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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
[APPELLATE JURISDICTION]
Civil Petition No. CBV 0018 of 2018
[On Appeal from the Fiji Court of Appeal Civil Appeal No. ABU 019 of 2017]
BETWEEN:
1. MICHAEL LOW
2. ROSLYN LOSA LOW
Petitioners
AND:
NBF ASSET MANAGEMENT BANK
Respondent
Coram: Hon. Madam Justice Chandra Ekanayake, Judge of the Supreme Court
Hon. Mr. Justice Brian Keith, Judge of the Supreme Court
Hon. Mr. Justice Kankani Chitrasiri, Judge of the Supreme Court
Counsel: Mr. G. O’Driscoll for the Petitioners
Mr. K. Jamnadas and Mr. J. Baleidrokadroka for the Respondent
Date of Hearing: 23 October 2019
Date of Judgment: 27 February 2020
JUDGMENT
Ekanayake, J
[1] I have had the advantage of perusing the judgments in draft of Hon. Keith J, and that of Hon. Chitrasiri J. Keith J, has stated the back ground facts in detail.
[2] To my mind the issue that has to be determined by this Court falls within a narrow compass. That is whether the petitioners are entitled to get credit for the interest charged on the 5 unexplained debits, which had been deducted from the amounts claimed by the Bank. In the Court below this matter had not been raised. This is not a question of law, but purely a question of fact. No issue even had been raised on this before the trial judge. As the respondent had failed to show how those 5 unexplained debits were computed, Learned High Court Judge (HCJ) had disregarded those debits.
[3] The Learned Justices of the Court of Appeal (COA) in paragraph 7 of the impugned judgment of 5/10/2018 had dealt with this issue. Reasons given by the COA were that :
[4] On the above footing, COA had been of the view that therefore it becomes a new cause of action. I am of the view that COA has not erred in arriving upon that conclusion. At this juncture paragraph 40 of the HC judgment also would become relevant. Finding of the learned HCJ was also that – since the plaintiff had failed to lead any evidence on the resulting reduction in interest upon the deduction of the five unexplained debits, it does not fall within the consideration of the trial Court. I am satisfied with the reasons given by the Learned HCJ as above. Further, I observe that thrust of Chitrasiri, J’s reasoning also appears to be same.
[5] With regard to the above issue Hon. Keith J’s conclusion appears to be that:-
This is clearly an issue on facts and same was not raised in the Court below for consideration of the trial judge. A question on primary facts is well within the province of the trial Court.
[6] Viewed in the above context, with utmost respect to Keith J, I am unable to agree with him. I am inclined to agree with the approach adopted by Chitrasiri J, in his judgment and agree with his reasoning and conclusions. I also agree that leave to appeal ought to be refused and the impugned judgment of the COA should be upheld.
[7] I concur with the consequential orders proposed by Chitrasiri, J.
Keith, J
Introduction
[8] This case demonstrates the pitfalls of charging one’s property to secure the debts of someone else. The Plaintiffs are Michael Low and his wife Roslyn. They own a property in Vatuwaqa in Suva. It was, and still is, their matrimonial home. Mr. Low’s brother was the principal shareholder in Unique Marketing South Pacific Ltd (“the Company”), and Mr. Low himself was a director of it as well as having a small shareholding in it.[1] The Company was indebted to the National Bank of Fiji (“the NBF”), and Mr. and Mrs. Low charged their home by way of mortgage to the NBF to secure the Company’s debts. That mortgage was registered with the Registrar of Titles on 29 December 1992. Not long afterwards, the NBF was restructured, and the accounts of its customers (as well as the mortgages over properties owned by third parties) were taken over by the Defendant, the NBF Asset Management Bank (“the Bank”). There was no evidence, as far as I can tell, about the amount of the debt at that stage, but the debit balance on the Company’s loan account with the NBF as at 31 December 1992 was $232,128.11[2], and the debit balance on the Company’s current account with the Bank as at 6 April 1993 was $50,731.67.[3] The accounts were restructured towards the end of 1994[4], and in 1996 the Bank declined to alter the arrangements for the loan to be repaid.[5]
[9] There were then many years of inactivity before the Bank called in the Company’s debt. It did so by a Notice of Demand dated 6 March 2006. The debt at that stage had risen to $746,851.14.[6] It was an agreed fact at the trial that this period of inactivity had “prejudiced” Mr. and Mrs. Low.[7] After the Bank had called in the debt, Mr. and Mrs. Low claimed that they had agreed to cover only those of the Company’s debts which existed at the time of the mortgage, and that they had not agreed to cover any future debts. They issued proceedings in the High Court to get, among other things, a declaration to that effect. The judge found that they had agreed to cover all the Company’s debts, and an appeal against that finding was not pursued in the Court of Appeal.
