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Fiji Islands - FLR Volume 23 - Digest & Index |
THE FIJI LAW REPORT
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1977
VOLUME 23This volume may be cited as “23 F.L.R.”
EDITOR:
R.S. FRY, B.A. (Oxon)
Former Chief Registrar of the Supreme Court of Fiji
and the Fiji Court of Appeal
DIGEST AND INDEX
PAGE
COMPULSORY PURCHASE ORDER
Ultra vires – whether land sufficiently identified – whether power to acquire land outside boundary of Suva – whether order properly advertised – whether Council able to purchase land by agreement and on reasonable terms – whether consent of Subdivision of Land Board necessary prior to taking possession – whether breach of natural justice by Council in utilising only small proportion of land acquired – Suva Electricity Ordinance (Cap.106) s.3, 15 – Towns Ordinance (Cap.106) ss.132, 133 (1) (2), 136 (1) (2) – Crown Acquisition of Land Ordinance (Cap.119) ss. 3, 5, 6, 7 (1) (2) (4), 8, 10, 18 – Subdivision of Land Ordinance (Cap.118) ss. 3, 5, 6, 7, 9 (4) (5), 14 (2) (b), 17, 18 (1), 19 (1) – Land Transfer Act 1971 s.18 – Surveyors Ordinance (Cap.234) – Fiji Constitution Order 1966 s.6(2) – Transport Regulation Act 1958 (Victoria) s.31 – Public Works Act (N.Z.) 1928 s.1.
6
CONTRACT
Breach – whether failure on part of appellant to obtain building permit within a reasonable time entitled respondent to treat contract at end – whether frustration supervened because permit not so obtained – whether performance of contract illegal through absence of valid building permit – Town Building Regulations reg.12.
H.P. Kasabia Brothers Limited v. Reddy Construction Company Ltd.
235
Validity – transfer of possession of Crown Land without consent of Director of Lands – whether loan agreement made in consideration of such transfer tainted with illegality – whether lender able to recover repayment of loan on a promissory not – Crown Lands Ordinance (Cap.113) ss.13(1), 32.
127
COSTS
In discretion of trial judge – discretion must be exercised judicially – whether partially successful party entitled to costs as of right.
101
CRIMINAL LAW
Charge
Power to convict of offence not charged – allegation expressly or impliedly including allegation of lesser offence – robbery with violence – whether power to convict of assault occasioning actual bodily harm or merely of common assault – Penal Code (Cap.11) ss. 276, 277, 326(1) (a) – Criminal Procedure Code (Cap.14) s.163(1) – Larceny Act 1916 (6 & 7 Geo. 5 c.50) (Imp.) s.23(1)(b)(b).
165
Power to convict of offence not charged – right of accused to plead guilty to lesser offence than that charged – whether failure of magistrate to give accused right of election fatal where plea of guilty made under authority of Criminal Procedure Code s.198(A) – Penal Code (Cap.11) ss.2, 32, 149, 150, 171, 303, 316(b) – Criminal Procedure Code (Cap.14) ss.4(1), 163(1)(2).
276
Evidence and Proof
Accomplice – whether purchaser who illegally buys liquor per se paticeps criminis in respect of offence of illegally selling liquor – Liquor Ordinance (Cap.167) ss.76 (1)(a), 96 – Criminal Procedure Code (Cap.14) s.144A.
109
Breaking with intent to commit a felony – must be clear evidence of the intent to commit a specific felony – whether necessary to specify felony in charge – Penal Code (Cap.11) s.335(2) – Criminal Procedure Code (Cap.14) ss.120, 290(1), 323.
112
Corroboration – similar facts – sexual offences involving children evidence of other boys alleging similar offences against themselves – whether evidence of such similar incidents can amount to corroboration – whether evidence of each boy admissible to corroborate evidence of each other – Penal Code (Cap.11) s.170.
94
Liquor licensing – selling liquor without a licence – whether persuasive burden of proof on prosecution or defence to show accused holder of liquor licence – Liquor Ordinance (Cap.167) ss.76(1)(a), 96 – Criminal Procedure Code (Cap.14) s.144A.
