Lingam v Chand [2001] FJHC 82; Hba0008j.2001s (18 October 2001)

Fiji Islands - Lingam v Chand - Pacific Law Materials

IN THE HIGH COURT OF FIpan>

At Suva

Appellate Jurisdiction

CIVIL APPEAL NO. 0008 OF 2001

Between:

RAM LINGAM

Appellant/Defendant

- and -

1">

SUKH CHAND

Respondent/Plaintiff

Mr. N. Shivam for the Appellant

<1"> Mr. G. O’ Driscoll for the Respondent

JUDGMENT

This is an appeal against tnst the judgment of the Magistrate Court, Suva in which the learneal magistrate awarded the rthe respondent the sum of $5,884.00 with costs to be taxed.

The original Statement of Claim averred that the plaintiffpondent) had paid the defendant (appellant) a sum of money oney for him to obtain visas and air tickets for the plaintiff and he had failed to `carry out his part of the agreement’ and `wrongfully continues to retain the payment of $5,884.00' and the plaintiff seeks to recover the money. T>Statement of Defence was a bare denial which the learned trial magistrate described as `...... lacking in any detail and hardly can be considered a defence’.&nbevertheless the trial proceproceeded.

The plaintiff gave evidence and produced a handwritten slip of paper (Ex.1) in which he had recorded details of the three separate (3) cash paymee had made to the defe defendant, two (2) in 1991 and one (1) in 1994, and totaling $5,884.00. The plaintiff’s wife then testified and produced her two b> Westpac tpac Savings Account Passbooks (Exs. 2 & 3) out of which the monies were withdrawn, and finally, the plaintiff’s daughter testified roduc A.N.Z. chb> cheque leaf (Ex.4) belonging to g to the defendant’s business and a handwritten note allegedly written by the defendant (Ex.5).

The defendant in his evidence in chief denied receiving the sum of $5,884.00 claimed by the plaintiff and although he accepted that the cheque (Ex.4) belonged to him, he denied the writing on its reverse was his. arly he denied seeing,&nbs, givor writing the nthe note (Ex.5). More particularl claimed tmed that : `1995 was first time I metntiffp; Before that I did not meet him’ and prnd presumably could not have received&nbsp the moniat the plaintiff ciff claimhad handed over to him in 1991 and 1994.

In his careful judgment the learned trial magistrate firstly sets out the evidence of the plaintiff’s witnesses and then the defendant’s evidence which he admirably summarised in the following sentence : `The defendant’s case is that no payment as alleged were paid to him and that he did not agree to arrange migration visa for the plaintiff.’

The learned trial magistrate then deals with aorrectly recorded date in the plaintiff’s handwritten note (Ex.1) which he accepts apts as `a genuine error’, and then quite properly warns himself that `withdrawal of money (from a passbook) is not itself evidence of payment to defendant’ moreso in the light of the defendant’s emphatic denials, and finally the learned trial magistrate concludes his judgment with the following critical `findings’ (at p.31 of the record):

`I find that the money was withdrawn from the Bank as piff and his wife allege and it was paid to the defendantndant.’

and later :

>

`I also find that this money was given to the defendant for him to obtain visa and to buy tickets.&nbhe defendant I findd failed to do this so he must refund the money.’

(My underlining)

Implicit in those findings is the clear preference of the learned trial maate for the evidence of the plaintiff’s witnesses includinguding a specific preference for the evidence of the plaintiff’s daughter concerning the cheque (Ex.4) and the handwritten note (Ex.5) which he describes as `...... a link - a connection between the plaintiff and the defendant’.

Needless to say given the nature of the evidence before the learned trial magistrate, the determination of ase came down to an assessmsessment of credibility and his worship’s specific findings referred to above, plainly indicates that the learned trial magistrate disbelieved the defendant’s sworn denials in favour of the plaintiff’s sworn assertions.

Given that this was a case where assessmf credibility was paramount and despite appellant counsel’s best efforts during the hearingaring of the appeal, I remain unconvinced that the learned trial magistrate’s assessment was either unsupported by the evidence or so unreasonable that this court should interfere with it.

Finally it is necessary to correct one misconception in appellant counsel’s submission to the effect that the credibility of a witness is indivisible, i.e. either his entire evidence is accepted or it is entirely rejected as untrustworthy. In this regard d only refe refer to observation of Moti Tikaram J. (as he then was) in Dayaram Sharma v. Northern Hotels Limited (1968) 14 F.L.R. 157 when his lordship said at p.159/160 :

`There is no rule of law that a witness credibility is indivisible.’

The appeal is accordingly dismissed withs which are summarily fixed in the sum of $250.00 (inclusive of the Magistrates Cour Court costs) to be paid within 14 days of the date hereof.

(D.V. Fatiaki)

JUDGE

At Suva,

18^th October, 2001.

HBA0008J.01S