[10] Mr. and Mrs. Low and the Bank also disagreed on the size of the debts. Mr. and Mrs. Low sought in effect a declaration that the size of the debts were what they contended them to be. For its part, the Bank counterclaimed for the sums which it claimed remained unpaid. One of the issues related to five sums said to have been treated as debits in the statements of the Company’s accounts with the Bank. Those five debits amounted to $156,522.54. They have been called “the unexplained debits”. The Bank was unable to produce any evidence about four of the unexplained debits. The judge held that in the absence of such evidence, the Bank was not entitled to recover those sums. He also held that the Bank was not entitled to recover the last of the unexplained debits – one in the sum of $72,070.00 – and I shall have to return later to his reasons for that, even though there was no cross-appeal by the Bank against the judge’s finding that none of the five sums were recoverable by the Bank.
[11] There is now a single issue before the Supreme Court. It was argued on Mr. and Mrs. Low’s behalf that since these five sums had been treated as debits in the statements of the Company’s accounts, the Bank must have charged interest on them. The contention was that the Bank’s counterclaim had to be reduced by whatever that interest was. The judge declined to do that. The one ground of appeal which was pursued by Mr. and Mrs. Low in the Court of Appeal related to this finding. The Court of Appeal dismissed the appeal. Mr. and Mrs. Low now seek leave to appeal to the Supreme Court against that finding. Since different considerations apply to the last debit, I deal with the first four debits first.
The first four debits
[12] The statement of the Company’s current account with the Bank (“the Company’s account”) was produced in evidence at the trial. Four of the five sums which are relevant for present purposes appear as debits in that statement. They are:
16 December 1993 $10,397.27
10 January 1994 $11,260.02
12 May 1994 $50,000.00
28 June 1994 $12,795.25
These four sums add up to $84,452.54. The statement itself does not say why these sums were debited to the Company’s account. The only particulars of them which the statement gives are “Debit”. In its Defence, the Bank said that these sums were advances made to the Company. At the trial, Mr. and Mrs. Low in effect put the Bank to proof of that. The Bank did not have records going back that far, and it was therefore not able to prove that the debits represented advances made to the Company. Indeed, the Bank was unable to explain how it had come about that these sums had been debited to the Company’s account at all. It was in those circumstances that the judge said[8]:
“In my judgment, in view of the inability of the defendant to explain the debits in (i) to (iv) totaling to a sum of $84,452.54 must be discounted.”
In other words, he deducted these four sums from the amount for which he said the Bank would otherwise have been entitled to judgment. As I have said, the Bank did not cross-appeal against that finding.
[13] So should the judge have further reduced the Bank’s counterclaim by such sum as represented the interest on these four debits? It is necessary to identify how this issue arose in the trial, and how the judge dealt with it. It was not pleaded by Mr. and Mrs. Low’s solicitors in either the Statement of Claim or in the Reply and Defence to Counterclaim, nor was anything said about the point in the course of the trial. There is, so far as I can tell, no reference to the argument in the transcript of the proceedings. Indeed, the first time the argument about interest might be said to have arisen was in Mr. and Mrs. Low’s solicitors’ closing written submissions, and even then only in the most oblique way. The relevant part of the submissions read[9]:
“If the anomalies are removed and credit given for the not credited amounts then it is the Plaintiffs contention that there would be nothing owing to the Defendant on the accounts, but they are unable to determine this properly unless and until the Defendant explains the account to them. The Plaintiffs submit that they are entitled to have an explanation and also to the other orders sought in their statement of claim.”
The Bank’s solicitors did not deal with any argument about interest. Perhaps they had not appreciated that the point was being raised.
[14] Having said that, the judge was alive to the argument about interest. We know that to be the case because he specifically dealt with it in his judgment.- He said[10]:
“The plaintiffs did not lead any evidence on the resulting reduction in interest upon the deduction of the unexplained debits, which therefore does not fall for consideration of the Court.”
