Khan v Horizon Travel Ltd [2001] FJHC 81; Hba0014j.2001s (17 October 2001)

Fiji Islands - Khan v Horizon Travel Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

CIVIL APPEAL NO. 0014 OF 2001

Between:

&nbB>

BASHIR KHAN

Appellant/Defendant

- and -

HORIZON TRAVEL LTD.

Respondent/Plaintiff

Mr. R.P. Singh for the Appellant

1"> Mr. M. Raza for the Respondent

JUDGMENT

: 1">

This is an appeal against the judgment of the Magistrate Couuva in which the plaintiff company (respondent) was awas awarded the sum of $2,800 being the purchase price of airline tickets supplied by the plaintiff company purportedly at the defendant’s request.

I say `purportedly’ because the defendant (appellant) in his Sent of Defence denied owing the plaintiff company aany any money or placing any order or request for the plaintiff company to supply airline tickets. It is not denied however that airline tickets were in fact supplied by the plaintiff company.

At the trial of the action the man director of the plaintiff company testified on oath and produced several documentary exhibexhibits including a Westpac Cheque (Ex.1) made payable to the plaintiff company and co-signed by the defendant for the sum of $2,800 and which cheque had been returned unpaid from Habib Bank with a debit advice (Ex.2).

In his evidence the managing director testified that he had personally dealt the defendant only and had received the cheque in questionstion from him. Furthermore he raise plainplaintiff company’s invoice (Ex.3) in the name of Vanua Levu Muslim League at the defendant’s request. In wn words : `I dikI diknow anyone else from Vanua Levu Muslim League except Bashir Khan who I dealt with.’ and a little later in his evidence :nce : `Invoice was raised in name of Vanua Levu Muslim League asked by Bashir Khan. I knew no one except Bashir Khan.’

n> The defendant who at thevant time was the President of the Vanua Levu Muslim League, also testified fied on oath. He accepted that he wao-sico-signatory to the cheque in question and had delivered it personally to the plaintiff company and later came to know that d been dishonoured. He was adamhroughout his ehis evidence however, that he was not personally responsible for the amount, rather, it was an organisation called the Vanua Levu Muslim League that was liable to pay the plaintiff company since, it was the drawer of the cheque in question, and also being the entity named in the plaintiff company’s relevant invoice.

Needless to say this aspect of ppellant’s defence only came to light during the course of the trial. It was never dier disclos d in the Statement of Defence as it should have been, moreso as it would have been obvious on the face of the Writ that the defendant was sued personally and not in any representativtative capacity.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Be that as it may the learned trial magistrate was plainly confronted with two (2) icting versions of the even events in question, on the one hand, there was the managing director of the plaintiff company testi to the effeceffect that the defendant had personally entered into a contract for the supply of air tickets which were subsequentilised and, on the other hand, the defendant claiming te had entered ined intd into the contract in his capacity as President (and agent) of the Vanua Levu Muslim League.

I accept at once that there is no specific finding in the judgment as to the particulaacity in which the appellanellant had entered into the contract for the purchase of the airline ticket(s) from the plaintiff company, instead, the learned trial magistrate determined the case entirely on her assessment of the parties credibility.

In this latter regard she said in her judgment b> p.27 of the record) :

`Having listened to all the witnesses carefully and having observed their demeanour closely, I find plaintiff’s evidence more credible then that of the defendant and find on the balance of probabilities for the Plaintiff.’

ass=MsoN=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In so finding counsel for the appellant submits that the learnial magistrate erred in law and in fact in finding that thet the defendant was (personally) liable for the sum claimed when there was overwhelming evidence that the liability for the claim was incurred by Vanualevu Muslim League which was a different legal entity distinct from the defendant.

