National Bank of Fiji Ltd v Nair [2005] FJHC 330; HBA0008.2005 (28 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0008 OF 2005L

BETWEEN:

NATIONAL BANK OF FIJI LIMITED
trading as COLONIA NATIONAL BANK
Appellant/Plaintiff

AND:

SHALENDRA NAIR
s/o Jagdish Nair
Respondent/Defendant

Mr. J. Rabuku for the appellant/plaintiff
Mr. H.A. Shah for Mr. Niyaz Mohammed for the respondent/defendant

Date of Hearing: 28 October 2005
Date of Judgment: 28 October 2005

EXTEMPORE JUDGMENT ON APPEAL

This matter comes before the Court by way of an appeal lodged by the appellant against the judgment of the Learned Magistrate at Rakiraki delivered on the 6^th April 2005. The proceedings before the Learned Magistrate were commenced by way of writ of summons and statement of claim wherein the plaintiff/respondent sought damages from the appellant/defendant for the unlawful seizure of his motor vehicle.

The vehicle was apparently seized on the 3^rd January 2003 and released on the 7^th January 2003. The appellant concedes that the seizure was in fact unlawful.

The appellant however submits that the Learned Magistrate was in error in awarding exemplary damages and in awarding an amount of $5,000.00.

The Learned Magistrate in his judgment gives consideration to the actions of the appellant in unlawfully seizing the vehicle and refers to the appellant having acknowledged the seizure to be illegal. The Learned Magistrate also specifically refers to claims of humiliation, embarrassment and loss of reputation as being claims which must be the subject of a separate action for defamation and that the Magistrates Court lack jurisdiction to deal with such an action. The Magistrate specifically awarded an amount of money for the expenses associated with the recovery of the vehicle and an amount for the loss of operation (general use) of the vehicle. It is under the heading “unlawful seizure and unlawful use” that the Learned Magistrate awarded the sum of $5,000.00 which is the award in issue.

Whilst the appellant contends that the sum of $5,000.00 “was tantamount to awarding exemplary damages”, there is nothing in the judgment of the Learned Magistrate to support such proposition, the Magistrate has perhaps very carefully described the damages that he has awarded in very specific categories as I have already said: loss of operation, personal and travelling expenses to receive the vehicle and unlawful seizure and unlawful use. I see no reason why the respondent was not entitled to an award of damages under that head.

The respondent in his pleading pleads for damages for the unlawful and illegal seizure of the vehicle and it appears to me that it is for that that the Learned Magistrate has awarded the sum of $5,000.00.

In the circumstances and for the reasons expressed, I see no error of law in the determination of the Learned Magistrate and accordingly, the appeal is dismissed.

The appellant is to pay the respondent’s costs which I assess in the sum of Five Hundred Dollars ($500.00).

JOHN CONNORS
JUDGE

At Lautoka
28 October 2005