Eros Multimedia Pvt Ltd v South Pacific Recordings Ltd [2010] FJHC 331; HBC057.2006 (2 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 57of 2006.

BETWEEN:

EROS MULTIMEDIA PVT LIMITED
a Limited liability company having its Registered office at
2nd Floor, Kailash Plaza, OPP Laxmi Industrial Estate,
Link Road, Andheri (W) Mumbai-
-400 053, India.
PLAINTIFF.

AND (Vs.):

SOUTH PACIFIC RECORDINGS LIMITED
a limited liability company
Having its registered office at 395, Main Street, Nadi Town, Nadi.
DEFENDANT.

Counsel appearing:
For the Plaintiff: 1.Mr. Faiyaz Koya
2. Mr. Saile
3. Ms. J. Draunldalo
Of KOYAS
For the Defendant: 1.Miss. Mary L. Muir
2. Mr. M. A. Sahu Khan
Of M. K SAHU KHAN & CO.

Dates of Trial: 11th May 2010 and 14th May 2010.
Date of Judgment: 2ND July 2010.

JUDGMENT

1. This action was instituted by the plaintiff to recover 25 prints(Celluloid) of 19 movie titles, said to have been refused or neglected by the defendant to return to the plaintiff. Each print was valued at US $ 1200/- and the total valued to be US%30,000/-.

A Movie "title" is only to identify the content in the print. One print can be in respect of, and hold, only one title while there can be many prints of one title. The raw material of the print is said to be Celluloid, originally made with cellulose, nitrates and camphor.

2. The plaintiff identified itself as the copyright holder and a licensee for distributing the theatrical prints of the said Movie titles, and identified the defendant as its agent in Fiji during the relevant time. In 2004 the plaintiff terminated its agency with plaintiff after a long association, and is said to have appointed EROS (PACIFIC) LIMITED as its agent in Fiji.

It is on the said alleged new agent demanding the prints, on behalf of the plaintiff, from the defendant, that the dispute arose.

3. The distribution and exhibition of cinematography may well be one of those trades that were born in and touched almost every person in the last century. A trade that was as prolific as it was lucrative. From the aptly named 20th Century Fox in America to popular "Bollywood" productions in India, and the worldwide distribution of numerous cinema, it is a trade in respect of which there is and ought to be some if not a multitude of written Agreements adopted regionally and worldwide.

4.The requirement to return the cinema print (film) after exhibition, if there was such a term, would no doubt have found its way into written Agreements, or at least ought to have in the memory of those for long in the trade, etched, as a common place occurrence suggesting a practice in the trade. However no evidence of written Agreements or such a practice or custom were led in evidence in this case. A practice or custom is not born by one instance, but by long application or consistent observation, by those who have been in the trade.

The peculiar customs and practices of a trade are fashioned by the nature of the stock in trade and the needs of the market.

5. In theater and more so in cinema, illusion and fantasy overlap and mingle with reality.

As such what is reality must at the outset be tied to ground, and towards that effort I shall deal with and make findings on the corpus relevant to this action, first.

6. The plaintiff led the evidence of two witnesses, and the defendant led the evidence of one witness. Though a Pre Trial Conference had been held there was no Agreed Bundle of Documents, as a result documents were marked in evidence and given P and D markings. Plaintiff closed its case marking P1 to P14. P11 consisted of 16 Air way bills, and this court gave them sub markings, showing their relevant title number in the order it appeared in the statement of claim and in P12. After two dates of trial each party filed their closing written submissions as well as written submissions in reply. Due to delay in such written submission the Judgment due date was extended from 8th June to 2nd July 2010.

7. In the plaintiff's statement of claim under paragraph 3, particulars of 19 Hindi Movies are setout, of which there are 18 titles therein as the movie "LOC Kargil" is listed twice at the end of the list. That Movie appears to have been so twice listed, as it has been sent on two different (and subsequent) dates.

