IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA 15 OF 2000

BETWEEN:

KHAN’S SHIPPING CO. LTD.
Appellant

AND

ATTORNEY-GENERAL OF FIJI AND
OTHERS
Respondents

J.K. Maharaj for the Appellant
A. Adamu for the Respondents

Dates of Hearing: 2nd February, 19th June 2001
Date of Judgment: 14th December 2001

JUDGMENT

This is an appeal from a decision of the First Class Magistrate’s Court at Suva on the 21st of August 2000 in which the Court rejected a claim by the Appellant (Plaintiff) for damages both exemplary and general following the removal of property allegedly owned by the Appellant and one Raj Gopal from a ship owned by the Appellant on the 2nd of December 1998.

The Statement of Claim which reads more like an affidavit without a Jurat alleges that on the 2nd of December 1998, a Police Officer named Vulisere Waqabaca accompanied by one Raj Gopal and two other Police Officers boarded a ship named ‘Te Mauri II’ owned by the Appellant which was anchored opposite the Narain’s Jetty at Walu Bay.

The Police Officers used a punt to ferry themselves and Gopal to the ship which they entered and then removed a large number of tools and equipment stored in a rear room of the ship.

Their purpose in visiting the ship was to recover property allegedly owned by Mr. Gopal which had been left on the ship after his failure to complete a contract to repair the ship on which the Appellant had given him an advance of $4,000.00 in cash to purchase tools and welding equipment.

In view of the failure of Gopal to work on the ship despite numerous requests from the Appellant the Appellant treated the contract as discharged and engaged another contractor.

The Appellant alleged that the property allegedly owned by Gopal was being held by the Appellant as a lien against the moneys advanced to Gopal.

The Respondents had no search warrant to board the ship or to remove any property from it but they justified their action by saying that Gopal had made a complaint to the Police that his property was still on the ship and he required Police assistance to recover it.

Evidence was given that in addition to tools owned by Gopal goods belonging to the Appellant valued at $8,601.00 were missing from the ship after the Police and Gopal had boarded it. There was also evidence that the cost of replacing the tools was $2,500.00.

The Learned Magistrate dismissed the claim first because she was not satisfied about the credibility of the Appellant’s witnesses. Secondly she was not satisfied that the Appellant had adequately identified the persons who were alleged to have unlawfully boarded the vessel and removed the Appellant’s property. Thirdly because the Plaintiff claimed $8,601.00 for equipment and tools allegedly removed by the Respondents whereas a witness for the Appellant had testified the cost of replacing the items was $2,500.00.

Numerous grounds of appeal have been given by the Appellant, which, summarised claim that the Learned Magistrate was wrong in holding that there was no credible evidence of identification of the Respondents and that she should not have held the Appellant had not established the value of the goods removed.

Dealing with these grounds in their order first it is true that a trial Magistrate or Judge is normally regarded as being the best Judge of the credibility of witnesses because he or she sees them as they give evidence and can study their demeanour. However in this case in my judgment the Learned Magistrate was wrong in holding that there was no proper identification of the Defendants. All four witnesses who were called by the Appellant testified to the fact that Raj Gopal was amongst a group of persons who boarded the Plaintiff’s vessel at Walu Bay. They also testified the Third Respondent was in Police uniform. Just as importantly, the Defendants admitted boarding the Plaintiff’s vessel. Furthermore, and in my view this is the crux of the whole case, the Respondents should not have allowed Gopal to remove any goods unless they were satisfied that they were his. In my view they should have taken all the goods which Gopal claimed were his into their custody and held them until the Plaintiff or its employees could identify goods not belonging to Gopal. This was not done although counsel for the Appellant (Plaintiff) submitted to the Magistrate that the Police failed to question the Plaintiff, its servants or agents as they were required to do. They accepted the allegations of Gopal without paying any regard to the interests of the Plaintiff. In my judgment, in doing so, they failed in their duty to the Plaintiff.

I have also no doubt that Gopal must have felt protected by the presence of at least four Policemen and so presumed that there would be no opposition to taking goods of the Plaintiff if he was so minded.

In my judgment the Learned Magistrate erred in not giving any or any proper consideration to this submission on behalf of the Plaintiff.

Finally in my judgment the Learned Magistrate failed to notice the distinction between the cost of replacing the tools and the value of the goods missing of which there was evidence on which she could have acted.

In the result the appeal must be upheld and a re-trial ordered on all issues. In this regard I must add that I am mystified as to why no claim was made against Raj Gopal. No reasons for this were ever suggested either in the lower Court or before me.

The orders I make therefore are that the appeal is upheld and the case is remitted to the Magistrate’s Court for re-hearing on all issues. I also order that the Respondents pay the Appellant’s costs of $500.00.

JOHN E. BYRNE
JUDGE