Bulldog Spares (Fiji) Ltd v Narayan [2016] FJHC 480; HBC188.2015 (2 June 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

HBC 188 OF 2015

BETWEEN : BULLDOG SPARES (FIJI) LIMITED

[Plaintiff]

AND : DIP NARAYAN of Tuvu, Lautoka.
[Defendant]

Before : Hon Mr. Justice R.S.S.Sapuvida

Counsel : Mr S. Nacolawa for the Plaintiff

Date of Judgment : 2nd June 2016

JUDGMENT

[1] This is the writ of summons and statement of claim by Bulldog Spares (Fiji) Limited [the plaintiff company] dated 29th October, 2015for:

(a) the recovery of damages of goods destroyed in the fire worth of $80,000.00
(b) for an order of this court directing the defendant to release the removal of plaintiff’s belongings from the land more fully described in paragraph 3 of the plaintiff’s statement of claim, and
(c) Costs of this action

[2] Having considered the fact that the trial was preceded ex parte against the defendant, an order was pronounced by this court on 03 May, 2016 directing the plaintiff to satisfy the court before the pronouncement of the final judgment among other things in that order at paragraphs 09, 10, 11 and 12 on the following:

“ORDER

1. .....
2. .....
3. .....
4. .....
5. .....
6. .....
7. .....
8. .....

“9. During the preparation of the judgment having put myeye through the documentary evidence produced by the plaintiff at the trial and having scanned the main case record, I found the following:

1. That the plaintiff company has not appointed Nacolawa& Co as its

barristers and solicitors. [O.5, r.6 (3) of the High Court Rules 1988].

2. That Lolita Devi Prasad has never been the Managing Director of the

plaintiff company and that she has not been given a mandate by the plaintiff company to represent its rights or the right to prosecute the defendant in this case.

100. That Lolita Devi Prasad was a Company Director of the plaintiff company

at the time of the registration of the plaintiff company [LP1] on 26th January 2004.

4. She resigned from the company as the Company Director on 24th May

2004 [LP1].

5. She resigned from the company as the Company Secretary on 25th

November 2004.

6. That Nacolawa& Co, who acts in this case as the barristers & solicitors

for the plaintiff company has not filed the letter of appointment as barristers & solicitors of the plaintiff company.

7. Lolita Devi Prasad pleads in her evidence that damages be awarded to her

against the defendant in her personal capacity in this case.

10. For the forgoing findings, the judgment is hereby deferred until the

plaintiff satisfies the court with proof of the relevant requisites referred to

in paragraph 9 a, b, and f above within 21 days from now.

11. Unless the plaintiff satisfies the court with same, the judgment will be

delivered accordingly on available details in the record.

12. The judgment will be delivered on 01st of June 2016 at 3.00 p.m. in Court

No. 3.

[3] Even though the trial was preceded ex parte against the defendant the plaintiff was burdened to formally prove the claim against the defendant by calling evidence on behalf of the plaintiff company without entering the default judgment in favor of the plaintiff for two reasons. One is that the plaintiff is a company and the other reason is that the writ of summons and statement of claim of the plaintiff company against the defendant are for a claim of unliquidated damages and mixed type of a claim.

[4] Lalita Prasad (some time named by herself as Lolita Devi Prasad/ Lalita Devi Prasad) appearing and pretending as the Managing Director of the plaintiff company gave evidence at the trial representing the plaintiff company.

[5] The present action is instituted by the Bulldog Spares (Fiji) Limited as the plaintiff but not by Lalita Prasad in her personal volume as plaintiff.

[6] The plaintiff company states in paragraph 1 of its statement of claim that the plaintiff company is suing the defendant through its Managing Director “Lalita” for the damage done by the defendant to her goods by setting fire by the defendant.

[7] However, during the trial Lalita Prasad produced the Certificate of Registration of the plaintiff company [LP1] in proof of her shareholding capacity in the plaintiff company. [see the findings at c, and d, in paragraph 2 above]

[8] She produced three new documents [“LP A”, “LP. B” and “LP. C”] in addition to the earlier documents produced and relied upon at the trial [LP 1 to LP 6 and A (i) &(ii)] along with the supplementary affidavit she filed dated 09th May, 2016 in view of the order made by the court dated 03 May, 2016.

[9] Before I venture to examine into the admissibility and/or the due standing of the three documents so filed with regard to the plaintiff’s case and further analysis of the same, would prefer to append below the averments in her supplementary affidavit so filed for the completeness and clarity of the final decision of the matter.

