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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL APPEAL NO. 1 OF 2003
(Labasa Mag. Ct. C.A. 496/97)
Between:
POST AND TELECOMMUNICATIONS LTD
Appellant/
Original 2nd Defendant
and
KRISHNA BROTHERS
Respondent/
Original Plaintiff
Mr. V. P. Ram for the Appellant
Mr. A. Sen for the Respondent
JUDGMENT
This is an appeal by the Post & Telecommunications Ltd (the ‘appellant’ the second defendant in the original action) against the ruling and decision of the learned Magistrate (Mr. Maika Nakora) delivered in this action on 20 August 2002 on a number of grounds more particularly stated in the Amended Grounds of Appeal filed herein on 23 September 2003.
Background history of case
The background history of the case is briefly as follows (as stated in Mr. Sen’s written submission p 1):
The further facts are that:
(a) appeal was listed for hearing on 25 March 2002 before Fatiaki J (as he then was). On that day since Mr. Ram was not ready, Court asked second defendant (appellant) to pay sum of $5100 in Court within 14 days, failing which the appeal would be dismissed.
(b) No deposit was made; on 12 April 2002 Notice of Discontinuance of Appeal was filed. On 26 April 2002 Pathik J dismissed the appeal and awarded $200 costs to the plaintiff.
(c) Then on 20 August 2002 the Magistrate delivered his judgment in the sum of $9000 inclusive of costs against both the defendants.
Summary of Grounds of Appeal
I have summarized the grounds of appeal as follows and I shall deal with them in that order:
Consideration of the Appeal
I have read the Record of the proceedings in this case and also the written submissions from both counsel.
In my 47 years in the law, it is a matter of great concern to see that what was a simple straightforward matter turned out to be so messy and confusing with a sheer waste of Court’s time. I feel hurt that so much of my time is being taken up in dealing with this kind of appeal which should never have seen the light of day had it been handled properly by all concerned. By reading the record and reading in between the lines there seem to be a lot of non-cooperation among all the ‘players’ in the situation that prevailed. When one sees in the papers before me allegations of bias and ill-motive, rightly or wrongly, against a judicial officer (the Magistrate), one wonders what is happening in the Northern Division of this country.
I should not be expected to ascertain where the fault lies and all I can say is that there should be a proper code of conduct governing legal practitioners if one expects dignity of the Courts to be maintained. Mud-slinging and insinuations either in Court documents or from the Bar table will not be and has not been tolerated by me. There must be mutual respect between the Bench and the Bar.
Dealing with grounds
Without wasting too much time and energy on the grounds, I shall very briefly deal with them.
Ground I
This ground deals with the transfer of this case.
I see no merit whatsoever on this ground after perusal of the Record and the Magistrate’s statements in this regard.
The Appeal Court will not be justified in interfering with the exercise of discretion by the Magistrate (lower Court) unless there is misapplication of the law, or the order is likely to lead to a miscarriage of justice (Evans v Bartlam [1937] A.C. 493.
In this connection I would refer to the judgment of Jordan C.J. in In re the Will of F.B. Gilbert (Deceased) wherein he refers to In re Ryan (1923) 23 S.R. 354 at 357 where it is stated:
“In this connection, however, I am of opinion that as was pointed out by this Court in In re Ryan (2), there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a somewhat different position”.
Ground 2
On the issue of bias, I see no proper basis for it. The Magistrate has given his reason for acting in the manner he did and this should be sufficient to explain the circumstances in which he dealt with the case.
From the Record I see no justification or reason to impute bias or any improper motive on the part of the Magistrate.
Imputations of this nature should not be lightly made. Perhaps I should state here as a reminder as to what is “bias” and how it is constituted by reference to extracts from some decided cases.
What is ‘bias’ and its significance has been clearly stated in the judgment of Lord Thankerton in Franklin v Minister of Town and Country Planning [1947] UKHL 3; (1948) AC 87 at p103 – 104 and it is worth bearing in mind. It is as follows:
“I could wish that the use of the word “bias” should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute”. (emphasis mine)
He goes on to say ibid:
“As Lord Cranworth L.C. says in Ranger v. Great Western Ry. Co (I): “A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other. In ordinary cases it is a just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent.”
On the point of test to be applied whether there is bias, I refer to the following quotation from the judgment of Charles J.A. in the Magistrates’ Court in Prahran v Murphy (1997) 2 V.R. (C.A.) 186 at 207 quoting from Webb v R [1994] HCA 30; (1994) 181 CLR 41, where Mason C.J. and McHugh J said at 47:
“When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.... The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of “fundamental importance” that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. (emphasis added)
Deane J. said, at 67-8, that:
In a series of recent cases, the Court has formulated the test to be applied in this country in determining whether a judicial officer (“a judge”) is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts “might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question” in issue....the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer.
This ground is also without merit. There was no need for the Magistrate to disqualify himself from hearing the case.
Ground 3
The adjournment in this case was refused by the Magistrate for the reasons he gave. The case was set down for hearing on the day that the appellant’s counsel made application for adjournment.
As I said earlier the Magistrate exercised his discretion in the matter. With the exercise of that discretion which this Court considers was properly exercised, the application for transfer was refused. Counsel appearing on behalf of his principal could have easily taken part in the hearing of the case had he been fully instructed. It is important that anyone instructed to appear for another counsel should be given proper instruction to argue the case if the need arises. Here counsel knew that the case was for hearing and yet he applies for adjournment without proper reasons. This practice should actually cease.
