Ram v Taito [2005] FJHC 248; HBA0020.2004 (4 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HBA0020 OF 2004

BETWEEN:

NITYA RAM
Appellant

AND:

ALIVERETI TAITO
SEVETI JIUJIUWA
Respondent

Counsel: Mr. R. Singh - for Appellant
Mr. V. Tuberi - for Respondent

Hearing/Judgment: Wednesday 4th May, 2005

JUDGMENT

The appellant appeals against the decision of the learned Magistrate Mr. Aminiasi Katonivualiku delivered on the 31st of August 2004.

The plaintiff’s claimed daily fees charged to the bailiff first defendant for the care of three motor vehicles.

The learned Magistrate gave judgment in favour of the respondent plaintiffs and against the appellant in the sum of $8,900.00 being a contracted rate of $20.00 per day for 445 days. The case against the second defendant bank was dismissed. They were served with the first defendant’s appeal as a matter of courtesy but sought and were granted leave to be excused upon advice that they would abide the appeal decision.

The first defendant’s statement of defence is bland, contains no positive defence, alleges the contract he entered into for the care of the vehicles was signed under duress or alternatively claims the vehicles were not properly cared for while in the plaintiff’s possession. No defence was filed to the amended statement of claim. There is no pleading in the defence of an inferred condition limiting the period of daily charges to a specific or reasonable length of time.

Mr. Singh in his written submissions addressed the first ground of appeal; duress; but on appeal abandoned that ground.

As for grounds 2, 3 and 5 these are in effect each a different aspect of the same ground that the learned Magistrate fell into error by not limiting the contract to a specific or reasonable period of time. This argument can be disposed of shortly.

The Magistrates’ Court is not a court of pleading. Civil matters can be disposed of summarily without pleadings. However, where parties embark on and maintain a claim or defence in that formal way they are bound by Order XVI Rules and common pleading practise.

A system of pleadings is the primary if not the basic method for stating and resolving disputes, questions of facts, or of mixed law and fact between parties to any proceedings.

The first object of pleadings is to define and clarify with precision the issues and questions which are in dispute between the parties that fall to be determined by the court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that opposing parties can bring evidence on the issues disclosed (ESSO Petroleum Company Limited v Southport Corporation [1956] AC 218 at 238).

A further object of pleadings is to inform the court what are the precise matters in issue between the parties which the court may determine. Pleadings set the limits of the action which may not be extended without due amendment properly made. Cases must be decided on the issues on the record and if it is desired to raise other issues they must be placed on the record by amendment (Blay v Poloard & Morris [1930] 1 K.B. 628 at 634). It is not for the judge to speculate about the nature of a party’s case. The judge and the parties are circumscribed by the pleadings on the record.

The parties are adversaries. It is left to each of them to formulate their case in their own way. For the sake of certainty and formality each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without an amendment properly made.

It is not part of the duty or function of the court to enter upon a general enquiry into a case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised. Indeed the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. The court does not provide its own terms of reference. The parties do.

Decision

The appellant plaintiff did not in his defence raise any positive pleading seeking to limit the contract to any reasonable or specific period of time. The evidence did not address that issue. In the court at first instance counsel only obliquely mentioned the argument in his submission (page 47 of the record) to the learned Magistrate. That submission was not based on evidence or pleading.

In a civil appeal the appellant must show that the learned Magistrate made an error in his findings of fact. Unless the appellate court is satisfied that the trial court was in error on those findings of fact the appeal ground must be dismissed (Colonial Securities Trust Company v Massey [1895] UKLawRpKQB 192; [1896] 1 Q B 38 at 39).

There was no pleading seeking to limit the applicable period of the contract specifically or generally. Accordingly apart from a bar table speech there was no proper notification that this issue was triable, let alone essential to the defence. Further, the learned Magistrate had no obligation to make a substantive finding on this issue as there was no direct evidence of the parties intentions in relation to any limitation of the time period. I am not satisfied that grounds 2, 3 and 5 are made out.

Lastly the appellant raises a ground that he was acting as agent of the second respondent bank. Agency is again not specifically pleaded in the statement of defence. It was, however, addressed during the course of the proceedings as the 2nd respondent bank denied any agent responsibility. An agent who signs a document or a contract in his own name without qualification is personally liable on that contract unless it appears from the face of the document that he is signing as a mere agent of someone else and the signature was not intended to bind him (Lester v Balfour Williamson Limited [1953] 2 QB 168).

The trial magistrate was not satisfied as to agency; a conclusion he was quite justified in coming to on the evidence adduced. Further it is remarkable that the first respondent did not seek indemnity from the second respondent. If the appellant considered that someone other than him was responsible for payment he should have joined the co-defendant as a third party and he did not do so. The trial Magistrate and this Court cannot cure such a fundamental error.

Conclusion

The appellant has not been able to satisfy me either that he was acting as a mere agent or that the contract was in some way to be limited in time. Mr. Singh with his usual diligence advanced every possible argument in support of this appeal but I am satisfied that the learned Magistrate reached the right conclusion on the pleadings and evidence before him.

Accordingly, the appeal fails and is dismissed with costs fixed in the sum of $500.00 to be paid within 14 days.

Gerard Winter
JUDGE

At Suva
4th May, 2005