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R.B. Patel Group Ltd v Mac Patel Investment Ltd [2011] FJCA 29; ABU0049.2010 (12 April 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

CIVIL APPEAL NO. ABU 0049 OF 2010
High Court Civil Action No.3 of 2009

BETWEEN:

R.B. PATEL GROUP LIMITED
APPELLANT

AND:

MAC PATEL INVESTMENT LIMITED
RESPONDENT

CORAM: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Izaz Khan, Justice of Appeal
Hon. Justice Kankani T. Chitrasiri, Justice of Appeal

COUNSEL: Ms R. Naidu for the Appellant
Mr M.S. Sahu Khan for the Respondent

Date of Hearing: Friday, 4th March 2011

Date of Judgment: Tuesday, 12th April 2011

JUDGMENT

William Marshall, JA

1. I agree with the judgment and orders proposed by Kankani Chitrasiri JA.
   

Izaz Khan, JA

2. I also agree with the judgment and orders proposed by Kankani Chitrasiri, JA.
   

Kankani T. Chitrasiri, JA

Introduction

3. This is an appeal from a judgment of the High Court sitting at Lautoka exercising its appellate jurisdiction.
   
4. On 23rd of October 2008 Ms Suliana Tabaiwalu the learned resident Magistrate of Tavua Magistrate's Court delivered judgment awarding damages in a sum of $3,993.77 to the respondent namely Mac Patel Investment Limited and also making the defendant liable to pay the costs of the action.
   
5. Being aggrieved by the amount of damages that was awarded, plaintiff appealed to the High Court against the decision of the learned Magistrate in order to obtain an enhanced amount of damages.
   
6. The learned High Court Judge, Justice Y.A. Fernando varying the judgment of the learned Magistrate entered judgment in favour of the plaintiff/respondent awarding damages amounting to a sum of $12,061.27 and he also dismissed the counter claim of the defendant/appellant. The defendant has now preferred an appeal to this Court against the said decision of Y.A. Fernando, J.
   

Background

7. The respondent Mac Patel Investment Limited was carrying on a business of a retail store in Vatukoula, Tavua. It had purchased products from the appellant company, R.B Patel Group Limited for the purpose of re-sale at its retail store in Tavua. The value of those products purchased by the appellant amounted to $3,993.77.
   
8. The purchase price of the products had been paid by way of cheques. Those cheques were not honoured by the bank. Accordingly, appellant company had had several discussions with a director of the respondent company to recover the dues but was unsuccessful. Having failed to recover the dues in that manner, the officers of the appellant company went to the retail store of the respondent company and took away a large number of items of goods that were in the shelves of the retail shop.
   
9. It is in evidence that the respondent company had performed an audit of the goods that were in the store in the night of the day prior to the date on which the goods were removed. The list that was prepared when the audit was conducted had been marked in evidence as 'Exhibit P2A and Exhibit P2B'. Both lists contain the identical descriptions as to the goods and its value. P2B is a typed copy of P2A. The appellant company also had prepared another list in order to show the items alleged to have repossessed by them. Evidence also shows that the said list tendered by the appellant company had been prepared on the 9th March 2005, eight days after taking charge of the goods.
   
10. Admittedly, the officers of the appellant company had also removed three scales, that had been used by the respondent company for the purpose of selling their goods, along with the goods that were removed from the shelves.
    
11. Consequent upon the removal of goods, the respondent company moved the Magistrate's Court for writ of summons on the appellant company claiming damages in a sum of $15,000 stating that it is a claim for special damages, general damages and exemplary, aggravated and punitive damages.
    
12. The appellant company filed its statement of defence in the aforesaid action filed in the Magistrate's court. In that it is stated that it had to repossess the goods as the respondent company failed to pay the monies due for those goods purchased by the respondent. In the statement of defence, the appellant also made a counter claim in a sum of $641.50 being the balance sum due to it, having deducted the value of the goods that were repossessed.
    
