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Sharma v Eigner [2005] FJHC 300; HBC0392.1996 (24 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0392 OF 1996

BETWEEN:

RANDIR ROHIT SHARMA
(father’s name Raj Deo Sharma) of Nawaicoba, Nadi, Labourer.
PLAINTIFF

AND:

OTTO EIGNER
of Nadi, Company Director and Owner of South Pacific Electronics Ltd.
DEFENDANT

Mr Babu Singh & Associates for the Plaintiff (Mr Maopa)
Defendant in Person

Date of Hearing: 24 November 2005
Date of Judgment: 24 November 2005

ORAL JUDGMENT OF FINNIGAN J

In this action the Plaintiff claims damages of $250,000.00 for the tort of false imprisonment and in his Statement of Defence the Defendant denies entirely the claims set out in the Statement of Claim.

Mr Maopa in submissions has set out admirably the ingredients of the tort of false imprisonment and it is not necessary for me to repeat them here.

The evidence I heard in Court today is the same as the claims set out in the Statement of Claim in particular what is pleaded there is largely evidence and it was recounted by the Plaintiff today with surprising accuracy. He denied every aspect of the Defendant’s evidence as put to him in cross-examination by the Defendant.

The Defendant’s evidence was diametrically opposed to that of the Plaintiff and he supplied in addition much background detail not all of it relevant. However it did provide the backdrop against which the events of 11 September 1996 occurred. The Plaintiff’s claim is that on the evening of that day he was by the Defendant imprisoned and locked into a cargo container on the business compound of the Defendant’s company. The defence is that this simply did not occur that is the denial and the Defendant in addition gives evidence, to which I shall shortly refer.

However before proceeding I should say that some documents were filed by Mr Maopa for the Plaintiff just before the hearing began. There were some aspects of this procedure including unfairness and non-compliance with the rules of evidence, which I found very disturbing. As it happens it is unnecessary to refer to them I say nothing more about them and I put them aside because in the end they are not a substantial part of the evidence. Likewise I put aside the four photographs produced by the Defendant. They are not much help.

There was no serious attempt to allege or to prove against the Defendant any conviction relevant to this claim pursuant to Section 9 of the Evidence Act Cap 41 and I find that none is proved.

I return now to the events of 11 September 1996. From the evidence of the Plaintiff and the Defendant together I find as follows;

The beginning of what occurred was several days earlier. The Defendant’s premises were burgled and there was substantial theft and this has been investigated by the police.

The Defendant suspected his security guards of whom the Plaintiff was one. Shortly after the burglary the Plaintiff stopped working for the Security Firm for which he gave no adequate reason in evidence. On 11 September 1996 which is several days after the burglary he was offered work by the Defendant and he worked for him on that day from about 1.00pm onwards until about 5.00pm.

After that I am satisfied from the evidence of both that he spent that night in a container, which was itself inside the locked yard of the Defendant’s premises. Nothing however is made by the Plaintiff of the fact that the yard was locked. His complaint is only that the container was locked. Here the evidence rose in to violent opposition. The Plaintiff claims he was locked in and was required to supply on a piece of paper evidence about the burglary. The Defendant claims he offered the Plaintiff permanent employment subject to a statement about the burglary and that their discussion went on until the Plaintiff revealed that he had missed the last bus home at about 8.00pm. The Defendant says he offered the container to the Plaintiff for sleeping as he himself had slept in it after the burglary and it contained a mattress and a blanket or pillow. He said he supplied paper for the Plaintiff to put outside the container should he not like the fact of being detained in a locked compound and wish to have the gate open. There was much else said by the Defendant about his involvement with the police over the allegation made by the Plaintiff which was made not immediately but several days later perhaps on 17 September 1996. This is only background. It is relevant however to the Plaintiff’s claim that he says his delay of five days between 12 and 17 September before lodging a complaint of false imprisonment was caused by the ill effects of the imprisonment. The Defendant claims the Plaintiff had no ill effects and indeed offered full details of the burglary and that the Plaintiff lodged the complaint only after the Defendant went to the Plaintiff’s former employer the Security Company and accused the owner of the burglary.

Of the two accounts about the Plaintiff’s delay I find the Defendant is more credible. The Plaintiff’s account of being unwell and of going for treatment at Nadi Hospital is entirely unsupported. His allegation was that he was very seriously hurt perhaps more in his mind than in his body but sufficiently hurt to warrant a claim in damages of a ¼ of a million dollars. In cases of injury Plaintiff find no difficulty at all in the Western Division in obtaining a record from the hospital. There is none here. He said a report was put in at the Nadi Magistrates Court in a hearing against the Defendant but even in the collection of photocopies assembled by the police at Namaka for the Plaintiff, there is no copy of that or any reference to it.

So the evidence is that there was a five-day delay before the Plaintiff complained to anybody. He said he complained the same day to his fellow worker Pikesh but that worker did not give evidence. The Plaintiff’s reason for day I find could have been easily supported by the Nadi Hospital record but it was not. The Defendant’s account has some credibility and on balance of probabilities I accept it. I return to the evidence of the night itself since the delay is only a minor aspect of the matter. I have observed both the Plaintiff and the Defendant give their evidence and I have heard and weighed their answers. I am asked to do justice between these parties. All I have is the assessment I make of them as witnesses and the rule as to the balance of probabilities. The Plaintiff’s evidence in respect of the night in the container I find less credible. His attempt to suggest that he was digging a grave has no credibility against the evidence of the Defendant that he was digging in a trench containing water and electricity lines. I am sceptical over claims of the effects that he says he suffers particularly in the absence of any corroborative evidence at all and his claims that he suffers these effects to this very day nine years later.

I do not have to accept the Defendant’s evidence of his offer to employ the Plaintiff and his evidence that an account of the burglary was given to him by the Plaintiff but I do say that his evidence of offering the container to the Plaintiff and that he had slept in it himself just after the burglary has the ring of truth. There was another witness for the Defendant (DW2) who said at one time in his evidence that he had worked with the Plaintiff and that the Plaintiff had told him that his boss (the Defendant) had locked him into the container but without saying to the witness for how long he had been locked in. It is difficult to assess what weight to give this evidence or to assess what it proves. The witness himself had gone from the compound by the time that had occurred if it did.

So what I am required to do is to assess the evidence of the Plaintiff and of the Defendant to see whether probably the Defendant did imprison the Plaintiff in the container.

I cannot say I am confident about what occurred. I cannot say with sincerity that yes on the balance of probabilities what the Plaintiff claims did take place. I find that the evidence falls short of establishing the claim and for that reason I am left with no alternative but to dismiss it and it is dismissed.

I let costs lie where they fall and make no order as to costs.

D.D. Finnigan
JUDGE

At Lautoka
24 November 2005