Tebara Transport Limited v Attorney-General of Fiji [1980] FJSC 1; Civil Appeal 002 of 1980 (1 January 1980)

Fiji Islands - Tebara Transport Limited v The Attorney-General of Fiji - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

Civil Appeal No. 2 of 1980

BETWEEN:

TEBARA TRANSPORT LIMITED
Appellant

AND:

THE ATTORNEY-GENERAL OF FIJI
Respondent

Mr HK NagK Nagin for the Appellant
Mr G Grimmett for the Respondent

JUDGMENT

This iappeal against the decisionision of the Magistrate's Court Suva dismissing the appellant’s claim for damages caused to his bus in a collision with the respondent’s truck and allowing the respondent’s counter-claim.

It seems to me that “the probative force of a conviction”, of which Lord Denning speaks, must largely depend on the quality of evidence which the criminal court accepted and upon which the conviction was based. In the present case, the appellant tried unsuccessfully to produce in evidence the record of the criminal proceedings. He had, he said, no authority to cite in support of his application. He was invited to renew his application during the proceedings, if he wished. He did not. As a result, the Magistrate trying the civil action had nothing before him to show the circumstances leading to the conviction of Nazir Mohammed, the driver of the defendant’s truck.

It is not known whether the driver was represented by counsel at the traffic prosecution, or how his defence was conducted. It is quite possible that the Attorney-General took little interest in that prosecution, but as the defendant named in the civil action has done all he can to protect the interests of the Crown. There is no way of knowing. All that can be seen from the record in this case is that Peni Ravai, an important witness, who gave evidence for the respondent in this action, did not give evidence on behalf of the driver Nazir Mohammed in the traffic prosecution. He was a passenger in the truck sitting next to the driver.

At the hearing of this action it was the appellant who was relying on the conviction of Nazir Mohammed as part of his case. It was for him to adduce whatever evidence he considered necessary for his case.

As Buckley L.J. said in the Stupple case–

“Many examples could be suggested of ways in which what occurred or did not occur in the criminal proceedings may have a bearing on the judge’s decision in the civil proceedings: but the judge’s duty in the civil proceedings is still to decide that case on the evidence adduced to him. He is not concerned with the evidence in the criminal proceedings except so far as it is reproduced in the evidence called before him, or is made evidence in the civil proceedings under the Civil Evidence Act, 1968, section 2, or is established before him in cross-examination.” (P.76)

Provisions of the Fiji Statute are substantially the same as those of the English Act.

The appellant does not complain of wrongful exclusion of any evidence. This Court, therefore, must confine itself to the evidence adduced before the learned Magistrate. On that evidence he made certain findings of fact, to which reference has been made earlier. Those findings clearly indicate that, applying the standard of proof in civil cases, the respondent had discharged the burden of showing that Nazir Mohammed had done all anyone could have, to avoid the accident and was not guilty of careless driving.

The appeal is dismissed with costs to be taxed in default of agreement.

G Mishra
JUDGE

Suva