[10] Lalita Prasad in her supplementary affidavit says;

“1. That I am the majority shareholder in the Plaintiff company and my son the Director is the minority shareholder of the same in the within action. (Attached herewith is a copy of the company’s record of share marked “LPA”)

2. That I swear this Affidavit based on my personal knowledge, information and belief as true and correct.
3. That in the matter of the above company where we sued the Defendant Dip Narayan we both the Director AtishAmbika Prasad and majority shares holder Lalita Devi have not instructed in writing our solicitor Nacolawa& Co. to act for our company nor were we advised by Nacolawa& Co. to give him our authority to act for us in the within action as required by the High Court Rules Order 5, 6, (3).
4. That we are now rectifying the said defect by regularizing the same and we sincerely appreciate the Court’s assistance in the matter. (Attached herewith is a copy of our authority instructing Nacolawa& Co. to act for the company marked “LPB”)
5. That as to the claim of the Directorship of the company, save to say that I was a Director at one time, I am no longer a Director at the time of the filing of the case since I am a majority shareholder, holding 90,000 shares, my power would have been the equivalent of that of Director.
6. That it was a mistake on my part to call myself a Director and I hereby declare that at the various places in my claim where it states the phrase “Managing Director” regularizing the true status of the claim.
7. That despite I being the holder of majority shares – 90,000 out of 100,000 shares, the Managing Director has authorized me to act for the company in the present action. (Attached herewith is a copy of the said authority marked “LPC”)
8. That as per the authorization mentioned in paragraph 7 above (Attachment “LPC”) that my representation for the company has been now regularized and whatever damages awarded by the Court will be awarded to the company through me as representation of the said company.
9. That I am grateful to this Honorable Court in pointing out the relevant requisite and I believe I have satisfied the Court in regularizing them. I seek judgment in the within action.

[11] Now it is clarified from Lalita Prasad’s supplementary affidavit that she willfully or otherwise lied to court by testifying in her original affidavit dated 29th October, 2015 and at the trial to the fact that she is the Managing Director of the plaintiff company.

[12] According to her latest testimony she now calls her position in the plaintiff company as Majority Shareholder.

[13] Now I will deal with these three additional documents [LP A, LP B and LP C] tendered by her on behalf of the plaintiff company before I touch upon the other documents tendered in court at the trial.

[14] The document “LP A” is a photocopy of one of the five pages [5th page] of the document tendered at the trial marked as “LP 1” which contains the Certificate of Registration, particulars of Directors, Notice of the situation of the Office of the company, Memorandum of Association and the details of shares [5th page of LP 1] of the plaintiff company.

[15] However, though the document “LP A” is called a copy of the company’s record of shares by Lalita Prasad in her supplementary affidavit, she does not give any reference in that affidavit to the “LP 1” which she had already tendered to court at the trial.

[16] More interestingly, the “LP A” now carries a figure of 90,000 under the heading of “shares” in front of the name Lalita Devi Prasad and that it is manifestly clear that, that figure “90,000” is an introduced figure in the “LP A” by tinkering the figure “40,000” in the original “LP 1” in which even has the signature, date and the original rubber stamp of the Registrar of Companies.

[17] The reproduction is indispensable in distinguishing between these two documents.

[18] “LP 1”

[19] “LP A”

[20] The other document “LP B” tendered by Lalita Prasad in her supplementary affidavit as she has stated at paragraph 4 of the same is a copy of the letter of authority given by the plaintiff company instructing Nacolawa& Co to act for the company in the present case.

[21] I cannot prevent myself from reproducing “LP B” below without which a mere explanation would not give the perfect reflection and weight to my findings on the same.

“6^th May, 2016

4 Bandila Crescent

Rifle Range

Lautoka

MessrNacolawa& Co.

Barrister & Solicitor

111 Vitogo Parade

Lautoka

RE: IN THE MATTER OF BULLDOG SPARES

Dear Sir

We the Director and the Majority Shareholders of the abovementioned Company instruct and authorise you to act for the above named Company in our court against Dip Narayan the defendant herein.

Signed Signed

ATISH AMBIKA PRASAD LALITADEVI PRASAD

Director Majority Shareholder

09/05/2016 09/05/2016”

[22] On the face of the above letter it reflects that it is a homemade document (not an act of the plaintiff company) dated on two different dates, i.e. 6th May, 2016 and 09/05/2016 which carries no company seal and solely made up document to cover up the requirement stipulated under Order 5, rule 6(3) of the High Court Rules as pointed out by the order made on 03rd May, 2016 by this court.

