Singh v Land Transport Authority [2014] FJHC 13; HBA01.2013 (29 January 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Civil Action No: HBA 1 of 2013

BETWEEN:

SHAKUNTLA SINGH
of No. 41 Korotari Road, Labasa.
APPELLANT

AND:

LAND TRANSPORT AUTHORITY
a statutory body established under the Land Transport Act.
RESPONDENT

COUNSEL : Mr. S Sharma for the Appellant
Mr Adrien Ram with Mr Kelepi Racule for the Respondent

Date of Judgment : 29th January 2014

JUDGMENT

1. This is an appeal from the Lands Transport Authority Appeal Tribunal delivered on 1st of February 2013.
   
2. The Appellant had lodged an Application dated 24th June 2008 with the Respondent for three new Taxi permits. Pramod Enterprises Limited had objected issuing of the Taxi permits. The Respondent had rejected the said application for issue of new licenses on the basis that "the need is not established as existing operators are sufficient to cater for the need of the travelling public."
   
3. The Appellant lodged an appeal against the decision of the Respondent before the Land Transport Authority Appeal Tribunal (hereinafter referred to as the Appeal Tribunal) under section 45 of the Land Transport Act.
   
4. The Appeal Tribunal by its decision dated 1st February 2013 dismissed the appeal.
   
5. The Appellant had filed his grounds of Appeal on 1st March 2013 states:
   

"1. That the learned trial magistrate erred in law in not taking into account the letter of approval for base by Labasa Town Council and other supporting facts and documents which would have established the need for the public's and ensuring the passengers maintained or enhanced pursuant to section 5(1) of Public Service Vehicles Regulation 2000.

2. That the learned trial magistrate erred in law by admitting that whether the objectors buses providing 45 trips a day and 169 taxis justifies further issuance of new permits without ordering for a independent investigation to be carried out pursuant to section 5 (1) of Public Service Vehicles Regulation 2000.

3. That the learned trial magistrate erred in law by acting unfairly in failing to provide the appellant the right to verify the passenger load check report and in failing to afford an opportunity to the appellant/original application to make submissions on those reports and recommendations.

4. That the learned trail magistrate erred in law by failing to order for a independent passenger load check reports and taxi service route report to be prepared by respondent in presence of the appellant/original applicant before admitting such report.

5. That the learned trial magistrate erred in law by admitting the facts contained in the Affidavit of the respondent without disclosing the source and the findings of the tribunal were incapable of supporting the inference or inferences from which they were drawn.
   
6. That the learned trial magistrate erred in law by taking into consideration the bare facts contained in the Affidavits of Isoa Tawakevou and Edwin Chand and annexure attached to these affidavits which are not in accordance with Order 41 of the High Court Rules."
   
6. The said Appeal was taken up for hearing on 19th June 2013 and the Counsel for the parties made their oral and written submission.
   
7. At the outset of the hearing the learned counsel for the Appellant stated that he will rely only on arguable point of law contained in paragraph 3 to 6 of the Grounds of Appeal.
   

Section 48 of the Land Transport Act states:

"Section 48 A decision of the Tribunal shall be subject to an Appeal only on points of Law, to the High Court."

8. Pursuant to Section 48 of the Land Transport Act the right of Appeal is restricted to Point of Law only. In case of Fiji Bus Operators Association and Others v Land Transport Authority and Others (unreported) Case No. [2002] FJHC 33: HBA 00 1J. 202S (decided on 1st November 2002 the learned High Court Judge Singh cited the statement made by Lord Denning in Instrumatic Ltd v Supra Brase Limited [1969] 2 All E.R. 131 at page 132:
   

"There are many tribunals from which an appeal lies only on a 'point of law'; and we always interpret the provision widely and liberally. In most of the cases the tribunal finds the primary facts (which cannot be challenged on appeal); and the question at issue is what is the proper inference from those facts. In such cases, if a tribunal draws decision can be reviewed by the courts. That was settled, once and for all, in Edwards (Inspector of Taxes) v. Bairstow [1955] UKHL 3; 1955 3 All E.R. 48. In other cases the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises its discretion is a way which is plainly wrong, it errs on point of law, and its decision can be reviewed by the courts."

Lord Denning's statement elaborate on the tests to be applied to decide a point of Law:

(i) As to whether the Tribunal drew an inference, which cannot be reasonably drawn and such inference to be considered as the Tribunal erred in Law.

(ii) As to whether the Tribunal exercised its discretion rightly on the primary facts, if the exercise of discretion is plainly wrong on the primary facts to be considered as the Tribunal made error in Law.

9. The same principles were elaborated in Australian Case Wilson v Lowery [1993] NTCA 127; [1893] 110. F.L.R 142:
   

"The authorities have been conveniently summarized. We venture to repeat them:

1. In the process of arriving at an ultimate conclusion a trial judge goes though a number of stages. The first stage is to find the witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies. (emphasis mine)
   
2. Regardless of the trial judge's reason, if there is evidence which, if believed, would support the finding, there is no error of law.
   
3. If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute. There is an error of law.
   
4. But, a finding of fact cannot be disturbed on the basis that it is 'perverse', or 'against the evidence or the weight of the evidence or contrary to the overwhelming weight of the evidence'. Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v Leves (1987) 8 N.S.W.L.R. 442 at 479 – 470.
   
5. The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.
   
6. If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.
   
7. It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd . v Supabrase Ltd. [1969] I.W.L.R. 519 at 521; [1969] 2ALL E.R 131 at 132, Lord Denning MR, with whom Edmund Daies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v. Bairstow [1956] A.C.1."
   