8. In the said list various numbers of prints ranging from 1 to 4, per title are listed as having being forwarded to the defendant. On counting, there are 45 such prints in respect of the 18 titles.

9. At paragraph 5 of the said statement of claim the plaintiff gives another list of prints that the defendant is supposed to have returned on the 6th day of December 2004. On counting, there are 20 prints listed as having being returned, out of the 45 above. Out of the 18 titles it appears that at least in respect of 15 titles, at least one print has been so returned. In respect of the three titles "SHAKTI", "KARZ" and "DUM" no prints are said to have been returned on 6th December 2004.

10. At paragraph 6 of the said statement the plaintiff gives a list of titles, and presumably the number of prints (total of 25) that the defendant is alleged to have refused or neglected to return. On counting, there are 15 titles listed therein, suggesting that all prints in respect of three titles (out of the 18) not listed, have been returned. On analyzing the three lists, the 3 such titles in respect of which all prints have been returned appear to be "DARNA MANA HAI", "SSSHHH" and "TEHZEEB". Therefore the titles in respect of which the plaintiff is seeking prints are the 15 titles set out in paragraph 6 of its Statement of Claim (excepting the aforesaid three titles out of the total 18 listed at paragraph 3 therein.).

11. At the Pre Trial Conference (PTC) held, and as per the minutes filed dated 5th August 2008 and signed by the Solicitors of both parties, among the agreed facts is a list of movie titles and the respective number of prints of each such title the parties agreed that the defendant has returned to "Eros (Pacific) Limited" on the 6th day of December 2004.

Parties have also agreed "that the plaintiff did forward the following Hindi Movies in theatrical print to the defendant to be played in Cinema Houses in Fiji". {Agreed fact (ii) of the PTC Minutes.} The number of the said agreed Hindi Movies (titles) amount to 15 on counting the said list in the PTC Minutes. As such the said list in the PTC Minutes will hereinafter be referred to as the "agreed list".

12. Therefore it is an agreed fact that prints in respect of the said 15 titles have been forwarded to the defendant by the plaintiff. As such on proving how many prints of each such title have been so forwarded the plaintiff can by taking the said "agreed list" in the PTC Minutes, by deduction arrive at the balance prints yet to be returned in respect of the said 15 titles.

13. Paragraph 6 of the statement of claim of the plaintiff sets out a list of 15 titles in respect of which 25 prints are alleged at that time still to be returned. However the 15 titles in the list in paragraph 6 of the statement of claim of the plaintiff and the 15 titles in the agreed list in the PTC Minutes are not the same titles! In the "agreed list" the 3 Movie titles "SHAKTI", "KARZ" and "DUM" do not appear and instead the Movie titles "DARNA MANA HAI", "SSSHHH" and "TEHEZEEB" appear. However as seen earlier all prints in respect of these three movie titles have been returned. As such in the agreed list, prints are due only in respect of the balance 12 Movie titles, and that too upon the plaintiff proving the actual number of prints forwarded in respect of each of such 12 Movie titles, in excess of the prints agreed to have been returned in the agreed list.

14. If the plaintiff proves that all the prints in respect of the said 12 Movie titles as alleged in the first list in the statement of claim at paragraph 3 had been forwarded and delivered to the defendant then there would be 19 prints not returned in respect of the 12 Movie titles in the "agreed list". However plaintiff is seeking 25 prints in it's issue (ii) (see below) in the PTC Minutes! The balance 6 prints appear to be the 6 prints in respect of the 3 Movie titles "SHAKTI"(3 prints), "KARZ"(2 prints) and "DUM"(1 print), omitted in the "agreed list". The agreed fact could limit the issue but not vice-versa.

15. In paragraph 5 of the plaintiff's statement of claim is set out the list of movie prints alleged to have been returned by the defendant with reference to the 19 movies (18 titles), but the "agreed list" of such agreed returned prints and agreed movies forwarded set out under agreed facts in the PTC Minutes only set out 15 titles. The three Movie titles "SHAKTI", "KARZ" and "DUM" in respect of which no prints are alleged to have been returned as per the list under paragraph 5 of the statement of claim, are not included in the "agreed list" in the consequent PTC Minutes.

