Raj v Shell Fiji Ltd [2005] FJHC 387; HBC0285J.2000S (15 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0285 OF 2000

Between:

DEO RAJ
s/o Dwarka Prasad
Plaintiff

- and -

SHELL FIJI LIMITED
Defendant

Counsel: Mr. D. Prasad for the Plaintiff
Ms. P. Salele for the Defendant

Date of Hearing: 9th & 10th November 2005
Date of Judgment: 15th December 2005

JUDGMENT

On 12th November 1993 the plaintiff, a businessman, and the defendant, Shell Fiji Limited, entered into an agreement for the plaintiff to have the right to use “the Shell Pecten” in the business of cartage and sale of their products. This was for a defined trade area in Vanualevu. (See plaintiff’s documents, page 1, P.1.)

The defendants decided that after some months they did not wish to continue with this agreement and negotiations were entered into for a settlement. On the 28th April 1994 (P.2) a further document was signed by the plaintiff, Mr. Raj, and John Corr and Jon Bennett, for the defendants, and Shailesh Sharma as interpreter. That document set out sums to be paid by the defendants to the plaintiff, the return of the defendants’ company property, the discharge of a mortgage over certain property (Clause 6) and the purchase of the first mortgage over another property by the plaintiff from the defendants, (Clause 7). The agreed sum for that purchase was $15,000.00 and that was to be deducted from the total sum to be paid by the defendants to the plaintiff.

The schedule of actual payments made is set out at P.3. That shows that $10,000.00 was paid by cheque dated 29th of April 1994 and $20,000.00 by cheque dated 12th May 1994.

The total sum to be paid was $57,250.22. Of the balance, $15,000.00 was to be deducted in respect of the purchase of the mortgage thereby leaving $12,250.22 to be paid as a final instalment. It is accepted that the $10,000.00 and $20,000.00 were paid.

The plaintiff says that all sums were due to be paid within a week of the date of the agreement of 28th of April 1994. He says the defendants persistently delayed the transfer of the mortgage and property to him. He had to travel many times to Suva to get the defendants to comply with the agreement and hand over the various documents. He states he had to pay a further $7,000.00 to the defendants above and beyond what was agreed. This was given in cash to a Mr. Flower of the defendants solicitors, Q.B. Bale & Associates. The plaintiff states that he had to pay arrears of ground rates and town council rates before he could have the property transferred fully to him. He states that as a result of the delay of some 21 months from October 1994 to June 1996 to carry on his business he had to rent premises elsewhere at $700.00 a month. This makes a total of $14,700.00. He stated he had started to construct a commercial building on the site but said he could not continue with that while he was uncertain whether or not he would actually receive the mortgage and the lease over the property from the defendants.

The defendants deny all the allegations. They say that by a document dated 15th of September 1994 (defendant’s bundle page 57, D.57) the plaintiff stated he did not wish to purchase the mortgage after all and would take $8,000.00 cash instead of having $15,000.00 deducted from the final sum payable by Shell to him. The plaintiff in evidence stated that he never made such a request and the signature on that document, D.57 is a forgery.

The defendants say it was this change of mind which caused the delay. There was a further delay when the plaintiff changed his mind again and said that he did want the mortgage transfer after all.

The defendants say it is as a result of the plaintiff twice changing his mind that there was a delay. The defendants therefore say that $7,000.00 which had been deducted from the payment sum had to be paid for the transaction to proceed. The defendants denied that the plaintiff paid $7,000.00 to Mr. Flower or to anyone else on their behalf.

The defendants say that the plaintiff was given the documents and declined the offer of the defendants’ solicitors to carry out the conveyance and settlement for him. They say that any delay was of his own making.

Mr. Raj produced a document (P.8) which is date stamped the 9th December 1997 at 2.30 p.m. by Q.B. Bale and Associates. He says this was the time when he was given the lease documents. This supports his claim for the sums due as a result of the alleged delay by the defendants, i.e. the rental payment for alternative premises, the airfares etc. The defendants responded that this document was contrived in that it was the plaintiff who typed it out and manipulated a receptionist at Q.B. Bale & Associates into signing. The defendants say that the stamp on that document is a Q.B. Bale stamp but would not be used for this kind of receipt. A different system of authentication would be used.

The defendants therefore say that they discharged all their obligations under the agreement of 28th of April 1994. And in particular they say that Clause 3 does not state that payments will be made within one week, but states “this is expected to take at least one week”.

I have heard the evidence of the plaintiff himself Deo Raj, and his witness Ganeshwar Singh. The latter stated that he was with Mr. Raj at the offices of Q.B. Bale & Associates when the $7,000.00 in cash was handed over and the lease documents given to Mr. Raj.

The defendants called Peni Drodrolagi a previous manager of Shell and the person who signed the original distribution agreement of 12th November 1993 with Mr. Raj. They also called Shailesh Sharma who was present when the second agreement, 28th April 1994 (P.2), was signed and acted as interpreter. The defendants say that the other two signatories on behalf of Shell are overseas and it would be unrealistic to bring them to this country for these proceedings. The final witness for the defendants was Vamarasi Faukataufon. He is and was at all this times a law clerk at Q.B. Bale & Associates. His principal was Mr. Flower, who did most of the dealings for Q.B. Bale on behalf of Shell Fiji Ltd. in this matter. Mr. Flower has since died.

