IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

{Labasa Magistrate’s Court Civil Case No. 284 of 1994}
CIVIL APPEAL NO.: 3 OF 2004

BETWEEN:

CIVIL AVIATION AUTHORITY OF FIJI
APPELLANT

AND:

SUMMAT DEO
RESPONDENT

Mr. V.P. Ram for the Appellant
Mr. A. Sen for the Respondent

JUDGMENT

The plaintiff and the defendant are lessees of adjacent Crown lands at Tabucola, Labasa. The appellant had acquired its lease to build a control tower for aeroplanes flying into and out of Waiqele Airport, Labasa. There is a drain between the two leases.

Some excavation was done on defendant’s land for purposes of building the tower but there is dispute as to whether it was the defendant or an independent contractor who carried out the excavating works. The plaintiff claimed that as a result of the excavating works which were negligently carried out, the water drain between the two lands got filled with soil and debris resulting in drain water to flow onto his cane farm. This resulted in damage to his crops.

In its amended defence the defendant stated that the earthworks were carried out by an independent contractor Afzal Industries Ltd. It states that the contractor was paid upon certification by the engineers and if there was any negligence, it is that contractor and the engineer who are responsible and not the appellant. The appellant also stated that the respondent failed to mitigate his loss.

The trial commenced on 9th December 1998 and was completed on 21st December 1999 over one year later. The judgment was delivered on 11th October 2002. The record for purposes of appeal consisted of 325 pages.

PREPARATION OF RECORDS FOR PURPOSES OF APPEAL:

In the year 2000 Order 37 Rule 7 of the Magistrate’s Court Rules had the following amendment done:

“7A. (1) The Court making up the record must restrict the record to documents or other matters relevant to the appeal and must exclude any document or matter the inclusion of which would result in unnecessary expense or delay.
[Underlining is mine for emphasis]

(2)	A note describing any document or matter omitted under subnote (1) must be attached to and form part of the record of appeal.”

In appeals on substantive matters after trial, one would expect only the grounds of appeal, the writ of summons and statement of claim together with amendments if any, the statement of defence together with amendments if any, reply to defence, record of evidence of parties and their witnesses and the judgment to form part of record. There is no need to include notices to produce, summons to witnesses and any interlocutory matters in the record. If the above rule which has mandatory underlined words are adhered to, then it would mean less typing for the secretaries, less cost for parties as they pay by the page and less reading for counsels and court. It would save substantial time for all. Magistrate in future ought to ensure that this practice is adhered to.

JURISDICTION – WAS THE CLAIM BEYOND JURISDICTION:

Mr. Ram submitted that the initial writ which appears on page 7 to 13 of the record claims $11,600.00 and unspecified general damages. However on the court record page 11 the word general damages in the sum of $3,400.00 appear. The above underlined words are handwritten with an initial beside them. Mr. Ram has attached a copy of writ of summons to his submissions in which the underlined words are missing.

Two possible explanations come to mind for this discrepancy: first, the plaintiff filed the writ with the handwritten words only on the original of the four filed copies of the writ. The court issued the writ without seeing that all the copies were similar; secondly the writ was amended at some later stage by leave of court to add the aforesaid underlined words. There is nothing in the record to suggest that leave to amend by insertion of underlined words were sought so the only possibility is the first one.

An amended statement of claim was filed on 5th August 1998. It made no changes to the prayer but some minor changes to facts pleaded which should have been underlined but were not.

A second amendment was sought during the course of hearing – page 215 of the record. The amendments sought were to paragraph 14 to the particulars of claim. The particulars of claim as pleaded read:

(a)	2 acres of newly planted cane rated of $1,200.00.

(b)	5 acres of ratoon crop $5,000.00 (200 tonnes of sugar cane at the rate of $25.00 per tonne profit).

(c)	The loss of production 135 tonnes of sugar cane i.e. (330 tonnes in 1991 reduced to 195 tonnes 1992 at the rate of $25.00 per tonne amounting to & $3,375.00.

