Patel v Sadik [1963] FijiLawRp 21; [1963] 9 FLR 76 (6 May 1963)

[1963] 9 FLR 76

SUPREME COURT OF FIJI

Appellate Jurisdiction

CHHOTUBHAI SHIVABHAI PATEL

v.

SADIK

[SUPREME COURT, 1963 (MacDuff C.J.), 22nd February, 6th May]

Crops-future proceeds-assignment of-unlimited in amount-valid.

Evidence-assignment-extrinsic-inadmissible where no ambiguity.

An assignment of future cane proceeds is valid and, if it is unambiguous and absolute in its terms, extrinsic evidence is not admissible to show that the parties originally intended it to be for a fixed amount. A notation on the document" Stamp to cover £1,000" did not give rise to an ambiguity rendering extrinsic evidence receivable in the absence of any evidence of when, or for what purpose, the notation was typed.

Appeal from a judgment of the Magistrate's Court.

Patel for the appellant.

Falvey for the respondent.

The facts sufficiently appear from the judgment.

MACDUFF C.J. [6th May, 1963]-

This appeal arises out of an Interpleader Summons taken out by the Colonial Sugar Refining Co. Ltd. as to which of two claimants, the appellant or the respondent, was entitled to be paid cane proceeds amounting to £354 12s. 1d. held by the company.

The appellant, who was eventually by consent treated as plaintiff, claimed the cane proceeds on the ground:

"That the proceeds of sugar cane harvested and supplied during the 1960 and 1961 seasons from part of the land known as Yalavu under contract No. 5611 now amounting to the sum of £354 12s. 1d. is assigned to me under and by virtue of an assignment given by Sadiq son of Rajai to me and dated 26th March, 1958."

The respondent admitted executing the assignment of 26th March, 1958, but alleged that such assignment was in fact only to secure a debt of £700 then due and the sum of £300 in respect of goods to be supplied. He admitted supply of the £300 worth of goods subsequent to his execution of the assignment but alleged that the appellant had already received £ 1,031 4s. 0d. pursuant to the assignment. He admitted receiving a claim for £1,249 6s. 4d. on 31st May, 1961, from the appellant but he disputes the correctness of this amount and claims that his indebtedness under the assignment has been satisfied and that in fact the appellant has been overpaid £31 4s. 0d.

One other matter should be referred to, that is the stamping of this assignment. The assignment has been stamped with adhesive stamps as to 5s. on 26th March, 1958, as to £2 l0s. 0d. on 6th June, 1958, and with an embossed revenue stamp of £5 on 29th August, 1962. The appropriate stamp duty, I am informed from the Bar, is 2s. 6d. for each £50 of consideration. No point has been taken as to the manner in which this assignment has been stamped or as to the amounts of stamp duty except in so far as the dates and amounts may have some evidential value.

The assignment given by the respondent was in these terms:

"Stamp to cover £1,000. (C.S.R. Noted 30/1/58)

ASSIGNMENT

I, Sadiq (father's name Rajai) of Yalavu in the district of Nadroga, Cultivator (hereinafter called the assignor) for valuable consideration received from Chhotubhai Shivabhai Patel of Yalavu, Nadroga, Storekeeper hereby transfer, assign and set over unto the said Chhotubhai Shivabhai Patel all of my net cane proceeds in respect of sugar cane which has been harvested and which will be harvested and sold to the Colonial Sugar Refining Company Limited of Lautoka Mill from the lands described as follows:-

Block of land held under Tenancy from C.S.R. Company Limited-Cane Contract No. 5611 situated at Yalavu, Nadroga in K/Sau sector.

I declare that the receipt or receipts of the said Chhotubhai Shivabhai Patel shall be sufficient discharge. The condition of this assignment is that the said Colonial Sugar Refining Company Limited shall have the first charge against the cane proceeds payable under this assignment in respect of cash advanced or debt of any nature for manure, cane seeds due and owing by the assignor to the company.

Dated at Nadi this 26th day of March, 1958.

(Sgd.) Sadik.

Witness:

Solicitor's Clerk, Nadi.

I certify that I read over and explained the contents hereof to the assignor in the Hindustani language and he appeared fully to understand the meaning and effect thereof.

(Sgd.)
Solicitor's Clerk, Nadi."

As far as this appeal is concerned the findings of the learned trial Magistrate were:

"The Court makes a finding of fact that it was the original intention of the parties that the assignment was to be for £1,000. Both have said as much in evidence and the assignment was only stamped to cover £1,000 assignment. The written terms of this contract to assign were varied by the parties, that is the assignor and assignee, even though they gave no notice to the debtor, the C.S.R. Co. Ltd. More than £1,000 has already been collected on the assignment by plaintiff.

An issue has been made in this case of the upstamping of the assignment so as to cover a sum in excess of £1,000. The matter of what stamps are upon it is a matter for revenue only. It does not in any way vary or limit the expressed terms of the assignment. Its only relevance is as an indication whether the parties came to any real agreement effecting the written terms of the contract to assign.

It is for plaintiff to show this Court that on the balance of probabilities the defendant agreed to a further variation of the terms of this assignment so as to make it effect a sum in excess of £1,000.

There is no evidence that parties agreed that the assignment should be varied to cover any particular extra sum or should revert to its written terms of an unlimited sum. Court has seen both parties and plaintiff has failed to satisfy the Court that defendant agreed to any further variation of the assignment so as to increase the amount it covered.

This finding of fact renders it unnecessary to determine here two points of law (i) whether an unlimited assignment is valid and (ii) whether consideration required for a subsequent variation extending the amount of debt assigned. In case of appeal, however, I should record that there is no evidence of any consideration for a subsequent variation.

For the reasons that I have given, I find that while I have no doubt that defendant owes plaintiff money, this particular assignment is no longer effective"

The appellant now appeals against that finding on the following grounds: -