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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE CIVIL JURISDICTION
Civil Appeal No: 003 of 2009L.
IN THE MATTER of the Magistrate's
Court Act and the Rules there under.
AND:
IN THE MATTER of an Appeal from a Judgment of the Magistrate's Court
At Tavua dated 23rd day of October
2008, wherein the under mentioned MAC PATEL INVESTMENT LIMITED
a limited liability company having its registered office at Tavua was the
Plaintiff and R. B. PATEL GROUP
LIMITED a limited liability company having its registered office in Suva and
carrying on business in Tavua and elsewhere in Fiji was the Defendant.
BETWEEN:
MAC PATEL INVESTMENT LIMITED
a limited liability company having its registered office at Tavua.
APPELLANT.
AND (Vs.):
R. B. PATEL GROUP LIMITED
a limited liability company having its registered office in Suva and
carrying on business in Tavua and elsewhere in Fiji.
RESPONDENT:
Counsel appearing:
For the Appellant: H.A. SHAH
of SAHU KHAN & SAHU KHAN
For the Respondent: ANU PATEL
of S.B PATEL & Co.
Date of Hearing: (by Written Submissions) - 7th June 2010.
Date of Judgment on Appeal: - 13th July 2010.
JUDGMENT ON APPEAL
The Plaintiff- Appellant appeals, from the Judgment dated 23rd of October 2008 of the Learned Resident Magistrate of the First Class Magistrates Court Western Division at Tavua.
The Plaintiff- Appellant filed its skeletal written submissions on the 9th of March 2010 and the Defendant- Respondent filed its written submissions thereafter dated the 30th April 2010 to which the Plaintiff- Appellant filed its written submissions in reply on the 19th of May 2010. When the matter came up before this court on the 7th April 2010, both parties submitted that they rely on their written submissions filed and sought a Ruling without an oral hearing, and court adjourned the matter to the 13th July 2010 to deliver its Judgment.
Both the Plaintiff- Appellant and the Defendant- Respondent are Companies with limited liability. The Plaintiff- Appellant carries on the business of a retail store situate at Vatukoula, Tavua.
It was alleged in the Statement of Claim by the Plaintiff- Appellant that;
It was stated and admitted by the Plaintiff- Appellant that there is a sum of $3993.77 owing from it to the Defendant- Respondent in respect of two invoices since August 2004( Invoice no: 19370 and 19397) and suggested same to be the motive for the Defendant- Respondents said actions.
For the above, the Plaintiff- Appellant claimed a sum of $15000 which was stated to include special, general, exemplary, aggravated and punitive damages and costs.
The Defendant- Respondent in defense replied;
a) That the Plaintiff- Appellant dishonoured cheques given as payment for goods purchased to the value of $3,993.77
b)that the Defendant- Respondent was advised by the representative of the Plaintiff- Appellant one Mr. Jerry Nataitoga to take back the remaining goods to recover part of the outstanding sum,
c) that on that advice the Defendant- Respondent took 3 scales ("together with goods"-at paragraph 5 of the Amended Statement of Defense)and denied each and every other allegation contained in paragraph 6 of the Statement of claim and put the Plaintiff- Appellant to strict proof of same,
d) The Defendant- Respondent pleaded estoppel alleging that the Defendant- Respondent gave the Plaintiff- Appellant a credit note for the 3 scales and "goods repossessed" ( at paragraph 5 of the Amended Statement of Defense) amounting to $3,352.27 and the Plaintiff- Appellant accepted the said credit note,
e) The Defendant- Respondent counter claimed a sum of $641.50 being a balance sum due in respect of the dishonoured cheques and its accounts.
Though the Plaintiff- Appellant was given the opportunity to file an Amended statement of claim to the Amended Statement of Defense and Counter Claim of the Defendant- Respondent, as noted by the Learned Magistrate the "Amended statement of claim" (Plaintiff- Appellants) is not dated and not issued by the Registry. In that "Amended statement of Claim" the Plaintiff- Appellant claims $50,000/ to include special, general, exemplary, aggravated, and punitive damages and costs. The learned Magistrate in her judgment held to disregard the said "Amended statement of Claim" of the Plaintiff- Appellant.
The Plaintiff- Appellant did not challenge that decision or set it out as a ground of appeal and did not even make submissions on that point. However I find that at page 30 of the copy record apparently on 24/1/2008, the Plaintiff- Appellants Counsel has orally moved to increase the jurisdiction of the Magistrates court from $15,000 to $50,000 and Counsel for the Defendant- Respondent has stated he has no objection, and it is noted that the court has accordingly amended.
