IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL APPEAL

CIVIL APPEAL NO. HBA0015 OF 1999

BETWEEN:

SUNIL KUMAR
Appellant

AND:

FIJI POST & TELECOMMUNICATION LIMITED
Respondent

Counsel: V. Maharaj for Appellant
S. Vadei for Respondent

Hearing: 23rd July 1999
Decision: 9th August 1999

JUDGMENT

This is an appeal from the decision of the Suva Magistrates Court to find for the Plaintiff in its claim against the Defendant in the sum of $2,044.53 in telephone bills.

The facts of this case are simple. By writ of summons filed on 26th June 1996, the Plaintiff claimed that the Defendant owed it $2,044.53 as unpaid telephone bills for telephone services provided to telephone number 382302 between February and April 1994. The Plaintiff demanded this sum by letter dated 1st December 1994, and thereafter made many requests for payment, but the Defendant failed to pay.

In his defence, the Defendant claimed that he had advised the Plaintiff to disconnect the telephone 382302, but the Plaintiff had failed to do so. The Defendant further stated that he had never used the telephone in question, and that he had never occupied the premises where the telephone had been installed.

The matter proceeded to trial on 24th February 1998. The Plaintiff called one witness, Mrs Manjula Singh of Fiji Post & Telecommunication Limited. The Defendant gave evidence on his own behalf. The learned Magistrate found for the Plaintiff.

The grounds of appeal against her decision are as follows:

1.	That the learned Magistrate erred in law and fact in holding:

(a)	That any intention to terminate the contract between the parties had not been clearly communicated by the Appellant/Defendant when there was sufficient evidence to the contrary.

(b)	That the Appellant/Defendant’s evidence was unsubstantiated.

(c)	The onus at all times was on the Defendant to prove these allegations thereby wrongly shifted the onus of Proof on the Appellant/Defendant.

2.	The learned Magistrate failed to critically analyse, if at all, the contradictory and heresay evidence given by the only witness for the Respondent/Plaintiff.

3.	Taking into account whole of the evidence and documents tendered during the trial, the Appellant/Defendant maintains that the learned Magistrate’s finding is erroneous thereby great injustice has been caused to your Respondent/Plaintiff.

Mr V. Maharaj for the Appellant made both oral and written submissions. Mr S. Vadei for the Respondent responded in kind. The crux of the Appellant’s appeal, is that he had rescinded the contract with the Respondent, and had communicated his intention to rescind by letter dated 21st February 1994. This letter was exhibited at the trial. Mr Maharaj submitted that the Appellant’s intention was complete when he posted the letter, and that whether or not the Respondent received the letter, the contract was deemed terminated.

It is also the Appellant’s argument that the learned Magistrate reversed the burden of proof when she ruled, at page 69 of the record that the onus to prove communication of termination of contract was on the Defendant.

Finally the Appellant pointed to evidence of consistencies in the Plaintiff’s case at the trial which should have led to the learned Magistrate finding for the Defendant.

Mr S. Vadei, for the Respondent submitted that the onus or burden of proof in a civil case, is on the party asserting a claim. In this case, since the Appellant asserted communication, he should have had evidence of that communication. He submitted that in the absence of such termination, the Appellant was contractually bound to pay for the telephone services, and that any arrangement he had with his tenants did not rescind the contract between the Appellant and the Respondent.

At the trial, Mrs Manjula Singh, PW1, gave evidence that a request for disconnection must be made by filling in a form or making a request in writing. She said that she had no record of the Respondent’s request for disconnection, although she was aware that a change of address had been requested for the bills.

In evidence, Mr Sunil Kumar, the Appellant, said he used to own a house at 24 Rukua Road, and that the telephone number was 382202. He said that one of his tenants, one Rajiv Maharaj arranged to pay the bills himself. Thereafter he had other tenants. He requested disconnection by telephone, but found that the telephone had not been disconnected. He checked again, and was told that he had to come to Suva from Ba where he worked. He was told to put his request in writing. He then said at page 64 of the record:-

“I went back and wrote to them on the following Monday. On 21st February I posted letter to them. I thought I couldn’t backdate my letter. That’s why date is 21/2. I’m not aware whether phone disconnected in February.

. . . .In early 1995, on December 1994 I received a letter from FPTC - a demand notice for bills to April 1994 to pay by 15/12/94 the accumulated bill and administrative costs of the legal action . . ..

I replied on 16/1/95 and told them that I disputed bill.”

On this issue, the learned Magistrate made findings of both law and fact. She found that;

“the application for disconnection was not made neither can it be inferred. Any intention to terminate the contract between the parties had not been clearly communicated. There is no evidence on which the court can safely rely on that the intention to terminate was clearly communicated to the Plaintiff. The defendant’s evidence is unsubstantiated. The onus at all times was on the defendant to prove this allegation not the Plaintiff as submitted.”

The question is whether the learned Magistrate erred in respect of the alleged termination of the contract between the Appellant and the Respondent.

