Civoniceva v Kudruvi [2014] FJMC 39; Civil Action 327.2011 (19 March 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION

Civil Action No: 327 of 2011

Joseph Civoniceva
Plaintiff

v

Suliasi Kudruvi trading as Turtle Island and Landing Services
Defendant

For Plaintiff : Ms Renee Lal Bale (Lal Patel Bale Lawyers)
For Defendant : In Person

Judgment

Introduction

In this matter the Plaintiff had filed a Writ of Summons seeking judgment in the sum of $17,900, general damages for breach of contract, interest and costs (all to be within the jurisdiction of the Court).

The Plaintiff had chartered a motor vessel of the Defendant. The Plaintiff claimed that the Defendant failed to take the Plaintiff and his team to Vanuabalavu as agreed. The Plaintiff further claimed that the vessel suffered engine failure during the trip which did not allow them to stay for the duration of the trip as was initially agreed to between the parties. The Plaintiff claims that the breach and the delays caused loss which he is now entitled to claim from the Defendant.

The Defendants position is that there was no express agreement as to the time and dates and when the vessel should reach Vanuabalavu. The Defendant pleaded that the vessel was seaworthy and they took shelter at Koro due to unforeseen engine failure. The Defendant's reasons for returning early to Suva was due to failure in the business arrangement between the Plaintiff and the Villagers and that the Plaintiff was advised by the Roko Tui Lau to leave Vanuabalavu as they were not authorized to conduct business there.

Pleadings Filed and the Evidence in Court

The Plaintiff filed a Writ and the Defendant filed a Statement of Defence. The Plaintiff had also filed a reply to the Statement of Defence.

The Plaintiff and the Defendant gave evidence in Court. In addition the Plaintiff called Gauna Halofaki, Edward Rosatitoma, and Josaia Baleiwai. The Defendant was given opportunity and time to call other witnesses but despite adjournments the Defendant failed to call any other witnesses. The Court could not grant any further adjournment due to the delay on part of the Defendant in getting his witness on the designated time and dates. The Court has considered the closing submission that was filed by the Defendant.

Analysis

This Court has noted all the evidence that was given in this Court, the documents that were tendered together with the pleadings filed. A number of letters or correspondences written by the Defendant or for him are in the Court files, which also purport to put his version and his side of the story. This Court has only considered evidence given at the hearing, the pleadings files and the documents tendered as exhibits.

The Defendant in his statement of defence admitted that the Plaintiff was a businessman and that the Plaintiff had chartered the defendant's vessel. The Defendant also admitted that from 12th November 2010 to 26th November 2010 his vessel was chartered from Suva to Vanuabalavu at a cost of $11,900, that the vessel was to be used by the Plaintiff to travel around Vanuabalavu, its villages and surrounding islands, and that for the duration of the charter the Defendant was to provide all meals and water for the Plaintiff and his crew.

The Defendant admitted that the vessel engine failed and they were forced to take shelter at Koro Island. The Defendant for his part denies that he had a specific agreement when the vessel should reach Vanuabalavu. This Court from the evidence before it noted that the Plaintiff was a businessman on a business trip. The duration of the voyage was from 12th November to 26 November 2010. The trip to Vanuabalavu should at the most (considering what is a reasonable time period) have taken 1 day or in terms of hours – 24 hours. The vessel departed Suva on Friday and reached Vanuabalavu on Monday, which is after 3 days. For the Defendant to say that the Plaintiff had no agreement when he was to reach Vanuabalavu and reaching there after 3 days, via Koro Island is mischievous. The Defendant in this Courts assessment has failed to accept that the cause of the delays in getting to Vanuabalavu was the engine failure of his vessel. The Plaintiff had chartered the vessel of the Defendant to go to Vanuabalavu. The Plaintiff had paid the Defendant to go to Vanuabalavu in his vessel. The Plaintiff expected to reach Vanuabalavu within 16 hours and at the most within 24 hours. He reached Vanuabalavu after 3 days. This delay caused offset his plans.

