Mati v Prasad [2002] FJHC 272; HBA0011.2001 (5 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 0011 OF 2001

Between:

DEO MATI
Appellant

And:

JAGDISH PRASAD
Respondent

Mr. T. Fa for the Appellant
Respondent in Person

JUDGMENT

This is an appeal against the judgment of the Resident Magistrate, Nausori in which he awarded the respondent the sum of $3,000 plus costs.

The undisputed facts of the case are that the appellant was lawfully married to the respondent’s uncle in 1968 and they cohabited as husband and wife for 8 years until 1976 when they became estranged and since then have separated and lived apart. On the 1st February 2000 the respondent’s uncle died leaving the appellant the sole nominated beneficiary of the monies standing to his credit with the Fiji National Provident Fund, a sum in excess of $11,000.00 which has been paid out to the appellant.

It is common ground that the appellant contributed nothing towards her late husband’s funeral expenses which were all met by the respondent allegedly on a promise by the appellant to reimburse him the funeral expenses.

The respondent’s claim in the Magistrate Court was for `expenses incurred on (the appellant’s) behalf over the funeral and related expenses of (the appellant’s) husband ......’

The appellant for her part, whilst admitting being estranged from her husband in excess of `18 years before his death’ denied owing any money to the respondent or agreeing to reimburse him her late husband’s funeral expenses. In reply, the respondent avers that `...... $4,300.00 was spent upon instructions by the (appellant) that she would reimburse (him) after claiming the F.N.P.F. of her late husband.’

At the trial the respondent gave evidence in support of his claim and called two (2) witnesses. He also produced a letter from the Ministry of Health outlining the circumstances under which he uplifted his uncle’s body from the C.W.M. Hospital mortuary (Ex.3). Details of the funeral expenses incurred by the respondent in attending to his uncle’s funeral arrangements were also provided at the trial (Ex.5).

The appellant in her evidence denied any agreement or promise to reimburse the respondent for her late husband’s funeral expenses. She also called her daughter as a witness.

The trial magistrate in a short judgment upholding the larger part of the respondent’s claim, said (at p.33 of the record):

`(The appellant) admitted she did not contribute any money to her late husband’s funeral, and it is only fair, that she should at least show her husband that she cares for this death, otherwise she would be indebted to her late husband, until the end of time.’

No specific findings were made about the existence or otherwise of an agreement to reimburse the funeral expenses incurred by the respondent, nor was any finding made as to the credibility of the parties or their witnesses.

In the result, counsel for the appellant forcefully submits that `The judgment is about morality and not based on the evidence or relevant findings.’ Counsel was unable however, to assist the court as the question of whether or not a legal wife had a duty to bury her husband but conceded that : `strictly speaking the respondent should be reimbursed from the estate.’ I note however that neither the appellant or her counsel has challenged the amount awarded to the respondent.

In the absence of any specific findings the task of this Court is a difficult but not impossible one in so far as Order XXXVII Part VI rule 18 of the Magistrate Court Rules dealing with the powers of this court on an appeal from the Magistrates Court states (inter alia) :

`The appellate court may, ......, make any order necessary for determining the real question in controversy in the appeal, ......, and, generally shall have as full a jurisdiction over the whole proceedings as if the proceeding had been instituted and prosecuted in the appellate court as a court of first instance, and may rehear the whole case ......’

Furthermore counsel for the appellant accepted that it was `proper for the court to determine the case because the court has power to make its own findings on the record as it stands.’

In this regard I am further fortified by the words of Lord Halsbury in Riekmann v. Thierry (1896) 14 R.P.C.105 [ cited with approval in Benmax v. Austin Motor Co. Ltd. (1955) A.C.370 ], where his lordship said :

`The hearing upon appeal is a rehearing ...... Upon appeal from a judge where both fact and law are open to appeal, it seems to me that the appellate tribunal is bound to pronounce such judgment as in their view ought to have been pronounced in the Court from which the appeal proceeds ......’

In this regard without the benefit of oral testimony, I nevertheless unhesitatingly accept the respondent’s evidence concerning the appellant’s oral agreement or promise to reimburse him the funeral expenses incurred by him in attending to the cremation of the appellant’s late husband. In doing so I am mindful that this evidence is directly corroborated by the respondent’s witnesses in several material respects and the amount expended is not denied.

As for the appellant’s evidence that at the relevant time she was able to pay for the funeral expenses (at p.31 of the record), not only is this evidence contradicted by an averment in para.5 of the Statement of Defence filed personally by the appellant before the trial, but it is materially inconsistent with the recollection of the appellant’s daughter concerning the same conversation (at p.32 of the record) and which latter evidence is independantly and partially corroborated by the C.W.M. Hospital letter (Ex.5) which was not challenged.

Whatsmore in a case which is factually very similar to the present case albeit that the roles are reversed, namely Ambrose v. Kerrison (1851) 84 R.R.775 Jervis Ch.J. in words that are equally applicable to the present case, said at p.777/778 :

`...... the point for our consideration simply is, whether a husband living apart from his wife is liable to a third person for expenses incurred by him for the decent and suitable interment of his wife. There can be no question that an under-taker who performs a funeral may recover from the executor of the deceased (having assets) the reasonable and necessary expenses of such funeral, without any specific contract. ...... I think that the same reasons ...... casts at least an equal responsibility on the husband of a deceased wife, and, without any express authority or request on his part, compel him to recoup one who has performed the funeral. I see no difference in principal between the case of an undertaker and that of a third person who takes upon himself to employ and to pay the undertaker. If, therefore, the circumstances of this case would cast a duty on the husband to pay an undertaker, ...... which I think they do, ...... this plaintiff, though a volunteer, is equally entitled to maintain an action against the husband for the money paid.’

A fortiori in the present case where the appellant despite her twenty odd years estrangement from her late husband has received what might be described as a `windfall’ from his estate.

For the foregoing reasons this appeal is dismissed with costs which are summarily assessed at $100.00.

(D.V. Fatiaki)
JUDGE

At Suva,
5th February, 2002.