Singh v Ram [1979] FJSC 56; Civil Appeal 11 of 1979 (27 September 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Civil Appeal No. 11 of 1979

BETWEEN

HARDEO SINGH alias SURJAN
Appellant

AND

PARAS RAM s/o Ram Dutt
Respondent

Mr. B.C. Patel for Mr. A. Kuver, Counsel for the Appellant
Mr. M. Tappoo for Messrs. Vijai Chand & Co., Counsel for the Respondent

JUDGMENT

This is an appeal from the judgment of the magistrate in Sigatoka who found in favour of the respondent/plaintiff in respect of his claim for $204 from the appellant/defendant for tobacco sold and delivered.

The magistrate was not impressed by any of the witnesses who gave evidence before him and based his judgment almost entirely on a document produced by the plaintiff as evidence of a sale to the defendant.

The document has not been challenged by the appellant and both sides in fact say that it supports their version of what happened.

The document, Exhibit A, was drawn up and signed by the appellant and shows two columns of figures totalled to read 102lbs. and 80lbs. respectively. It is accepted that the two columns of figures represent two lots of tobacco. No price is shown on the document, although it seems to be agreed that the price should be $2 a pound, and there is no other writing to show whether either or both columns of figures represent sales or sale or return transactions. The document is a page in a book containing many entries all of which seem to show purchases or sales of some sort.

The respondent said the figures represented two sales of bundles of tobacco to the appellant. It does not appear from the record whether he was asked why, if the sales were made at the same time and at the same price they were shown as two lots, although he did say that the larger quantity was from tobacco left with him by a Fijian who was in his debt. He also said that the smaller quantity was sold first to the appellant, and then he showed the appellant the second lot and asked if he wanted to buy some of that. That might explain the two columns of figures shown on Exhibit A.

The appellant agreed that he purchased the 80lb. lot of tobacco for $2 a lb., but said that he only agreed to take the 102lbs. to try to sell it for the plaintiff.

He did, two months later, pay $160 in respect of the first lot of tobacco, but has never paid anything in respect of the 102lb. lot, in fact he returned it to the plaintiff about 15 months later. He never explained why, if he was only taking the 102lb. lot on a sale or return basis he did not put something on Exhibit A to show that the two transactions were separate and different.

It was argued that the fact there are two lots of figures shown on Exhibit A indicates that different conditions applied to the two lots of tobacco and was corroboration of what the defendant said in evidence.

However on balance I would accept the magistrate's view that the document, on the face of it, is evidence of a sale of the tobacco to the appellant, particularly since it was written out by the appellant himself who could quite simply have indicated that the two transactions were on different terms. I accept that this view is more probable than that put forward by the appellant and affords more corroboration for the version told by the respondent, than the version told by the appellant.

Although the magistrate put it rather differently I think that this is the way his finding can and should be explained, and must be the basis for his finding in favour of the respondent.

The appeal was on three grounds. The first ground was not proceeded with, not surprisingly since it was quite unsupported by the record.

The second ground was that the magistrate erred in holding that the oral evidence of the appellant was insufficient in rebut the documentary evidence produced by the respondent when such documentary evidence fully corroborated the appellant's evidence and cast at least some doubt on the respondent's evidence. There might be some basis for this argument if the document was taken by itself on the one hand and the appellant's evidence on the other. But if the matter is approached as I have already indicated, the argument fails.

The third ground of appeal is that the magistrate erred in treating the contents of Exhibit A as one transaction whereas the pleadings, evidence and the said exhibit itself clearly showed that they were meant to be two separate and distinct dealings. I do not consider that there is any merit in this ground of appeal. The magistrate's judgment clearly shows that he did consider the significance of the columns of figures shown on Exhibit A and could hardly have overlooked this when making his finding.

The appellant has shown no good reason for upsetting the magistrate's judgment and the appeal is dismissed with costs.

(Sgd.) G.O.L Dyke
JUDGE

LAUTOKA,
27th September, 1979.