The Court of Appeal took a similar line. Having noted that this issue had not been raised by Mr. and Mrs. Low’s solicitors in the pleadings, the Court of Appeal said that they had not placed before the High Court any evidence relating to the topic. For that reason, it dismissed Mr. and Mrs. Low’s appeal.
[15] Chitrasiri J thinks that in the passage from the trial judge’s judgment which I have just cited, the judge was not rejecting the argument about interest on the basis that there had been no evidence about it. He was rejecting the argument about interest because it had not been pleaded or raised by Mr. and Mrs. Low’s solicitors at any time. It is correct, of course, that it had not been pleaded, and there is support for the view that it had not even been raised from the apparent absence of any reference to it in the transcript. But I do not think that the judge rejected the argument about interest because it not been raised. If it had not been raised, what argument was the judge rejecting on the ground that it had not been raised? And I simply fail to see how an experienced judge like the trial judge in this case would have referred to Mr. and Mrs. Low’s failure to “lead any evidence” on the question of interest when what he really was referring to, if Chitrasiri J’s view is correct, was their failure to raise the point about interest at all. The fact of the matter is that the judge was alive to the argument about interest, which means that it must have been raised by Mr. and Mrs. Low’s solicitors.
[16] Chitrasiri J also thinks that even if the argument about interest had been raised in the course of the trial, that would not have been enough. He thinks that it should have been expressly pleaded. With great respect, I do not agree. If Mr. and Mrs. Low succeeded in their argument that some of the debits in the statement of the Company’s account should not have been treated as debits and should therefore have been disregarded, it followed as a matter of course that any interest charged on those debits had to be credited back to the Company. That would have been the inevitable consequence of any of the debits having to be disregarded. In any event, what would Mr. and Mrs. Low’s solicitors have been able to plead? They would not have known in respect of what debits previously debited interest should be credited to the Company’s account until such time as judgment had been given.
[17] I note that Chitrasiri J thinks that Mr. and Mrs. Low’s solicitors could deliberately have chosen not to plead the issue about interest because they feared that the court would find against them on the point. Again with great respect, I cannot agree. I do not think that it is appropriate for an appellate court – certainly not the Supreme Court – to speculate about what may have been in the mind of particular litigants’ solicitors when they were deciding how to formulate their clients’ case. But in any event it is inconceivable that they would have decided not to plead the point about interest because they feared that their argument would not be upheld. They would unquestionably have thought that the deduction of interest would be the inevitable consequence of the deduction of the debits on which that interest had been charged.
[18] In these circumstances, the critical questions were the factual ones: was interest in fact charged by the Bank on those debits, and, if so, how much? The first question is not difficult. Each of the four debits were debited to the Company’s account at a time when there was a debit balance on the Company’s account.[11] Accordingly, each of the four unexplained debits increased that debit balance. It would be remarkable if the Bank had not charged interest on the debit balance, and if it had, that would inevitably have resulted in interest having been charged on those debits. Indeed, that is borne out by the entries in the statement of the Company’s account. At the end of each month, interest was debited to the account – representing, no doubt, the interest due on the debit balance at the end of that month – and that interest must have included interest on any new debits for that month. Moreover, in the month when the largest of the four debits was included in the statement of the Company’s account – the sum of $50,000.00 debited on 12 May 1994 – the interest debited at the end of that month plainly reflected that. So it could not be clearer that interest was in fact charged by the Bank on the four unexplained debits. There was no need for additional evidence to be called to establish that. The invariable practice of banks to charge interest on debit balances and the actual statement of the Company’s account should inevitably have resulted in such a finding.
[19] The only remaining question, then, is what interest was actually charged by the Bank on those four debits. That was not something which Mr. and Mrs. Low could have given evidence about. It depended, among other things, on what rate of interest the Bank charged and whether it charged simple or compound interest. In theory, I suppose, Mr. and Mrs. Low’s solicitors could have asked the Bank’s solicitors for that information before the trial, and if the Bank had declined to give it, they could have applied to the High Court for leave to serve appropriate interrogatories on the Bank. Indeed, Mr. Jamnadas for the Bank argued that Mr. and Mrs. Low’s solicitors should indeed have asked the Bank’s solicitors for the information they needed, and with that information they could have instructed auditors to calculate the amount of interest and relied on the auditors’ report at trial. But that is to be wise after the event, and in the real world, no-one would have expected them to have done that. Far better to wait until after judgment had been given because only then would the parties know whether the Bank should have re-credited any sums to the Company’s account; if so, whether those sums included any of the unexplained debits; and if so, which ones. It would have been a complete waste of time and expense for Mr. and Mrs. Low to have been expected to do that before the trial. After all, it would not be necessary at all if the judge were to find in favour of the Bank on whether any of the unexplained debits should be disregarded. Indeed, the proper time for Mr. and Mrs. Low to have raised the issue of crediting the Company’s account with any interest which the Bank charged on any of the unexplained debits was after judgment had been given.