13. Having considered the evidence, the learned Magistrate awarded damages to the respondent company in a sum of $3,993.77. Being aggrieved by the said award of damages, the respondent company appealed to the High Court in order to obtain a higher amount of damages.
    
14. The learned High Court Judge having considered the submissions of both parties varied the judgment of the learned Magistrate and awarded the respondent company an enhanced amount of damages amounting to $12,061.27. It is against that decision that this appeal had been preferred in the Court of Appeal.
    

Grounds of Appeal

15. The Grounds of Appeal are as follows:-
    
    1. The Learned Trial Judge erred in law by interfering with the findings of the Trial Magistrate to add further exhibits and numbering them as A1 and A2 although these alleged exhibits are not referred to in the Plaintiff's evidence at all during the Trial.
       
    2. The Learned Trial Judge erred in law and in fact by accepting the evidence of the Respondent over the evidence of the Appellant and in doing so has interfered with the findings of the Learned Trial Magistrate.
       
    3. The Learned Trial Judge erred in law by interfering with the finding of the Learned Trial Magistrate and accepting Plaintiff's (Respondent's) exhibit 2PA when the same was rejected by the Learned Trial Magistrate, and awarded special damages.
       
    4. The learned Trial Judge erred in law and in fact by awarding special damages in the sum of $13,255.04 by solely relying on the list of items as per exhibit 2PA tendered by the Respondent, which was challenged to such an extent during the Trial, that the Trial Magistrate did not consider that evidence.
       
    5. The learned Trial Judge erred in law and in fact by awarding general damages in the sum of $2,800.00. In doing so, the Learned Trial Judge erred by placing a higher value on the scales, when in fact the Respondent had claimed a lower sum being the value of the scales as per the pleadings.
       
    6. The learned Trial Judge erred in law and in fact by awarding the value of the scales twice in the sum of $2,800.00, under the Special Damages and also under General Damages.
       
    7. The learned Trial Judge erred in law and in fact by failing not to rely on the Pleadings and the prayers sought by he Respondent in the Magistrates Court. In doing so, the Learned Trial Judge has varied the judgment of the Learned Trial Magistrate by awarding Special and General Damages based on evidence which were contradictory.
       
    8. The Learned trial Judge erred in law and in fact by failing to observe that none of the parties closing submissions were in the Copy Record, pursuant to which submissions, the Ruling was delivered by the Learned Trial Magistrate.
       
    9. The learned Judge erred in law and in fact by allowing $1000.00 costs or taxed costs, whichever is higher, against the Appellant.
       

The Issue

16. Before examining the merits of the Grounds of Appeal, it is pertinent to mention that there had been no appeal preferred by either party as to the proof of committing tort of conversion by the appellant company as to the removal of the goods that were exhibited for sale in the retail shop of the respondent company.

17. The proof of committing the tort of conversion is evident by the following comments made by the learned Magistrate in her judgment. I quote:

"The defendant by its actions of taking and detaining goods on March 1st 2005 not listed in the material invoices, have trespassed onto the goods of the plaintiff and onto the plaintiff's property when no consent was given by the plaintiff to enter its premises on March 1st 2005 and also unlawfully detained the plaintiff's goods".

18. Hence, it is clear that the learned Magistrate had come to the conclusion that the respondent had established the fact that the appellant committed the tort of conversion by trespassing the property that was exhibited in the respondent's shop. This decision of the learned Magistrate had not been appealed against.

19. In the circumstances, it is clear that the issue in this matter revolves round the awarding of damages particularly its quantum, payable to the respondent company and not against the decision of concluding that the appellant had committed the tort of conversion against the goods that were in the possession of the respondent.
    
20. As correctly decided by the learned Magistrate and was affirmed by the learned High Court Judge, the tort of conversion does not involve element of dishonesty on the defendant's part nor is it a requirement that the defendant intended to deny the plaintiff's rights. Finesky Holdings Pty Ltd v. Minister for Transport for Western Australia [2001] WASC 87 (162).
    
