court of Appeal Ordinance (Cap.8) s.23 (1).
143
Appeal
Circumstances in which appeal against conviction may be entertained following plea of guilty – Criminal Procedure Code (Cap.14) s.290 (1).
1
Charge
Insufficient evidence to support charge on date alleged – whether proper for court to convict on basis of other evidence establishing a like offence one a different date – whether Criminal Procedure Code (Cap.14) s.204 (1) correctly applied.
150
Disorderly Behaviour
Conduct must be disorderly – meaning of disorderly – Minor Offences Act 1971 s.4.
105
Evidence and Proof
Confession – admission made for reasons unconnected with police questioning – whether such admission receivable in evidence.
143
Corroboration – when lies told by accused can amount to such.
120
Evidence of similar fact – circumstances in which such evidence may be admitted.
120
Finding of fact by court – conclusion drawn by judge or magistrate must be based on evidence and not on mere assumptions or inferences on his part.
188
Rape – whether evidence of distress of victim can corroborate absence of consent.
120
Unsworn statement by accused – weight to be attached thereto – self serving statement 0 not evidence of truth of its own contents.
17
Victim shown number of photographs of different men from whom she selected that of the accused as her attacker – identification of accused later confirmed by victim at identity parade – whether proper for victim to identify accused at identity parade having been shown his photograph.
120
False Pretences
Obtaining money by ingredients of offence – both false representation and the intent to defraud must be proved – Penal Code (Cap.11) s.342 (a).
188
Identification
Accused identified in court by witness who failed to identify him at identity parade held with 24 hours of offence – obligatory on prosecutor to reveal this information to court of trial.
84
Making false statement
Such statement must be contained in a document which the maker is authorised or required to make by an Ordinance for the time being in force – Penal Code (Cap. 11) s.113 (1) (b) – Traffic Ordinance (Cap.152) s.86 – Traffic Regulations 1974.
1
Mens rea
Permitting a nuisance under Public Health Ordinance (Cap.91) ss.15, 55(a), (b), 133.
217
Plea
Pleas of not guilty entered in Magistrate’s Court by direction of magistrate – whether competent for another magistrate on a subsequent hearing or a judge in exercise of his powers of review, to substitute such pleas for pleas of guilty – Criminal Procedure Code (cap.14) ss.304, 306, 306(1) (b).
201
Proper for prosecution to accept plea to lesser offence if in interests of justice and not expediency.
87
Practice and Procedure
Articles seized from accused during search – whether proper to admit such articles as exhibits at the trial – whether such seizure a breach of Fiji Constitution s.9 (1) – whether Criminal Procedure Code s.18 (1) – inconsistent with the Constitution and thus void.
114
Evidence illegally obtained – within discretion of judge to admit or exclude such evidence.
114
Inconsistent statement made by prosecution witness – circumstances in which defence counsel entitled to sight of and use of a previous statement made by that witness.
75
Joint charge when only one accused present – procedure to be adopted.
84
Obligatory on prosecutor to put before the court vital piece of evidence which might have a bearing on the case in general and the innocence of the accused in particular.
84
Respective functions of judge and lay members of the court where confession statement of the accused has been challenged.
27
Submission of no case to answer – considerations to be applied.
206
Whether evidence given by accused during trial within a trial admissible against him as part of prosecution case.
27
Whether prosecution evidence given during trial within a trial becomes part of the main trial.
27
Review
Powers of Supreme Court on appeal and review – no authority to interfere with finding of acquittal – Criminal Procedure Code (Cap.14) ss.300, 301, 304 – 6, 307 – Penal Code (Cap.11) s.277.
158
Sentence
Act causing grievous bodily harm – suspended sentence inappropriate in cases where serious injury caused – assaults involving use of cane knives invite immediate, deterrent, custodial sentences – Penal Code (Cap.11) ss. 255 (a), 258.
87
Bank robbery – whether deterrent sentence warranted.
143
Whether Court of Appeal has jurisdiction under any circumstances to entertain an appeal against severity of sentence – Court of Appeal Ordinance (Cap.8) s.22 (1) – Criminal Procedure Code (Cap.14) s.289 (a) (3) (4) – Penal Code (Cap. 11) s.28(A).
100
Whether phrase “severity of sentence” restricted to questions of the actual length of term imposed – Court of Appeal Ordinance (Cap.8) s.22(1) – Criminal Procedure Code (Cap.14) s.289 (1) (3) (4) – Penal Code (Cap.11) s.28
100
DAMAGES
Assessment – chattel damaged in traffic accident and subsequently by fire at repairer’s garage.
