JUDGMENT

The Magistrate who made the decision which is the subject matter of appeal did not hear the evidence but made the decision based on Notes of Evidence recorded by the previous Magistrate and written submissions filed.

In this situation the general rule whereby an Appellate Court would normally be slow to interfere with the findings of fact arrived at by a trial Judge by reason of having had the advantage of hearing the evidence, observing the demeanor of the witnesses, does not accordingly apply. This Court, in exercising its appellate jurisdiction in this appeal is accordingly in the same position as the Magistrate who made the decision on the facts in issue in this case.

First, some preliminary issues. At the outset of the hearing of this appeal I rejected the Appellant Counsel's oral application that the arguments in this appeal not be confined to liability by reason of the fact that the Memorandum of Appeal filed by the Appellant includes the issue of quantum. I also dismissed the Appellant Counsel's oral application for extension of time of 4 years 1 month and 18 days from 23.12.98 to appeal on quantum and the oral application for leave to amend the Notice of Appeal to in