(d)	Loss of use of 2.5 acres of available land or loss of production of 90 tonnes of cane. The total loss was $2,025.00.

The amendments sought were: that items (c) was to be deleted and replaced by “hire of excavator for retrenching $700 and general damages increased to $5,400 and item (1) reduced by $3,325 and therefore to read $8,225.00”.

The effect therefore of this would be that item (c) would read hire of excavator $700.00. the total of all the items a, b, c and d in paragraph 14 would read $8,925.00 but for some reason Mr. Sen wanted to claim only $8,225.00 as special damages and not $8,925.00 and general damages in the sum of $5,400.00 that is a total sum of $14,325. It is not clear from the record whether leave to amend was granted or not, a rather unsatisfactory state of affairs. However looking at the judgment particularly the last page, it appears that for special damages the sum of $11,600.00 was allowed and not the reduced sum of $8,225.00 so implicitly leave to amend was not granted.

A number of cases were cited by the parties in support of their submissions on excess of jurisdiction. The way the prayer appears in the statement of claim attached to the writ and at page 61 of the record reads:

“(a)	the sum of $11,600.00 being loss suffered on the crops.

(b)	General damages in a sum of $3,400.00

(c)	Such further and other relict as this Honourable court may deem just and expedient.”

The original statement of claim was attached to the writ of summons on which various fees such as court fees, agency fees, solicitor’s costs, VAT etc. are shown. Mr. Ram argued on the basis of Govind Holdings Ltd. v. Kalia Nand – HBA 15 of 1998 that because these sums are added on to $15,000.00 the claim is in excess of jurisdiction because Kalia Nand states that interest and costs form part of the claim. Further he submitted that once the claims exceeded the jurisdiction, the learned Magistrate could do nothing except to strike out the action – Ram Khelawan v. Budh Ram – 13 FLR 196.

The appellant’s submission correctly states the law. However one has to look at the writ and statement of claim in their entirety. The figures on the writ are placed for administrative purposes to calculate court fees, VAT etc. In the statement of claim the plaintiff has not claimed costs. Further, the appellant had not raised the issue of jurisdiction before the trial but had submitted to the jurisdiction of the court. Justice Scott in Surji v. NLTB – Civil Appeal 12 of 1994 (Labasa) stated that while total want of jurisdiction cannot be cured by consent of parties, a party who by his conduct waives his rights cannot raise jurisdiction on appeal. I do not see any reason from departing from the above view. Accordingly, the excess of jurisdiction ground fails.

DELAY IN DELIVERY OF JUDGMENT:

The next ground I consider is ground 4 which is the delay of three years between the hearing and the delivery of judgment meant that the learned Magistrate was unable to properly assess the evidence tendered. I would not consider delay in delivery of judgment renders it a mistrial. However, delay of three years definitely would result in the learned Magistrate having lost all advantage of seeing the witnesses particularly on issues of demeanour and credibility. The Court of Appeal in Shan Muga Vellu and Diamond Express v. Shila Wati Prasad – ABU 40 of 2004 where the delay in delivery of judgment was nineteen months stated at paragraph 23 as follows:

“Where the delay is significant, a court would need to give far more detailed reasons for findings of fact so the parties would know that the decision was not affected by delay.”

In the present case, the trial commenced on 9th December 1998 and was completed on 21st December 1999 and judgment written on 2nd October 2002. The judgment itself contains lengthy extracts from evidence of various witnesses, with little attempt at analysis.

The kernel of plaintiff’s claim is that the defendant in carrying out certain works on its property filled the common drain between its land and plaintiff’s land resulting in flood waters escaping onto his land and destroying his cane crops. Hence it would be necessary to make a finding of fact on this central issue. The relevant portion of the judgment reads:

“Clearly there is evidence of breach of duty of care on the part of the defendant resulting in damage and loss to the plaintiff. Those people working for CAAF on the project ought to have foreseen that by raising the level of CAAF land, damages and loss would inevitably result to those in adjoining land such as the plaintiff’s. Furthermore even common sense would dictate that loss and damage would be foreseeable by such an action (i.e. raising the level of CAAF land and especially the middle of it by putting extra soil).”

