Tarif v Hedstrom [1999] FJHC 43; Hba0003j.99s (4 June 1999)

Fiji Islands - Tarif v Hedstrom - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CIVIL APPEAL NO. 3 OF 1999
(Mag. Ct. Suva Civ. Case No. 330/98)

BETWEEN:

:

MOHAMMED TARIF
Appellant

AND:

Respondent

The Appellant in Pebson
Mr. Haroon Laon Lateef for the Respondent

JUDGMENT

The appellant (the plaintiff in the original action) has appealed against the judgment of the learngistrate, Ms Gwen Phillips lips given on 30 October 1998.

The judgment reads:

"The defendant's offer to settle at the lesser sum of $1,800.00 was generously repeated at the conclusion of the trial. This is the amount payable to the plaintiff for the meat supplied. Accordingly I enter judgment for the plaintiff in the sum of $1,800.00 inclusive of costs and interest.

Grounds of appeal

The appellant's Grounds of Appeal are to be found on pages 3 and 4 of the Record herein. They can be summarised as follows:

(a) That the finding was against the weight of evidence.

(b) That the Magistrate erred in law and in fact in holding that the appellant's evidence was not corroborated.

(c) That the Magistrate erred in law and in fact in accepting the evidence of only the respondent's witness as against the appellant's evidence of delivery note and the daily cattle killing record.

Background facts

The appellant who is a farmer alleges that he supplied the respondent, as ordered by it, (i) one only steer to M.H. Plus, (ii) two only steers to Super Fresh and (iii) one only bull to Suva Super Fresh at the agreed price of $1.68 per Kg for steer and $1.40 per Kg for bull both on 'dressed weight'.

He says that on 15 December 1997 he arranged with the Abattoir to kill and dress 3 steers and a bull. The dressed weight of steer was 1060 Kg and the rate of agreed price of $1.68 per Kg equalled $1780.20, and a bull dressed weight of 328 Kg at the rate of $1.40 per Kg equalled $459.20 making a total sum of $2239.40 which is the amount the appellant claimed in the writ.

The appellant further claims the sum of $40 for travelling 4 times to Suva to request for payment. He also claims interest on the said sum of $2239.40 at the rate of 13.5% from 15.12.97 to date of payment and costs.

The respondent in its Statement of Defence states that the meat inspectors of M.A.F.F. graded the cattle as "Working Bulls" and that it is agreeable to pay at the rate of $1.40 per Kg (at rate agreed for bull). It raised a cheque for the amount of $1800.00 in full payment but the appellant refused to accept it.

Determination of Appeal

In considering an appeal of this nature which required a review of the finding of facts by the trial court, I refer below to the headnote to the well-known case of BENMAX v AUSTIN MOTOR CO., LTD (1955) 1 All E.R. 32 (HL) which states the principles involved thus:

"An appellate court, on an appeal from a case tried before a judge alone, should not lightly differ from a finding of the trial judge on a question of fact, but a distinction in this respect must be drawn between the perception of facts and the evaluation of facts. Where there is no question of the credibility of witnesses, but the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge, and should form its own independent opinion, though it will give weight to the opinion of the trial judge."

Again on the principles involved in dealing with an appeal of this nature the following oft-quoted passage from the speech of LORD THANKERTON in WATT (OR THOMAS) v THOMAS [1947] 1 All E.R. 582 at 587 is pertinent:

"I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."

In a brief 'Ruling' ("Judgment") which aptly covered the essential points, the learned Magistrate found that the appellant had not discharged the onus of proof placed upon him. For the reasons given she accepted the testimony of the respondent's witness, who is better versed on the grading of meat than an the appellant (the only witness). The witness GRAHAM LAWRENCE BYRON (consultant to M.H. Meat Supermarket) who was for seven years previously General Manager of Fiji Meat Industry Board, makes it quite clear as to procedure in ascertaining whether the grading of meat is correct when he said:

"Once the meat certificate arrive from meat inspector we look at certificate make sure grading is correct. If in terms of Agreement with supplier we pay out. Here when the certificate arrived, showed to be one bull and three working bullocks. Agreement was for supply of three steers, and one bullock. .....The certificate said otherwise. Only way we can pay is after meat inspector certificate. Meat inspector have sole jurisdiction over grading. FMIB is solely service industry to meat industry in Fiji. Doesn't have jurisdiction to grant certificate. The meat inspectors who are employed by Ministry of Agriculture have sole jurisdiction. Here it is signed by Wara who is the senior Inspector at Nasinu Abattoir. Based on Wara's certificate we raised cheque for payment. He refused to accept ....."

As is abundantly clear from the evidence before the Court below and on Appeal the decision on the issue rested entirely on the credibility of witnesses. It was all a question of fact and who is to be believed. This being a civil action the onus of proof of course has to be of a civil standard, namely, on a balance of probabilities.

In the process of arriving at the conclusion to which the learned Magistrate did she found the preliminary facts which involved the evaluation of witnesses who gave conflicting accounts as to the facts. When the Magistrate prefers one account to another, that decision is a question of fact to be determined by her.

In the appeal, I heard the appellant and he repeated the evidence which he gave in the Court below. On that submission by the appellant I find there was evidence which supported the Magistrate's finding and hence there was no error of law or fact on her part.

On this appeal the appellant relies mainly on the documentary evidence i.e. the delivery docket. But the Magistrate relying on the evidence of the defence witness, which she was entitled to accept, came to the conclusion to which she did. This was the only conclusion which could reasonably be drawn hence there was no error in point of law or fact.

One other thing that has to be borne in mind is that the Magistrate had the advantage of seeing and hearing the witnesses whereas this Court has only the transcript of their evidence. And as Lord Reid said in Benmax (supra) at p.328 - 329:

"No one would seek to minimise the advantage enjoyed by the trial judge in determining any question whether a witness is, or is not, trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness."

From what I have said above I find that there is no merit in the grounds of appeal that the finding was against the weight of evidence and that there was no corroboration of the appellant's evidence.

I find however that there is an error in the learned Magistrate's calculation of the amount for which she gave judgment. She found that 'bull' was supplied and not 'steer'. The rate for bull is $1.40 per Kg and the total Kg supplied is 1388 which makes the total $1943.20. Therefore judgment amount should be increased by $143.20.

There is another error in the judgment. Since the appellant succeeded in his action he should have been awarded his costs inclusive of disbursement. The learned Magistrate included this item in the said sum of $1800. The appellant was entitled to disbursement (as endorsed in the writ) in the sum of $37.50 as well as travelling expenses (to attend case) which I fix at $50.00. The appellant is not entitled to interest as there was no agreement as to that with the respondent.

Therefore the amount to which the appellant was entitled to is $2030.70.

The appeal is partly allowed. The judgment amount is varied by substituting the judgment figure of $1800 with $2030.70 and judgment is ordered accordingly. In the circumstances of this case each party is ordered to bear his own costs of appeal.

D. Pathik
JUDGE

At Suva
4 June 1999

Hba0003j.99s