Singh v Chhabildas Investment Ltd [1997] FJHC 232; Hba0020d.96l (19 September 1997)

IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HBA0020 1996L

BETWEEN:

PYARA SINGH
f/n Chanechal Singh
APPELLANT

AND:

CHHABILDAS INVESTMENT LTD
RESPONDENT

Mr M R Khan for the Appellant
Mr Prakash for the Respondent

Date of Hearing: 19th September 1997
Date of Ruling: 19th September 1997

RULING

This is an appeal against the learned Magistrate's decision of the Ba Magistrates Court on the 17th September 1996 when the Learned Magistrate Mr KATONIVUALIKU gave judgment for the Plaintiff (Respondent herein) against the defendant (Appellant herein) in the sum of $514.00 for services rendered plus costs.

On the 19th September 1997 I heard this appeal. I decided it on that day, giving all reasons ex temporai. Herewith are those reasons in written form.

As to grounds 1 and 2 of the Appeal, which were argued together, I do not hold the opinion that the amendments sought (and granted by the Learned Magistrate) were of such a nature as to be disallowed.

The Respondent had sued for the sum claimed, saying the liability for same arose on or about the dates particularised in the Statement of Claim. The particulars relative to the claim were originally stated before "good sold and delivered."

The Appellant filed his defence which was a blank denial together with a claim of non compliance with the Sale of Goods Act.

I note the latter limb of the defence failed to particularise what section of the Sale of Goods Act the Respondent was said to have failed to comply with.

On the 29th August 1996, when appearing at hearing, the Respondent sought to amend the particulars from "goods sold and delivered" to "Video Repairs Services rendered".

This was objected to on the grounds that an amended Statement of Claim should be filed.

The Learned Magistrate held that the amendment was minor and did not change the amount claimed. Nor I might add, did it alter the claim of liability for the amount. At best it could be said that its change the cosmetic in nature of the claim. His Worship allowed the amendment in full.

In my view the Learned Magistrate's decision was correct. Subject to some constraints, the presiding judicial person has a discretion as to whether to allow an amendment or not. As I read the record, the Learned Magistrate exercised his discretion quite properly and appropriately. The only objection from the Defendant was that the Plaintiff should file an amended Statement of Claim. This could hardly be said to be a serious objection given the circumstances.

Grounds 1 and 2 must fail.

On Ground 3, the Appellant claims that the Learned Trial Magistrate should have had before him 2 Invoices referred to in the evidence (and in the amended particulars of claim). As he did not do so, then, it is argued, the Learned Magistrate should have rejected the claim. Reference in this regard was also had to the Sales of Goods Act and in particular Section 6(1) thereof.

Unfortunately I an unable to see any link between Section 6(1) of the Sales of Goods Act and the Appellant's argument. Section 6 requires provision of invoices on a "credit sale". The matter before the Learned Magistrate was for services rendered and Section 6 has no application.

Further reference to the Sales of Goods Act was made in criticism of the Learned Magistrate for not deciding the issue as it related to the Sales of Goods Act. In my view His Worship did not have to. He decided the case on a credit issue wherein no legal point was raised as applies to the Sale of Goods Act. As I see it any reference to the Sales of Goods Act would have been superfluous to the Learned Magistrate's decision.

Counsel for the Appellant argued that the claim made by the Plaintiff required, as an essential element of proof, the tendering of the said invoices. I do not agree. The invoices were secondary evidence only. The Learned Magistrate accepted the Plaintiff's viva voce evidence that the Defendant gave instruction for the video repairs and thus held liability for the cost thereof. Although the invoices may have been helpful if tendered, I fail to see that they were an essential piece of evidence without which the Plaintiff's case would fail. Viva voce evidence of their existence and the circumstances surrounding the raising of the invoices was, in his view, sufficient for the Learned Trial Magistrate. As it stands, I do not see that he improperly exercised his discretion in making a finding of fact in the absence of the actual invoice.

Ground 3 must fail.

Ground 4 was not pursued as the record fails to support that any application for adjournment was made. It was submitted that the application for or adjournment followed from the amendment application to the Plaintiff's Statement of Claim.

Again, the amendment was a minor one which could hardly require an adjournment to get instructions. It seems that instructions were given and the Defendant amended accordingly (p.14 of the Record).

The power to grant or refuse an application for adjournment is an exercise in judicial discretion. On what appears from the Record, even if it did show that such an application was made, I fail to see that there would have been any improper exercise of that discretion by the Learned Magistrate. This case was a simple matter and it appears to have been properly dealt with.

The final ground (Ground 5) attacks the Learned Magistrate's findings of fact. Although not pleaded in the form usually found, the Appellant is saying that the Learned Magistrate made findings against the flow of evidence.

I cannot agree. The Learned Magistrate faced with a direct conflict of the evidence, found for the Plaintiff. He did not accept the Appellant as a credible witness and detailed areas within the evidence which he found supported his view.

The Learned Magistrate pointed to certain inconsistencies in the Appellant's evidence and he was further persuaded after observing the Appellant's demeanour and manner in the giving of his evidence.

Appeal Courts seldom interfere with such findings except in rare cases where the evidence is such that the lower court would have been seen to have been clearly wrong. It must always be remembered that the lower Court has the opportunity to observe the witnesses and thus get the "full flavour" of their evidence. This opportunity is not available to the Appellate Court.

On my reading of the Record, I can find no evidence which would support an argument that the Learned Trial Magistrate's findings as to credit were plainly wrong. His Worship had the witness there in front of him. He is entitled to make observation concerning each witness' creditworthiness. I see no reason to depart from his finding.

Overall the appeal is dismissed.

The Appellant is to pay the Respondent costs at $150-00 (ONE HUNDRED AND FIFTY DOLLARS).

D. LYONS
JUDGE

HBA0020D.96L