The learned Magistrate it appears missed the central issue in dispute and relied on peripheral fact that the loss was due to the defendant raising the level of its land. However the learned Magistrate earlier on had referred to the evidence of Laisa Maitoga, a farm advisor who would therefore be an independent witness. She stated that top part of drain between the appellant’s and respondent’s farm was covered and during heavy rain respondent’s farm was under water. She also gave production figures for various years.

Further, of relevance to the issue of mitigation she advised the respondent to clear the drain if he wanted to preserve the cane. The evidence of this witness coupled with that of plaintiff saying that the drain was blocked due to work done on appellant’s land would cause one to conclude that the drain was blocked as a result of earthworks on appellant’s land. Even the defendant’s witness admits that bulldozing was done. Bulldozers do not move with the finesse of a jeweller’s eye but are rather roughshod in their ways so it is almost certain that the drain got filled with soil and debris. The drains are there on farms not for decoration but to take out surplus water. Excess water can ruin crops and the appellant should have foreseen that. 

MITIGATION OF DAMAGES:

Mr. Ram’s real gripe is about the quantum of damages awarded especially in view of the fact that the plaintiff failed to mitigate damages in time.

According to plaintiff the drain was covered in June 1991 – page 213 of record. Babulal PW1 put it at August 1991 – p. 205 of the record. The drain was cleared of soil in June 1993 by the plaintiff by using one Saheem’s Services. There is Exhibit 3 on page 171 of the record which shows that an excavator was used. If that is true, then PW1 Babulal’s testimony that the drain was still filled in 1995 is not correct. However in answer to later questions he says drain was not filled in 1995. The inference one can draw is the drain remained filled for roughly two years from June or August of 1991 to June 1993. In considering the issue of damages Mr. Ram submits that two letters written by the respondent namely on 9th October 1991 and 5th February 1992 are relevant. I agree. While they both complain of clogged drains, they also indicate quite unequivocally that the rainy season had not begun even as late as 5th February 1992. So by then, no damage must have ensued. Mr. Sen in his submissions stated that the learned Magistrate took judicial notice of firstly, cane crushing ends around December and secondly the rainy season starts in December. He further says floods would have occurred in October 1991 and April 1992 and therefore plaintiff could not have mitigated his losses. While I suppose a Magistrate could take judicial notice of the fact that cane crushing ends about December, it would not be proper for him to take judicial notice of a fact contradicted by plaintiff’s own two letters written close to the time in 1991 and 1992.

It was only proper for the plaintiff to write these letters and to provide the defendant an opportunity to rectify what it had done. There was no response by the defendant so at some point in time the plaintiff should have realised that he had to dig the drain himself rather than expecting the defendant to do it. Once the rain had started, the plaintiff should have taken action.

This leads me on to the issue of mitigation. Mitigation was raised in the defence. The learned Magistrate overlooked the issue altogether, probably because the appellant had failed to make its submissions despite being given an opportunity to do so. 

The parties were given an opportunity to make submissions. The defendant did not make submissions. It cannot complain now. Ideally, counsels ought to make their submissions immediately after the hearing or if a case is complicated, than perhaps within a few days of the trial. Failure to make written submissions was probably the cause of delay in delivery of judgment.

A plaintiff who has been wronged must take reasonable steps to mitigate the loss arising as a result of the wrong. He cannot recover losses which he could have avoided but failed to do so because of his inaction. A defendant therefore is obliged to pay damages which would have resulted had the plaintiff in fact mitigated the loss.

The burden of proof is on the defendant to show that it was reasonable for the plaintiff to mitigate the loss. Whilst a plaintiff has a duty to mitigate, he is not required to do what he or she cannot do. If a plaintiff cannot afford to spend money to minimise the loss due to financial constraints, he is not obliged to do so – Dodd Properties Ltd. v. Canterbury City Council – 1980 1 WLR 433 at 453 Megan J.