The evidence of the Plaintiff and other plaintiff's witnesses are consistent. They told the Court of the ordeal they went through in the voyage to Vanuabalavu. They were not provided meals. The engine constantly broke down and that they reached Vanuabalavu via Koro after 3 days. This Court also notes from the evidence of Gauna Halofaki, a marine engineer, who was the chief engineer of the chartered vessel from 8th September to 7th December 2010. This period covered the duration of the charter by the Plaintiff. He was present on the vessel for the duration of the charter. His evidence was that before the trip he advised the Defendant of certain defects, but was advised to carry on in the journey. He also informed the Court there was not enough food, neither requisite tool to fix the engine. This witness was very forthright and his evidence was clear. He had no animosity or ill-will towards the Defendant who he was previously employed by. His version of events was similar to the Plaintiff and other Plaintiffs witness who were present on the vessel.

This Court finds from the evidence before it that the Defendant breached the agreement with the Plaintiff to provide a seaworthy vessel for the trip to Vanuabalavu. The evidence of Gauna Halofaki shows that the Defendant had knowledge that his vessel was not seaworthy prior to making the trip to Vanuabalvu but despite this he proceeded with the journey. The Defendant as a result of taking the defective vessel failed to take the Plaintiff and his team to Vanuabalavu within a reasonable time. The Plaintiff who was to be in Vanuabalavu for about 12 to 13 days for business did not stay there for the duration of the trip but only 3 days.

The Defendant from the evidence before this Court repaired his vessel for those 3 days. The Defendants contention is that he was advised by the Police, Fisheries and Roko Tui Lau to leave Vanuabalavu as the trip was illegal. This is not supported by any other evidence from the Defendant. The Plaintiff was on shore he himself was never told by the Police, Fisheries or the Roko Tui Lau of any illegality. If there was any. The Defendant was the owner and Captain of the vessel. If anything was illegal about the trip or the vessel he would have been notified. Meaning in this case that the vessel was fishing illegally or his crew were involved in illegal acts. If the Plaintiff was involved in any illegality he would have been notified by the relevant authorities of his actions. The Plaintiff was on shore and the Defendant was also berthed, repairing his vessel. They were not in the water conducting business whereby the authorities would needed to board the vessel and contact the Defendant, who was the Captain of the vessel to leave the area. For any illegal action/s by the Plaintiff he would have been dealt with accordingly by the relevant authority. This did not happen in this case. This Court believes the Plaintiff. From the evidence before this Court this Court finds that the Defendant made up the version that the Plaintiff were there for illegal purpose to terminate the trip and return to Suva.

This Court from the evidence before it finds that the Plaintiff had an agreement with the Defendant to hire his vessel from 12th to 26th November 2010. The Plaintiff had paid the Defendant for the trip. On the voyage the Defendant failed to supply food and water to the Plaintiff and his team as was agreed to between them. The Plaintiff and his team had to utilize the ration they had bought. The Defendant failed to arrive at Vanuabalavu within a reasonable timeframe for the Plaintiff to conduct his business. Due to the late arrival in Vanuabalavu and later a unilateral decision of the Defendant to return to Suva prior to the Plaintiff completing his business and well before the agreed timeframe of the charter the Plaintiff sustained losses. The Plaintiff has tendered in this Court all supporting documents substantiating his claim.

The Plaintiff's case is proven on the balance of probabilities. This Court is satisfied on the evidence before it that the Defendant unilaterally terminated the contract. Due to the termination of the contract, the Plaintiff suffered loss. The Plaintiff is entitled to recover his loss from the Defendant due to the failure of the Defendant to honour the Contract. This Court in the absence of any evidence for or from the Defendant believes that the Plaintiff was involved in anything illegal. In any event if the Plaintiff was into any illegal activities he would have been advised accordingly by the relevant authorities and not the Defendant. The Plaintiffs succeeds with his claim.

This Court orders as follows:

(a) That the Defendant pay the Plaintiff the sum of $11, 900.00 for the Charter.

(b) That the Defendant pay the Plaintiff for the cost of food, supplies and other related miscellaneous expenses, sum being $6347.47.

(c) That the Defendant pays the Plaintiff for general damages for loss of business sum being $30,000.00.

(d) That the Defendant to pay costs to Plaintiff sum being $1500.00.

(e) The total sum to be paid by the Defendant is limited to the jurisdiction ($50,000.00) of this Court.

Any party aggrieved with this judgment has the right to appeal to the High Court within 28 days.

Chaitanya Lakshman
Resident Magistrate

19th March 2014