16. In the PTC Minutes, it is also an agreed fact that the plaintiff did appoint the defendant to be their agent in Fiji.

17. The issues to be determined according to the PTC Minutes are;

(i)Whether the Plaintiff is a copyright holder and a licensee for distributing the theatrical print of above listed Hindi Movies within the territory of the Republic of Fiji Islands,

(ii)Whether the Defendant is liable or obliged to return the remainder of 25 theatrical prints valued at US$30,000.

(iii)Whether the Defendant by not returning the remaining 25 prints, the Plaintiff has suffered loss and damages due to its inability to distribute the Prints to other clients.

18. In issue (i) above "the above listed Hindi Movies" would refer to the list in the PTC Minutes under the agreed facts where 15 titles are listed. The titles that do not appear in that list out of the 18 listed in the statement of claim are; "SHAKTI", "KARZ" and "DUM"(see analysis above). It follows therefore that issue (ii) too would be in relation to those titles set out in the "agreed list".

19. At the end of the examination in chief of the plaintiff's 1st witness, the witness as well as the counsel for the plaintiff, stated to court that the plaintiff is only seeking the raw material cost of US$30,000/-, and that no other damages are sought. (At page six of my notes of 11th May 2010.). As such the issues to be tried are issue (ii) and issue (i) if relevant.

20. When a party admits a fact, only that admitting party, cannot diminish or exceed that fact. When both parties admit a fact, both such parties cannot diminish or exceed that fact. It is when both parties admit a fact that they are said to have agreed to a fact. When agreeing to facts in a PTC parties need to keep this distinction in mind. When facts are agreed the trial is held with those agreed facts as constants. Otherwise there would be no purpose in having admitted facts by one party and agreed facts by both parties.

21. There may well be a reason for the plaintiff agreeing to the "agreed list" without the Movie title "DUM", in that the plaintiff was unable to mark in evidence the "AFFIDAVIT" (or the "Agreement" ) with the producer of that title conveying the rights to exhibit the said Movie title. The exhibiting Cinema House may be in violation of copyright and/ or intellectual property rights if not for the assigned right to the plaintiff from the producer, and the conveyance of that right through the plaintiff's agent and distributor in Fiji at that time, the defendant, to the Cinema House.

However the air way bill in respect of the said Movie "DUM" was marked in evidence{P11(6) }to show that one print was sent to the defendant by plaintiff. The shipper in the said air way bill is SHIVAM VIDEOTECH PVT. LTD, said to be a "sister company" of the plaintiff. However under the name of consignee (the defendant)is stated A/C EROS MULTIMEDIA (EUROPE) LTD. LONDON, which appears to be another "sister company" of the plaintiff. In the agreed list the Movie title "KUSHI" is agreed to have been forwarded to the defendant by the plaintiff, and the airway bill marked {P11(7)} shows the shipper as SHIVAM VIDEOTECH PVT. LTD. Therefore by agreeing to the "agreed list" in the PTC, the defendant is estopped from denying that shipment from SHIVAM VIDEOTECH PVT. LTD is shipment from the plaintiff.

22. Among the "AFFIDAVITS" marked "P1" to "P10", in P1 to P8 the assignee is the plaintiff. However in P9 and P10 the assignees are respectively RISHIMA INTERNATIONAL PVT. LTD and ASIA INDUSTRIAL TECHNOLOGIES LIMITED. P9 is in respect of the Movie title "NA TUM JAANO NA HUM" and P10 is in respect of the Movie title "BAGHBAN". Both the said movie titles the defendant had agreed, to have been forwarded by the plaintiff to the defendant, as per the Agreed facts, item (ii), and in agreeing to the "agreed list", in the PTC Minutes. Therefore the defendant is estopped from denying that the said two Movie titles were forwarded to it by the plaintiff (irrespective of copyright). In any event, RISHIMA INTERNATIONAL PVT. LTD is said to be the name of the plaintiff's predecessor company, but the certificate of incorporation was not led in evidence and as such it remains an alleged fact.