139
Personal injury – child assessment of special and general damages.
54
ESTATE AND GIFT DUTY
Payments to beneficiaries during lifetime of deceased – whether dispositions made by way of gift or with full adequate consideration in money or money’s worth – Estate & Gift Duty Ordinance (Cap.178) ss.2, 32-37, 34 (1) (2), 41, 55.
70
ESTOPPEL
Court proceedings compromised by settlement that squatter be allowed to remain on land – whether owner estopped from resiling from settlement – whether licence protected by equity.
134
EVIDENCE AND PROOF
Action for money had and received – part of contract price withheld – onus on parties withholding money to establish their authority.
36
Conviction as evidence in civil proceedings – Evidence (Amendment) Act 1975 – Civil Evidence Act 1968 (Eliz.. 2c.64) (Imp.).
54
HOTELS AND GUEST HOUSES
Definition thereof – whether premises having no facilities for reception within definition – Hotels and Guest Houses Act 1973 ss.2, 4(2), 10(1).
78
INJUNCTION
Freedom of the press – interlocutory injunction sought to prevent press and radio publishing or broadcasting any information relating to the soccer tournament held at Govind Part Ba – whether right not only to prevent media entering Park but also to effect a total ban on the publishing of all football information – Ba Township Regulations regs. 11 to 19 – Fiji Constitution s.12 (1).
91
INTERPRETATION
Ordinance written law – whether words “by any Ordinance” in Penal Code (Cap.11) s.113 (1) (b) include subsidiary legislation and the regulations made under an Ordinance – Interpretation Ordinance 1967 – Traffic Regulations 1974.
1
Ordinance – definition of hotel – Hotels and Guest Houses Act 1973 ss.2, 4(2), 10(1).
78
Ordinance – whether Agricultural Landlord and Tenant Ordinance overridden by Land Transfer Act 1971 s.3 – Property Law Act 1971 s.3 – Constitution of Fiji ss. 2, 68.’
163
Proprietary unit – Interpretation Ordinance 1967 s.2 (1).
210
Regulations – whether retrospective in operation – Native Land (Leases and Licences) Regulation 1940 as amended by Native Land (Leases and Licences) Regulations 1968 regs. 20(8), 21(1), 27 – Interpretation Ordinance 1967 ss.18(3), 22.
20
JUDGMENT
Two members of nine man committee sued – whether successful plaintiff entitled to judgment against these two named defendants only or against whole committee – rules of the Supreme Court 1934 (applied) 0.16 r.9 – Rules of the Supreme Court 1968 (applied) 0.15 r.12 – Magistrate’s Courts Rules 0.8 rs.1, 3, 4, 5(3).
36
LANDLORD AND TENANT
Covenant not to part with possession without consent of lessor – lessee went abroad leaving premises in occupation of his lawful attorney – whether lessee could be deemed to have parted with legal possession without exclusive occupation being granted to his attorney – Property Law Act 1971 s.114.
4
Agricultural land – whether rights of occupation of agricultural land under Agricultural Landlord and Tenant Ordinance (Cap.242) exist in law independency of Land Transfer Act 1971 – whether such rights prevail against indefeasibility of title provisions of Land Transfer Act 1971 ss.39, 40, 54 – Agricultural Landlord and Tenant Ordinance (Cap.242) ss.4(1), 5(1), 6, 7, 8, 9 (2), 13, 22(1), 56(1) (c), 57, 58, 59 – Agricultural Landlord and Tenant (Tribunal Procedure) Regulations 1967 Schedule C, reg. 49(3) – Agricultural Landlord and Tenant (Exemption) Regulations 1967.
163
Lease for term of one year or less valid without registration – Land Transfer Act 1971 s.54(2) – whether purchaser with notice and such tenancy purchases subject to rights enjoyed by tenant Land Transfer Act 1971 ss. 37, 38, 40, 42, 139, 140 – New Zealand Transfer Act 1952 – Property Law Act 1971 s.11.
163
Tenancy at will – whether such tenancy a protected lease – whether consent of Director of Lands required for its transfer – Crown Lands Ordinance (Cap.113) s. 13(1) – Crown Lands (Leases and Licences) Regulations regs. 34, 35, 36, 38, 43.
