Tatsuya v Miyamoto [2005] FJHC 619; HBA0012.2003 (13 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0012 OF 2003

BETWEEN:

HARADA TATSUYA
APPELLANT

AND:

KAZUO MIYAMOTO
RESPONDENT

Mr S. Maharaj for the Appellant
No appearance for the Respondent

Date of Hearing: 13 July 2005
Date of Judgment: 13 July 2005

ORAL JUDGMENT OF FINNIGAN J

I have heard today the submission of Mr Maharaj and have perused the record of this action in the Magistrates Court. I have read the judgment of the learned Magistrate. It reads very well, and is a determination of the issues between the parties solely on the facts and after evaluation of each as a witness.

Despite that, the judgment is flawed. The evidence was heard by two Magistrates. The first Magistrate heard the evidence in-chief of the Plaintiff and part of his cross-examination before adjourning the matter part-heard. The second Magistrate resumed the hearing by hearing a brief statement from the Plaintiff as evidence in-chief followed by resumption of the cross-examination. Mr Maharaj represented the Defendant and tells me he objected to the intrusion of the second Magistrate into a hearing that had been commenced before another.

The Magistrate’s assessment of the credibility of the Plaintiff is clearly based upon evidence that he did not hear. The record shows that some of the evidence he relied on was evidence heard by the other Magistrate. Even though his factual assessment of the equities of the claim and counter-claim depended almost entirely upon his disbelieving the Defendant [whom he did hear] he has nonetheless taken into account some evidence of the Plaintiff which he did not hear and clearly was not in a position to pronounce upon the credibility of the Plaintiff.

A re-hearing is inevitable. I cannot accede to Mr Maharaj’s submission that in my discretion I should dismiss the Plaintiff’s claim. The Plaintiff is entitled to a proper hearing.

The judgment is set aside as irregular. The matter is remitted to the Magistrate’s Court so that it can be properly heard. I assess costs summarily in favour of the Appellant at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
13 July 2005