Kamali v Raj [1996] FJHC 122; Hbc0442j.94s (27 June 1996)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC 0442 OF 1994

BETWEEN:

STEVEN KAMALI and ELENOA KAMALI
of Nayau Street, Samabula North,
Suva.
- Plaintiffs

AND

HEM RAJ
(s/o Mangru Prasad) of
Samabula North, Suva
- First Defendant

AND

A.K. SINGH
(f/n Surendra Singh)
of A.K. Singh & Associates
registered Bailiff of Suva
Second Defendant

T. Fa for Plaintiffs
No appearance for Defendants

Date of Hearing- 24th June 1996
Date of Judgment- 27th June 1996

JUDGMENT

In this case the Court is asked to assess damages following a Judgment by Default entered against the Defendants on the 31st of May 1995. A Summons for assessment of damages was issued and filed on the 8th of June 1995. This is the judgment of the Court following evidence given by the First Plaintiff on behalf of himself and the Second Plaintiff on the question of damages.

The present proceedings originated in an Interim Injunction granted ex-parte by Kepa J. on the 9th of September 1994 when His Lordship ordered that the Defendants be restrained from selling certain items that it was claimed had been wrongfully seized from premises at 66 Nayau Street, Samabula North on 8th of September 1994. His Lordship further ordered that the Defendants be restrained from entering or further trespassing at the Plaintiffs' home at 66 Nayau Street, Samabula North which they were renting from the First Defendant. Finally His Lordship ordered that the Defendants be restrained from evicting or attempting to evict the Plaintiffs and their families from their premises by increasing the rent without the lawful authority of the Prices and Incomes Board.

The Defendants had been served with a copy of Kepa J's order. In sworn evidence before me the First Plaintiff stated that on the 7th of September 1994 the Plaintiffs' solicitor wrote a letter to the First Defendant which, in so far as material, reads thus:

"RE: NOTICE OF DISTRESS FOR RENT

We act for Steven Kamali of 66 Nayau Street, Samabula North, Suva and have been instructed to address this letter to you.

Our instructions are that your bailiff Mr. A.K. Singh has levied a distress for rent in respect of the month of August, 1994. The rental has been paid to Prakash Estate Agency and enclosed are copies of receipts. We are informed that you are refusing to accept the September rent.

Take Notice that any further action against our client by you or your bailiff will result in injunction proceedings being issued against you."

Despite that letter on the 8th of September 1994 the Second-named Defendant who is now dead, as agent for the First Defendant nevertheless proceeded to seize and take away the following items from the Plaintiffs premises at 66 Nayau Street:

(a) 1 Shacklock refrigerator.

(b) 1 20" television set and video deck.

(c) 1 dining table and 4 chairs.

(d) 1 sideboard.

(e) 1 double bed.

(f) 1 Singer sewing machine.

On the 9th of September 1994 the Plaintiffs' solicitors wrote to the First-named Defendant in a letter, which omitting formal parts reads thus:

"RE: COURT INJUNCTION

We refer to our letter to you dated 7.9.94 which was copied to your bailiff Mr. A.K. Singh. In spite of our warning, you and your bailiff nevertheless proceeded to levy distress for rent which you knew had no legal basis.

We understand that you, Mr. A.K. Singh and the workmen trespassed into our clients property at 66 Nayau Street and therefrom unlawfully removed furniture and items that belong to Mr. & Mrs. Kamali some of which were still under bills of sale. We are instructed that you have ordered the return of the key to the house.

Today Mr. Justice Kepa of the Suva High Court issued injunction against you and your bailiff restraining you and Mr. A.K. Singh from further trespassing on our client's lease property. You have also being ordered not to sell the furniture you seized and to return same to 66 Nayau Street. The Court has also ordered that you be restrained from evicting our client by increasing the rent without PIB approval.

A sealed copy of the Court Orders will be served on you and Mr. A. K. Singh today. We suggest that you seek legal advice before you breach the Court Injunction that will make you liable for Contempt of Court which will result in your going to prison.

The sealed order of the Court will be served on you today."

I find that the original of that letter was served on the First Defendant on the same day. I also find that on the same day the First Defendant was personally served with a copy of the Order of Kepa J. of the 9th of September 1994 and that the Second Defendant could not be served until the 14th of September 1994 when service was effected at Kwong Tiy Plaza Suva.