[20] That is not to say that I agree with the submission of Mr. O’Driscoll for Mr. and Mrs. Low that in the pleadings Mr. and Mrs. Low could be said to have sought an account of the interest charged on any of the unexplained debits. The order sought simply asked for the Company’s account to be audited at the Bank’s expense. It did not specify that the audit had to cover how the interest on any particular debts had to be calculated. However, it follows from what I have previously said that I respectfully disagree with the lower courts’ criticism of Mr. and Mrs. Low for failing to raise the issue in the pleadings or to call evidence on what the interest was. In my opinion, the Company was entitled to have the interest charged on those four unexplained debits credited to it. I imagine that the Bank will have no difficulty in calculating what interest was charged in respect of the four debits, but in the absence of agreement of what the correct figure is, I would have remitted the case to the High Court for it to determine the issue on such evidence as the parties choose to put before the court.
[21] Chitrasiri J is unhappy about that. He says that remitting the case to the High Court for the calculation of that interest is not something which Mr. and Mrs. Low ever asked for. Again with great respect, I do not agree. Mr. and Mrs. Low specifically asked the Supreme Court in their petition to make such order as the court thought fit, and in my view it is fitting for the court to order the calculation of the interest to be remitted to the High Court in the absence of agreement as to what the amount of that interest should be. And to the extent that Chitrasiri J thinks that it is not an appropriate exercise for the High Court to embark on, I take a different view. This was the exercise which the High Court would have had to undertake if it had concluded (as I think it should have done) that the interest had to be deducted.
The debit of $72,070.00
[22] There is no debit of $72,070.00 in the statement of the Company’s account. Indeed, when listing this debit in the Statement of Claim as one of the five unexplained debits, no date was given for this debit – unlike the other four. Instead of a date, there appeared a question mark. The Bank’s case was that no such sum had ever been debited to the Company’s account. As the Bank’s solicitors said in para 5.1 of their closing submissions:
“No such debt exists in that particular account and it is submitted that this amount therefore ought to be disregarded by the Court.”[12]
In other words, even if the other four of the unexplained debits had to be deducted from the sums still due to the Bank, the sum of $72,070.00 should not be. In his judgment, the trial judge quoted that passage, but in the next sentence went on to say: “That unlocks an aggregate sum of $156,522.54 from the defendant’s counterclaim”. The sum of $156,522.54 was, of course, the aggregate of all five unexplained debits.
[23] The trial judge’s decision to “unlock” all five of the unexplained debits meant that he was rejecting the Bank’s submission that the sum of $72,070.00 had not been debited from the Company’s account. He did not explain why he rejected that submission, but one can readily see where the sum of $72,070.00 came from. As I have said, the first four unexplained debits were debits in the statement of the Company’s current account. But the Company also had a loan account with the NBF, and there is a debit entry for $72,070.00 in the statement for that account for the period between 26 June 1992 and 4 January 1993. The particulars of the entry describe the debit as consisting of “Loan Funds”.[13] And one can see when that loan was agreed. On 22 July 1992 the NBF wrote to the Company, approving, among other things, a loan to the Company of $70,000.00 “to clear present excess on current account”, and informing the Company that an “establishment fee” of $2,070.00 would be debited to the account.[14] It is therefore not difficult to see why the aggregate sum of $72,070.00 was treated by the judge as a debit on the Company’s loan account with the Bank, although it is less easy to see why the judge thought that the Bank had failed to prove what the debit represented. But since the Bank did not cross-appeal against the judge’s finding on this issue, no more need be said about it.
[24] On this basis, once the judge’s finding that the sum of $72,070.00 should be deducted from the counterclaim as well stands, this debit is no different from the other four debits when it comes to crediting the Company with the interest which would have been charged on it.
