INDEX AND DIGEST
2003
MICHAEL
DISHINGTON SCOTT B.A. (Lond.)
Of Gray’s Inn, Judge of the High Court of Fiji
APPEAL
ARBITRATION
ASSESSORS
BAIL
BANKRUPTCY
BILLS OF SALE
COMPANY LAW
CONSTITUTION
CONTRACT
COURTS
CRIME: Defences
Offences
Procedure
CROWN PROCEEDINGS
CUSTOMS
DAMAGES
DEFAMATION
EMPLOYMENT
ESTATE
EVIDENCE: Civil
Criminal
FAMILY
IMMIGRATION
INCOME TAX
INSURANCE
INTERPRETATION
JUDICIAL REVIEW
LAND
LANDLORD &
TENANT
LEGAL PRACTITIONERS
LOCAL GOVERNMENT
MISCELLANEOUS: Court Martial
Exchange
Control
Legal
Aid
MONEYLENDERS
NTR (NOTHING TO
REPORT)
NATIVE LAND
NEGLIGENCE
PARTNERSHIP
PRACTICE: Civil
PUBLIC SERVICE
SENTENCE
TORTS: Miscellaneous
WORDS AND PHRASES
WORKERS
COMPENSATION
*************************************
FIJI COURT OF
APPEAL
2003
INDEX AND DIGEST
PARTIES SUBJECT DESCRIPTION FCA PAGE
NO. NO.
Air Pacific Ltd APPEAL Leave to appeal to Supreme Court 33/01 03/616
v.
Fiji Aviation granted-
two questions certified to be
Workers
Assn. of significant public importance (see
&
Anr. 2003/179
and FCA B.V. 04/801)
Anuradha Charan APPEAL Leave to appeal to the
Supreme 60/01 03/662
v. PSC Court
refused (see 03/270).
Baram Deo v. The APPEAL Leave to appeal to the
Supreme 15, 16/00 03/770
State; Shiu Chand Court refused.
v. The State
Chiman Lal APPEAL Application for stay
pending appeal 51/99 03/624
Jamandas & Ors v. to Supreme Court dismissed.
The Commissioner
of Inland Revenue
The Commander of APPEAL Leave
to appeal to the Supreme 2/03 03/709
The Republic of Court
from 03/609 granted.
Fiji Military
Forces
&
Anr v. The
Auditor General
Commissioner of APPEAL No disputed question of law or fact- 69/01 03/321
Inland Revenue applications
to settle theoretical
v. United Touring propositions
or general questions as to
(Fiji) Ltd how
facts should be assessed do not
raise questions of
significant public
importance- leave to appeal to
Supreme Court
refused.
Enele Cama v. APPEAL No arguable grounds of
appeal advanced 11/99 03/101
The State against
conviction for murder- leave to
appeal refused.
Grahame Bruce APPEAL Leave to appeal to the Supreme 61/99 03/107
Southwick
v. Court
granted (see FCA B.V.
04/618).
The State
Karnail Singh v. APPEAL Application for leave to appeal out of 41/03 03/675
Dhanraji Singh time
refused- observations on limited
extent to which alleged failure of legal
practitioner may assist a defaulting
assist a defaulting appellant.
Mool Chand v. APPEAL NTR 29/01 03/636
The State
Ramesh Chand APPEAL Appeal from the High Court
following 11/02 03/485
v. The State conviction
in the Magistrates’ Court
dismissed- no question of law raised.
Ratu Napolioni APPEAL Application for leave to
appeal out of 26/02 03/338
Dawai v. Ratu time-
inordinate delay- inadequate and
Isireli Namulo unsatisfactory
explanation- no affidavit
by alleged defaulting solicitor- prejudice
if leave granted- further delay not in the
public interest- leave refused.
Ratu Napolioni APPEAL The exercise of judicial
discretion in 26/02 03/645
Ragigia Dawai v. accordance with well established
Ratu Isireli principles
does not give rise to a question
Rokomatu Namulo of
significant public importance- leave
to appeal to Supreme Court refused.
Registrar of Titles
APPEAL Leave to appeal to Supreme Court 31/01 03/47
v. Sharda Prasad refused
– no question raised of
significant importance.
Rev. Akuila Yabaki APPEAL Application
for leave to appeal to 61/01 03/490
&
Ors v. The the
Supreme Court- questions posed
President of the either
unarguable, factual or moot-
Republic of Fiji no benefit
to be derived from further
appeal- application dismissed.
Trevor Robert APPEAL Applicability of Exchange Control 30/00 03/348
Gallagher & Anr Act
(Cap 211) to deeds of trust-
v.
Allan Charles certified
question of significant
Newham public
importance- leave granted to
appeal to Supreme Court.