23. It is also note worthy that according to the said Affidavits what appear to have been transferred to plaintiff is not the copyright itself, but leased rights in respect of that right limited to time and region. The prints are the form in which the "tangible" aspect of the copyright is transferred. It is obvious that with the "Agreement" plaintiff should also get at least a print or a master copy. It is also obvious that the producer will not part with the original print when he is only transferring the rights for a limited period (about 10 years) and to a limited region. Therefore it is incorrect for the plaintiff to assert that all prints are originals, though they may be brand new!

25. I shall deal with each Movie title and the extent to which matters relating to the relevant prints are held to have been proved;

1."NA TUM JAANO NA HUM"

The airway bill in respect of the Movie title "NA TUM JAANO NA HUM" was marked as P11(1) and the said airway bill sets out that it consist of "FOUR BRAND NEW 35MM COLOR PRINTS..". As such the plaintiff has proved that four prints of the said title has been forwarded to defendant and the defendant having agreed that two have been returned there are two(2) more prints to be returned.

2."HUM TUMHARE HAI SANAM"

The airway bill in respect of the Movie title "HUM TUMHARE HAI SANAM" was marked as P11(2) and the said airway bill sets out that it consist of "THREE BRAND NEW 35MM COLOR PRINTS..". As such the plaintiff has proved that three prints of the said title has been forwarded to defendant and the defendant having agreed that one have been returned there are two(2) more prints to be returned.

3."DEVDAS"

The airway bill in respect of the Movie title "DEVDAS" was marked as P11(3) and the said airway bill sets out that it consist of "04 BRAND NEW 35MM COLOR PRINTS...". As such the plaintiff has proved that four prints of the said title has been forwarded to defendant and the defendant having agreed that two have been returned there are two(2) more prints to be returned.

4."KHUSHI"

The airway bill in respect of the Movie title "KHUSHI" was marked as P11(7) and the said airway bill sets out that it is said to contain "2NO. BRAND NEW 35MM COLOR PRINT...". As such the plaintiff has proved that two(2) prints of the said title has been forwarded to defendant and the defendant having agreed that one have been returned there is one(1) more print to be returned.

5."ARMAAN"

The airway bill in respect of the Movie title "ARMAAN" was marked as P11(8) and the said airway bill sets out that it consist of "THREE BRAND NEW PRINTS IN 35MM COL..". As such the plaintiff has proved that three prints of the said title has been forwarded to defendant and the defendant having agreed that one have been returned there are two(2) more prints to be returned.

6."CHALTE CHALTE"

The airway bill in respect of the Movie title "CHALTE CHALTE" was marked as P11(9) and the said airway bill sets out that it is said to contain "3NOS. BRAND NEW 35MM COLOR PRINTS..". As such the plaintiff has proved that three prints of the said title has been forwarded to defendant and the defendant having agreed that one have been returned there are two(2) more prints to be returned.

7."DARNA MANA HAI"

No airway bill in respect of the Movie title "DARNA MANA HAI" was marked. However the question of delivery does not arise in respect of this Movie title as the number of prints agreed to have been returned according to the "Agreed list" is two(2), and according to the list in paragraph 3 of the statement of claim of the plaintiff as well as in the list in the letter marked "P 12"the number of prints forwarded too is two(2). As such all prints in respect of this Movie title has been returned.

8."TERE NAAM"

The airway bill in respect of the Movie title "TERE NAAM" was marked as P11(11) and the said airway bill sets out that it consist of "TWO BRAND NEW 35MM COL. PRINTS..". As such the plaintiff has proved that two(2) prints of the said title has been forwarded to defendant and the defendant having agreed that one have been returned there is one(1) more print to be returned.