The Plaintiff- Appellant had filed a "Reply to Defense and Defense to Counter Claim" denying the Counter claim and admitting $3993.77 is owing to the Defendant- Respondent.
Facts not in dispute;
The trial took place on the 19th of February 2008.
The Plaintiff- Appellant led the evidence of 3 witnesses and marked in evidence Exhibits;
Exhibit P2A and P2B are marked as tendered on 18/2/2005, which I believe is a clerical error as the trial was held on the 19/2/2005.
There is no Exhibit as P3 among the Exhibits and there is no reference to such an Exhibit in the evidence. However there is an unmarked dishonoured cheque issued on the Bank of Baroda bearing number 24454 dated 23/09/04, in favour of "R B PATEL" for $1875.19 apparently drawn by "MAHENDRA KUMAR PATEL – BA", and a note of an 'Advice of cheque returned unpaid' (a refer to drawer note) which documents do not bear any exhibit markings, which documents this court found among the original Exhibits. These documents are placed among the Plaintiffs Exhibits in the copy record at page 56 and 57 before exhibit P4a. As such those two documents may have been meant to be P3a and P3b. I give these two documents the markings in Appeal as A1 and A2.
The Defendant- Respondent led the evidence of its Manager and marked in evidence Exhibits;
i) D Ex1- 3 page hand written list of goods,
ii) D EX2a -cheque no. 589 dated 28/9/04 for $2148.58 and advice note,
iii)D Ex2b -cheque no. 586 dated 13/09/04 for $1845.19 and advice note,
iv) D Ex3 -4 pages being company search, copy certificate of incorporation and list of subsequent files.
NOTABLE FINDINGS BY THE LEARNED TRIAL MAGISTRATE;
10. That damages awarded ($3993.77) is sufficient without penalizing . the Defendant- Respondent further,
action brought by the Plaintiff- Appellant in actual possession against the Defendant- Respondent who does have an interest in the chattel, and that the Plaintiff- Appellants damages in respect of this interference is limited to the value of that interest,
14.Citing, City Motors Pty Ltd Vs. Southern Aerial Super Service Pty Ltd [1961] HCA 53; (1961) 106 CLR 477, taking the defendant in that case as a bailor with an interest in the chattel, and on the basis that the question then is the value of interest between the Plaintiff and the Defendant and the compensation to restore them to the position they would have been in, and the value damages (sic) would be market value as in this case, and awarded damages to the Plaintiff- Appellant in the sum of $3993.77 and costs. (page 75 of the copy record)
GROUNDS OF APPEAL; (of the Plaintiff- Appellant)
The Defendant-Respondent alleged and claimed its right to repossess the goods in the invoices by relying on the condition at the bottom of the invoice thus; "OWNERSHIP PASSES ONLY ON FULL PAYMENT. WE RESERVE THE RIGHT TO REMOVE GOODS IF PAYMENT NOT MADE". The Learned trial Magistrate held against the said claim of the Defendant- Respondent.
The Defendant- Respondent does not cross appeal the finding of the Learned trial Magistrate, against it, in holding that the dicta in the Romalpa case does not apply and that the Defendant- Respondent has trespassed on the Plaintiff Appellants property and removed goods of the Plaintiff Appellant.
As such what is appealed against is only the award of damages.
FIRST GROUND OF APPEAL;
"That the Learned trial Magistrate erred in Law and in fact in not taking relevant matters in to account in not awarding the Appellant the damages claimed in the sum of $50,000.00"
In its Skeletal Submissions though the Plaintiff- Appellant sets out 4 grounds of Appeal it does not proceed to submit under those grounds but haphazardly submits under;
However in any event the learned Magistrate has held to disregard the Plaintiff- Appellants Amended Statement of Claim, and the Plaintiff- Appellant does not even submit against that finding. As such there is no "damages claim in the sum of $50,000.00" before court. The 1st ground of appeal as such is unsubstantiated and fails.
Therefore it appears that the Plaintiff- Appellant has concentrated on the 2ND,3rd and 4th grounds of appeal and abandoned the 1st ground of appeal.
SECOND THIRD AND FOURTH GROUNDS OF APPEAL;
"The Learned trial Magistrate erred in Law and in fact in not properly and/or adequately taking in to account the evidence of the Appellant on the one hand and the evidence of the Respondent on the other hand and properly analyzing the same before coming to the decision"
"The Learned trial Magistrate erred in law and in fact in not properly and/or adequately applying the principles in the claim for Special damages, General damages and Exemplary damages"
"The Learned trial Magistrate did not properly and/or adequately assess the matters contained in the Statement of Claim and the Defense"
The 2nd, 3rd, and 4th grounds of appeal appears to be submitted under Damages( Special, Exemplary and Aggravated) and Valuation of goods.