The order of the High Court
[25] It is important to remember that Mr. and Mrs. Low were not guaranteeing the Company’s debts. They were merely agreeing to a charge over their property. They could not be sued for the Company’s debts. The High Court, of course, had to make findings about what the Company’s debt to the Bank amounted to, so that the Bank knew what sums could be retained from the proceeds of the sale of the property once an order for the sale of the property had been made and the property had been sold. But there could be no judgment against Mr. and Mrs. Low for the debts themselves.
[26] That brings me to the two substantive orders made by the judge.[15] One was an order for the sale of the property, and there can be no quarrel with that.[16] But the other was for an order for payment by Mr. and Mrs. Low to the Bank of the debit balance on the Company’s account on the date of the Notice of Demand, ie on 6 March 2006, less the five unexplained debts. That, with respect, was not the correct approach. What the judge should have done was to declare what the debit balance on the Company’s account was on the date of the Notice of Demand, less the unexplained debits, and to order that that sum plus interest be retained by the Bank from the proceeds of sale of the property in reduction of the Company’s debts, and that the balance of the proceeds of sale should be paid to Mr. and Mrs. Low.[17] When this proposition was put to Mr. Jamnadas for the Bank in the course of argument, he fairly acknowledged that it was correct, and agreed that he could not support the order which the judge had made in this respect. I note that Ekanayake and Chitrasiri JJ have decided not to address this aspect of the case in their judgments.
[27] The order which the judge made required Mr. and Mrs. Low to pay interest on the debit balance at the rate of 13.5% from 6 March 2006 until the date of judgment and “post judgment interest thereafter”. Two comments need to be made about that. First, 13.5% was what the Bank told the Company in 1994 would be the rate of interest[18], and even if that had not been an agreed rate of interest, Mr. O’Driscoll said that this represented (a) the rate of interest which the banks were charging at the time, and (b) the rate of interest which judges in Fiji usually award in claims by banks for the recovery of loans, though sometimes judges in their discretion award a lower rate of interest, perhaps as low as 6% or 8%.Secondly, I assume that the judge was referring to interest at the judgment rate when he used the words “post judgment interest thereafter”. That rate is 4%.[19]
[28] I acknowledge that there was no appeal against the order for payment by Mr. and Mrs. Low of the current credit balance less the unexplained debits. But since the Bank accepts that the order was one which could not lawfully be made, it would have been appropriate for the Supreme Court to intervene.
Conclusion
[29] For these reasons, I would have given Mr. and Mrs. Low leave to appeal on the basis that the case raises a matter that is of substantial general interest to the administration of civil justice, namely whether an order for payment by a mortgagor of a third party’s debts can be made where those debts have not been guaranteed, but where merely security has been given for them, and whether in those circumstances the mortgagee’s remedy should be limited to orders enabling it to realize its security. In accordance with the Supreme Court’s usual practice, I would have treated the hearing of the application for leave to appeal as the hearing of the appeal. I would have set aside para (b) of the order of the High Court, and I would have substituted for it:
(i) a declaration that the Bank is entitled to retain the proceeds of the sale of the property to which the charge related in the
sum of $590,328.60, being the debit balance on the Company’s current account on the date of judgment, together with interest
thereon, less (a) the five unexplained debits, and (b) the interest charged on the unexplained debits; and
(ii) an order that the balance of the proceeds of sale of the property be paid to Mr. and Mrs. Low.
[30] I would also have ordered that the calculation of the amount of interest charged by the Bank on the unexplained debits should be remitted to the High Court for consideration in the light of this judgment. Finally, I would have set aside the order made by the Court of Appeal that Mr. and Mrs. Low pay the sum of $5,000.00 towards the Bank’s costs of the appeal to the Court of Appeal, I would have substituted for it an order that the Bank pay to Mr. and Mrs. Low the sum of $5,000.00 towards their costs of the appeal to the Court of Appeal, and I would have ordered the Bank to pay to Mr. and Mrs. Low the further sum of $5,000.00 towards their costs of the appeal to the Supreme Court. However, since Ekanayake and Chitrasiri JJ take a different view about the outcome of the appeal, the order of the court will be the one which they propose.
Chitrasiri, J
[31] I had the opportunity of reading the judgment of Keith J. in draft. I regret that I am unable to agree with His Lordship’s judgment for the reasons set out in my dissenting judgment. In this judgment, I may not relate the full story of the way that the dispute has arisen between the parties since Keith J, in his judgment has already referred to the background to the case in simple and understandable manner. Therefore, I will straightway express my view on the issue.
