Eros Multimedia PVT Ltd v South Pacific Recordings Ltd [2011] FJHC 97; HBC57.2006 (31 January 2011)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA

HBC No. 57 of 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:

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

Appearances:

For the Plaintiff:.Mr. Faiyas Koya of Koyas (Firm of Barristers and Solicitors)

For the Defendant:. Ms. M. Muir of M.k. Sahu Khan & Co.(Firm of Barristers and Solicitors)

Hearing; 6th December 2010.
Order; 31st January 2011.

ORDER OF THE COURT

This Court delivered Judgment in this case on the 2/July/2010.

By the inter-parte Summons of 20/10/2010 the Plaintiff seeks an "amendment" of the said Judgment by deleting Fijian Dollars (F$) and "adding" US dollars instead of the Fijian $12500/awarded. The said application is made pursuant to Order 20 Rule 10 of the High Court Rules 1988 and the inherent jurisdiction of this Court.

On the 19/11/2010, on the Defendant raising an objection that this Court is functus officio, the Court gave parties time to file written submissions and thereafter on 6/12/2010 reserved order on the said objection for the 31/1/2011. The Court considered the written submissions in opposition filed by the Defendant on the 2/12/2010 raising the said objection and the Plaintiff's reply in its written Submissions of the 3/12/2010.

The preliminary objection to be determined is whether this Court is functus officio, after delivering its judgment and, after the parties have appealed from that judgment, as it is common ground that the Defendant has appealed from the judgment.

The General rule is that once Court has delivered its judgment it is functus officio. Order 20 Rule 10 is but an exception to that rule.

When a judgment is appealed from and it is before the Court of Appeal is the hand of the original Court stayed automatically?

Court of Appeal Rules, Rule 25 (1) states;

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court below

(b) no intermediate act or proceedings shall be invalidated by an appeal.

Therefore the objection to be decided is whether the Court is not functus officio after delivering the judgment by application of Order 20 Rule 10.
It is for the applicant the Plaintiff to show that, the "amendment" sought is one that can be considered under Order 20 Rule 10. This Court has in its judgment awarded damages in Fiji Dollars. The "Amendment" is sought by the Plaintiff in its application, to change the award to read as in US dollars instead of Fiji dollars.

Order.20, Rule.10 High Court Rules 1988 (Amendment of judgment and orders) states;

"10. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omissions, may at any time be corrected by the Court on motion or summons without an appeal."

This Court in its judgment has referred to Fiji dollars at paragraph 42, 47 and 51.
In the Written Submissions of the Plaintiff filed on 3/12/2010 at page 2 at the middle of the page states "The witness for the defendant also admitted under cross-examination that the value of the print was in US currency and not in Fiji dollars".

My notes of the Defendant's evidence, of 14/5/2010 at the top of page 5 refer to the f $500 (fiji dollars) as stated by the Defendant's witness, at two consecutive lines. My notes have not recorded any questions under cross examination of the Defendant's witness admitting to US $500.

The Plaintiffs second witness has stated in evidence according to page 10 of my notes of 11/5/2010 that the prints were sold at US $500.

This Court in its judgment has stated at paragraph 42; "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".

The aforesaid sentence ought not to be read in isolation. In the same paragraph of the judgment the Court has stated "It was not shown by the Plaintiff that the raw material of the print have a value". At that point the Court left the evidence of the Plaintiff and looked at the evidence of the Defendant.

The Plaintiff's 2nd witness was the Defendant's former Marketing Manager who has turned to be the Plaintiff's employee and 2nd witness. The prints were sold by the Defendant as admitted by the Defendant's witness through the Plaintiff's 2nd witness. It is to that fact, the Court refers to, in the said sentence and thereafter reliance is placed on the Defendant's evidence as to the price at which it had been sold.

It is for the Court of Appeal to determine whether, there was sufficient evidence for the Court to enter judgment in US$ and whether the more acceptable evidence as to the price a print was sold, was that of the Plaintiff's 2nd witness or of that of the Defendants only witness.

This Court has relied on the evidence of the Defendant's only witness as to the price at which a print was sold by the Defendant as it is an admission by the party against whom it will operate. This Court may well have erred in doing so but that is a determination to be made by the Court of Appeal and this Court cannot change its judgment now.

It is a matter that is best left for the Court of Appeal to decide on the submissions of the parties as it thinks fit. It is the view of this Court that it doesn't appear to be an "error" or "mistake" that would entitle the Court to consider that it is not functus officio by applying Order 20 Rule10.

It is for this Court with outmost humility, to permit the Court of Appeal to decide whether it is a error or to peruse the evidence as it appears in the judge's notes that I have taken down and consider the law and determine whether this Court ought to have entered Judgment in Fiji$ or US$.

Even Order 20 Rule 11 does not preclude an error or mistake from being corrected in Appeal; it only provides a procedure to do so without an Appeal. As there is an Appeal the Plaintiff may in Appeal by notice proceed to "amend" the judgment on the basis of error or mistake.

As such I hold that this Court is functus officio and therefore cannot make the "amendment" as sought by the Plaintiff.

The inter parte summons of the Plaintiff filed on 20/10/2010 is therefore dismissed with costs in favour of the Defendant in a sum of Fiji $500/=.

Y I Fernando
PUISNE JUDGE

High Court of Fiji
At Lautoka
31st January 2011.