The Plaintiff- Appellant under this category submits that the learned Magistrate ought not to have presumed in respect of 2PA thus;
"I add here that some figures are written in pen which I presume inserted after March 1st 2005."
Looking at Exhibit 2PA there appears to be the addition of the values at the penultimate page of the list in what appears to be by a different carbon pen. In this 6 page list the total is added up in the 5th page.
2PA is said to have been made the day before the "raid" for the purpose of stock taking.
The other observation by the learned Magistrate, that P2A is not signed by any Director of the Plaintiff- Appellant company, is visually correct. This list has been tendered through its maker the Plaintiff- Appellants Managing Director and its 1st witness. This witness states under oath that the "stocktake"(sic) was in his handwriting. (page 30 of the copy record third line before the last, referring to 2PA).
The Plaintiff- Appellant in its written submissions in reply;
However the above submissions do not obviate the observations made by the learned Magistrate, which are visually correct. However whether the learned Magistrate is justified in coming to the conclusions she did on those visual observations is not clearly met by the above submissions.
The Defendant- Respondent submitted in its written submissions in reply that;
The Plaintiff- Appellant in reply to the Defendant- Respondents submissions stated that the Defendant- Respondent was reading too much on what the witness said, and further submitted that evidence at page 33 an34 confirmed the Plaintiff- Appellants position.
However in the interest of justice this court will deal with that aspect of damages (SPECIAL DAMAGES) as follows;
The magistrates court when exercising civil jurisdiction, applies the standard of the burden of proof as in civil litigation, being on "a balance of probability". The burden keeps shifting from the plaintiff to the defendant and then back again to the defendant, so on and so forth, depending on the evidence led by both parties during the course of a civil trial. In this trial the Plaintiff- Appellant need not prove its case beyond reasonable doubt.
It was not put in evidence and no submission was made that the stock-take list Exhibit P2A should be singed by a Director of the Plaintiff- Appellant company. Stock taking is an internal function, at times only supervised by stake holders. P2A was marked through its maker and evidence given as to the date of its making.
No objection was taken to 2PA on the basis it is not signed or that it is not dated, at the time of marking it in evidence. In civil actions it is not for the trial judge to rule out a document at the end of the trial in the judgment depriving a party of the opportunity of leading other secondary evidence at the trial. The exception being those documents that need formal execution by statute.
However the trial judge is at liberty to decide as to the credibility of the maker of the document (a witness) as well as the reliability or truthfulness of the contents of a document.
It is the learned trial Magistrate that observes the demeanor of a witness in general, and in particular, when a particular question is put to the witness, or when answering a particular question. When the notes of the learned trial Magistrate is the only available record of proceedings, it is well nigh impossible to expect the learned Magistrate to take down each question and answer as well as observe and make a note on paper of the particular demeanor of a witness, in addition to ruling on objections and controlling the proceedings.
The learned Magistrate may well have in her memory observations and reasons not to rely on P2A. This court does not have the benefit of such observations, and as such is reluctant and cautious in ruling on such findings on facts.
However even rejecting P2A should not amount to and by itself lead to rejection of the Plaintiff- Appellants claim for special damages for the following reasons;
1. Plaintiff- Appellants letter P1 sets out the Special damages claim of $10455.04 and the value of the 3 scales of $2800/- making a total of $13255.04, which letter the Defendant- Respondent has failed to reply and deny, and in keeping with commercial correspondence, raises a presumption, however weak, that the Defendant- Respondent did not dispute the material contents of P1.
2. The Defendant- Respondent has admitted taking goods from the Plaintiff- Appellants premises and as such what was taken by the Defendant- Respondent is within the exclusive knowledge of the Defendant- Respondents employees, servants and agents, who did so.
3. The Plaintiff- Appellant did not remove goods from its premises and leave it at the door of the Defendant- Respondents premises! Therefore on the Defendant- Respondent admitting taking goods from the Plaintiff- Appellants premises and the learned Magistrate holding that such taking was without the consent of the Plaintiff- Appellant, the burden shifts to the Defendant- Respondent to prove exactly what it took from the Plaintiff- Appellants premises.
4. P2A only places a limit to the items and the total value of the items the Defendant- Respondent could have taken. Unless the Defendant- Respondent has successfully shifted the aforesaid burden back to the Plaintiff- Appellant, by proving that it took no more than it pleaded, being the three scales "together with goods", the court will have to hold with the Plaintiff- Appellants allegation of what was taken. On pleading paragraph 5 of the Amended statement of defense the burden of proving the exact quantity and value of the goods taken shifts to the Defendant- Respondent.