9."KUCH NA KAHO"

The airway bill in respect of the Movie title "KUCH NA KAHO" was marked as P11(12) and the said airway bill sets out that it consist of "TWO BRAND NEW 35MM COLOR PRINTS..". As such the plaintiff has proved that two(2) prints of the said title has been forwarded to defendant and the defendant having agreed that one have been returned there is one(1) more print to be returned.

10."PARWANA"

The airway bill in respect of the Movie title "PARWANA" was marked as P11(13) and the said airway bill sets out that it consist of "TWO BRAND NEW 35MM COLOUR PRINTS..". As such the plaintiff has proved that two(2) prints of the said title has been forwarded to defendant and the defendant having agreed that one(1) have been returned there is one(1) more print to be returned.

11."BABHAAN"

The airway bill in respect of the Movie title "BABHAAN" was marked as P11(14) and the said airway bill sets out that it consist of "THREE BRAND NEW 35MM COL. PRINT..". As such the plaintiff has proved that three(3) prints of the said title has been forwarded to defendant and the defendant having agreed that one(1) have been returned there are two(2) more prints to be returned.

12."SSSHHH"

No airway bill in respect of the Movie title "SSSHHH" was marked. However the question of delivery does not arise in respect of this Movie title as well as the number of prints agreed to have been returned according to the "Agreed list" is two(2), and according to the list in paragraph 3 of the statement of claim of the plaintiff as well as in the list in the letter marked "P 12"the number of prints
forwarded too is two(2). As such all prints in respect of this Movie title has been returned.

13."TEHZEEB"

No airway bill in respect of the Movie title "TEHZEEB" was marked. However the question of delivery does not arise in respect of this Movie title as well as the number of prints agreed to have been returned according to the "Agreed list" is two(2), and according to the list in paragraph 3 of the statement of claim of the plaintiff as well as in the list in the letter marked "P 12"the number of prints forwarded too is two(2). As such all prints in respect of this Movie title has been returned.

14. "MUHNA BHAI M.B.B.S" ("MUNNA BHAI M.B.B.S")

The airway bill in respect of the Movie title "MUNNA BHAI M.B.B.S" was marked as P11(17) and the said airway bill sets out that it consist of "2 BRAND NEW 35MM COLOR PRINTS". It may be noted that the number of prints in the airway bill is hand written as 2, however as the weight of the package indicates 74 Kg, and the average weight per print calculated on the information on the airway bills is approximately 40 Kg per print, I am inclined to consider the quantity indicated by hand therein is correct. As such the plaintiff has proved that two(2) prints of the said title has been forwarded to defendant and the defendant having agreed that one have been returned there is one(1) more print to be returned.

15."LOC- KARGIL"

Two airway bills in respect of the Movie title ""LOC- KARGIL"" was marked as P11(18) and P11(19) and the said airway bills sets out that it consist of "ONE BRAND NEW 35MM COL. PRINT.." and "TWO BRAND NEW 35MM COL. PRINTS..".. As such the plaintiff has proved that three(3) prints of the said title has been forwarded to defendant and the defendant having agreed that one(1) have been returned there are two(2) more prints to be returned.