10. The Appellant had appeal as to make submissions on 1 and 2 grounds of Appeal. As such this court has to consider 3, 4, 5 and 6 grounds of Appeal as stated in paragraphs 8 and 9 of this Judgment.
    
11. 3rd Ground of Appeal
    

"3. That the learned trial magistrate erred in law by acting unfairly in failing to provide the appealed the right to verify the passenger load check report and in failing to afford an opportunity the Appellant/original applicant to make submission on those reports and recommendation."

The above ground of Appeal is clearly a question of fact. This issue was addressed by the Tribunal in paragraph 4 and 5 of the Judgment.

"4. The Appellant appeal to file a written submission instead of an affidavit, where she challenged the averments in the Respondents affidavits claiming they are incorrect and false. At that time, I invited the respondent to file a supplementary affidavit as the tribunal wanted more details and information from the respondent which the respondent filed. The Appellant filed her response in affidavit for the supplementary affidavit of the respondent where she outlined some errors of the respondent's affidavits which I duly considered but find not materially affect to the main contention of this appeal.

5. At this point, I found that the Secretary of the Tribunal has not properly notified the objector for this application, wherefore I issued notice to the objector for this application. Parmod Enterprises who is the objector appeared on the notice and filed his affidavit of objection for which the appellant filed her response. However, only the Respondent filed written submission and both the appellant and the objector opted not to file."

On the above finding the Appellants submission was that the Tribunal have drawn inference which cannot reasonably drawn and erred on point of law as such the decision of the Tribunal can be reviewed. I find that in the said paragraph 4 and 5 of the decision, the Tribunal had taken into consideration all the facts before it and had made its findings. The tests stated in paragraphs 8 and 9 of this Judgment is properly applied. As such the Appellant's submission fails.

I further conclude that the Tribunal had exercised its discretion rightfully.

12. 4th Ground of Appeal

"4. That the learned trial magistrate erred in law by failing to order for a independent passenger load check reports and taxi service route report to be prepared by respondent in presence of the appellant/original applicant before admitting such report."

The Appeal Tribunal had considered the investigation report prepared by the Regional Manager
North of the Respondent and made its findings and correctly used its discretion. The Appeal Tribunal had afforded an opportunity to the Appellant to file an Affidavit which she didn't comply (paragraph 3 of the decision of the Tribunal). It is also the Tribunal's discretion to accept the said investigation report which dealt with facts.

It is important to note that the Respondent had made an Administrative decision and the Respondent had all the skills and knowledge of the issue. As such Appeal Tribunal will not interfere with the facts unless the Appellant had tendered material to the satisfaction of the Appeal Tribunal. In this case Appellant failed to do so.

The Appellant had submitted that Appeal Tribunal have drawn inference which cannot be drawn and erred on point of law, which does not carry merits. As stated in the paragraph 3 of the Decision, the Tribunal had considered the investigation report. By entertaining the presence of the objector, the Appeal Tribunal had not erred in law infact all parties were given an opportunity to present their case. The Appeal Tribunal had to limit its findings to decide on point of law considering all the material before it and by allowing the objector to participate in the proceedings no prejudice was caused to the Appellant.

The Appellant also challenged the methodology adopted to collect the data and it is certainly not a point of law to be considered by this court and there is no merit in the argument.

I agree with the Respondent's counsel the 3rd Ground of Appeal is a question of fact thus the Appellant fails.

13. 5th Ground of Appeal

"5. That the learned trial magistrate erred in law by admitting the facts contained in the Affidavit of the respondent without disclosing the source and the finding s of the tribunal were incapable of supporting the inference or inferences from which they were drawn."

The Appellant attempted to argue that the Appeal Tribunal erred in Law by admitting the facts in the Respondents affidavit without disclosing the source.

It is evident from the copy record (page 193) Isoa Tawakevou the Regional Manager Northern of the Respondent filed the affidavit dated 6th December 2010. The investigation report was marked as annexure "IT3" to the affidavit and the report was properly authenticated. The Appeal Tribunal preferred to rely on this report at its discretion.

As such I conclude the Appeal Tribunal made correct inference and the Appellant fails on this Grounds of Appeal.

14. 6th Ground of Appeal

"6. That the learned trial magistrate erred in law by taking into consideration the bare facts contained in the Affidavits of Isoa Tawakevou and Edwin Chand and annexure attached to these affidavits which are not in accordance with Order 41 of the High Court Rules."

The Appellant had not made any submission on this ground. I conclude that the Appeal Tribunal by considering on the Affidavits filed by Isoa Tawakevou and Edwin Chand (copy record 193 to 199 and 287 to 293) had not made error of law. It is pertinent to mention in paragraph 6 of the Appeal Tribunal Decision it was stated:

"6. Having considered the notice of appeal, the affidavits submitted by the Respondent and the Appellant and the objector, the written submission of the Respondent, I now proceed to pronounce my judgment in this appeal."

As such it is my finding the Appeal Tribunal had considered all the material submitted before making its decision.

It was also the finding of the Appeal Tribunal that there was no material defect on the affidavits and the Appellant failed to substantiate this Ground of Appeal and I conclude that the Appeal Tribunal had not made error on law and there are no merits on this ground of Appeal.

Accordingly, I make the following Orders:

(a) Appeal dismissed.

(b) Parties should bear in their own costs.

Chandrasiri Kotigalage
JUDGE

Delivered at Suva this 29th day of January, 2014.