A substantial portion of the matters in dispute in this case depend upon the reliability and veracity of the plaintiff and his witness. There are few, although some significant points, that depend upon the reliability and veracity of the defence witnesses. Both parties tendered bundles of documents. These documents are useful in making the decisions of fact in this case.

There is no dispute that the agreement of the 12th of November 1993 was made and was terminated by Shell. There is no dispute that the agreement of the 28th of April 1994 was intended to resolve the matters that arose out of that termination and that document was agreed to and signed by the plaintiff and on behalf of Shell Fiji Ltd. Although it is unspecific in some matters and required further resolution on some items, both parties accepted it as binding and acted upon it. At Clause 4 it states “before the final payment is made, Deo Raj and Shell will sign an agreement finalising these arrangements”. It is again agreed that no such further agreement was signed.

The first question is whether or not there was delay by Shell in making payments. The plaintiff states they were due within one week.

The agreement states at Clause 3 that “after full reconciliation of the outstanding claims and account, Shell will then pay the balance directly to Deo Raj. This is expected to take at least one week”. That was the signed agreement. Mr. Sharma was there to translate, if needed. I therefore find that it was not part of the agreement that all cash payments by Shell were to be made within one week. Mr. Drodrolagi stated that according to his knowledge and experience such a calculation for a trading area of the size covered by Deo Raj would take more than a week but at the outside six months. No specific time is stated. $30,000.00 of the $57,250.00 had been paid within 3 weeks of the date of that agreement. There can be no complaint about the timeliness of payment of those sums.

The timing of the payment of the $8,000.00 or the settlement of the mortgage is something I will deal with later. The final payment of $12,250.00, assuming Shell’s explanation concerning the mortgage is correct was not made till some two and half years later. This was a lesser sum due to the change of mind by Mr. Raj. On the face of the defendants’ evidence that final sum could and should have been paid within weeks of the dates of the document P.57, 15th September 1994. Defence counsel in closing address could offer no explanation for this delay. I therefore find that that sum should have been paid at the latest by November 1994. It was delayed for two years.

However, there is no claim in the Amended Statement of Claim for interest for the late payment of this sum. I have carefully considered the way the pleading is framed, but must come to the conclusion that even taking the claims at their widest no interest can be awarded.

The plaintiff in evidence stated that it was not his signature on the document D.57, that it was a forgery. Neither witnesses or counsel nor the court must assume the mantle of handwriting expert. However, it is clear that the signature on P.57 does not look like the accepted signatures of Mr. Raj on other documents before the court. In itself there are no discernible initials of Mr. Raj and it is impossible to say that it is anything other then an initialling or short signature. There is a signature of Jon Bennett, Finance and Planning Manager for Shell, which appears consistent with other signatures of his. There is also the signature of a witness underneath. That witnessing signatory did not give evidence.

However it must also be stated that the accepted signatures of Mr. Raj on P.1 and P.2 do not particularly look alike.

I consider the surrounding documents and actions. The questioned document of the 15th September stated that Mr. Raj would not buy the mortgage but be given $8,000.00 in cash instead. If one looks at the schedule of payments (P.3) there is a payment of $8,000.00 by cheque 36890 to Mr. Raj on the following day, namely the 16th September 1994. This would be consistent with an agreement having been reached in accordance with that document P.57. There are further documents from Shell in the time that followed which are consistent with the terms of that agreement of the 15th of September, for example Mr. Bennett’s letter of the 26th of May 1995. Care must be taken to ensure they are not self-serving in the chronology of events. Shell aver the documents are consistent with their request for $7,000.00 when, they say, Mr. Raj changed his mind a second time and asked for the mortgage over the property to be transferred to him. That $7,000.00 would restore his consideration in respect of the mortgage back to $15,000.00, the original agreed price.

This issue is intertwined with the question as to whether or not Mr. Raj paid $7,000.00 to Mr. Flower.

In this regard I have the evidence of Vamarasi Faukatafon. He was not present at the time when it is alleged the cash was handed over and the documents given to Mr. Raj. However, he states that Mr. Flower would simply not have taken cash without either giving a receipt or asking for it to be given to the firm’s accountant and a receipt issued therefor. It is a small point but Shell further point out that they had requested a bank cheque for this sum (P.6).

I consider the evidence of Ganeshwar Singh. He said he was an acquaintance of Deo Raj and had, as a bailiff, done various pieces of work for him. He knew Mr. Raj from 1996 to 1998 or 1999. It was he thought in 1999 he last saw Mr. Raj. He has been overseas for a number of years. He denied in cross-examination that he had made up his evidence.