21. However, a layman may argue that the acts of the appellant company could be justified since the respondent had not paid the dues owing to the appellant for the goods that it had purchased.
    
22. If it is so, it may become a reason to open flood gates for the wrong doers to take the law into their hands and to act in an unlawful manner on the basis that they have a right over such properties. If such a right exists, as in this instance, the person who has the right over any property should seek redress upon following the due process of law without resorting to illegal acts.
    
23. It has become trite law that a trespass to goods is actionable per se without any proof of actual damage. (Leitch and Company v. Leydon [1931] HAC 90 (106). Any unauthorized touching or moving of an object is also actionable at the suit of the possession of it, even though no harm ensues. (Foldes v. Willoughby [1841] 8MNW (540). Everett v. Martin [1953] NZLR (298).
    

Analysis

24. As I have mentioned herein before the issue in this instance revolves round the quantum of damages awarded to the respondent company. The learned Magistrate had awarded $3,993.70 as mere damages. In arriving at the said amount of damages she has only taken into consideration the value of the invoices that the appellant company had issued at the time the goods were purchased by the respondent company. Furthermore, it is not clear as to the basis that the award was made: that is to decide whether it is on the basis of special damages, ordinary damages or exemplary damages.
    
25. On the other hand, the learned High Court Judge varying the aforesaid judgment of the learned Magistrate had clearly identified the difference of the damages and had awarded special damages amounting to $13,255.04 and $2,800 as general damages. No exemplary damages had been awarded by him as well. He also had deducted $3993.77 from the said award, it being the money owing on invoices and cheques. In view of the said deduction, he had dismissed the counter claim of the respondent. Against this background, I will now turn on to the way in which the different kinds of damages should be determined in this instance.
    

Special Damages

26. It had long been settled that a plaintiff who has actual possession of goods is entitled in an action for conversion to recover their full value as damages even though he is not the owner but has merely a limited interest such as that of a bailee, agent or pledgee. In other words, the plaintiff in conversion is entitled either to the property or to the pecuniary equivalent of each item. This is established in the case of Chabbra Corporation Ltd v. Jag Shaki (ONS) 1986 AC 337). In that decision it was held thus:

"The law seems to have assumed that the value of the goods must always represent the plaintiff's actual loss. But there are cases in which this is far from being the truth, and to permit the plaintiff to recover more than his actual loss is a significant departure from the principle, which in general governs the award of damages, that compensation of the plaintiff is the object of the law. The leading case is The Winkfield [1902]50 WR (246) in which the Postmaster-General was held entitled as bailee to recover the whole value of certain mails which were lost through a collision at sea caused by the negligence of the defendants, although the Post-master-General was, as the law then stood, under no liability to the parties interested in the lost letters and parcels."

27. By looking at the judgment of the learned High Court Judge, it is clear that he had understood clearly the aforementioned position in law and then only he had concluded that the appellant should pay as special damages the value of the goods that were removed from the respondent company. However, on behalf of the appellant it had been argued that the way in which the value of the goods was assessed, was incorrect.
    
28. Both the learned magistrate and the learned High Court Judge had looked at the exhibits marked as "P2A, P2B and D1" when they decided as to the quantum of damages. Document marked P2A is a document prepared at an event of stock-taking or an audit conducted on the previous night of the day that the goods were removed by the appellant. Document P2B consist of the same contents and it is a typed copy of the document P2A which is a handwritten copy.
    
29. Learned Magistrate had rejected the document P2A on the basis that it was undated and was not signed. Also there had been an interpellation in that document. She had also not given any weight to the document D1 marked on behalf of the appellant either. Hence, the learned Magistrate had no option than to refuse awarding special damages.
    