26. As such out of the 15 titles set out in the "Agreed list" there are, as held above,19 prints left to be returned.

27. "SHAKTI", "KARZ" and "DUM"; It must be stated that the plaintiff marked in evidence the airway bills in respect of the three Movie titles omitted in the Agreed list, namely; "SHAKTI", "KARZ" and "DUM", as P11(4), P11(5) and P11(6) respectively. According to the said airway bills there are 3 prints in respect of "SHAKTI", 2 prints in respect of "KARZ" and 1 print in respect of "DUM" making 6 prints. Those 6 prints are not added to the above list of 19 prints as the parties have agreed; "that the plaintiff did forward the following Hindi Movies in theatrical print to the defendant to be played in Cinema Houses in Fiji", {Agreed fact (ii) of the PTC Minutes.} and the "following Hindi Movies" therein is the "Agreed list" in the PTC Minutes which do not have the above three Movie titles. However the defendant have permitted the said airway bills to be marked as well as the "AFFIDAVITS" in respect of "KARZ" and "SHAKTI" as P6 and P7 respectively. In respect of the other airway bills too the defendant has not offered any evidence or submission to contradict the forwarding of the prints to the defendant as evidenced by them. Furthermore the defendants witness volunteered in evidence that it had sold to "SWASTIK" the prints of the following titles; SHAKTI, KARZ, DUM, KUSHI, ARMAN, CHALTE CHALTE and TERE NAM (7 TITLES ). 2 prints of KARZ was said to have been so sent (therefore 9 prints). Therefore on the evidence led I find that the 6 prints in respect of the Movie titles; "SHAKTI", "KARZ" and "DUM" too have been forwarded to the defendant . As such these 6 prints too ought to be added to the list of 19 prints the defendant was found as having received as above. As such by the admission of the defendants own witness and forthrightly so, of the sale of the aforesaid prints, the full complement of 25 prints are proved to have been with the defendant available for return to the plaintiff.(19 +9 prints)

28. As the plaintiff is only claiming the raw material costs of US$1200/- per print as damages, and has abandoned the other claims for damages (as referred to above), on the defendant having failed to return the prints, what this court needs to determine in law is whether the defendant is obliged;

(a) in law and/or,

(b) as per contract or practice of the trade, to return the prints forwarded to it by the plaintiff.

If the defendant is found to be so obliged, thereafter the court has to determine what amount the plaintiff is entitled to as damages for the non return of the relevant number of prints or whether the plaintiff is entitled to damages otherwise for the non return of the prints.

29. It is an agreed fact that "the plaintiff did appoint the defendants to be their agents in Fiji" as per the agreed fact (i) of the PTC Minutes. As this is an agreed fact it becomes a constant factor that the parties cannot vary midstream in the trial. As such for the moment, I ignore any submissions suggesting otherwise.

30. Based on this admitted fact of agency I shall proceed to determine whether the defendant is obliged to return the relevant prints as above without reference to any particular term of an alleged contract.

As between the agent and the principal the agent cannot contest the title of the principal. As such in respect of all the prints that have been delivered to the defendant by the plaintiff as its principal the defendant cannot, to retain the prints, urge a defense that the plaintiff has no title to them. Any how the plaintiff has led in evidence 10 Affidavits by the producers in evidence of assigned rights to exhibit the said Movie titles. The said Affidavits were marked in evidence as "P1" TO "P10". "P1" to "P8" assigns the rights to the plaintiff, while "P9" and "P10" assigns to two "different companies". It is correct that though the plaintiff alleged these two companies to be "sister companies" the plaintiff has failed to prove that as a fact. The required circumstances do not exist in this case for the court to look beyond the veil of incorporation and even to do so the plaintiff has not provided the corporate information, such as information of the common shareholders. In any event due to the agreed fact of agency the defendant is not in a position to challenge the title of the plaintiff to the property, and in any event the defendants only witness in evidence conceded that defendant is not claiming to be the owner of the prints. As such what is left for this court, is to now determine, whether the defendant is obliged to return goods held in that capacity to the plaintiff.

31. The agent no doubt could have a lien over the goods of the principal, in it's possession, till any liquidated dues are paid to it. However there is no such lien alleged or any dues pleaded. In fact the defendant has returned 20 such prints to the plaintiff after it demanded through the plaintiff's subsequent agent in Fiji, and that too after the termination of its agency. There is as such active admission by the defendant of the obligation to return the prints in its possession, to the plaintiff.

32. The defendant's defense is found in paragraph 4, 6 and 7 of its statement of defense. The crux of that defense is that it was not part of the functions of the defendant to collect the prints from the Cinema Houses after screening nor store them or return them to the plaintiff. However the plaintiff's 2nd witness Mr. Jack Raniga in evidence asserted that some prints were sold by the defendant to a third party, and the defendant's only witness Mr. Patel conceded that it may have happened and gave details of some 9 prints sold as such. This incident was prior to the demand by the plaintiff for the prints and during the tenure of the agency. The defendant as such ought to have known that the prints could have some commercial value left after its screening.