[23] The plaintiff’s solicitors may have misinterpreted the order made on 03rd May, 2016 save to the fact that it does direct the plaintiff company to prepare new documents with retrospective effect to cover up the lacunas on the part of the plaintiff company at the time of institution of the proceedings, and yet it does not confer a mandate to the plaintiff company to cover up the gap with a blanket of newly made documents.

[24] The artless meaning of the order made on 03rd May, 2016 is to facilitate the plaintiff to produce the required documents which should have been tendered at the time of filing the action since the plaintiff is a company and that those steps had not been fulfilled by the plaintiff until the preparation of the judgment.

[25] However, the plaintiff company has been unable to encounter with the required provisions of the High Court rules even though the chance to rectify it by submitting the genuine documents [if there were] was given by the said order.

[26] Moving onto the attached letter “LP C”, it has no difference from the letter “LP B’ except its purpose.

[27] Be that as it may, having the above being the position of those documents, I now look at the evidence given by Lalita Prasad [she however introduced herself in the witness box as Lolita Devi Prasad] with regard to the plaintiff’s claim against the defendant.

[28] She in her evidence basically answered “yes” or “no” to what her counsel asked from her by proposing the necessary answers within the counsel’s questions [leading questions]. This is however accepted to a certain extent in ex parte trials.

[29] It is true that the trial against the defendant is ex parte, and yet the plaintiff has to prove the case against the defendant with evidence acceptable to the court.

[30] The case of the plaintiff company [as it appears in the writ of summons and the statement of claim] against the defendant is that the plaintiff company being a dealer in heavy machinery spare parts has sent a container full of spare parts in Fiji in the year 2005 and the said container was kept at the estate of late Deo Narayan who is the father of Lalita Prasad and the defendant.

[31] It is alleged that in about June or July 2013 the relationship between Lalita Prasad and the defendant fell out and on 29th September, 2013 the defendant is alleged to have set fire to the container and all the contents in it were completely burnt and destroyed.

[32] It is for that damage the plaintiff company has instituted these proceedings against the defendant.

[33] Firstly, in order to prove the case against the defendant the plaintiff company has to establish the fact that the goods were in the possession and custody of the defendant.

[34] In order to establish the former, the plaintiff must identify and convince the court the exact items of spare parts which were imported to Fiji in the year 2005.

[35] The witness Lalitha Prasad tendered four documents marked “A (i)” [two pages] and “A (ii)” [two pages] to establish the purchasing and importation of the goods so claimed.

[36] The exhibits A(i) and A(ii) do not speak as to who the purchaser of the goods is and that all those documents are related to a transaction took place on 09 December, 2003 whereas the plaintiff claims of a consignment sent to Fiji in the year 2005.

[37] The plaintiff has not produced any such evidence to establish the fact that it sent a consignment in the year 2005.

[38] The plaintiff is unable to prove the fact that the goods that were burnt in the container were duly kept under the custody of the defendant. There is no evidence to prove the fact that the goods were entrusted on the defendant though the plaintiff produced some photographs (LP 5) of a container and some burnt particles in the background.

[39] The plaintiff’s marked document “LP 6” is a letter issued by the Office of the Divisional Prosecution Officer/Western Lautoka which speaks of a charge against Dip Narayan for an offence of Fail to Clear Space Before Setting Fire and that he was convicted by Lautoka Magistrate’s Court.

[40] The latter “LP 6” issued by the police does not prove the fact that Dip Narayan (the defendant) was convicted for setting fire and damaging the goods of the plaintiff company and that such mischievous act on the part of the defendant caused the damages to the goods claimed by the plaintiff company.

[41] In order to prove the former the best evidence is to produce the certified copy of the conviction order of the Magistrate’s court Lautoka which should bear the particulars of the offence, the charge and the value of the goods so damaged by setting fire by the defendant to bring at least an implication in the instance action against the defendant.

[42] Without proving the former, no liability for damages can be established against the defendant.

[43] For the reasons indicated above, I hold that the plaintiff has been unable to prove the case against the defendant and that the end result being the plaintiff’s case is liable to be dismissed.

[44] Final orders of court:

(i) The writ of summons and the statement of claim filed by the plaintiff company dated 29th October, 2015 is struck out and dismissed.

(ii) No order for costs.

R.S.S.Sapuvida
Judge
High Court of Fiji

On the 02nd day of June 2016
At Lautoka