Tuiwainikai v Singh [2002] FJHC 222; HBA0001J.2002B (27 August 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0001 OF 2002

Between:

SAKEO TUIWAINIKAI
Appellant/
Original Defendant

and

JAGINDAR SINGH
s/o Malkit Singh
Respondent/
Original Plaintiff

Mr. A. Kohli for the Appellant
Mr. A. Sen for the Respondent

JUDGMENT

This is an appeal by the appellant against the judgment given by Resident Magistrate Mr. E. Rokoika at the Labasa Magistrate=s Court on 29 November 2000.

The grounds of appeal are that:

(a) the learned trial magistrate erred in law and in fact in failing to evaluate the evidence adduced in Court;

(b) the decision cannot be supported having regard to the evidence adduced in Court; and

(c) the learned Magistrate failed to give reasons for his decision.

In this action it was the respondent=s/original plaintiff=s claim against the
appellant/original defendant for the sum of $10,830.70 being the amount due and owing by the appellant in respect of bulldozing work done by the respondent on the appellant=s land at his request from 20 June 1993 to 1 December 1993 with interest thereon at the rate of 13% per annum.

In his Statement of Defence the appellant denied being indebted to the respondent in the sum claimed or at all. He further stated that the agreed price to carry out bulldozing works was $6,600 which he paid, namely, first, by payment of $5,000 through Fiji Development Bank and secondly, by payment of $1,600.00 himself. Thus he said that the Respondent has been paid in full.

Background facts

Very briefly, it is the respondent=s claim that, as agreed he did bulldozing work for the appellant on 15 acres of land at $400 per acre which amounted to $6600.00. An invoice was given for this work. The Fiji Development Bank paid $5000.00 towards the account.

The respondent was requested to do a further bulldozing work on 19 acres on the same date for which the appellant was responsible to pay. The additional work was done but not paid for by the appellant.

The claim is for the said balance sum of $1600 in the first contract and $7200 for 19 acres (19 x 400 = $7200). He also claims interest, and the total claim comes to, as in the claim, $10,830.70 (1600 + 7200 + 2030.30 interest).

Appellant=s evidence

The appellant says that he paid the said balance sum of $1600 the same day as he was issued with the invoice. He denied asking the respondent to do any additional work and therefore he does not owe him any money. He further said that he does not know >this man, but the bank appointed him to work for me=. In cross- examination he said that he did not ask for a receipt for the payment of $1600.00 nor did he give him one.

Consideration of the issue

In short there are two grounds of appeal. Firstly, the evidence has not been properly evaluated by the learned Magistrate; and secondly that without >reasons= being given the judgment is defective in form and not in accordance with what is required of a Magistrate in writing a judgment.

Having perused the Record and having heard both counsel I find that the grounds of appeal are devoid of merits.

This was a straight out case of who to believe. It is a case of credibility of witnesses. The Magistrate had the opportunity to observe the demeanour of the parties when they appeared before him which the appellate Court does not have. It was all a question of fact and the Magistrate found in favour of the plaintiff/respondent and gave judgment for him as claimed. As far as the first contract is claimed there is no dispute that work was done; the only dispute is about the balance of $1600 which the appellant says he paid but no receipt was either issued or asked for by the respondent. The other dispute is about the additional work. The respondent says it was done but the appellant says it was not and therefore the latter says he does not owe him any money.

The Magistrate made findings of fact with which the appellate Court will rarely interfere with unless of course, inter alia, the findings are completely against the weight of evidence. That definitely is not the case here. He has properly evaluated the evidence and has made certain findings of fact with which this Court agrees. I do not find fault with his fact finding. However, I do not agree with the award of interest which according to my calculation comes to $2030.30 which is included in the claim. There was no agreement for payment of interest in this contract. Hence it cannot be allowed. This amount will therefore have to be disallowed and the judgment is therefore ordered to be reduced by that sum accordingly.

Apart from the variation of the judgment by $2030.30 the appeal is therefore dismissed with costs against the appellant in the sum of $250.00.

D. Pathik
Judge

At Labasa
27 August 2002