30. According to the evidence, the document marked P2A had been prepared for the purpose of having an audit of the goods of the respondent company. It is not a document prepared in anticipation of any goods being removed by the appellant. The maker of that document had given evidence as to the correctness of the contents of the document. (vide pages 71 and 72 of the Court Record) He, in his evidence has said that it is a list that was prepared in the night of the day prior to the date of the incident for the purpose of stock taking. The removal of the goods had taken place on the 1st of March 2005. If the contents of that document including the values of the goods shown therein is incorrect, opposing counsel should have questioned the witness to that effect. No such questions had been posed to the witness. In other words, the evidence elicited through the document P2 A had not been controverterd. Therefore I am of the view that the learned Magistrate was wrong in rejecting the evidence found in the document marked 'P2A'.
    
31. To the contrary, the learned High Court Judge after careful consideration had come to the conclusion that there is no reason to reject the document marked P2A. He had compared the two documents namely P2a and D1 of the opposing parties which contain the items of goods alleged to have been removed and its value, in a careful manner.
    
32. However, learned Counsel for the appellant argued that the learned High Court Judge erred by giving weight to two other documents that had not been marked in evidence when he arrived at his decision as to the awarding of special damages. At this stage, it must be noted that even if the contents of those two unmarked documents was not considered there would not have been any difference of the decision to award damages since I have concluded that the vital document marked P2A should be admitted in evidence. However, to my mind the reasons given by the learned High Court Judge for the acceptance of the document P2A also are sound and acceptable.
    
33. On the other hand both the learned Magistrate and the learned High Court Judge had rejected the list marked D1 which contains the items of goods that was prepared by the appellant company. In fact the said list had been prepared 8 days after the incident. It was a document prepared at the appellant's premises. Therefore, it is possible to have it prepared to suit the requirements of the appellant company. In the circumstances, it is correct to have the document D1 rejected by both the judges.
    
34. In the light of the above, I am not inclined to interfere with the decision of the learned High Court Judge as to the award of special damages in favour of the respondent company.
    

General Damages

35. The learned High court Judge had awarded $2,800 as general damages. The said amount of $2,800 had been awarded on the basis that the appellant company had removed three scales that were used by the respondent. However, general damages are a kind of damages which the law presumes to follow from the wrong complained of. In such a situation the matters that followed from the incident should be established by adducing evidence to that effect. In this instance the learned Magistrate had decided that no evidence was produced as to the state of the witness's feelings that purportedly caused the closure of business. Relevant paragraph of the judgment is mentioned herein below:
    

"Apart from the first plaintiff's witness no other evidence was produced as to the state of the witness feelings that purportedly caused the closure of the business." If that was the view of the trial Judge the appellate court should not interfere with such findings unless there are cogent reasons to do so."

36. I also could not find any evidence, as to the way in which the respondent company was affected by the acts of the appellant company. Even though there is clear evidence as to the removal of the three scales which were made use of for the day to day sales, there is no evidence as to the manner of the loss caused to the respondent by the said removal of the scales or even by the removal of the other items of goods. Therefore, it is my view that the decision to have granted general damages for the removal of the goods by the learned High Court Judge is not correct.
    
37. Moreover, the value of those scales had been already taken into account when the learned High Court Judge decided to award the special damages. Therefore, it is wrong on the part of the learned High Court Judge to include the value of the scales into both special and general damages without any proof of the manner of the loss caused to the respondent. In the circumstances, it is my view that the awarding of general damages considering the value of the three scales cannot be allowed to stand.
    

Exemplary or Aggravated Damages

38. Both the learned Magistrate and the High Court Judge had not awarded any exemplary and/or aggravated damages. Hence, it is not necessary for me to examine the matters in respect of aggravated and/or exemplary damages.
    

Pleadings

39. The appellant also has taken up the position that the learned Judges had erred by awarding both special and general damages when those had not been specifically pleaded. However, in clause 6 of the statement of claim of the appellant, it is stated that:
    

"On the 1st day of March, 2005 the Defendants 6 servants, agents and workmen forcibly entered the said premises of the Plaintiff and removed there from and took away all the items and goods there were in the shop for sale to the value of $10, 455.04 and the said 3 scales valued at $1800.00 just because the Plaintiff owed the sum of $3,993,77 referred to in 3 above."

