To'a v Napa'a [2008] TOSC 29; AM 14 of 2008 (12 September 2008)

IN THE SUPREME COURT OF TONGA
APPELLANT DIVISION

AM 14-2008

BETWEEN:

'AISEA TO'A
Appellant

AND:

TALIA'ULI NAPA'A
Respondent

BEFORE THE HON MR JUSTICE SHUSTER

Mr. S T FIFITA FOR THE APPELLANT
Mr. M KAUFUSI FOR THE RESPONDENT

JUDGMENT DELIVERED - 12th SEPTEMBER 2008

JUDGMENT

The Appellants appeal a decision of the Magistrate in civil case no. 161/07 in which the Magistrate made an order that the appellant was guilty and to pay $7,500.00 to the plaintiff as a result of his findings relating to a motor vehicle accident case - which occurred on 26/12/06 Records reveal a Notice of Appeal was filed on the 10th March 2008 signed by Mr. S T Fifita Lawyer for the Appellant. If this date is correct - then this would be an appeal dated 21 days prior to the determination of the case by the Learned Magistrate. I presume the correct date of Appeal to be 10th April 2008

THE FIVE GROUNDS OF APPEAL

The learned Magistrate erred in the fact he:-

1. Entertaining the claim and allowing prove of facts that was not pleaded in the claim
2. The pleadings did not allow fair chance for the defendants to know what he was going to meet with in court.
3. The plaintiff did not prove the licence plate (registration number) of the said vehicle in question
4. The finding of ownership of the vehicle was based upon hearsay evidence
5. The ownership of the said vehicle was on a deceased person and therefore the said vehicle is the property of the court (Supreme Court)

The case was listed for hearing on Friday 5th September 2008.

• The court record indicates the appellant was convicted of reckless driving in case number 1101/07 and fined $100.00 in default of payment 2 months imprisonment on 10/10/07. In addition to being ordered to pay the Respondent $7,500.00 the Magistrate ordered the appellant to pay $300.00 legal costs and $24.00 as court costs.
• I agree with the submission made by Mr Kaufusi that in respect of the first and second ground of appeal - the appellant would well know what allegation he faced in the Magistrates Court - because he had an accident in December 2006 and he was convicted on the 10/10/07- The first and second Grounds of Appeal are dismissed.
• Ground number three - the appellant alleged the plaintiff did not prove the licence or registration number - is also dismissed - because the ASCO repair assessment No. 1630 from Asco motors clearly indicates the Reg. No. L 9304 and was exhibited as Exhibit 1 in the Magistrate's Court.
• I accept the submissions made by Mr Kaufusi in relation to grounds no. 4 and 5 (That the finding of ownership of the vehicle in question was based upon hearsay and the ownership of the vehicle was that of a deceased person - and therefore the vehicle is the property of the Supreme Court) BECAUSE

The Learned Magistrate heard oral evidence that:-

• The plaintiff told the court that he was looking after Viliami Kapukapui's 'api. (vehicle)
• The plaintiff told the court the defendant Viliami gave the vehicle to the plaintiff - as a gift.
• In cross-examination the plaintiff told the court the vehicle was registered in the name of Viliame - but he had been given the vehicle as a gift.
• The defendant did not deny the accident in December 2006
• The Magistrate accepted the fact Viliami's wife had problems with her legs and that was why she did not attend court to give evidence in person.
• The respondents say - if that is what the records say then there can be no doubt the Magistrate accepted the evidence on the balance of probabilities and he made his decision accordingly

I agree with the Respondent - the case of Paila v Ma'u [2002] Tonga LR 114 - clearly says - that a Higher Court will only interfere with the factual findings of a lower court in the clearest of cases - for example - if the appellant court was able to conclude the Magistrate's decision was unsound - or that the Magistrate clearly came to the wrong conclusion.

I cannot say the Magistrate made any decision in this case which I should interfere with at this time. Accordingly this appeal is dismissed. I affirm the decision of the lower court. The appellant is to pay the costs of these proceedings - to be taxed by the Chief Registrar.

Shuster J
Judge of the Supreme Court