On the practice and procedure on application for adjournment I refer to the Court of Appeal case of Plastic Manufacturing (Fiji) Limited v Ice (Fiji) Limited 30 FLR 103 (1984) where the situation was similar to the present case. That case addressed itself to the principles to be applied generally to be considered by the Appellate Court.
There it was held:
“An Appellate Court has power to consider an appeal against the refusal of a Judge at first instance to grant an adjournment. Such an appeal is against the exercise of a discretion. Therefore the normal rules governing an appeal against such exercise must be applied. An Appellate Court will not interfere with the trial Judge’s decision unless the exercise of the discretion had caused injustice.”
This ground is also devoid of merits and it fails.
Grounds 4, 5 & 6
I shall deal with grounds 4, 5 & 6 together. They concern failure to find negligence, judgment against weight of evidence and contents of judgment.
At the outset on these grounds I refer to a number of decided cases which set out what the requirements and on the writing of judgment as far as Magistrate’s Court is concerned.
The first case is Mohammed Abdul Razak v Reginam 19 F.L.R 1 (1973) which was a dangerous driving case.
There it was held, inter alia, as follows:
A magistrate is not obliged to give his reasons for his acceptance or rejection of the evidence of any particular witness provided that the evidence in question is sufficient to establish the ingredients of the offence.
An appellate court will only in rare cases disturb the finding of fact of the court below. The appellant must show that the verdict was unreasonable or cannot be supported having regard to the evidence.
In that case the Magistrate made findings of fact. However in the present case I do not see any specific findings of facts nor was the evidence analyzed as required of a Magistrate.
All that the Magistrate said was that: “I have now carefully considered all the evidence presented before me and I am satisfied that the plaintiff has proved its case on the balance of probability”.
There is no proper evidence of how the sum of $5,100.00 for losses is made up. There is no documentary or supporting evidence of it. Similarly, there is no indication how the sum of $2000.00 has been allowed. Also there are no details of how the sum of $1900.00 being expenses in "air fares, hotel expenses etc”) is made up.
The second case I refer to is Chandar Pal v Reginam 20 FLR 1 (1974) which was a case of causing death by dangerous driving, it was held that “the Magistrate had failed to analyze the evidence and did not give his reasons nor explain in what manner the appellant’s driving was dangerous”.
In that case Grant Ag C.J at p4 of the judgment said:
“The trial Magistrate found that the appellant drove in a dangerous manner, but did not analyse the evidence, give his reasons, nor explain in what manner the appellant’s driving was dangerous; and in all the circumstances I have come to the conclusion that the evidence is too unsatisfactory to ground a conviction”
The passages cited above are quite pertinent and ought to be borne in mind in writing judgment of the Court.
In the present case there are no proper analysis of the evidence. There are no findings of fact. Merely saying “I am satisfied that the plaintiff has proved its case on the balance of probability” is not satisfactory enough.
Also, there are no reasons given. In this regard Grant Ag C.J. in Chandar Pal (supra) at 4 said:
“I would take the opportunity, as the judgment of the lower court in this case is a clear example, of drawing attention to what appears to be a trend on the part of some Magistrates to set out in a judgment a summary of the evidence of the witnesses in the order in which they were called regardless of the fact that this bears no relationship to the sequence of events which is the subject matter of the trial; and a tendency to omit reasons for the decision reached”. (emphasis added)
The Magistrate should not only formulate reasons for his conclusion but the judgment should be expressed accordingly (Pal’s case – supra P4).
Finally, on the giving of ‘reasons’ I cannot resist the temptation of quoting from Lord Denning from his book “The Road to Justice” (1955) at p29, as a clear guide to judicial officers when giving judgments. It is as follows:
“the judge must give his reasons for his decision: for, by so doing, he gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also that he has not taken extraneous considerations into account. It is of course true that his decision may be correct even though he should give no reason for it or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not only that a correct decision should be reached, but also that it should be seen to be based on reason; and that can only be seen, if the judge himself states his reasons”.
He goes on to say:
“Furthermore if his reasons are at fault, then they afford a basis on which the party aggrieved by his decision can appeal to a higher court. No judge is infallible, and every system of justice must provide for an appeal to a higher court to correct the errors of the judge below. The cry of Paul “I appeal unto Caesar” represents a deep-seated human response. But no appeal can properly be determined unless the appellate court knows the reasons for the decision of the lower court. For that purpose, if for no other, the judge who tries the case must give his reasons”.
(emphasis added)
The judgment in this case is most unsatisfactory as it did not fulfil the requirements of the contents of a judgment.
In these circumstances, I consider that I should not let the judgment stand and I will not be far out if I were to say that the judgment is against the weight of evidence.
I conclude on these grounds with the following passage from the judgment of Grant Ag C.J. in Pal’s case (supra) which is worth noting as to the contents of a judgment:
“As a general rule, the judgment should commence with a description of the charge, followed by the relevant events and the material evidence set out in correct sequence in narrative form, the identifying number of each pertinent witness being incorporated at the appropriate places, after which the Magistrate should state what witnesses he believes and whose evidence he accepts or rejects, and should proceed to make his findings of fact, apply the appropriate law to those facts, and give his reasoned decision; bearing in mind throughout the provisions of Section 154(1) of the Criminal Procedure Code” (emphasis added)
ORDER
For these reasons particularly in view of what I have stated on grounds 4, 5 and 6 I will allow the appeal.
It is therefore ordered as follows:
D. Pathik
Judge
At Labasa
27 April 2004
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