109
Perusal by magistrate of record of earlier trial relating to same incident – conviction quashed.
177
Recent possession – accused stopped and searched coming from dock and found in possession of two saris similar to those stored therein – whether sufficient evidence to support finding that saris stolen – Penal Code (Cap.11) ss.291(2)(c), 304(b) – Customs Ordinance ss.33(1), 35.
168
Unsworn statement from dock – weight to be attached thereto – Criminal Procedure Code (Cap.14) ss.201(1) (2), 220, 275(20.
1
Murder
Causation – knife wound resulting in severe lacerations to back of victim – subsequent medical treatment – death over 3 weeks later through a respiratory infection caused by the wounds being infected with tetanus organisms at time of injury – whether death caused by original wounds – Penal Code (Solomon Islands) ss.192(1), 198(1), 200(a).
267
Practice and Procedure
Charge – power to convict of offence other than that charged – whether failure of magistrate to give Accused right of election fatal where plea of guilty made under authority of Criminal Procedure Code s.198(A) – Penal Code (Cap.11) ss.2, 32, 149, 150, 171, 303, 326(b) – Criminal Procedure Code (Cap.14) ss.41(a), 163(1) (2).
276
Road Traffic Offences
Driving without insurance – failure by driver to renew licence for 3 months – whether such failure invalidated insurance – whether covered for third party risks – Traffic Ordinance (Cap.152) s.23(1) – Motor Vehicles (Third Party Insurance) Ordinance (Cap.153) s.4(1) (20.
117
Sexual Offences
Unlawful carnal knowledge of girl under 16 years – indecent assault – reasonable cause to believe girl over 16 – Penal Code (Cap.11) ss. 148(1) (2) (3), 150 (1) (a).
70
CROWN LAND
Transfer of possession without consent of Director of Lands – whether loan agreement made in consideration of such transfer tainted with illegality – whether monies lent recoverable – Crown Lands Ordinance (Cap.113) ss. 13(1), 32.
127
DAMAGES
Assessment – motor vehicle accident – severe injuries to right hip – permanent loss of employment as bar manager – loss of prospective earnings – pain and suffering and loss of amenities.
193
Mortgagees advertised notice of sale when no legal right so to do existed – mortgagors in process of negotiating sale to third party – offer to purchase withdrawn – whether damages too remote – assessment of damages.
Pacific Realtors (Fiji) Limited. v. Mohammed Khairullah Khan & Others
103
Quantum – obligation to mitigate loss.
H.P. Kasabia Brothers Limited v. Reddy Construction Co. Ltd.
234
ESTOPPEL
Husband and wife – divorce – findings of magistrate in maintenance case does not create estoppel in a divorce suit – Matrimonial Causes Ordinance 1968 ss.57, 70(b).
86
HUSBAND AND WIFE
Divorce – evidence and proof – magistrate reasonably satisfied that evidence sufficient to show adultery committed – decree nisi recommended – whether sufficient evidence to support such recommendation – whether Supreme Court correct in deciding that allegation of adultery not proved – Matrimonial Causes Ordinance 1968 ss.57, 68, 70, 71, 91, 94.
77
INSURANCE
Licence to carry on business as insurance agent – refusal by Commissioner of Insurance to grant a licence – subsequent appeal to Minister of Finance – dismissal of appeal by Minister without the appellant being given opportunity to appear and present his case – whether breach of natural justice – Insurance Act 1976 ss.59, 60(1) (2).
282
Motor vehicle – indemnity – insurers denying liability become driver in breach of policy conditions – whether policy covers driver driving whiles disqualified – whether policy covers driver driving under the influence of alcohol – whether driver entitled to be indemnified by insurers – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 153) ss.4(1), 6, 9, 10, 11 – Road Traffic Act 1930 (20 & 21 Geo. 5, c.43) (Imp.).