The First Plaintiff in evidence before me stated that on the 25th of October 1994 the Second Defendant returned to the Plaintiff all the items except the television set and video deck but all of these were damaged to varying degrees and will require repair. Cost of this repair to the furniture according to a quotation from Fix Rite Upholstery will be $300.00.

The First Plaintiff deposed that the refrigerator had been scratched when it was returned and the cost of repair of this damage according to a quotation from Carpenters Motors is $310.00. The compressor of the refrigerator must also be repaired and the Plaintiff tendered a quotation from Burns Philp (Fiji) Limited for $295.00 as the cost of such repair.

The Plaintiff gave evidence that at the time the refrigerator was seized the Defendants unloaded its contents consisting of meat and vegetables valued at $199.24. The First Plaintiff also gave evidence that it will cost $1374.00 to replace the Plaintiff's television set and video deck and he tendered a quotation for this amount from Courts Mammoth Superstore.

According to Steven Kamali the reason why the Defendants wrongfully seized the Plaintiffs goods was to attempt to frighten them into paying higher rent. They had been paying $100.00 per month but according to Steven Kamali in evidence the First Defendant wanted $400 per month. I note that this is at variance from evidence given on affidavit by the Second-named Plaintiff on the 9th of September 1994 in her affidavit in support of the injunction subsequently granted by Kepa J.

In that affidavit Mrs. Kamali stated that the First Defendant wanted the rent increased to $250.00 per month. Whatever be the correct amount is immaterial for the purpose of the orders I intend to make in this case but before doing so, in view of the fact that the First Defendant did not appear before me on the hearing on the 24th of June, I must set out briefly the subsequent history of the matter as appears from the Court file.

The First Defendant was at all times represented by Mr. M.B. Patel of the firm of Patel, Sharma & Associates. On the 31st of July 1995 the First Defendant's solicitors issued a Notice of Motion with a supporting affidavit on behalf of the First Defendant to set aside the Judgment by Default. The parties appeared before Kepa J. on the 3rd of October 1995 when His Lordship gave the Plaintiffs leave to file an Affidavit in Reply to that of the First Defendant. Counsel for the parties Mr. T. Fa and Mr. M. Patel appeared before Mr. Justice Kepa on 27th October 1995 when His Lordship directed that the parties file written legal submissions within a period of 35 days. The judge adjourned the matter for mention before him on the 6th of December and that day it was adjourned to the 31st of January 1996. It came before me in chambers on the 19th of February 1996 and after some discussion between Mr. Fa and Mr. Patel I offered my opinion that the parties should try to settle the matter. I adjourned it for mention on 26th February and on that day it was adjourned further until 15th of May 1996.

On that day both Mr. Fa and Mr. Patel informed me that the matter could not be settled whereupon I gave the First Defendant leave to file an Affidavit in Reply to that of the Plaintiffs filed on the 2nd of October 1995, no later than 29th May 1996. I fixed the matter for hearing of argument on the question of whether the judgment should be set aside on the 19th of June. On that day only Mr. Fa appeared and informed me that Mr. M. Patel was no longer in practice as a solicitor in Fiji and was believed to have left the country. On the basis of that information I fixed the matter for hearing before me on the 24th of June, noting in the process that no affidavit had been filed on behalf of the First Defendant pursuant to my order of the 15th of May.

In evidence Steven Kamali stated that as a result of wrongful distress carried out by the Defendants the Plaintiffs and their families were not only deprived of the use of their furniture but were also forced to sleep on a mat provided by the First Plaintiff's mother on a cold cement floor. They were also forced to eat their food on the floor and had no where comfortable to sit in their flat as all their chairs had been removed by the Defendants. Also they were deprived of the use of their sewing machine which Steven Kamali stated his wife used primarily to repair damaged garments.

Mr. Kamali also said that they lost all the fruit and vegetables in the refrigerator because they had no place in which to store them after the refrigerator had been removed.

He also said that consequent on the seizure of the television set and video deck they have been continually deprived of any enjoyment this gives them. The Plaintiffs also claim, and I accept, that as a result of the Defendants' wrongful actions they were deprived for the period of 17 days of their constitutional right to leave in peace and without interference by the Defendants in the flat they were occupying.

