Courts (Fiji) Ltd v Sharma [2005] FJHC 301; HBA0002.2004 (1 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0002 OF 2004

BETWEEN:

COURTS (FIJI) LIMITED
a limited liability company having its registered office at
123 Ratu Mara Road, Suva in Fiji.
APPELLANT

AND:

RAVINDRA DEO SHARMA
s/o Vishnu Deo Sharma of Yalalevu, Ba, in Fiji, Bank Officer.
RESPONDENT

Messrs Sherani & Co for the Appellant (City Agents S B Patel & Co)
Samuel K Ram for the Respondent.

Date of Hearing: 9 September 2005 (for Oral Hearing)
Dates for Submissions: 30 September and 7 October 2005
(Extended to 3 November 2005)
Date of Judgment: December 2005

JUDGMENT OF FINNIGAN J

This is an appeal against a decision of a Magistrate delivered on 19 November 2003 in which damages of $2,118.55 were awarded against the Appellant.

Counsel could have had an oral judgment on 9 September 2005 but Counsel for the Appellant did not appear and Mr S K Ram Counsel for the Respondent offered to proceed by way of written submissions. The written submissions have now been received. They are good submissions and helpful. It is desirable to dispose off the matter before the end of the year and in view of the number of other matters also awaiting rulings and judgments I shall deliver this judgment in short form. I have taken full account of the written submissions and of the authorities upon which Counsel rely.

Suffice it to say that the Magistrate formed an unfavourable view of the conduct of the Appellant which was the subject of the claim before him. That was largely a matter for him and any assessments he made of the witnesses before him as set out in his decision were well within his competence and will not be revisited by this Court on appeal. The Plaintiff’s claim as pleaded had been that the Appellant had represented that the Plaintiff was eligible to purchase goods to the total of $257.00 without paying a deposit or increase in his current monthly repayments. When he went to make a purchase he was refused, and the reasons for that are not presently material. The Plaintiff then pleaded that the Appellant had made and then breached an agreement for sale of certain goods. In that agreement he had paid a deposit of $18.50. The claimed breached was non-delivery of a free “entertainment centre” with the purchased goods. The claim therefore was that the Defendant’s representations and conduct were misleading and /or deceptive and that the Defendant had been guilty of unconscionable conduct. As well it was claimed the Defendant was in breach of certain statutory duties, particularized as failure to comply with Sections. 54, 55 and 56 of the Fair Trading Decree 1992. From that the Plaintiff claimed he had “suffered loss and damages” and sought judgment for the $18.50 deposit and damages, general exemplary and punitive.

The Magistrate’s decision was delivered nearly six months after the hearing. It went to eleven pages and was carefully reasoned. He awarded the deposit refund (which he found to be $18.55) together with damages of $100.00 for the failure to refund that deposit and retention of that money for three years. He awarded also $2,000.00 as “damages under the Fair Trading Decree”.

The dim view which the Magistrate took of the Appellant’s conduct is expressed not only in the judgment generally but at page 10 of the judgment where he stated “it is a pity that I do not have any powers to make an order for interest ..........”. He clearly assessed the Appellant’s conduct in failing to refund the deposit as reprehensible. He found grounds for awarding damages in the fact that “the Plaintiff has been deprived (of) the use of $18.55 for the last three years ......” (p. 10). He said that the award of $100.00 for that conduct was a nominal sum. It can scarcely be said that the interest lost on $18.55 over three years would have been $100.00 but the Magistrate did refer at length (on page 5) to “embarrassment and harassment” and for reasons which he stated had taken that into account. He also had noted that the Plaintiff’s evidence was that the lawyer’s letter which (unsuccessfully) demanded the refund had cost him $110.00.

In my view it is difficult to disturb these two awards.

I turn to the damages award under the Fair Trading Decree. From Counsel’s submissions it is evident that the amount of the award concerns the Appellant less than the grounds for it. Intending no disrespect to the careful and reasoned submissions of Counsel for the Defendant it seems to me that the Magistrate was well within his jurisdiction to make the award on the grounds that he did. The amount itself was a matter for his assessment and I do not think I am competent to interfere with the assessment.

There could be no doubt in the mind of the Appellant during the preparation for the case in the Magistrate’s Court that it faced a claim under the Fair Trading Decree. Submissions made to me based on The Supreme Court Practice 1985 can be given little weight. The Magistrate’s Court is a peoples’ Court and the rule upon which Counsel relies at Order XVI of the Magistrate’s Courts Rules is more on point. That rule states that every statement of claim shall state specifically the relief which the Plaintiff claims either simply or in the alternative and that it may ask for general relief. The Plaintiff did that in the Court below and no more was required of it.

The burden of the submissions for the Appellant is that the Magistrate rejected the Appellant’s submissions of law. In my view the Magistrate did not err in doing so. In all the Courts of Law, but in the Magistrates Court above all, the ultimate quest is for justice rather than for justification by the black letters of the law.

There did not seem to be any principle at stake here, nor is there any claim that the Appellant as a major business house needs an authoritative statement about any particular aspect of its marketing behavour. The Plaintiff was a customer with a documented history of purchases at the Appellant’s store. He made his point in the Magistrate’s Court and perhaps the parties should have moved on from there.

Costs follow the event and are awarded to the Respondent which I summarily assessed at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
December 2005