Bank of Baroda v Champaneri [2000] FJHC 110; Hba0020j.1999s (17 October 2000)

Fiji Islands - Bank of Baroda v Champaneri - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

CIVIL APPEAL NO. 0020 OF 1999

Between:

BANK OF BARODA

Appellant

- and -

MOHANLAL CHAMPANERI

: 1"> Respondent

Mr.G.P. Shankar and Mr. G.P. Lala for the Appellant

Mr. W. Clarke and Ms. R. Lal for the Respondent

JUDGMENT

This appeal concerns the judgment e Suva Magistrate Court awarding the respondent (the original plaintiff) liquidated ated damages for losses sustained by him as a result of his `enforced retirement’ from employment with the appellant bank (the original defendant).

Initially the appellant advanced eight < grounds of appeal (filed 13.5.99), but these were later reduced to six (6) grou grounds (filed on 6.9.99) and finally, on 20.10.99, an additional ground was added (with leave), challenging the jurisdiction of the Magistrate Court to try the claim.

At the hearing of the appeal Counsel for the appellant produced a written submission and orally addressed the Court on the jurisdictional question and grounds (2) & (5) only of the reduced grounds of appeal which reads:

`2. THAT the learned trial Magistrate was wrong in not holding that the rdent having accepted the retirement benefit was estopped fred from claiming that he was pre-maturely retired ; and

5. THAT the trial magte failed to fully and properly evaluate and assess the evidence ...’

As for the jurisdictional question counsel’s two-pronged submission was to the effect the plaintiff’s claim, on iton its face, sought a liquidated amount in excess of $16,000 (see : para.11 of the Statement of Claim) which is beyond the statutory maximum monetary limit of $15,000 prescribed in the Magistrate Courts (Civil Jurisdiction) Decree No.35 of 1988. Secondly, counsel submits that the action was commenced in the wrong division of the Magistrate’s Court namely Suva, instead of Ba.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> On both counts I cannot agree. As for the jurisdictional qon, it is plain that the plaintiff’s `nett claim’’ was for a liquidated sum of $10,398.17 and that was the sum awarded by the learned trial magistrate in her judgment, and, as for the second limb of the submission, both the plaintiff’s and the defendant’s address on the face of the Writ is stated to be `Suva in Fiji’ and, in any event, the wording of Section 21(2) of the Magistrate Court’s Act (Cap.14) appears to preclude such an objection being taken at such a late juncture as at the hearing of an appeal. There is no merit in either submission.

I turn next to consider ground (2) of the groof appeal (op.cit) which purports to raise an b>`estoppel’ against the plaintiff’s claim on the basis, that the plaintiff had neither categorically rejected the bank’s retirement notice, or the gratuity benefit paid to him by the defendant bank upon his retirement. I say `purports’ advisedly because the `White Book’ expressly provides at Order 18/8/3 that `estoppel must be specially pleaded, unless there is no opportunity to do so’.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In this regard counsel con that `estoppel’ was never pleaded or raised in the Statement of Defencefence which is also silent on both factual elements relied upon in support of the claimed estoppel. Furthermore the learned trial magistrate’s finding No.6 of her written reasons to the effect `... that the plaintiff was left no alternative in July 1995 but to accept payment accrued to him and retire ...’, tantamounts, in my view, to a clear rejection of any possible `estoppel’ arising in the circumstances prevailing between the parties in July 1995 when the plaintiff’s retirement occurred.

Needless to say the defendant bank plaielieved it was entitled to retire the plaintiff and the payment to him was his calculated eted entitlement upon retirement irrespective of whether his retirement was voluntary or not.

Furthermore, this ground of appeal was clearly addressed in the plaintiff’s re-examination when he said when qoned about the gratuity payy payment:

`I had no option. Bank not considering my request (for an extension) ... I guess whatever being paid to me, I would accept it. I didn’t waive my right, only acknowledged receiving this payment.’

This ground of appeal is accordingly dismissedan>

The third and final ground ofal which was addressed by appellant’s counsel complains that the learned trial magistrate `failed to fully and properly evaluate the evidence ...’.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In this regard it cannot be overlooked that, by any standards, the evidence led before the trial magistrate was easily assimilated comprising as it did, the plaintiff and his three (3) witnesses and a solitary witness called by the bank. There was also produced a number of largely undisputed correspondence that had been exchanged between the parties.

Whatsmore the learned trial magistrate was provided with comnsive written submissions from both sides which not only adly addressed the facts and the evidence but, very helpfully, identified the various issues or questions which the trial magistrate was asked to determine.

Viewed in that context, the learned trial magistrate’s Reasons forsion are entirely adequate in enumerating not only only her findings of material facts, but also, in disclosing her clear preference for the plaintiff’s version of the events leading up to his `enforced retirement’ and which the learned trial magistrate characterised as `... far more compelling and credible when compared to the defendant Bank’s only witness’.

In his submissions on a counsel sought to challenge several of the trial magistrate’s findings of fact as being `against the weight of admissible evidence ...’. Such a challenge can only succeed however, if it can be shown : `that there was no evidence on which the Magistrate could reach the conclusion which he did reach if he properly directed himself’ per Grant C.J. in Mohammed Abdul Razak v. R. 19 F.L.R. 1

at p.4.

Whatsmore in Kamchan Singh v. The Police 4 F.L.R. 69 Hyne C.J. in diing the appeal in that case case held :

`An appellate court will not allow an appeal on facts where the conclusion in the Court below is arrived at after careful consideration of the evidence, unless the conclusion arrived at was clearly and plainly wrong.’

and later in the same report his lordship held

`An appellate court will only in rare cases rb a finding of fact in the Court below based on verbal testimony and the Judge’s observatirvation as to the demeanour of witnesses.’

See : Mohammed Hakim Khan v. Dukh Bhanjan Sharma 4 F.L.R..L.R. 183.

In the present case after carefully considering the submissif counsel for the appellant, I remain unpersuaded that the the learned trial magistrate’s findings of fact are unsupported by the evidence or so `clearly and plainly wrong’ that the appeal must succeed.

This final ground of appeal is accordingly rejected and the entire appeal isissed with costs of the appeal awarded to the respondent, snt, summarily assessed at $300.00.

D.V. Fatiaki

JUDGE

At Suva,

17^th/sup> October, 2000.

HBA0020J.99S