Plainly this submission is based entirely on the documentary exhibits produced by the plaintiff at the trial and ignores the oral testimony explaining the actual circumstances in which the documents were raised and/or came into the plaintiff company’s possession. In this particulgard it isit is noteworthy that the defendant admitted in cross-examination, to personally arranging the purchase of the air ticket and giving the cheque in question to the plaintiff company, and, more importantly, there is no denial in his evidence that he had specifically requested that the relevant invoice be raised in the name of Vanua Levu Muslim League after the cheque had been dishonoured.

It is equally unfortunate that the evidence concerning the nature and activities of the Vanua Levu MuLeague was not properlyperly explored or canvassed at the trial and very little is known about it other than that it is a religious organisation with a membership numbering in the thousands, if the defendant is to be believed, and its affairs are run by a committee of which the defendant was the President at the relevant time.

Such a committee or organisation appellant’s counsel claims can sue and be sued inown name as if it were an incorporated body. The appl applicablnciple ople of law however as set out in para.279 of Vol.6 of Halsbury’s Laws of England (4^th edn.) is otherwise. It rea

`An >`An unincorporated members club, not being a partnership or legal entity,ot sue or be sued in the club name, nor can the secretary oary or other officer of such club sue or be sued on behalf of the club, even if the rules purport to give him power ......, unless this is permitted by statute.’

Furthermore as was said by Williams J. &nbspb> Morris Hedstrom Limited v. Kapil Deo and Others (1974) 20 F.L.R. 47 at p.48 :

`A club cannot speak, write or negotiate in any way ; this mustone by some person(s) purporting to represent the club and and who have been authorised so to do.

It behoves persons who purport to represent a club in matters to make it quite clear that they are acting for ther the club and not accepting liability for the club.’

Plainly in this case having beed personally for a debt that he considered had been incurred by the Vanua Levu Muslim Leim League it was incumbent on the defendant at the time of the purchase and certainly in his Statement of Defence to make it crystal clear that he was acting for an organisation in purchasing the airline tickets and furthermore, to disclose his authority for so acting. Neither of these matters were disclosed in the Statement of Defence, nor, in his sworn testimony did the defendant disclose the nature of his authority to act on behalf of the Vanua Levu Muslim League.

In any event the learned trial magistrate preferred laintiff company’s evidence and `...... in the absencbsence of cogent reasons an appellate court would not disturb that finding’ (per Moti Tikaram J. in Dayaram Sharma v. Northern Hotels Limited (1966) 14 F.L.R. 157).

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Furthermore as was said byFiji Court of Appeal in Indar Singh v. Sheikh Meera (1969) 15 F.L.RF.L.R. 47 at p.49ff :

`The principles governing the position of a court peal in relation to findings of fact are fully stated in Benmax v. Austin Motor Co. Ltd. (1d. (1955) A.C. 370 and in the earlier decision in Powell v. Streatham Manor Nursing Home (1935) A.C. 243 and Watt v. Thomas (1947) A.C. 484 ; they need not be repeated. We consider this to be a case where assessment of credibility was paramount and we have no reason to say that the learned judge did not test the evidence by adequate scrutiny or take proper advantage of having seen and heard the witnesses.’

p class=MsoN=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Similarly in this case, gihe paucity of the pleadings and evidence, the case turned essentially on an assessment of t of the credibility of the conflicting versions of the plaintiff company and the defendant earlier referred to, and in preferring the plaintiff’s evidence, it is sufficiently clear that the learneal maal magistrate rejected the defendant’s claim that he was not personally responsible for the debt.

Needless to say if there were any truth in the defendant’s defence then he would have a claim to be indemnified by the Vanua Levu Muslim League and he could have sought to join it in the action by invoking Order VIII r.4 of the Magistrate Court Rules (Cap.14). This henly failed to do.

For the foregoing reasons this appeal is dismissed with costs which are summarily assessed at $250.00 (iive of the Magistrate Cate Court costs) payable within 14 days from the date hereof.

D.V. Fatiaki

JUDGE

At Suva,

17^th October, 2001.

HBA0014J.01S