I find as a fact that the Defendants knew all along that they were trespassing in the Plaintiffs' home and that their seizure of the items I have mentioned was unlawful. I also accept that the First-named Defendant directed this seizure in an attempt to harass or frighten the Plaintiffs into paying higher rent without determination of such rent by the Prices & Incomes Board.

Although the First-named Defendant was served with the Order of Kepa J. on the 9th of September 1994 he did nothing to obey that order until the 25th of September and to return the items seized, knowing, as I find he did, that the Plaintiffs' rent had been paid before the goods were seized.

The Plaintiffs' special damages amount to $2478.24 but the Plaintiffs also seek general damages for the inconvenience they were made to suffer as a result of having no furniture and beds and bedding in their flat. They also ask that the Court award them exemplary or punitive damages for the deliberate disobedience by the First Defendant to the Order of this Court of 9th September 1994.

I accept both claims and award the Plaintiffs $2000.00 general damages for the inconvenience I have just mentioned.

On the question of exemplary damages counsel for the Plaintiffs did not refer me to any authority but the obvious starting point must be Rookes v. Barnard [1964] UKHL 1; (1964) A.C. 1129 in which the House of Lords, through the speech of Lord Devlin, laid down that exemplary damages should only be awarded in two specific categories of case, unless they were expressly authorised by statute. These categories comprise, first cases of "oppressive, arbitrary or unconditional action by the servants of the government", which is not the case here, and, secondly cases in which "the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff" (1964) A.C. at p.1226.

That is the position in England but elsewhere, including Australia, New Zealand and Canada, exemplary damages survive as a mark of public censure against outrageous conduct. Thus in Uren v. John Fairfax & Sons Pty. Ltd. [1966] HCA 40; (1967) 117 CLR 118 at p.129 Taylor J. said that:

"Prior to Rookes v. Barnard (1) the law relating to exemplary damages both in England and in this country was that damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights."

The other Judges of the Court concurred in that statement.

As far as I know the Court of Appeal in Fiji has never had to decide whether the English or the broader Australian approach to this question should be followed. Nevertheless the English Courts have awarded exemplary damages in actions for wrongful eviction. Thus in Drane v. Evangelou and Others (1978) 1 WLR 455 the Court of Appeal upheld an award of £1000.00 exemplary damages for wrongful eviction of tenants from a furnished maisonette and did so on the basis of Lord Devlin's second category in Rookes v. Barnard (supra) at p.1227 when he said:

"This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object - perhaps some property which he covets - which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay."

At page 459 of the report in Drane v. Evangelou Lord Denning M.R. said:

"To my mind this category includes cases of unlawful eviction of a tenant. The landlord seeks to gain possession at the expense of the tenant - so as to keep or get a rent higher than that awarded by the rent tribunal - or to get possession from a tenant who is protected by the Rent Acts. So he resorts to harassing tactics. Such conduct can be punished now by the criminal law. But it can also be punished by the civil law by an award of exemplary damages."

Evidence in this case satisfies me that an award of punitive damages against the First Defendant is called for. Any person who deliberately defies an order of a Court must do so at his peril and must be prepared to take the consequences of his disobedience. In this case I consider an appropriate award under this heading is $2500.00. I therefore assess the damages of the Plaintiffs as follows:

Replacement of meat and vegetables - $199.24

Repairs to furniture - $300.00

Television set and video deck - $1374.00

Repainting refrigerator - $310.00

Repairing refrigerator - $295.00

Total - $2478.24

General damages - $2000.00

Exemplary damages - $2500.00

thus giving a total award of damages of $6978.24. In addition I order the First Defendant to pay the Plaintiffs' costs. There will be judgment accordingly.

JOHN E. BYRNE
J U D G E

Cases referred to in Judgment:

Drane v. Evangelou and Others (1978) 1 WLR 455.
Rookes v. Barnard [1964] UKHL 1; (1964) A.C. 1129.
Uren v. John Fairfax & Sons Pty. Ltd. [1966] HCA 40; (1967) 117 CLR 118.

No cases were referred to in argument.

HBC0442J.94S