Charan v Burns Philp (Fiji) Ltd [1998] FJHC 91; Hba0002r.98s (8 July 1998)

Fiji Islands - Charan v Burns Philp (Fiji) Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CIVIL APPEAL NO. 0002 OF 1998

BETWEEN:

:

1. SURESH CHARAN
2. ANURADHA CHARAN
Appellants/Plaintiffs

BURNS PHILP (FIJI) LTD.
Respondent/Defendant

Mr. G. Prasad for the Respondent

REASONS FOR JUDGMENT

On the 11th of June 1998 aftaring Mr. Suresh Charan and Mr. G. Prasad of > of counsel for the respondent, I dismissed the appeal and intimated then that I would deliver my reason later. These I now provide.

The background to the appeal may be briefly outlined. In December 1995 the respondent company entered into a hire purchase agreement with Shirleene Charan the daughter of the appellants. In February 1996 the respondent company entered into another hire purchase agreement with the second-named appellant Anuradha Charan. In neither agreement is the first-named appellant Suresh Charan either mentioned or named as a party. It is therefore difficult to understand how the 1st appellant is a proper plaintiff to this action.

For present purposes suffice it to say that owing to payment arrears (which the appellants dispute), on 2nd April 1997 the respondent company issued a 'Repossession Notice' demanding from the second appellant the return of the various items the subject matter of the above-mentioned hire purchase agreement.

A week later on 9th April, 1997 the appellants issued an endorsed Writ of Summons against the respondent company claiming an injunction to restrain the respondent company from seizing and removing the items listed in the Repossession Notice and damages for seizure. An interim injunction was granted ex-parte to the appellants on the same day and was extended thereafter on numerous occasions upon counsel's indication that the respondent company desired to file an affidavit in opposition.

Eventually on 16th September 1997 the respondent company through its solicitor filed a lengthy affidavit seeking the dissolution of the ex-parte injunction.

On 18th September 1997 the court record indicates that the 1st appellant who had appeared through-out the proceedings in the Magistrate Court 'for plaintiffs', sought time to file an affidavit in reply to the respondent company's above-mentioned affidavit. The appellants were given 14 days to file an affidavit and the case was adjourned.

When the case was next called on 16th October 1997 the first appellant asked that the case be adjourned for settlement, and failing which, time to file a proper Statement of Claim. Mr. G. Prasad who appeared for the respondent company is recorded to have said:

"There is matter of ex parte injunction yet to be dealt with and which defendant seeks a hearing date for dissolution."

Thereafter the trial magistrate fixed 5th November, 1997 as the date 'for hearing of the defendant's application for dissolution of injunction'. Liberty was reserved to the appellants to file a Statement of Claim and an affidavit in reply '... at least 7 days before (the) hearing (date)'.

By the 5th November 1997, seven (7) months after the injunction had been granted and seven (7) weeks after the appellants had received the respondent's affidavit, no affidavit in reply had been filed by the appellants and counsel for the respondent company proceeded to argue for the dissolution of the ex-parte injunction.

During the course of counsel's submissions, the court record indicates that the first appellant expressed his desire 'to call oral evidence' in which he would testify for his wife the second appellant, in her absence. The application was vigorously opposed by counsel for the respondent company.

The trial magistrate in a short decision refused the appellants' application to call oral evidence stating inter alia (at p.47 of the record):

"Application to give oral evidence is also denied. The plaintiff should have shown the same enthusiasm adopted when they sought the ex parte injunction by putting in the answering affidavit before the court, when ordered, then allowing the defendant to address new issues raised before the hearing this morning ... The plaintiff has been given more than ample opportunity to put evidence before court in affidavit form on his own application. He has not done so without my explanation as to why. No further evidence will be allowed. Hearing to continue. Court will only hear legal submissions this morning and will rely on all affidavits filed to date."

The first appellant immediately gave oral notice of his intention to appeal the trial magistrate's decision and the hearing of the respondent company's application continued.