180
LANDLORD AND TENANT
Notice to quit – subsequent acceptance of rent without prejudice to notice to quit – no operation as waiver of notice – Land Transfer Act 1971 s.169 – Property Law Act 1971 s.100(2) – Fair Rents Ordinance (Cap.241).
120
LIMITATION OF ACTIONS
Writ of execution – whether Limitation Act 1971 s.4(4) applies to a writ of execution when leave sought to issue after lapse of 12 years Rules of Supreme Court 1968 0.46 r.2 – Limitation Act 1971 ss.2, 4(4).
274
LIQUOR LICENSING
Restaurant licence authorising sale of liquor only if substantial meal consumed – sale of liquor unaccompanied by meal – whether innocent licensee vicariously liable for acts of barman – whether mens rea essential ingredient of offence – Liquor Ordinance (Cap.167) s.62.
124
Selling liquor without a licence – whether persuasive burden of proof on prosecution or defence to show accused holder of a liquor licence – Liquor Ordinance (Cap.167) ss.76(1)(a), 96 – Criminal Procedure Code (Cap.14) s. 144A.
109
MAGISTRATE
Bias – magistrate’s prior knowledge of accused’s character and antecedents – whether sufficient to disqualify him from hearing subsequent case – circumstances in which likelihood of bias.
172
Jurisdiction – binding over – procedure – Criminal Procedure Code (Cap.14) ss.33, 35(2), 37, 39, 40, 42, 43, 44 – Summary Jurisdiction Act 1879 (42 & 43 Vict., c.49) s.25 – Magistrates Courts Act 1952 (1`5 & 16 Geo. 6 & 1 Eliz., 2, c.55) s.91 – Justice of the Peace Act 1361.
73
Previous knowledge of accused’s character and antecedents having presided over earlier trial for similar offence – whether biased - whether estopped from hearing second case.
294
NATURAL JUSTICE
Insurance – licence to carry on business as insurance agent – refusal by Commissioner of Insurance to grant a licence – subsequent appeal to Minister of Finance – dismissal of appeal by Minister without the appellant being given opportunity to appear and present his case – whether breach of natural justice – Insurance Act 1976 ss.59, 60(1)(2), 61(1), 73(1)(3)(4)(5) – Immigration Act 1971 s.18(1) – Rules of the Supreme Court 1968 0.2, 0.55 rs.3(1), 6(3), 7(5).
282
PRACTICE AND PROCEDURE
Limitation of actions – writ of execution -= whether Limitation Act 1971 s.4(4) applies to a writ of execution where leave sought to issue after lapse of 12 years – Rules of Supreme Court 1968 0.46 r.2 – Limitation Act 1971 ss.2, 4.(4).
274
TRADE DISPUTES
Unlawfully breaking contract of service – whether contract of service breached – whether breach wilful – elements of offence – Trade Disputes Act 1973 ss.2, 3, 14, 16, 33 – Penal Code (Cap.11) s.10 – Contracts of Employment Act 1963.
Director of Public Prosecutions v. Gyanendra Naveen Prakash Singh & Others
135
Whether Trade Disputes Act 1973 in conflict with Fiji Independence Act 1970 and thus void – whether Order of Minister of Labour valid prohibiting continuance of strike and declaring it unlawful – particulars of offence must be stated – Trade Disputes Act 1973 ss.3, 4, 5, 6, 8, 9, 10, 11, 12, 14, 16, 17, 20(1), 33 (7), 37 – Fiji Independence Act 1970 ss.2, 3, 12, 13 – Interpretation Ordinance 1967 ss.2(1), 21, 22- Criminal Procedure Code (Cap.14) ss.120, 123(a)(iii), 123(a)(iv), 204(2), 292(4), 294(2), 323 – State Transport (Co-ordination) Act 1931 – 51 (N.S.W.) – Magistrates Courts Act 1952 (15 & 16 Geo. 6 and 1 Eliz. 2, c.55) (Imp.) s.100.
197
Whether Trade Disputes Act 1973 s.14 in conflict with Fiji Constitution ss.12, 13.
294
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