Kumar v United Pacific (Fiji) Ltd [2003] FJHC 135; HBA0022J.2002S (17 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

ACTION NO. HBA0022J OF 2002S

BETWEEN:

VIJAY KUMAR
APPELLANT

AND:

UNITED PACIFIC (FIJI) LIMITED
RESPONDENT

Appellant In Person
Counsel for Respondent: Ms M. Mua, Messrs Khan & Co.

Date of Judgment: 17 September, 2003
Time of Judgment: 9.30 a.m.

JUDGMENT

This is an appeal from the Magistrates’ Court. The Respondent is in the business of manufacturing and selling stationery including plastic and paper bags. The Appellant is a Lautoka retail outlet that obtained its supplies from the Respondent. For goods supplied, the Appellant paid in both cash and cheque. The Respondent alleged that the Appellant has accumulated a total of $3,325-27 in debt for goods received. It sued the Respondent.

At the hearing, the learned Magistrate found in favour of the Appellant, except in respect of two Westpac cheques in the total amount of $768.98, which the Bank dishonoured. The Court found on the evidence before it that the payment had not been made good by the Appellant. The Appellant was ordered to pay $768.98 plus costs and interest.

The Appellant is In Person. He states his grounds of appeal thus:

“1. That learned Magistrate erred in law and in fact in finding that the Appellant was liable in the sum claimed by respondent or at all in view of the totality of the evidence.

2. The learned Magistrate erred in law and in fact in failing to evaluate or properly evaluate the evidence of the Defendant with respect to the cash payment in respect of the dishonoured cheque.
   
3. The learned Magistrate erred in law and in fact in failing to consider to properly consider the submission of the Defendant that the Plaintiff’s salesman was wholly to be blamed for non payment of the cash received by him to be paid to the respondent.”
   

The essence of the appeal in effect is that the learned Magistrate had not put enough emphasis or given weight to the Appellant’s evidence that the amount equivalent to the dishonoured cheques, had in fact been paid in cash to the Respondent, through its salesperson, one Krishna Sen. The Appellant had conceded that he had issued the two (2) dishonoured cheques exhibited in Court. Nevertheless he had, by agreement with the said Krishna Sen, paid by instalment in cash, to the latter, the amount equivalent to the two dishonoured cheques. No receipts were issued because Krishna Sen said that he did not have receipt books and at any rate the cheques were still in the Respondent’s possession. For whatever reason or reasons, the Appellant accepted the explanation given by the Respondent’s salesperson. The inevitable happened. The Respondent denied receiving any cash payment from its salesperson. The Appellant did however extract some concession from the Krishna Sen. According to the Appellant’s witness testimony, Mr Sen agreed to sign a book kept in the shop every time he received cash payment from the Appellant.

In his submission before this Court, the Appellant attempted to introduce into Court, a photocopy of a page from a register/book kept at his shop in Lautoka. It was intended to show entries proving the signature of the Respondent Krishna Sen as and when he received from the Appellant cash payments. The Court ruled against its introduction. Very clearly, such new evidence not having been produced at the hearing where the Appellant had the opportunity to do so, is inadmissible at this stage. It is of course at times necessary, in the interest of justice, for the Court to allow new evidence relative to the issue before it, be adduced. However, this is only in exceptional circumstances and provided that the Court is satisfied that such evidence could not have been and was not available to the party at the hearing in the Magistrates’ Court. In this case, the Records of the proceedings clearly show that the Appellant in the examination of his one witness, witness had made reference to the register/book in which Krishna Sen is alleged to have acknowledged receipts of cash payments, by his signature. That, the Appellant had not seen it fit to tender the document to the Court then, is unfortunate but to his own peril.

The learned Magistrate had had the opportunity to hear and see the Appellant and his witness as well as the witness for the Respondent. The competence and compellability of all the witnesses would have been weighed carefully by her before she deliberated and made her findings. On their evidence, the learned Magistrate believed and so found that the Appellant had not paid the Respondent the $768.98 representing the total in dishonoured cheques. This Court would be reluctant to disturb any finding of facts especially when adduced through oral examination.

The Court then invited the Appellant to make submissions on issues of law which he alleged were contravened by the learned Magistrate. He did not. I can well understand his predicament. For while the grounds of his appeal are framed in the most common form, implicating the learned Magistrate making errors of both law and facts, the substance of his submissions (both written and oral) focussed solely on the question of whether as a matter of fact, he had paid back in cash the debt owing for the dishonoured cheques. The only matter that may raise on an issue of law is on evidence, which I have already dealt with above.

Under the circumstances, I can find no merit in the Appellant’s submissions. The appeal is dismissed.

The judgment debt of $768.98 against the Appellant is affirmed with interest at 5% p.a. from date of judgment to the date of dismissal of the appeal. Costs of $95.50 in the Court below and $150.00 on appeal is awarded against the Appellant.

F. Jitoko
JUDGE

At Suva
17 September, 2003