Pacific Transport Company Ltd v Latchan Express Services Ltd [1997] FJHC 264; Hbc0494j.94s (10 December 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 494 OF 1994

Between

PACIFIC TRANSPORT COMPANY
LIMITED
Plaintiff

And

LATCHAN EXPRESS SERVICES
LIMITED
Defendant

Counsel: Mr. Lateef for Plaintiff
Mr. G.P. Shankar for the Defendant

JUDGMENT

The Plaintiff (the "Pacific") has issued a Writ of Summons against the defendant ("Latchan Ltd") claiming reliefs as follows:-

(a) an injunction to restrain Latchan Ltd its servants and/or agents from operating Road Service Licence 12/10/194.

(b) an account of all takings by Latchan Ltd on this route.

(c) Damages and

(d) Costs.

Background and Plaintiff's contention

The facts and background to the case are set out in the Pacific's Statement of Claim which are as follows:

1. The Plaintiff is a limited liability Company and amongst other things operates bus services under various Road Service Licences between Lautoka and Suva along the Queen's Road for upwards of 40 years.
   
2. The Defendant is a Limited Liability company and under its objects are to operate bus services but the Plaintiff is not aware whether it holds any Road Service Licence.
   
3. A company Tradewinds Taxis and Buses Limited (hereinafter "Tradewinds Taxis") was granted a Road Service Licence (R.S.L.) 12/10/94 by the Transport Control Board (T.C.B.) on the 7th February 1984 for a period of five (5) years to operate a bus (coach) service from Nadi Airport to Suva at 7.30 a.m. and a return trip from Suva to Nadi Airport at 5.00 p.m. daily.
   
4. The above trip was operated by the said Tradewinds Taxis and on the 1st March 1989 it was granted a renewal of the Road Service Licence for a further period of 10 years expiring on 2nd February 1999.
   
5. That in early 1990 Tradewinds Taxis made an application to the Transport Control Board to transfer the said Road Service Licence to one Sowane Tabukaunaca trading as "Sharmas Tours and Travel Service" but the Board refused the said application. Since then and until early 1994 no one operated the said trip.
   
6. In effect, the managing director Surendra Prasad emigrated to Australia in 1989 and his whereabouts was not known to the Board. His brother Vijendra Prasad ran the operation for a while before he left for New Zealand. As at December 1989 the company had only one bus with Current Certificate of Fitness and hence in no position to operate this route.
   
7. That on or about the 3rd March 1994, Surendra Prasad as Managing Director of Tradewinds Taxis applied to the Transport Control Board to appoint the Defendant company as its manager. Further at the same time it applied to the Transport Control Board to transfer the Road Service Licence to the Defendant.
   
8. Immediately on lodgment of the above application the defendant commenced to operate this service without any approval from the lawful body concerned.
   
9. That at its meeting on 25th May 1994 the Transport Control Board refused all application enumerated in paragraph 7 of this claim and informed all the parties concerned, including the Defendant by letters dated 31st May 1994.
   
10. That in addition, the Transport Control Board also wrote to Tradewinds Taxis and Buses Limited on the 31st May 1994 informing it that Road Service Licence 12/10/10/94 has been suspended until further notice and it required Tradewinds Taxis and Buses Limited to appear before it on the 29th June 1994 to show cause why the Road Service Licence should not be revoked or cancelled. That Surendra Prasad failed to turn up at the meeting.
    
11. That despite the suspension, the refusal of transfer of the Road Service Licence and refusal to allow the Defendant to manage Tradewinds Taxis and Buses Limited, the Defendant continued and continues to operate this service.
    
12. That the Transport Control Board wrote to the Defendant about the illegal operation and even complained to the Police but the Defendant continues to operate this trip.
    
13. The defendant filed an application for Judicial Review of the decision of the Transport Control Board and on the 15th September 1994 this Honourable Court gave leave to issue Certiorari and granted stay of the Transport Control Board's decision of 25th May 1994 in Judicial Review No. 17 of 1994.
    
14. The grant of the stay order and the leave to issue Certiorari does not in any way entitle the Defendant to operate the Road Service Licence 12/10/94 as it has been doing to-date.
    
15. As a result of this illegal operation by the Defendant, the Plaintiff has suffered loss and continues to suffer loss.
    

Agreed facts and issues

The agreed facts and issues as in the Minutes of the Pre-trial Conference are as hereunder:

1. Tradewinds Taxis & Buses Limited (the "Tradewinds") was granted a Road Service Licence (RSL) in 1984 for 5 years to operate bus service from Nadi Airport to Suva at 7.30 a.m. and from Suva to Nadi Airport at 5 p.m. daily.
   
2. On expiry the RSL was renewed to expire on 2nd February 1999.
   
3. In March 1994 Tradewinds applied to the Transport Control Board (TCB) to:-
   
   1. appoint the Defendant its manager; and
      
   2. to transfer the said RSL to the Defendant.
      
4. At its meeting on 25th May 1994 the TCB without formal hearing refused both applications and the Defendant and Tradewinds obtained an order in HBJ017 of 1994 ("J.R") to the effect that the decision of the TCB made on the 25th May 1994 be stayed until further order of the Court.
   