Even in the prayer to the statement of claim, a reference had been made as to the special and general damages and also to aggravated and punitive damages. Thus, it is wrong to state that the nature of damages had not been pleaded by the respondent company in its pleadings. Hence the ground of appeal no.7 should fail.

Consideration of written submissions

40. It is alleged that the learned High Court Judge did not have the opportunity of considering the written submissions filed in the Magistrates Court since those were not found in the copy of the case record. On behalf of the appellant, it was further argued that the High Court Judge was not aware of the submissions made before the Learned Magistrate even though the Magistrate had the opportunity of listening to the oral submissions made before her.
    
41. However, the learned counsel for the respondent submitted that the learned High

Court Judge had the benefit of considering the submissions made before the Trial Judge when the counsel made their submissions before him. Therefore the opportunity of perusing the written submissions filed in the Magistrates Court by His Lordship would not have affected the final conclusion that he had come to. In any event the judicial decisions are made upon considering the evidence and the law relevant thereto. Therefore, it is the duty of the Judge to act accordingly even without the help of any submissions. In the circumstances, I conclude that the disadvantage to have perused the written submissions filed in the Magistrates Court would not have affected the decision arrived by the learned High Court Judge.

Interference with the finding of the trial Judge

42. The very first three grounds of appeal relates to the interference with the findings of the trial Judge by an Appellate Court. On behalf of the appellant it was argued that the learned High Court Judge had interfered with the findings of the learned Magistrate due to his consideration of the two documents namely P3A and P3B which had not been marked in evidence.
    
43. In this connection, I have already mentioned that even if the documents marked "P3A" and "P4A" were not considered by the learned High Court Judge, his decision would not have changed since there had been preponderance of other evidence to support his decision.
    
44. Furthermore, in numerous authorities it had been held that the appellate court in appropriate cases has the power to defer from the findings of Trial Judges and to substitute its own findings in place of those decisions. This position in law had been discussed in the following cases:-
    

i. Chandrika Prasad v. Gober [1972] 18 FLR 116 (117-118)

ii. Southern Pacific Insurance Company Limited v. Subarmani [1962] FLR 195.

iii. Hicks v. British Transport Commission [1958]2 All ER 39 at p.50

iv. Innaith Hussain v. Reginam 17 FLR 235 Esp. 243

v. Benmax v. Austin Motor Co. Ltd [1955] 1 All ER 326

vi. State Railway Authority of New South Wales v. Earthline Construction Pty Ltd and Others [1990] ALR 588.

vii. Hasmat Bibi v. Asgar Ali Court of Appeal 14 F.L.R, 147.

45. I am inclined to follow the above authorities and therefore decide that the learned High Court Judge had every right to interfere with the findings of the trial Judge in this instance. In the circumstances this appeal fails.
    

46. I propose that this Court should affirm the order of the Learned High Court Judge in respect of $13255.04 as special damages to the Respondent. In respect of the order for $2800 for general damages that should be set aside. The outstanding invoices owed to the appellant in the sum of $3993.77 remain deducted from the damages total. After these circumstances are taken into account I propose that this Court orders the Appellant to pay damages to the Respondent in the sum of $9261.27 In my view taking into account all claims and counter claims that is the amount due in damages to be paid by the Appellant to the Respondent. As to costs it is my view that the Appellant should pay to the Respondent costs of this appeal assessed at $3000.

William Marshall, JA
Orders of the Court

47. The Orders of the Court are as follows:

(1) The special damages in the Court below be affirmed in the sum of $13,255.04

(2) The $2800 general damages awarded to the Respondent in the Court below be set aside.

(3) The Appellant is ordered to pay damages to the Respondent in the sum of $9261.27

(4) The Appellant company is to pay costs of this appeal to the Respondent assessed at $3000.

Hon. Justice William Marshall
Justice of Appeal

Hon. Justice Izaz Khan
Justice of Appeal

Hon. Justice Kankani T. Chitrasiri
Justice of Appeal