5. The Defendant- Respondent sought to shift this burden by D Ex1.
D Ex1 is not signed by the maker, and it too is not dated. Furthermore the Defendant- Respondents only witness has stated that it was prepared by another salesman and he was only present, and he admitted he did not prepare the list (page 38 of the copy record). Therefore D Ex1 in addition to not being signed was not marked through the maker. Yet again, this time the Plaintiff- Appellant, has not objected to the marking of this document on those grounds.
6. The Defendant-Respondent has not given the inventory of the goods they "repossessed" on the 1st March 2005 (D Ex1) to the Plaintiff-Appellant till the 9/3/2005. (Defendant- Respondents only witness under cross examination at page 38 of the copy record of the Magistrate Court.) And there was no reasonable explanation why it was not given to the Plaintiff Appellants Managing Director when he called over on the day after the raid (2nd day). In fact the witness had no answer to that question.
7.On comparing 2PA with D Ex1, one finds that D Ex1 has been written with more than one pen and even more extensively so than 2PA! If the learned Magistrate found 2PA as bad, then by the same standard she ought to find D Ex1 even worse.
8. The Defendant- Respondents only witness and its manager stated that some items seized were sold by the Defendant- Respondent. If so there should be an account entry of such stock coming in to the Defendant- Respondents existing stock and there should be a corresponding entry in the account of the Plaintiff- Appellant with the Defendant- Respondent, showing a credit entry. No such accounts were led in evidence for the Defendant- Respondent though an account is referred to at paragraph 9, of the Amended Statement of Defense and Counter Claim, of the Defendant- Respondent.
9. The Defendant- Respondent had the benefit of the element of surprise in the "raid" it conducted and it was able to bring the goods to its own premises at Lautoka and make out the list as stated by its manager in evidence. On the other hand the Plaintiff- Appellant had no opportunity to make a list of the goods taken, and the best it could do under the circumstances is to refer to the stock take done the previous night.
10. At the middle of page 38 of the copy record the Defendant- Respondents manager stated under cross examination "Seized all products and can't say that bought from R B Patel". This statement conveys two facts; that all items available were seized, and the items so seized cannot be said as that supplied by R B Patel (Defendant- Respondent).
11.Comparing item 1 in D Ex1 being "swan blanket" to the corresponding item in 2PA (at page46), one finds that the quantity in D Ex1 is less (less by 5) and the price per item is less by more than half. It was suggested that the Plaintiff- Appellants list was by retail price, and as such D Ex1 price may be wholesale price though stated as VIP price. It is the retail price the Plaintiff- Appellant lost by loosing the goods, and it is by that price that it needs to be compensated.
12. The quantity being less in D Ex1 may be due to pilferage as submitted, as the goods were in transit and there was a delay of 9 days in submitting a copy of D Ex1 to the Plaintiff Appellant.
13. The fact that D Ex1 does not set out the 3 scales admittedly taken, suggest that D Ex1 may be an incomplete list as well.
14.Item 8 in D Ex1 being "34 tin SPC Spagatti x 220"(sic) does not set out the "VIP Price" or the total of that item!
15. The copy of the credit note said to have been issued in respect of the 3 scales and goods as pleaded in the statement of defense, too was not led in evidence by the Defendant- Respondent.
In assessing special damages court has to rely on specific details. Court has to take either 2PA or D Ex1, and quantify the damages. Given the frailties in D Ex1, as above, and the finding by the learned Magistrate that the Defendant- Respondent trespassed and wrongfully took the goods from the Plaintiff- Appellants premises, shifting the burden of proof to the Defendant- Respondent, it is based on 2PA that court should award special damages.
2PB is not relied upon as it is not accurate in that the total in the item "swan blanket" (at page 52) is obviously incorrectly stated, and in any event it is only an extract of 2PA.
The amount of the value of goods taken as per 2PA is $13,255/04.
Therefore under Special damages the learned Magistrates judgment is varied and special damages in $13,255.04 is awarded to the Plaintiff- Appellant.
GENERAL DAMAGES;
The learned Magistrate has not made an award under General damages in its judgment. However the Defendant- Respondent does not contest the award of damages in $3993.77 in favour of the Plaintiff- Appellant referring to same as General damages. The learned Magistrate has proceeded to award such damages on the following basis;
"This was an action in conversion whereby it was brought by the Plaintiff in actual possession against the defendant who does have an interest in the chattel. The plaintiff's damages in respect of this interference is limited to the value of that interest".