Issues

1. Is the Defendant entitled to operate this service either by itself or its buses hired by Tradewinds?
   
2. Can the buses be operated on this RSL because there is a stay order of the TCB's decision of 25th May 1994.
   
3. Can the buses be operated indefinitely on Tradewinds RSL without sanction and approval of the TCB.
   
4. Are the Defendant's chartered buses being operated by Tradewinds.
   

Defendant's contention

The defendant submits that the Plaintiff's action is misconceived in law and it is not entitled to an injunction against it as prayed. Mr. Shankar says that the road service licence to Tradewinds Taxis and Buses Ltd (the "Tradewinds"), has been granted under s65 of the Traffic Act and renewed under s70. It is entitled "as of legal and constitutional right to have buses operated under that licence by an agent or anyone else authorized by it because the operation is deemed in law the act" of Tradewinds.

Mr. Shankar further states that Tradewinds which owns the Licence should have been made a party to the action because the Road Service Licence (the "RSL") sought to be restrained from operation is the property of Tradewinds. The Latchan Ltd is operating as "agent or Managers and their buses have been chartered". He says that is "perfectly lawful arrangement". He argues that the Transport Control Board (the "TCB"), the authority granting the Licence, should also have been made a party.

Mr. Shankar submits that there was a proper application to TCB for the transfer of the Licence, but in breach of the principles of natural justice TCB refused the application and this became the subject of judicial review in action No. 17/94 and which said application is still pending before the Court. A stay order was made against it. The TCB is entitled to ask that Orders made against it be discharged.

The learned counsel further submits that the evidence from the Fiji National Provident Fund and VAT do not enhance the Plaintiff's case or establish anything against the defendant. He further argues that letters by TCB to Tradewinds or Surend Prasad or Commissioner of Police could not be used against Latchan Ltd because it is not their author nor is it a party to it nor the "addressee".

On locus standi of the plaintiff Mr. Shankar submits that Pacific's operation of buses does not entitle it to seek injunction to stop operation of Tradewinds which is operated by its Manager and agent with RSL granted to Tradewinds. He says that the Plaintiff can seek leave to become a party to the said Judicial Review or to put pressure on TCB to take steps in the matter. Finally, he submits that Tradewinds is being operated in accordance with the Time Table and in terms of the RSL and it is not encroaching on the Plaintiff's Time Table.

Mr. Shankar maintains that there is no cause of action against the Defendant.

Consideration of the issues

I have given due consideration to the written submissions of counsel. With the above background I shall now consider the issues in this case and in doing so I have to first of all examine the locus standi of the Plaintiff to institute these proceedings against the defendant.

Looking at the facts and arguments put forward by counsel, the question that raises its ugly head is 'What is the locus standi of the Plaintiff to bring this action against the defendant?' As I see it, there is none; and I agree whole-heartedly with Mr. Shankar in this regard. It would have made some sense if TCB and Tradewinds were also made a party. The latter two are directly concerned with the Licence in question; Latchan Ltd are like a 'third party' in the matter operating under the Licence pursuant to an alleged arrangement between Tradewinds and Latchan Ltd. In fact, if anything, Pacific should be directing its complaint to TCB for that is the body which could perhaps be sued if Pacific is entitled to do so under some section of the Traffic Act.

What the basis of this action is, it is not clear at all. The situation that prevails here leads me on to consider the 'doctrine of privity of contract'. There is no privity between the parties to this action. The doctrine as stated in Halsbury's Vol 9 4th Ed. para 329 is as follows and it is pertinent to bear it in mind in considering the issues before me:

"The doctrine of privity of contract is that, as a general rule, a contract cannot confer rights or impose obligations on strangers to it, that is persons who are not parties to it. The parties to a contract are those persons who reach agreement and whilst it may be clear in a simple case who those parties are, it may not be so obvious where there are several contracts, or several parties, or both, for example in the case of multilateral contracts; collateral contracts, irrevocable credits; contracts made on the basis of the memorandum and articles of a company; collective agreements; and contracts with unincorporated associations.

Despite some earlier doubts, the doctrine of privity has been accepted by the courts and would seem to be intimately connected with the doctrine of consideration and the rule that consideration must move from the promisee".

I agree with Mr. Shankar that just because Pacific is a bus operator it does not entitle it to seek injunction to stop operation of Tradewinds from running under the Licence which does not expire until 1999 and which is at present allegedly operated by its alleged Manager and Agent, namely, Latchan Ltd.

Both counsel made reference to Judicial Review No. 17/94 and at the time of writing this judgment I had already ordered written submissions from Counsel after I completed hearing it on 27 November 1997. That action is between Tradewinds Ltd and Latchan Ltd as plaintiffs and TCB as defendant. I think the issues (agreed) that I have to decide in the present action could very well be taken care of when I give judgment in the judicial review. Therefore depending on that decision Pacific could then decide what action, if any, should be taken.

Conclusion

In the outcome, I find that Pacific's locus standi is in grave doubts to institute the present action. The witnesses do not bolster the Plaintiff's case to enable the Court to consider the issues before it.

If the Road Service Licence is being operated unlawfully then it is TCB which should take the initiative to revoke it. It is TCB which should be up in arms about the alleged "illegal operation" and take steps to compel the offender to comply with the requirements of the law. In this case the question that has not been answered in the arguments put forward by Mr. Lateef is the Pacific's locus standi in bringing this action without joining TCB and Tradewinds (against which there is allegation of breach).

In these circumstances the matter of actually considering the issues does not arise as the Plaintiff has not passed the first base in that the action is misconceived and there is no cause of action against the defendant.

For these reasons the action is dismissed with costs to be taxed if not agreed.

D. Pathik
Judge

At Suva
10 December 1997

HBC0494J.94S