33. To almost each and every Movie title the plaintiff had entered in to an agreement, however the plaintiff has only marked the Affidavits(P1 –P10) in respect of those agreements. The said Affidavits mention the existence of the agreements and that the Agreement is attached to the Affidavit, but the "Agreement" was not tendered in evidence. The Affidavit does not give the consideration for the assigning of the rights(copyrights) or how the Movie titles are passed. It does not give how many prints are provided or whether only a single copy is provided out of which the plaintiff may make copies. It does not stipulate whether the print or the original supplied, needs to be returned at the expiry of the lease term. All such terms would be in the Agreements proper, which were not led in evidence.

34. It is surprising that the plaintiff did not enter in to at least a memorandum of understanding with the defendant. It is not unusual for civil litigants to keep some documents from the public eye in their mutual interest. In the absence of documentary evidence of the terms of a contract court has to consider the oral evidence of the parties at the inception of the contract, and during the implementation of the contract.

35. The only available witness, who could speak to the terms at the inception of the contract, was the defendants only witness Mr. Patel. The plaintiffs 1st witness was not with the plaintiff at the inception of the contract or during its implementation, he joined the plaintiff well after the termination of the contract.

36. The plaintiffs 2nd witness (Mr. Jack Raniga) however was privy to the implementation of the contract as the Marketing Manager of the defendant. Both the plaintiffs 2nd witness and the defendant's only witness were unanimous in their evidence that during the business relationship of the plaintiff and the defendant for over ten years the plaintiff never sought the return of the prints or the transmission of the prints to any other country for re-runs. Further it is difficult to accept that distributors or Cinema Houses would accept used prints for screening.

37. On being questioned by court the defendants witness stated that in the event of "burn-out" the splicing of the film is done by the cinema and no permission is sought from the defendant or plaintiff.

38. On being further questioned by court the defendants witness stated that the highest amount paid as share of takings to plaintiff was about F$45000/-(for "BABHBAAN"). He stated that an account was kept for each title and after payment of taxes and the share to the cinema and to the defendant, the balance would be remitted to the plaintiff as its share of the takings. He stated that no allowance was made for the value of the prints in the Accounts.

39. Both parties were consistent as to the percentage of the share of the takings with the defendant taking 12.5%(10-15%) and the plaintiff taking 37.5% with the Cinema House taking 50%. There is no complaint by the plaintiff about the share of its taking or its remittance by the defendant. Parties appear to have acted with utmost faith for over a long period of time over ten years.

40. The value of a print, compared to the share of the taking of the plaintiff, appear to be negligible in that background. Further more the defendants witness stated that a minimum deposit or guarantee sum of US$1000 to 1500 too is paid by the defendant to the plaintiff. Such a guarantee sum generally covers the initial expense of the party providing the material, in material for services contracts.

41. A comparison of the "bottle and the soda" example was suggested in submissions. A better comparison would be the wardrobe in a theater and the opera, after all it is the forerunner to cinematography. The wardrobe belongs to the theater. In the event of the troupe going on tour, does the hosting theater get to keep the actors, the actresses and their wardrobes? Hilarious as it may sound, that is how useful comparisons can be!

42.However the basis of the damage to the plaintiff is in the defendant profiting by the sale of the prints and not disclosing and remitting that profit to the plaintiff. The prints belong to the plaintiff on the defendant's admission. On the sale of the prints the proceeds in law ought to go to the plaintiff. It was not shown by the plaintiff that the raw material of the prints have a value. On the other hand what can be recovered in lieu of the return of the print is its market value, and not its cost, as it had been used, and profit gained from it. The only evidence of that market value is the price at which the defendant through the plaintiff's 2nd witness is said to have sold the prints to a third party, which is at Fiji$500/- per print.

