Ali v Ali [1979] FJSC 71; Action 221 of 1978 (21 December 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 221 of 1978

BETWEEN

AJMAT ALI s/o Gulab Shah
Plaintiff

AND

SHAFIQUE ALI s/o Sitan Ram
Defendant

Messrs. Tulsi R. Sharma & Co. for the Plaintiff
Messrs. U. Mohammed & Co. for the Defendant

JUDGMENT

It was admitted by both parties that the plaintiff, a bus driver, entered into an agreement with the defendant, a taxi proprietor to purchase from the defendant a Holden Station Wagon, U731, registered as a taxi, together with the relevant taxi permit T713, at an agreed price of $2,500. How much of this represented the value of the vehicle and how much the value of the taxi permit was not clear. The plaintiff paid $2,000 and took possession of the taxi. He was also given a completed transfer of ownership form signed by the defendant to have the vehicle transferred into his own name, although this was never effected. It would have been ineffective to transfer the vehicle as a taxi in the plaintiff's name, but there is no reason why it could not be used to transfer the vehicle into the plaintiff's name as a private vehicle. The remaining $500 was to be paid later when the transfer for the taxi permit was effected. Apparently the plaintiff did later give the defendant a post-dated cheque for $500 but this was dishonoured. The plaintiff took possession of the vehicle on 21/7/76 and apparently ran it as a taxi thereafter on the strength of the defendant's taxi permit and with the vehicle still registered in the defendant's name. The plaintiff rather vaguely said that he only used it for 2 or 3 months earning about $15-20 dollars a day; but he certainly had it in his power to use it as a taxi, subject to any breakdowns, until 17/3/78 when the defendant took rather drastic steps to make sure that the taxi permit was cancelled and the plaintiff could no longer use the vehicle as a taxi.

The plaintiff claimed that he had to spend $1,470 on the vehicle between the time he took possession of it till he got the last certificate of fitness which was for 1978, and claims the return of that sum as special damages. I don't understand how he justifies that claim even if he only ran the taxi for 2-3 months as he alleges. He certainly ran it on its original 1976 certificate, he got another certificate in 1977, and even if he has not been using it as a taxi all the time he agreed that he used it privately. There was no evidence to show that there were inherent faults when he took over the vehicle, if there were later found to be faults there was nothing to indicate that they were not a result of the plaintiff's own use of the vehicle, when he used it as a taxi, or when he used it for his own private purposes. Presumably he felt quite entitled to use the vehicle as a taxi and for private purposes without accounting for any of his earnings to the defendant. The plaintiff originally claimed specific performance of the agreement to transfer the vehicle and taxi permit to him and special damages for what he had to pay to get the 1978 certificate of fitness and certain other claims. But, perhaps now realising that it is not, and was not, in the defendant's power to transfer the taxi permit, or have it transferred, the plaintiff no longer seeks specific performance of the agreement. He is apparently content to return the vehicle to the defendant, in whose name it is still registered, and asks for the return of the $2,000 he paid to the defendant together with the $1,470 he says he spent on the vehicle. I notice that he still does not offer to account for whatever monies he made out of the vehicle when he used it (quite illegally) as a taxi, or for his own private use of the vehicle. To give judgment in the terms he seeks would be blatantly unjust.

The defendant called no witnesses and simply argued that the whole agreement was for an illegal purpose and thus the plaintiff is not entitled to the return of the $2,000 he paid to the defendant or to be paid the $1,470 he says he spent on the vehicle to get the certificate of fitness necessary for it to be run as a taxi.

He quotes regulation 12 of the Traffic (Taxis and Rental Cars) Regulations LN 62 of 1967. Regulation12(1) reads

"Subject to the provisions of this regulation, a permit shall be personal to the holder thereof and shall not be transferred or assigned."

Regulation 12(3) provides for the only circumstances in which the Principal Licensing Authority may authorise the transfer of a permit, and those circumstances do not pertain in this case.

Regulation 12(4) provides

"If the holder of any permit purports, in contravention of the provisions of this regulation, to transfer or assign the permit to any other person, or causes or permits any other person to provide the services authorized in the permit, both the holder of the permit and the other person shall be guilty of an offence."

So the whole transaction was tainted with illegality, and the plaintiff has admittedly operated under the defendant's taxi permit quite illegality. He cannot claim as his counsel seemed to claim on his behalf, that he was ignorant of the law, or that he was taken advantage of by the defendant who certainly should have known the law.

In Narendra Khan Sharma v Jag Deo C.A. 174/1973 the situation was similar except that in that case the defendant had repossessed the car from the plaintiff and sought to retain it and resist a claim for damages for conversion and detention. It was in that case held that the original agreement was entirely unlawful and neither the plaintiff nor the defendant was entitled to any relief on the strength of it. The plaintiff could not for instance claim the return of monies paid under the terms of the agreement. However possession of the car had passed to the plaintiff and the defendant had wrongfully repossessed it. Although the plaintiff could not claim back the money he had paid under the terms of the agreement, he was entitled to have the vehicle returned to him. The only damages claimed were loss of earnings and since such earnings would have had to be gained from an unlawful use of the vehicle they could not be allowed.

In this case the agreement was similarly unlawful and the plaintiff is not entitled to have monies paid by him under the terms of the agreement returned to him. He has the vehicle in question and he has a signed transfer of ownership form, which, although it will not allow him to have the vehicle registered as a taxi in his name, will enable him to have it registered in his name as a private vehicle. He will have to be content with that.

As I have said earlier the plaintiff's claim for special damages cannot be justified on any ground, and the whole of the plaintiff's claim is dismissed. The defendant is entitled to costs of this action to be agreed or taxed.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
21st December, 1979.