[32] The only issue before this Court is whether or not the appellants are entitled to obtain credit for the interest charged on the five facilities which were deducted from the moneys claimed in the counter claim of the Respondent bank. The Court of Appeal had dealt with this issue and has stated that the Petitioners did not lead any evidence on the resulting reduction upon the deduction of the unexplained debts which therefore does not fall for the consideration of the Court. This is the basis upon which even the High Court Judge came to his conclusions when he refused to deduct the interest charged on the unexplained debts.
[33] Keith J, is of the view that when the learned High Court Judge stated that the Plaintiffs did not lead any evidence on the resulting reduction in interest then it shows that the learned High Court Judge was aware of the issue in respect of the interest component that was charged on the unexplained debits. Therefore, His Lordship is of the view that it was the duty of the High Court Judge to deduct the interest component though it had not been taken up specifically as an issue before the High Court.
[34] The basis upon which His Lordship came to this conclusion is that when the Respondent Bank is not entitled for the said five debits then the interest charged on that amount should also be deducted from the liability of the Petitioners. Even though it is logical to think so, it is my view that this court being a court of law and not a court of equity, it is our duty to determine the issue in a manner required by the law applicable to the given situation.
[35] At the outset, it is relevant to note that the Petitioners have never intended or prayed for a re-trial in either of their petitions filed in this Court or in the Court of Appeal. The reliefs sought in the petition to the Supreme Court is to vacate or alter the Court of Appeal judgment, to grant leave to appeal to the Supreme Court and finally to recover the costs incurred.[20] Court of Appeal did not make an order to have a re-trial to calculate the interest levied on those five facilities for this Court to consider.
[36] In fact, there is no question of law raised by the appellant to have the interest calculated or for a re-trial. Therefore, the question arises, whether this Court can direct the trial court to frame an issue which the parties have never sought at any stage, not even in the Supreme Court?
As an accepted norm, this Court follows the adversarial system and accordingly, it is not the duty of the judge hearing an appeal or even a trial judge to frame issues ex meromotu. His/her role is to be an impartial observer like an umpire.
[37] In the case of Jones v National Coal Board [1957] 2 QB at 63, in which Lord Denning held that the role of a first instance judge is:
“...to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large...”
In this case Lord Denning MR stated:
‘His object, after all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that 'truth is best discovered by powerful statements on both sides of the question'? ... And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, 'he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict'
[38] Lord Denning MR also stated that:
“a judge is ...to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevances and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well.”[21]
[39] Therefore, with utmost respect to Keith J. I do not think that I could agree to have this matter sent back to the High Court and to direct the Judge in that court to frame entirely a new issue on the question of calculating interest due on the above mentioned five facilities.
[40] Admittedly, the request to have the interest charged for the five unexplained facilities, deducted from the claim of the Respondent had not at all been made at the trial before the High Court. It was made after the conclusion of the trial and was only mentioned in the submissions filed by the Plaintiffs, after trial. Accordingly, the trial judge has held that the parties have not pleaded the issue on the interest accrued to the debts, released on five occasions which were disregarded due to unavailability of documents.
[41] There is no doubt that this issue on the question of interest charged on the unexplained five debits is a matter which requires inquiring into the facts of the case. Such facts may include the date on which the facilities were granted, the rate of interest charged at various stages till it is paid in full, whether there was any penal interest to be charged in the event the instalments are not paid as agreed, the terms and conditions of the agreement etc. Therefore, to decide on the amount of interest that could have been levied on those five debits, depends entirely on facts, in the event it is to be calculated by the High Court.
[42] In his judgment, Keith J has decided that the Petitioners are entitled for a deduction of the sum levied as interest on the aforesaid five debits and then to have the matter referred to the High Court to ascertain the said amount of interest. Accordingly, the decision of Keith J. is twofold. First is the decision to deduct the interest component and the other is the direction given to the High Court to ascertain the amount to be deducted. Hence, my concern here is; could such a decision be made by a court hearing the second appeal?
[43] Even the aforesaid first decision namely, to have the interest deducted, could only be made by establishing the amount of a particular sum as recoverable interest. Arriving at such a decision too depends on the availability of the documents upon which the five facilities were granted. On the other hand, even if those figures could be traced by looking at some other registers, such figures may not reflect the actual moneys that were disbursed unless the documents on which the facilities were granted and the monthly statements of the relevant accounts etc. are considered. Moreover, it is strange to have abandoned such a claim by the bank if such registers are available.
