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Fiji Islands - FLR Volume 33 - Digest & Index

THE FIJI LAW REPORTS

of cases decided in

THE FIJI COURT OF APPEAL
and

THE SUPREME COURT OF FIJI

1987

VOLUME 33

This Volume may be cited as “33 F.L.R.”

EDITOR:
THE HON. D.G. McGREGOR, ESQ., Q.C.
Former Judge of the Supreme Court of the Australian Capital Territory
and the Federal Court of Australia

PRICE:   $25.00

 

DIGEST AND INDEX	PAGE
AFFILIATION     Complainant a married woman – strong and clear evidence f non-access – inference from alleged father accepting child in his home – order made.     Aziz Ali v. Mehrul Nisha	34
BANKRUPTCY     Petition – proof of facts therein – affidavit of certification s.7(1)(a) may not be used – examination of authorities.     Ram Awadh & Sons v. Sablu	125
Receivership Order – made ex parte without proper proof of debt – set aside.  Observations on practice at undefended proceedings.     Ratu Osea Gavidi v. Mohammed Aziz Taiyab Khan	121
Alleged misconduct of official receiver – application for removal – basis for Court’s interference.     Lulu Buksh v. Official Receiver	144
CONSTITUTIONAL LAW     Constitution of Fiji s.3, s.14 – Aids to interpretation thereof – inconsistency – Debtors Act s.6 – actions (envisaged therein) excluded from ambit of s.6 – inconsistent with s.3, and s.14 of the Constitution – debts incurred by contract not “imposed by Law”.     Sundarjee Brothers Ltd. v. Geoffrey John Coulter	74
CONTRACT     Conditional contract – repudiation by tender – acceptance of repudiation – liability for damages –rket price.     Ram Jati Singh v. Letama Trading Co.	158
CRIMINAL LAW     Amendment from careless to dangerous driving – power including inherent jurisdiction to do so – no rule that corroboration necessary before convicting, even though known enmity between complainant and defendant – Appeal Court rarely interferes with trial Court on findings of facts.     Chandar Pal v. Reginam	52
Arrest on suspicion – suspected person detained – refusal to answer question – no charge but refusal to answer questions delayed arrested’s release – unacceptable proposition – Public emergency Regulations and Common Law provide arrest may not be made unless there is present a reasonable suspicion – refusal of co-operation did not justify continue detention.     Re Rosemary Gillespie	111
Arrest – suspect person detained not given statement in writing of grounds – not charged – no reasonable suspicion of criminality – insupportable reliance on the Public Emergency Regulations – Constitutional guarantee of personal freedom.     Re Nikhil Naidu	100
CRIMINAL LAW     Forgery and uttering charges – necessity for directions as to the use of evidence against one who aids and abets – clear direction on corroboration lacking – direction on identification needed but not given – convictions “unsafe” – new trial ordered.     Surendra Prakash v. Reginam	68
Grievous bodily harm – intent – self defence – consideration of proper directions to assessors therefore.     Ram Naresh v. Reginam	116
Rape – Confession – allegation of improper inducement – failure try issue on voir dire – confession admitted without ruling there as to admissibly – new trial.     Filimone Kaitavu v. Reginam	136
Larceny conviction – appeal grounds mainly procedural could not vitiate finding – Sentencing varied since appellant on bail 2 years with no further criminal activity and in employment.     Ajay Singh v. Reginam	1
Rape s.249 – factors to be regarded by Courts in imposing sentence.  Abduction contrary to Penal Code s.252 – inappropriate charge – “unnatural lust” in the context meant sodomy – no evidence of any intention thereof – substituted conviction for abduction. “unnatural lust” – meant in the context sodomy.     Jone Civatabua v. Reginam	86
EXECUTORS AND ADMINISTRATORS     Probate granted to son in 1971 estate left in will amongst five – assignments to defendant of share by three other beneficiaries – plaintiff retain one-fifth share-principal asset farming land – plaintiff, aware of rights, took no steps to enforce them – April 1982 plaintiff issued writ claiming account, new trustee distribution of the estate and damages for breach of trust – By lapse of time defendant placed in a situation in which it was not reasonable for him to be placed – had kept no separate accounts – order for accounts, new trustee, damages refused – distribution ordered having regard to value of the estate on date of death plus interest – total sum calculated – observations on effect of delay in asking for and acquiescence in failure to provide accounts.     Ambika Nand v. Brij Mohan	15
JUDICIAL REVIEW     Application by Attorney-General representing Public Service Commission – Review sought of decision of Public Service Appeals Board – excess of jurisdiction relied on – prima facie evidence of lack – objection raised on appeal against granting leave to apply for review not sustained.     Iniasi Tuberi v. The Attorney-General	30
Successful applicant deprived of costs – discretion of Judge – relying on extraneous matters procedural irregularity know before hearing – irrelevant to exercise of discretion – costs awarded.     R.B. Patel Ltd. v. J.P. BAJPAI & Co. Ltd.	92
LANDLORD AND TENANT     Summons for possession – where landlord is lessor, production of lease is sufficient to prove title – time allowed in Notice to Quit, having regard to clause in lease and Land Transfer Act s. 169 sufficient.  Refusal of adjournment a matter of discretion – no evidence that Court had acted on wrong principles.        Hira Bhai Patel v. Bryan Charles Watson	48
Summons by owner for possession pursuant to s.169 – defendant asserted (but did not offer evidence to prove) his mother was tenant, both being occupants – service of Notice to Quit on occupant sufficient even if not tenant – also asserted that Fair Rents Act applied – no evidence thereof – rent in arrears since 1979 – defendant failed to show cause – order for possession made.     Morris Hedstrom Limited v. Mohammed Rashid Khan	97
Crown Land – application for possession – application pending before agricultural Tribunal – interlocutory injunctions – principles applicable – mandatory injunctions.     Ram Pati v. Raj Kamal	165
MATRIMONIAL CAUSES     Petition for desertion – initial desertion established – thereafter evidence of attempt at reconciliation – refusal by deserted party to return may constitute him the deserter – habitual cruelty unlikely to be established by three assaults over several days.     Alka Ben v. Kishore Kanji Jogia	4
PRACTICE AND PROCEDURE     Motion to set aside judgment signed in default of appearance – claim of no personal liability – documentation produced by respondent (judgment creditor) indicative of appeal ant’s – appellant failed to discharged onus on him.     Navitalai Raqona v. Bhika Bhai Co. Ltd.	44
REAL PROPERTY     Application for possession – by respondent registered for title – holder – s.169.  Land Transfer Act – conflicting evidence as to, whether appellant had paid purchase money for land the subject of the application – contrary assertion – fraud not established – summary procedure permissible.     Darshan Singh v. Puran Singh	63
SUMMARY JUDGMENT APPLICATION     Defendant opposing – seeking leave to defend – inconsistencies, omissions in defence and counterclaim – counterclaim “shadowy” leave to defend granted subject to conditions – these included to paying $12,000 into Court within one month – in default whereof plaintiffs, subject to the proviso stated to have leave to sign judgment.     Demondaran Taman Mudaliar v. Grahame Wilson	56
WILLS     Proof of will – lack of alteration clause – no presumption of due execution – onus on party propounding the will.     Sohan Singh v. Bhan Mati	147

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