The learned Magistrate has held that the Romalpa case does not apply and rightly so. And as pointed out above the Defendant- Respondents own witness has stated that he cannot say that the goods seized were those supplied by the Defendant- Respondent.(vide above, and middle of page 38 of the copy record). As such the learned Magistrate has erred on assuming that "the defendant does have an interest in the chattel". The case of City Motors Pty Ltd vs. Southern Aerial Super Service Pty Ltd [1961] HCA 53; (1961) 106 CLR 477, would have no applicability as the Defendant- Respondent is not a bailor with an interest in the chattel. The goods the Defendant- Respondent seized were admittedly not the goods it supplied under the two invoices, and as such the Defendant- Respondent is not a bailor in respect of those goods in either 2PA or D Ex1.
The Plaintiff- Appellants 1st witness and its Managing Director stated that if the scales were not taken he could have continued with the business though he was ashamed. The Plaintiff- Appellant could mitigate such loss and damage to it by buying 3 scales to keep the shop open.
Therefore on that basis the amount of damages awarded in $3993.77 is reduced to $2800- being the value of the 3 scales. I take the value of the 3 scales as $2800/- and not as $1800/-( as stated in the statement of claim) as P1, P2A as well as the evidence gives the value of the 3 scales as $2800.
Therefore General damages are awarded to the Plaintiff Appellant by varying the award of $ $3993.77 and reducing it to $2800.
EXEMPLARY DAMAGES & AGGRAVATED DAMAGES;
The Plaintiff- Appellant has not paid on the invoices and dishonoured the 3 cheques (A1, D EX2a, and D Ex2b), and was as such inviting legal action that would result in execution and seizure of goods. The Plaintiff- Appellants 2nd witness Seremaia Nakautoga too admitted that he called on the Plaintiff- Appellants 1st witness and its Managing Director Mahendra Kumar Patel to pay the debt owing to the Defendant- Respondent. The 3rd Witness for the Plaintiff- Appellant, one Filimoni Lagivola who was the only "shareholder" present at or about the time of the raid, did not mention of any "shame" or outrage.
It is to some extent surprising why the Plaintiff- Appellant permitted the Defendant- Respondent to remove so much of its goods without resisting and even without informing the Police. The element of "outrage" is lacking as seen by the Plaintiff- Appellants lack of immediate reaction. (Unlike in Frank Eggers Junior vs. Blue Shield (Pacific) Insurance Ltd- HBC 0094 of 1997L)
Even the claim, set out in P1 as well as in the Statement of Claim, too is for $15,000/- to include special, general, exemplary, and aggravated damages as well as costs, with special damages alone amounting to $13,255/04, leaving a mere $1,745/- for general, exemplary and aggravated damages and costs!
The $50,000/- was referred to in the "Amended statement of Claim" after the Defendants Amended Defense and Counter claim. The "Amended statement of Claim" of the Plaintiff- Appellant was disregarded by the learned Magistrate and rightly so as set out above. As such the exemplary and aggravated damage does not appear to be actualities, but an after thought.
The Plaintiff- Appellant being a company is not a natural persona capable of feelings. No evidence was led as to the damage to the good will of the business of the Plaintiff- Appellant. The "shame" said to have been felt by the Managing Director of the Plaintiff- Appellant, who was admittedly not present at the raid, if any, is personal to him, and does not entitle the Plaintiff- Appellant Company to damages.
As such I agree with the learned Magistrates finding that no exemplary or aggravated damages are due to the Plaintiff- Appellant in this action.
Section 27(2) of the Magistrates Courts Act (CAP 14) requires cases to be completely and finally determined and multiplicity of legal proceedings to be avoided. As such the sum of $3993.77 admittedly due to the Defendant- Respondent should be deducted from the damages awarded in favour of the Plaintiff- Appellant.
As such I vary the learned Magistrate's judgment and award;
| Special damages in - | $13255/04 |
| General damages in- | $ 2800/00 |
| | $16055/04 |
| Less money owing on invoices and cheques | $ 3993/77 |
| Total as damages | $12061/27 |
The Defendant- Respondents Counter Claim of $641.50 is the alleged balance due on the sum of $3993.77, and in view of deducting the said sum of $3993.77 from the damages awarded as above the said Counter Claim of the Defendant- Respondent ought to be and is dismissed.
Therefore the Judgment of the learned Magistrate of 23rd of October 2008 is varied as above and Judgment to be entered in the sum of $12061/27 in favour of the Plaintiff- Appellant.
Counter Claim of the Defendant- Respondent is dismissed
Plaintiff- Appellant entitled to $1,000/= or taxed cost, which ever is higher, in appeal and below.
Y I FERNANDO
JUDGE
At Lautoka
13TH July 2010.
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