[44] Therefore, I am not inclined to agree that the Petitioners are entitled to have the interest deducted from the claim of the Respondent bank. Accordingly, my opinion is that even the decision to deduct the said interest cannot be sustained without looking at the facts of the case. In the circumstances, with respect to Keith J, I am of the opinion that this Court is not in a position to decide that the Petitioners are entitled to have the interest charged on the five facilities which were disregarded at the trial, deducted from the counter claim of the Respondent Bank.
[45] Moreover, consideration of the interest component over the five facilities gives rise to practical difficulties as well. Could such an exercise be carried out without the documents upon which the facilities were granted? During the trial in the High Court it was revealed that the said documents were not available. Even though the mere figures relating to the facilities could be seen in some other registers; is it correct to accept those figures found in those other registers without looking at the documents in which the terms and conditions of the agreement are found and more importantly, the signatures of the parties placed on the documents relevant to the facilities granted to the principal debtor? Furthermore, if the Bank does not corporate in producing the necessary evidence or if that information is not found at all then it is difficult to determine the exact amount charged on those five facilities though an order is made by the court to produce the available documents. Therefore, I believe, it would be a meaningless exercise to send the case back to the High Court to calculate the interest as suggested by Keith J.
[46] I have another concern on this issue, namely the reason as to why the appellants did not raise this issue in the court below. The Petitioners were well aware of the issue on the interest on those five facilities, when the evidence was led on the question of non-availability of the documents.[22] This issue has been dealt with extensively by the Court of Appeal and therefore I see no reason to elaborate any further on this issue.[23] As the learned High Court judge rightly explained by stating that “The plaintiffs did not lead any evidence on the resulting reduction in interest upon the deduction of the unexplained debits, which therefore does not fall for the consideration of the Court.”, it is impossible for any judicial officer to arrive at a decision without looking at the evidence relating to the facts of the case.[24]
[47] Reason for not taking up the issue on the question of interest at the trial court by the parties concerned may have been that such a claim may have gone against them or could have been disadvantageous to them. Therefore, it is clear that the reason for not taking up this issue is best known to the Petitioners and anyway it is not the duty of this court to take up the same at a very late stage such as this. Such a step may even go against them. Moreover, had it been an issue before the trial judge, the Respondent bank could have tried to trace the documents on which the facilities were granted and if the bank was able to find those documents then it would have ended up in making the appellants liable even for those five facilities and also for the interest accrued thereto. Furthermore, this court is not aware of the reason as to why the Petitioners did not raise this issue as a question that has arisen from the proceedings in the High Court. It may not even be worthy of litigating for this interest component.
[48] Moreover, the suggested order would prevent the Respondent from reaping fruits of the judgment already made on 07.02.2017 by the High Court for many years as there would be two appeals once again against the anticipatory judgment by the High Court if an order is made to calculate the amount of interest charged for the five debits which have been already disregarded due to unavailability of the documents.
[49] For the reasons, set out hereinbefore, I am unable to agree to make a direction to the High Court, to frame an issue to calculate the interest on the five facilities which were disregarded at the trial.
[50] I will now turn to consider the merits of this appeal. As mentioned hereinbefore, Petitioners have failed to take up the issue of deducting the interest charged for the unexplained debits in the High Court. Therefore, the High Court Judge had no opportunity to consider the request of the Petitioners. They have advanced the said claim in the Court of Appeal and the Court of Appeal has correctly held that such a claim cannot be entertained as it was not an issue before the trial court. Particularly, no evidence is available to consider the issue before court. I have no hesitation to accept the said reasoning of the Court of Appeal as well as the High Court.
[51] Moreover, it is a matter that has to be determined only after considering the facts of the case. As far as an issue which depends on facts that could have been raised in the trial court, is rarely be looked at in the appeal unless gross injustice is caused due to non-consideration of such a matter by the appellate court. This fact had been dealt with in Keni Dakuidreketi v Fiji Independent Commission Against Corruption25[Supreme Court of Fiji CAV 0014/2017 dated 26.04.2018] and it was held as follows:
“In my opinion, there are three unsurmountable difficulties which the Petitioner to face in regard to this round of appeal. Firstly, the Petitioner raises factual issues which are properly within the province of the trial court to determine: Aminiasi Katonivualiki v The State (supra). Secondly, he asks this Court to re-evaluate and review, evidence, and set aside concurrent findings of fact of the trial court and the Court of Appeal. As this Court observed in paragraph 36 of its judgment in Dip Chand v State [2012] FJSC 6: CAV 0014.2010 (9 May 2012)” ... Thirdly, the Petitioner seeks to select pieces of evidence for the Court to review, when the assessors and trial judge considered all the evidence. They read each document, heard all of the witness’s evidence and made findings about their credibility, drew inferences from the evidence, and made findings of fact. This Court does not have that advantage.”[25]
[52] On this same issue, I would like to rely on a Sri Lankan decision. In Alwis v Piyasena Fernando [1993] LKSC 40; (1993) 1 Sri. L.R. 11926 in which His Lordship G.P.S. De Silva held thus:
“It is well established that the findings of primary facts by a trial Judge who hears and sees witnesses are not to be lightly disturbed on appeal.”