194
LICENCE
Court proceedings compromised by settlement that squatter be allowed to remain on land for rest of life – whether owner subsequently entitled to possession – relationship between parties – whether licence protected by equity.
134
LOCAL GOVERNMENT
Electorate – rights of members of mataqali to be registered as electors – Local Government Act 1972 ss.2, 11 – Native Land Ordinance (Cap.114) ss.4, 8, 9(1), 10.
210
Public health – nuisance – overflow of waste from public toilets – liability of Town Council – whether offence of strict liability – effect of strike of Council’s employees – Public Health Ordinance (Cap.91) ss.15, 55(a) (b), 133.
217
MINING
Prospecting licence – renewal at discretion of Director of Mines – whether Mining Appeals Board entitled to override proper exercise by the Director of his discretion – Mining Ordinance (Cap.125) ss.10, 21 – Mining Regulations regs. 27, 30(1) (a).
8
NATIVE LAND
Lease of native land subject to Regulations for reassessment of rent at intervals of 25 years – subsequent amendment in Regulations providing for reassessment at intervals of 10 years – whether such Regulations operated retrospectively – Native Land Trust Ordinance (Cap.115) ss.10(1), 33 – Native Land (Leases and Licences) Regulations 1940 as amended by Native Land (Leases and Licences) Regulations 1968 regs. 20(8), 21(1), 27 – Landlord and Tenant Act 1954 (2 & 3 Eliz., 2, c.56) (Imp.) – Law of Property Act, 1969, (17 &18 Eliz. 2, c.59) (Imp.) s.11.
20
Consent of Board necessary to transfer – whether Board entitled to demand a levy before granting its consent – Native Land Trust Ordinance (Cap.115) ss.4(1), 10, 11, 12, 14(1), 33 – Native Land (Leases and Licences) Regulations regs. 34(f), 58 – Native Land Trust (Leases Licences) (Amendment) Regulations 1974, Second Schedule – Property Law Act 1971 s.94 – Interpretation Ordinance 1967 ss.25(b), 28(1).
45
Rights of members of mataqali to be registered as electors – Local Government Act 1972 ss.2, 11 – Native Land Ordinance (Cap.114) ss.4, 8, 9(1), 10.
210
PRACTICE AND PROCEDURE
Action for money had and received – two members of a nine man committee sued – whether successful plaintiff entitled to judgment against these named defendants only or against whole committee – Rules of the Supreme Court 1968 (applied) 0.15 r.12 – Magistrate’s Courts Rules 0.8 rs.1, 3, 4, 5(3).
36
Affidavits – rules relating to swearing and filing thereof – rules mandatory and must be followed by legal practitioners – Rules of the Supreme Court 0.41 r9 (5).
91
Discovery of documents – mutual discovery mandatory unless both parties agree otherwise – order for discovery once made by court must be obeyed – improper for parties to waive discovery after order made – Rules of the Supreme Court 0.24 rs.1, 2, 3, 16.
139
Guilty plea to a criminal offence – effect of plea on ensuing civil proceedings.
105
Pleadings – these should state material facts relied on and not evidence by which they are to be proved.
163
PUBLIC HEALTH
Nuisance – overflow of waste from public toilets – liability of Town Council – whether offence of strict liability – effect of strike of Council’s employees – Public Health Ordinance (Cap.91) ss.15, 55(a) (b), 133.
217
TORT
False imprisonment and arrest – arrest for behaving in a disorderly manner – whether conduct sufficient to bring it within meaning of Minor Offences Act 1971 s.4 – Criminal Procedure Code (Cap. 14) s.21 (6).
105
TRADE DISPUTE
Influencing others to take part in an unlawful strike – whether publication of Union Secretary’s comments to press and radio sufficient to prove that strikers influenced by such utterances in absence of direct evidence that they heard or read the publications – Trade Disputes Act 1973 ss.8, 12(1) (4), 33 (7), 37.
150
WORKMEN’S COMPENSATION
Accident arising out of or in course of employment – whether compensation payable where injury arose whilst workman performing work which he was not engaged to perform – Workmen’s Compensation Ordinance (Cap.77) ss.2(1), 5(1) (b), 22 – Workmen’s Compensation Act 1923 (13 & 14 Geo. 5 c.42) (Imp.) s.7 – Workmen’s Compensation Act 1925 (15 & 16 Geo. 5, c.84) (Imp.) s.1(2).
65
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