Viliame Cavubati APPEAL Appeal by the State
against sentence 22/03 03/764
v. The State imposed
in the Magistrates’ Court- appeal
to Court of Appeal from High Court
allowing State’s appeal- State’s appeal
filed out of time- no application to
enlarge time for appealing- High Court’s
order a nullity- requirements governing
appeals to be strictly followed emphasised.
Wasawasa Fisheries COMPANY Registration
of companies- appeal against 44/02 03/220
Ltd v. Competitive LAW order
of reregistration- purported
Foods Australia unilateral
renunciation of share allotment
Ltd. void- whether deregistered company still
trading- whether just to restore to the
register – appeal dismissed.
Anjula Devi CONSTITUTION Murder- malice aforethought- for the 17/99 03/244
&
Anr v. The State purposes
of Section 202 (b) of the Penal
Code
the test of knowledge is subjective-
failure of trial judge clearly to explain
possible liability of first accused as
principal in the second degree- failure
clearly to explain distinction between
murder and manslaughter- failure
adequately to explain effect of lies told by
the accused- failure to grant adjournment to
allow accused to be legally represented-
appeal allowed-
convictions quashed-
retrial ordered.
Apaitia Seru
CONSTITUTION Nearly 5 years between charge and 41/99 03/279
&
Anr v. conviction- whether delay unreasonable
The State and
in breach of Section 29 (3) of the
1997
Constitution- failure to put defence
to the assessors- proviso inapplicable-
convictions quashed- no retrial.
Attorney-General CONSTITUTION The High Court’s jurisdiction to grant an 01/02 03/155
of Fiji v. injunction against the State on an application
Timoci Silatolu for
constitutional redress should only be
exercised when declaratory relief is
insufficient to ensure compliance- the
constitutional right to adequate legal aid in
the interests of justice is not limited by
financial constraints to which the Legal
Aid
Commission may be subject.
Baram Deo v. CONSTITUTION While dismissing appeals against 15/00 03/303
The State: Shiu conviction
the Court explained the
Chand v. The proper
approach which is to be taken
State to
alleged breaches of Section 27 of the
Constitution
(rights of arrested persons).
The Commander of CONSTITUTION Powers conferred on Auditor-General - 2/03 03/649
Fiji Military
Forces whether
restricted by Section 167 (1)
&
Anr v. The of the
Constitution- whether properly
Auditor General extended
by Section 6 (1) of the Audit
Act (Cap.
70) – whether extension
applies to Regimental and other funds
maintained by the Republic of Fiji
Military Forces.
NLTB & Anr. CONSTITUTION Expiry of native lease- award of 21/03 03/720
v. Ved Prakash compensation
for deprivation of
property set aside- proceedings irregular-
Section
40 of 1997 Constitution
inapplicable. Native Lands
(Leases
and Licences) Regulations (Cap. 134).
The Proceedings CONSTITUTION Distinction between interlocutory 24/03 03/740
Commissioner, and final
orders discussed- Bill of
Fiji Human Rights Rights-
entitlement of Proceedings
Commission
v. The Commissioner
to institute proceedings-
Commissioner of appeal
allowed- Human Rights
Police
& Anr. Commission Act
1998 Sections
34, 35 & 36.
Rev. Akuila CONSTITUTION The
Prime Minister is only liable to 61/01 03/51
Yabaki & Ors v. dismissal by the President if he has
The President of lost
the confidence of the House of
the Republic of Fiji Representatives
– a caretaker Prime
Minister
does not have to be a member
of the House of Representatives –
concept of mootness discussed –
Constitution
Sections 107, 108 & 109
– appeal dismissed.
Estate Management CONTRACT Undefended
summary judgment award 41/02 03/403
Service
Ltd v. partially set aside- issues of exchange
Sydney James Lee rate
losses and interest remitted to the
& Anr High
Court for determination- indemnity
costs awarded against the Appellant.
NBF Asset CONTRACT Deed for sale and purchase of
debt and 11/03 03/788
Management Bank securities-
failure of condition precedent
v. Turner Resorts -
appeal against summary judgment
International Co.
Ltd ordering
return of deposit dismissed.
Suva City Council COURTS Application
for further interim payment 55/03 03/682
Meli Tabu of
damages pending appeal- whether
Court
of Appeal has jurisdiction to award-
need to avoid overpayment stressed-
Court of Appeal Act Sections 13 & 20(1).
Sikeli Nayavusoata CRIME: Appeals against
conviction- appellants 27/01 03/499
&
Anr. v. DEFENCES plainly parties to the offence-
Penal Code
The State (Cap
17) Section 21- home invasion- no
physical injury inflicted- value of stolen
property small- sentence of 7 years
imprisonment reduced
to 5.