43. In perusing through the plaintiffs Affidavit Verifying its list of documents (Order 24 Rule5) this court came across two airway bills consigned to "SWASTIK AV INTERNATION" (SWASTIK)where the shipper is identified as "SOUTH PACIFIC RECORDINGS, JACK RANIGA, PO BOX 17, NADI, FIJI". The total weight of both the airway bills is 289 Kg, which would be about 7 prints. The titles are not identified in the airway bills. The notable fact therein is the name of the plaintiff's 2nd witness Jack Raniga (and Director of its succeeding agent in Fiji) who was at that time the Marketing Manager of the defendant, and the absence of the defendants full corporate name ( with LTD). The PO BOX number however appears to be that of the defendant. So the plaintiff knew as far back as 2004 or at least since 2008 the air freighting of its prints by the defendant or by Mr. Jack Raniga. It is the same Mr. Raniga who has been authorized to swear the affidavit verifying the plaintiffs list of documents.

44. Defendants witness stated that he came to know the day before he gave evidence that 7 titles in the form of 9 prints had been sent to SWATIK. He conceded that defendant was never the owner of the prints. The prints sent to SWASTIK he stated were SHAKTI, KARZ, DUM, KUSHI, ARMAN, CHALTE CHALTE and TERE NAM. 2 prints of KARZ was said to have been so sent.( i.e. 9 prints.)

45. There was a foray in to the realms of video piracy and copyright violation during the trial. However the acts of the defendant while it was the agent of the plaintiff are the acts of the plaintiff. An agent in law is akin to a conduit. The plaintiff in subsequently employing the defendants marketing manager, through whom the sale of the prints to "SWASTIK AV INTERNATION" ("SWASTIK") took place, has ratified that act of Mr. Jack Raniga and its agent( the defendant). Therefore the issues of piracy and copyright between these parties would amount to naught.

46. All the prints sought by the plaintiff are those forwarded between 4/5/2002 and 21/12/2003, fairly recent compared to the letter of demand for their return by "P12" which is dated 26/10/2004. As such in the defendant failing to return the prints that this court has found was available to return, being 25 prints, this court is compelled to hold on a balance of probability, given the evidence of such prints having been sold to third parties, that those 25 prints too have been likewise sold or disposed by the defendant.

47. The closest value to the market value of a print was F$500/- which emerged in the evidence of both the plaintiffs 2nd witness as well as the defense witness.

48. As such the liability of the defendant to the plaintiff is Fiji $12,500/- (F$500/-x 25).

49. On the defendants defense that there was no written contract between parties and as such the terms of such agreement is not enforceable on the basis that such contract was to have been performed over a period in excess of one year, ( section 59(e) of the Indemnity Guarantee and Bailment Act Cap 232 of the Laws of Fiji.), this court finds thus;

As set out above I proceeded to decide this case on the simple principle of equity, that the defendant having sold or otherwise disposed of goods knowing that they do not belong to it, and having known the owner, must account to the owner, and the defendant having returned almost half of those prints that were left in its possession, to the plaintiff, it is now estopped from pleading otherwise. As such the said defense will not help the defendant in my reasoning.

50. Counsels from both sides have done yeoman service, in unraveling this mystery behind the screen of the cinema. The defendant does not have the prints to return; as such it is a judgment for money that this court shall enter. Plaintiff has not pleaded any particular rate of interest; as such I hold that the plaintiff shall be entitled to 6% per annum or legal interest which ever is less, on the sum decreed from the 7th December 2004 till payment in full.

51. As such I enter judgment in favor of the plaintiff against the defendant in the sum of Fijian $12500/- together with interest thereon at 6% per annum or legal interest, which ever is less, from 7th December 2004 till payment in full.

52. Plaintiff is awarded costs in F$5000.

Y I FERNANDO
JUDGE

At Lautoka
2nd July 2010.