During the course of the first appellant's reply to defence counsel's submissions he renewed his application to 'put further evidence before (the) Court' and upon the names of the second appellant and his daughter being called and they being absent, the first appellant again offered 'to take the stand myself since I made the payments'. The offer was again rejected and the first appellant continued with his submissions. The matter was then adjourned to 9th December 1997 for ruling.

on 8th December 1997 the appellants filed a written Notice of Appeal which effectively pre-empted the trial magistrate's decision. The injunction was ordered 'to continue till the appeal is finalised'.

The Notice of Appeal contains the following two (2) grounds:

'1. That the learned trial magistrate erred in law in not allowing the plaintiffs/appellants to adduce oral evidence on 7th November 1997 set for hearing of injunction, to material effect that the plaintiffs/appellants instalment were up-to-date, the Defendant/respondent was precluded from seizing the items on hire purchase agreement.

2. That the learned trial magistrate erred in law in failing to give proper consideration that the defendant/respondent took considerable time in responding to the plaintiffs affidavit evidence, the appellants were entitled to adduce oral evidence.'

Order XXVI r. V of the Magistrate Court Rules entitled 'Evidence in Interlocutory Proceedings' contains the following relevant sub-rules 22 & 23 which provides that:

'22. Oral evidence shall not be heard in support of any motion, unless by leave of the court';

and

'23. In addition to or in lieu of affidavits, the court may, if it thinks expedient, examine any witness viva voce, ...'

It is clear from the above sub-rules and conceded by the first appellant, that the trial magistrate had a discretion whether or not to allow him to call oral evidence at the hearing of the respondent's interlocutory application to dissolve the ex parte injunction. Accordingly, this is an appeal against the trial magistrate's exercise of a discretion.

In such an appeal it is trite, that the grounds on which an appellate court is entitled to interfere are necessarily limited. It cannot interfere simply because it considers that it would, if sitting at first instance, have reached a different conclusion. It can only interfere where it is clearly satisfied that the court at first instance had misdirected itself with regard to the principles in accordance with which the discretion had to be exercised; or where, in exercising its discretion, the court took into account irrelevant matters or failed to take into account relevant matters; or where, the decision is plainly wrong or 'Wednesbury unreasonable'.

The first appellant in arguing the appeal forcefully submitted that the oral evidence he had sought to lead before the trial magistrate, if allowed, would have proved that no arrears were in fact owed on the hire purchase accounts thus disentitling the respondent company from exercising any right it may have under the agreements to repossess the items. This evidence, the 1st appellant submits, he could have given personally since it was he, not the respondent's customers, the second appellant or their daughter, who had made the payments on the hire purchase account.

In support of his submission the 1st appellant attempted to demonstrate to the Court at the hearing of the appeal that the respondent company's own account (at p.34 of the record) did not support the amount that it claimed the 2nd appellant was in arrears by.

Counsel for the respondent company for his part and in opposing the appeal sought to demonstrate that the arrears inclusive of penalty interest for late payments; bank charges for a dishonoured cheque; and bailiffs fees on three (3) occasions, brought the total figure very close to that claimed in the respondent's Repossession Notice.

From the foregoing it is clear that there is a serious dispute between the appellants and the respondent company as to the amount of arrears (if any) that may be owed on the 2nd appellant's hire purchase account. Equally clearly, allowing the 1st appellant to give oral evidence would not have resolved the issue, as claimed by him, instead it would more likely have given rise to a further application on the respondent's part to call rebuttal evidence thus further prolonging the interlocutory proceedings.

Faced with such a prospect can it be said that the trial magistrate wrongly exercised her discretion in refusing the 1st appellant's application to call oral evidence? and would allowing the 1st appellant's application be 'expedient' in the sense of expediting the disposal of the interlocutory proceedings? On both counts, this Court was firmly of the view that the answer to both questions was a loud and emphatic 'No.!'. The appeal was accordingly dismissed.

D.V. Fatiaki
JUDGE

At Suva,
8th July, 1998.

Hba0002r.98s