A contract can be rescinded by agreement. The agreement to rescind need not be in writing. “It depends upon the consent of both parties to be gathered from their words or conduct and not upon the intimation by one of them that he does not intend to be bound by the agreement” (Chitty on Contracts 26th Ed. Page 1593). However, a contract can be rescinded by one party, if the contract itself provides for termination at the option of one of the parties. The contract in this case, at page 87 of the record contains no such option.

As such, the question was whether there was evidence for the learned Magistrate to conclude, that the contract had been terminated by agreement. There was no such evidence. The letter produced by the Appellant might have been evidence that he had written a letter indicating his wish to rescind. It is not evidence that the Respondent agreed to termination, or was aware of the Appellant’s wish. The evidence of PW1 was that the telephone was in fact disconnected because the Appellant had not paid his bills.

Furthermore, the Appellant failed to check whether or not his telephone had been disconnected and whether or not his letter had been received by the Respondent. It was indeed for the Appellant to prove termination of the contract. It is for the party seeking to terminate the contract to prove the existence of the facts which justify the exercise of his contractual right to terminate (Chandris -v- Isbrandtsen Moller Co. Inc. (1951) 1KB 240, at p 245-246).

In Howard -v- Pickford Tool Co.Ltd. (1951) KB 417, at page 420, Eversland MR said:

“It is quite plain (and I refer, if it be necessary to quote authority to the speech of Lord Simon LC in Heyman -v- Darwins Ltd. (1942) AC 356, 361) that if the conduct of one party amounts to a repudiation, and the other party does not accept it as such but goes on performing his part of the contract and affirms the contract, the alleged act of repudiation is wholly nugatory and ineffective in law”.

Asquith L.J. in the same case said at page 421;

“An unaccepted repudiation is a thing writ in water and of no value to anybody, it confers no legal rights of any sort of kind”.

In the circumstances, I cannot agree that the learned Magistrate erred in finding that there was no recission of the contract, and that the onus was on the Appellant to prove recission, which he failed to discharge. The proposition of law that an offer may be accepted by post and not necessarily on receipt, apply to the formation of contracts.

In re London and Northern Bank Ex parte Jones (1900) 1 Ch 220, Cozens-Handy J said:-

“It is settled law that an offer is deemed to be accepted when the letter of acceptance is posted, the reason being that the Post Office is considered the common agent of both parties: Harris’s Case (1872) LR 7 Ch 587. Hence, no delay on the part of the Post Office in delivering the letter will be material. The withdrawal in order to be effectual must be before the offer is clinched by the posting of the letter of acceptance”.

In that case the envelope in which the letter was posted was produced with a stamp mark showing the place and time of postage. Furthermore the court held that the way in which the letter had been posted by the Defendant’s company failed to satisfy the court that the letter of acceptance was posted before the Plaintiff’s letter of withdrawal. In this case, the Appellant gave evidence that he posted the letter at Ba. What was produced was a photocopy of the letter he wrote. There was no supporting evidence of postage.

It is not clear why the Appellant did not fill out a disconnection form when he visited the Respondent’s office on the Friday before the 21st of February 1994. Nor is it clear why he did not ascertain that his telephone had in fact been disconnected between 21st February to December 1994 when he received the demand for the bill. In fact, according to the Appellant’s evidence, he is still not aware when the telephone was disconnected.

I find therefore that the learned Magistrate was entitled to find insufficient evidence that the Appellant had communicated his wish to terminate the contract. I also find that she was correct in holding that the Appellant had the burden of proving such communication. 

For these reasons, I dismiss Ground 1(a), (b) and (c) of the Notice of Appeal.

Ground 2 states that the learned Magistrate failed to adequately analyse the evidence given by PW1. The Appellant in particular referred to the inadmissibility of the computer printout, which had been admitted at page 60 of the record “with reservations.” The learned Magistrate found that since PW1 had not fed the information into the computer, nor extract the same, she would treat the evidence with caution.

It appears from the Ruling of the learned Magistrate that she put no weight on the computer print-outs of the bills, at all. The record shows that PW1 gave evidence in respect of the computer print-outs at length, without objection. The objection was in relation to the tender of the print-outs.

Furthermore, the print-out was then used by counsel to cross-examine PW1 at length (at page 60 of the record).

It was never suggested by counsel for the Appellant that the amount owing under the bill, was incorrect.

As such, even if the print-out was inadmissible to prove the truth of its contents, PW1 had in any event given evidence of the amount owing by the Appellant to the Respondent, independently of the print-out.

I dismiss Ground 2 of the Notice of Appeal accordingly.

Ground 3 of the Notice is a general ground alleging that the finding of the learned Magistrate was erroneous. I cannot agree. I find that the Respondent discharged its burden of proving the contract, and the debt under it. I find also that the learned Magistrate dealt with the issues of recission of the contract on the evidence before her, correctly.

I therefore dismiss the appeal and order costs against the Appellant to be paid to the Respondent, to be taxed if not agreed.

[Nazhat Shameem] Ms
JUDGE

At Suva
28th July 1999