“A plaintiff who is under a duty to mitigate is not obliged, in order to reduce the damages, to do that which he cannot afford to do: particularly, where as here, the plaintiff’s financial stringency, so far as relevant at all, arose, as a matter of common sense, if not as a matter of law, solely as a consequence of the defendant’s wrongdoing.”

Mr. Ram submitted that in view of the fact that the respondent grew substantial amount of cane and cane price then paid, the respondent did not suffer financial constraints and could easily have spent $700.00 which is what it cost the respondent to hire an excavator. I agree with his submission. Cane payments are made at intervals and surely at least within a period of one year the plaintiff would have access to $700.00. A person who claims to have lost $11,600.00 in cane crops and that too not loss of all the cane but only part of his cane, would have access to $700.00.

The respondent was under a duty to mitigate. The farm adviser had warned him of the consequences. Surely when he saw two acres or 0.8 hectares of his plant crops damaged, he should have immediately moved to clear the drain. The production from this area would have been roughly 60 tons – see page 257 of the record. The nett loss per ton would be about $30.00 giving a total of $1,800.00.

The learned Magistrate does not explain how he arrived at the figure of $11,600.00. These were special damages and the appellant was entitled to know the details. The learned Magistrate says it was for loss suffered on the crops. If the learned Magistrate felt that the tonnage had dropped, he ought to have stated what he accepted was normal production, and how much the production fell by and what is the nett amount he allowed per ton.

It appears from page 11 of the judgment where at the end he stated

“I have covered all that and the plaintiff has in detail explained as to costs of various items and loss of profit. I find these reasonable and acceptable in the circumstances”.

When one adds up the figures given by the respondent and which figures are reproduced at page 6 of the judgment, costs add up as follows per acre:

To get 1 acre ready to plant				..	..	$600.00
Cane seed							..	..	 300.00
To plant 3 people 3 days @ $10.00 per person
 per day							..	..	 90.00
Press soil							..	..	 10.00
Fertilizer							..	..	 108.00
Harrowing 							..	..	 20.00
Weedkiller (1/2 of $35.00)					..	..	 17.50
__________________________________________________________________
										 $1,145.50
===============================================================

Within and up to two months of planting cane it cost him $1,145.50 per acre. I suppose it would cost some more for the respondent to get the crop ready for harvest.

Is this type of expenditure possible or were they figures just plucked out. The plaintiff at page 215 of record said he produced 80 to 90 tons per acre. In cross-examination the figure came down to 20 tons per acre. Laisa Maitoga PW3 put production at 65 to 70 tons per hectare – page 257 of the record. I would take 30 tons per acre per annum as the average.

Hence would a person spend $1,145.50 on an acre of cane within two months to produce ultimately about 30 tons of cane. On average after deduction of harvesting and cartage according to the respondent he received $30.00 per ton so in one year he would receive $900.00 from one acre. Was this respondent running the farm at a loss? A critical analysis of figures was necessary, rather than accepting figures at face value.

The cases which the learned Magistrate relied on are personal injury cases of little relevance to damages in relation to a cane farm.

The learned Magistrate allowed $2,000.00 for general damages. No direct attack is made on award of this sum. The reason given by the learned Magistrate for this was because the appellant ignored plaintiff’s concern. The sum awarded is fair.

FINAL ORDERS:

Accordingly, the finding of liability by the learned Magistrate stands. However, the special damages are reduced as the respondent ought to have mitigated his loss at least within the year of the event once his two acres plant got damaged. Special damages are therefore reduced from $11,600.00 to $2,500.00 being $700.00 for hire of digger and $1,800.00 being for loss of two acres of plant cane. The general damages of $2,000.00 is upheld. The judgment sum is accordingly varied to $4,500.00 for the respondent. The respondent is granted $600.00 costs of the appeal.

[ Jiten Singh ]
JUDGE

At Suva
21st June 2005