Pati v Prasad [1979] FJSC 73; Civil Appeal 6 of 1978 (5 April 1979)

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction

Labasa Civil Appeal No. 6 of 1978

BETWEEN

SURUJ PATI d/o Mahabir
(Appellant)

AND

KALIKA PRASAD s/o Adjodha Prasad
(Respondent)

Mr. V. Parmanandam for the Appellant
Mr. A. Singh for the Respondent

JUDGMENT

This is an appeal against the judgement of the Labasa Magistrate in which judgement was given for the Respondent for the sum of $156.68 and costs.

There are four grounds of appeal but it is only necessary to consider the first ground which is:

"That the learned magistrate erred in law in failing to consider the evidence of the 2nd defence witness."

The evidence presented to the learned magistrate was meagre. The Respondent's (plaintiff in the Court below) evidence was very brief and concluded his case. The Appellant gave no evidence herself but called her husband whose evidence also was brief. One Latchman, a gang sirdar, who is the 2nd defence witness referred to in ground 1 of the appeal, also gave evidence.

The learned magistrate's judgment is a short one. He states in his judgment that he prefers the case of the plaintiff and that the defendant's husband was evasive. He comments on the fact that there was no evidence from the defendant herself.

There is no mention in the learned magistrate's judgment of Latchman or the evidence he gave. If he did consider Latchman's evidence he has not said so in his judgment.

Latchman's evidence while very brief was relevant. He said the cane cutting bonus in the gang in which the plaintiff worked was $2.00 a ton. The plaintiff’s case was that the bonus was $3.00 a ton. If Latchman was believed by the learned magistrate this evidence would have raised doubt as to the credibility of the plaintiff and would in any event have reduced the plaintiff’s claim by a little over $77.

This Court is in no position to decide the issues between the parties and either confirm or vary the judgment. Latchman's evidence was relevant and from the Record it does not appear the learned magistrate considered his evidence.

The amount involved is a small sum but I can see no way but to order a re-hearing.

The judgment is set aside and it is ordered that the action be reheard before another magistrate. The costs of this appeal are to be costs in the cause with this proviso that if on the re-hearing it is held that the agreed bonus was $2.00 a ton and not $3.00 as claimed by the respondent the appellant is to have the cost of this appeal in any event.

(R.G. Kermode)
JUDGE

Suva,
5th April, 1979.