[53] Accordingly, it is clear that the appellate courts are reluctant to consider an issue which requires analyzing the facts of the case. As far as the issue before this Court is concerned, the Petitioners may consider adjudicating their grievance considering it as a new cause of action accrued to them if the law permits. In passing, I wish to state that the Petitioners having enjoyed the benefit of waiving off the moneys obtained for the five debits amounting to $ 72,070.00, it is unethical though not unlawful, to make a request for a further reduction of the moneys due to the Respondent bank.
[54] For the reasons set out before, I am not inclined to interfere with the decision of the Court of Appeal. I do not find any reason either to decide that there exists any reason to fulfill the requirements found in Section 7 of the Supreme Court Act. Furthermore, there is no any general or public importance being involved in this instance. Neither does it involves any matter of substantial interest in the administration of civil justice as required by the said Section 7 of the Supreme Court Act. Therefore, leave of this court to proceed with this application is refused.
[55] For the aforesaid reasons, accordingly, I dismiss the appeal. Having considered the circumstances of the case, I do not wish to make an order as to the costs of this appeal.
Orders of Court
The orders of the Court are:
Hon. Madam Justice Chandra Ekanayake
Judge of the Supreme Court
Hon. Mr. Justice Brian Keith
Judge of the Supreme Court
Hon. Mr. Justice Kankani Chitrasiri
Judge of the Supreme Court
Solicitors:
O’Driscoll& Co. for the Petitioners
Jamnadas& Associates for the Respondent
[1] See page 159 of the Record of the High Court.
[2] See page 91 of the Record of the High Court.
[3] See page 107 of the Record of the High Court.
[4] See pages 155-156 of the Record of the High Court.
[5] See page 158 of the Record of the High Court.
[6]See page 151 of the Record of the High Court.
[7] See para 34 of the Minutes of the pre-trial conference at page 34 of the Record of the High Court.
[8] Para 31 of the judgment at page 9 of the Record of the High Court.
[9] Para 16 of the submissions at page 41 of the Record of the High Court.
[10] Para 40 of the judgment at page 11 of the Record of the High Court.
[11] The statement of the Company’s account from 6 April 1993 until the account was closed was an exhibit. It is at pages 107-154
of the Record of the High Court. The four debits can be seen at page 128 ($10,397.27), page 130 ($11,260.02), page 138 ($50,000.00)
and page 139 ($12,795.25),
[12] The page of the closing submissions with this paragraph was mistakenly omitted from the Record of the High Court, but we have obtained
a copy of the missing page from one of the parties.
[13] Page 91 of the Record of the High Court.
[14] Pages 89-90 of the Record of the High Court.
[15] Page 11 of the Record of the High Court.
[16] The Bank has not yet exercised its power of sale in respect of the property. Mr. O’Driscoll told us that the Bank was awaiting
the outcome of this case.
[17] To be fair to the judge, he was, I think, purporting to follow the language of the order sought in the Bank’s counterclaim
at page 22 of the Record of the High Court, which was: “Judgment be entered in favour of the Defendant in the sum of $746,851.14”.
[18] See page 155 of the Record of the High Court.
[19] Section 4(1) of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act 1935.
[20] See pages 07 and 08 of the Supreme Court Record for the reliefs prayed for in the Supreme Court.
[21][1957] 2QB 55 at 64
[22] See pages 292 and 295 of the High Court Record.
[23] See paragraphs 17,20,21,22,23 and 24 of the Court of Appeal Judgment.
[24] See paragraph 40 of High Court Judgment
[25] FJSC.No. CAV 0014/2017 (26.04.2018)
26 (1993) 1 Sri.L.R.119
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