Mr. Singh had a very good command of English. At no time did he ask for translation or seem to be in any difficulty with the English language. Towards the end of examination-in-chief, after he said the cash had been paid and the documents received, he said “Raj said he would have to get the documents registered at the Registrar of Titles”. He was then asked “did you go with Mr. Raj to the Office of the Registrar of Titles?” He replied “Apparently I didn’t accompany him to the Registrar of Titles. I was running late.” That was a curious use of the word “apparently”. The court asked him after re-examination what he meant by that and he said “It had taken so long, I had somewhere else to go”.

Mr. Singh was cross-examined in detail by defence counsel. It is reasonable that he would have no great recollection of the events of that day, particularly when asked to cast his mind back after so long. It was noticeable that he paused for a long time when asked questions to which he could reasonably be expected to know the answer. On each occasion after the pause he stated he couldn’t remember.

I am not satisfied that Mr. Singh is reliable in his evidence. It was not the kind of testimony upon which I consider I can rely. I do however remember that because I have rejected the evidence of Mr. Singh and his support for the plaintiff that I should not necessarily reject the evidence of Mr. Raj. People on occasion do, although telling the truth themselves, bring along witnesses who weren’t present to bolster their own evidence.

I now consider the reliability and veracity of Deo Raj. I do not find I can rely upon his evidence. There was at least one previous court hearing which related to the issues in this case. The witness Vamarasi Faukatafon could remember it and was present at the proceedings. It was before Mr. Justice Singh at a time when he was a Magistrate. The plaintiff’s case on that occasion was dismissed. Mr. Faukatafon said that Deo Raj was present and gave evidence. Mr. Raj said that he was not present at the court and did not take part in the proceedings as he was late.

Mr. Raj produced in support of his claim a number of airline tickets. These related he says to the time when he was visiting Suva to pursue Shell over this matter. A close reading of those tickets shows that some did not relate to him and did not cover trips from Labasa to Suva. They related to a Master S. Raj and were from Savusavu to Suva. When asked about these his responses were unconvincing.

He also produced a number of receipts for the rent he says he paid for the alternative accommodation. These receipts were allegedly made out every three months over many months. They were allegedly given by the landlord of the premises he rented. All seven put in evidence are in sequential numerical order from 182507 to 182514. One would expect receipts written out three months apart over twenty one months would not all be in numerical order. Further, it is the same coloured biro that is used throughout. When asked about these matters his answers again were unconvincing.

All the documents in this case whenever written are consistent with the defendants’ version of events. Whilst the evidence of the defence witnesses added little to what is apparent on the face of the documents it was nevertheless consistent. I accept the evidence of Peni Drodrolagi, Shailesh Sharma and Vamarasi Faukatafon. I have carefully looked at the evidence of Vamarasi Faukatafon. What he says coincides with the documents of the defendant. I acknowledge that he was not present at the time when the lease and mortgage documents were handed to Mr. Raj. However, I find convincing his refutation of the document P.8 and the reasons he gives for that.

There is a claim for the Housing Authority ground rates and Labasa Town Council town rates. Clause 7 of the agreement of 28 April 1994 contemplates this and clearly states, “In the event that Shell Fiji Limited has to pay additional costs in the transfer of the mortgage, the sale price will be increased by the amount paid by Shell”. There were also the rates accruing whilst the defendant changed his mind twice about taking the mortgage on. For the reasons of the agreement and the plaintiff’s delay, his claims concerning rates cannot succeed.

Accordingly I find that the plaintiff and the defendants did enter into an agreement of the 28th of April 1994 (P.2) to resolve their differences arising out of the determination of the original contract (P.1). The sum agreed to be paid was $57,250.22. $15,000.00 of that was to go to the purchase of the mortgage over the property. I find that those sums did not have to be paid within one week of the agreement. However they had to be paid in a reasonable time. The $10,000.00 on the 29th of April 1994 and $20,000.00 on 12th of May 1994 were paid within a reasonable time. I find that Mr. Raj then asked for $8,000.00 cash instead of the purchase of the mortgage for $15,000.00. Where his signatures do appear on any other documents they do appear to be noticeably different from each other although not as markedly different as the one on the document of the 15th of September 1994, D.57. It may well be that Deo Raj signed the document more as a hasty initialling than a full writing of his signature. The signature of Jon Bennett seems to be genuine. The actions of Shell on the face of the documents are consistent with that document. Indeed by the very fact of the issue of a cheque the next day for $8,000.00 supports this sequence of events.

I find it was the plaintiff by his two changes of mind and his failures to register the documents immediately that caused the delay. I accept the evidence of Faukatafon as far as the stamp on the document of 1997 is concerned, and his explanation as to the most likely way in which that came about. I find the mortgage documents were handed over in or about November 1997 as Mr. Faukatafon stated. This is consistent with the payment of the final balance cheque of $4,250.00.

In any event, I can not rely on the rent receipts produced by the plaintiff nor on the airline ticket refunds claimed by him. I find that $7,000.00 was requested from him when he changed his mind about wanting the mortgage and that because he did not pay that sum in cash or by bank cheque it was deducted from the total Shell owed to him.

The claim for Housing Authority and Town Council rates must fail.

Accordingly I must dismiss the plaintiff’s claims.

(R.J. Coventry)
JUDGE