Bower Travel Ltd v Taveuni Woo Il Pacific Company Ltd [1995] FJHC 32; Hba0012j.94s (10 February 1995)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CIVIL APPEAL NO. 0012 OF 1994

Between:

BOWER TRAVEL LIMITED
Appellant

- and -

TAVEUNI WOO IL PACIFIC COMPANY LIMITED
Respondent

Mr. F.G. Keil for Appellant
Mr. V. Kapadia for Respondent

JUDGMENT

This is an appeal against a ruling of the trial magistrate upholding a submission of no case in the following terms:

"I agree with the Defendant that no case (sic) of action has been disclosed in the evidence against the Defendant Company. I therefore hold that there is no case made out for Defendant to meet at.

I have no alternative in these circumstances except to dismiss the action of the Plaintiff with costs to Defendant."

The court record further records that immediately before the ruling the following occurred: at the end of the examination in chief of the plaintiff's only witness, counsel for the defendant made a 'no case submission', after which the plaintiff's counsel stated that he was not calling any more witnesses.

There is a dearth of local authority to guide the Magistrate Court as to the correct practice to be followed on a submission of 'no case' in a civil proceeding other than the provisions of Order 31 rule 4(a) of the Magistrate Courts Rules which provides:

"4. At the conclusion of the plaintiffs evidence,

(a) If the defendant decides to produce no evidence, oral or documentary, the plaintiff shall be at liberty to sum up his case; the defendant shall then be entitled to state his defence and reply generally."

Quite clearly in this case the trial magistrate failed to comply with the mandatory requirements of the above 'rule' in several respects, in not observing the proper 'order of speeches' and more particularly, in failing to ascertain from defence counsel his decision 'to produce no evidence'.

This latter requirement is clearly recognised in the speech of Lord Greene M.R. in Laurie v. Raglan Building Co. (1942) 1 K.B. 152 when he said in a negligence case at p.155:

"After the evidence for the plaintiff had been concluded ..., counsel for the defendant submitted that there was no case for him to answer. It is unfortunate, I think, that the learned judge did not follow the practice which ought to be followed in such cases, as has been quite clearly laid down in this Court, of refusing to rule on the submission unless counsel for the defendant said that he was going to call no evidence. That must be regarded as the proper practice to follow and it is to be found very lucidly set out, if I may say so, in the judgment of Goddard L.J. in Parry v. Aluminium Corporation (1940) W.N. 44, 46."

The learned author of Cross on Evidence (6th edn) sets out 2 considerations that justify this 'requirement' where he writes at p.166:

"In the first place, the judge has to determine the facts as well as the law, and he ought not to be asked to express an opinion on the evidence until it is complete ... Secondly, the parties might be put to extra expenses if the judge ruled in favour of the submission before the evidence was complete, for, if the Court of Appeal were to decide against his ruling, a new trial would be necessary so that the party who made the submission could call his evidence."

(See also the observation of the Court of Appeal in Alexander v. Rayson (1936) 1 K.B. 169 at 178 & 180)

Learned counsel for the respondent in support of the trial magistrate's ruling sought to conduct a minute examination of the appellant company's evidence at the trial in an attempt to expose its shortcomings and to challenge the credibility of the witness. Unfortunately nothing was recorded of these important matters by the trial magistrate (despite having been drawn to his attention) and, in the absence of the same or any reasons in the trial magistrate's ruling it would not be proper for this Court to attempt in this appeal to discover or justify what the trial magistrate has himself failed to disclose.

It is also noteworthy that the 'no case submission' was made without the appellant's witness being cross-examined and in the circumstances the trial magistrate was entitled to assume that the witness's evidence was accepted in its entirety.

As was said by Herschell L.C. in Browne v. Dunn (1893) 6 R. 67 at p.70:

"Now my Lords, I cannot help saying that it seems to me absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit."

Furthermore in upholding the objection of counsel for the respondent to the photocopies of the invoices sought to be produced by the appellant company's witness it is no where apparent that the trial magistrate considered the provisions of the Evidence Act (Cap. 41) in particular the provisions of Sections 3(2) and 5 which gives the Court a wide inclusionary discretion to admit documentary evidence 'notwithstanding that the maker of the statement is available but is not called as a witness' and 'notwithstanding that the original document is not produced if in lieu thereof there is produced a copy of the original document ...". (See: The judgment of the Fiji Court of Appeal in Shiri Shankara v. John Thoman Civil Appeal No. 53 of 1979).

Whatsmore given the nature of the appellant company's claim and evidence the non-production of the company's invoices cannot be considered in any way fatal to the success of its claim since "... an invoice is only evidence of a contract, and not a contract per se." (per Channell B. in Holding v. Elliot (1860) 120 R.R. 504, 508).

I propose to say no more about the evidence in this case given the orders that I propose to make.

The appeal is allowed with costs to the appellant. The matter is ordered to be returned to the Magistrate Court for a new trial of the action before another magistrate.

(D.V. Fatiaki)
JUDGE

At Suva,
10th February, 1995.

HBA0012J.94S