Anjula Devi CRIME: Murder- malice aforethought- for the 17/99 03/244
&
Anr v. The State OFFENCES purposes
of Section 202 (b) of the Penal
Code
the test of knowledge is subjective-
failure of trial judge
clearly to explain
possible liability of first accused as
principal in the second degree- failure
clearly to explain
distinction between
murder and manslaughter-
failure
adequately to explain effect
of lies told by
the accused- failure
to grant adjournment
to allow accused to
be legally represented
- appeal allowed- convictions quashed-
retrial ordered.
Apaitia Seru CRIME: Nearly 5 years between
charge and 41/99 03/279
&
Anr v. PROCEDURE conviction-
whether delay unreasonable
The State and
in breach of Section 29 (3) of the
1997
Constitution- failure to put defence
to the assessors- proviso inapplicable-
convictions quashed- no retrial.
Armogam & Ors CRIME: Cross
examination of accused as to 32/02 03/390
v. The State PROCEDURE character- leave of trial Judge
must
first be obtained- no notice of intention
to cross examine given to defence- CPC
Section
145 (f) (ii) - declaration that
witness is hostile- procedure and principles
explained- probative value
of lies- need for
specific lies to be
identified- summing up
inordinately lengthy-
convictions quashed,
retrial ordered.
Asaeli Lesu CRIME: Provocation-in the
absence of credible 3/02 03/1
v. The State PROCEDURE evidence capable of supporting a
finding
of provocation the issue should not be
left to the assessors - appeal against
conviction for murder dismissed.
Deep Sea Fishing CRIME: Illegal
fishing- forfeiture of fishing 30/03 03/776
Corporation Ltd PROCEDURE vessel- failure by Magistrates’ Court
v. The State to
consider application for forfeiture-
order for forfeiture by High Court set
aside- procedure for applications for
forfeiture explained- Fisheries
Act
(Cap. 158).
Henry
Ali v. CRIME: Provocation – no
direction on burden of 9/01 03/15
The State PROCEDURE proof – overly legalistic summing
up-
lengthy adjournments
during the course of
the trial– verdict
unsafe and unsatisfactory
– conviction quashed- retrial ordered.
Land Transport CRIME: Traffic
Offence – Traffic Infringement 50/02 03/31
Authority
v. PROCEDURE Notice – a prosecution may be
Ajay Singh conducted
by LTA officer – Land
Transport Act 1998 Section 9 (1) (c).
Lepani Maiwaqa CRIME: While allowing an appeal
and quashing 39/98 03/567
v. The State PROCEDURE the conviction the Court defined
the
model direction on the standard of proof
in criminal proceedings.
Navuniani Koroi CRIME: Section 222 (1) of the
Criminal Procedure 37/02 03/37
v. The State PROCEDURE Code (Cap. 21 – 1985 Edn – replaced by
CPC
(Amendment) Act 2003 – Section 8)
considered - appeal dismissed.
The
State v. CRIME: On an appeal against
conviction only the 49/02 03/530
Jogendar Singh PROCEDURE High
Court does not have power to quash
the sentence and to reverse a magistrate’s
decision not to commit for sentence.
– CPC
Section 319 (1).
Viliame Cavubati CRIME: Appeal by the State
against sentence 22/03 03/764
v. The State PROCEDURE imposed in the Magistrates’ Court-
appeal to Court of Appeal from High
Court
allowing State’s appeal- State’s
appeal filed out of time- no application
to enlarge time for appealing- High
Court’s
order a nullity- requirements
governing appeals to be strictly followed.
Attorney-General CROWN The
High Court’s jurisdiction to grant 01/02 03/155
of Fiji v. PROCEEDINGS an injunction against the State on an
Timoci Silatolu application
for constitutional redress
should only be exercised when declaratory
relief is insufficient to ensure compliance
–
the constitutional right to adequate legal
aid in the interests
of justice is not limited
by financial
constraints to which the Legal
Aid Commission may
be subject.
Attorney-General DAMAGES Personal injuries- awards of general 4/03 03/687
& Anr v. Aliana damages
reduced- proper approach to
Kotoiwasawasa multiplier
discussed- desirability of
& Anr presenting
actuarial evidence emphasised.
Plantation Village DAMAGES Permanent facial injuries- proper 7/03 03/573
Ltd & Ors v.
Guy approach
to assessment of general
Anderson damages
for personal injuries
discussed- general damages reduced.
Rohit Vikash & DAMAGES Order for variation of award of
47/03 03/679
Anr. v.Suruj interim damages
pending appeal.
Mati Prakash
Suva City Council DAMAGES Application
for further interim 55/03 03/682
v. Meli Tabu payment of
damages pending appeal-
whether Court of Appeal has