IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE CIVIL JURISDICTION

Civil Action No: HBA 3 of 2011L

BETWEEN

WADAVELLU REDDY & BALRAM REDDY
Appellant/First Defendants

AND:

GOPAL KRISHNA & SUGAR INDUSTRY TRIBUNAL
Respondents/Plaintiff/Second Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Ms V Patel (Appellant)
No appearance

Solicitors: Miss Vasantika Patel (Appellant)
Mishra Prakash & Assocs (Respondent)

Dates of Hearing: 23 May 2011
Date of Judgment: 9 June 2011

INTRODUCTION

[1]	This is an appeal from the Master’s judgment of 7 March 2011 in which he awarded damages to the plaintiff/respondent, Gopal Krishna. The judgment relates to cane payments from a sugar cane farm, a “protected” Crown lease, which is registered in the defendants’/appellants’ names. The defendants reside in Canada and the plaintiff resides on the farm and cultivates cane on it. The plaintiff claimed that despite farming and harvesting the cane, the defendants did not pay him his share from the 2001 and 2002 harvest. The Master awarded him his half share for 2001 (para 17[i]: $6,526.11) and 2002 (para 17[ii]: $4,387.49) totalling $10,913.60.

CASE HISTORY

[2]	The Writ of Summons was filed on 21 August 2003. On 3 September 2003, Byrne J, as he then was, granted the plaintiff’s ex-parte application for joinder of the Fiji Sugar Corporation Ltd as a third defendant and an order that the cane proceeds be paid to the plaintiff until further order. The first defendant, Takaliamma, who was then the executor and trustee of the deceased registered lessee, Murgessan, filed her defence on 13 November 2003. On 6 September 2004, the plaintiff filed an application for an order that the deputy registrar of this court execute all documents for the issue of an Instrument of Tenancy and cane contract to him on the grounds that the executor and trustee lived in Canada. On 30 September 2004, Jiten J granted the order.

[3]	On 1 November 2004, the plaintiff filed an application to strike out the defence and enter judgment. On 24 February 2005, Finnigan J, the defendants having not appeared, allowed the application and entered judgment for the plaintiff against the first defendant for prayers for relief (b), (c), (d) and (e), namely for the payment of cane proceeds presently held for that cane contract, damages, interest at 10% and costs.

[4]	On 13 December 2004, Takaliamma died in Canada. On 17 July 2006, the current appellants/defendants obtained letters of administration de bonis non for their father’s estate which remained unadministered by Takaliamma. On 1 October 2007, they applied to have them substituted as defendants which order was granted on 26 October 2007. On 20 November 2007, the plaintiff filed an application for assessment of damages. The application was put before Master Udit for directions. Several mentions followed until the two affidavits in support of the application were eventually filed on 22 August 2008. The application and affidavits had to be served overseas so the plaintiff filed an application for substituted service by prepaid registered post on 6 November 2008. The application was granted and the plaintiff’s solicitors sent the documents as ordered but they got returned as “unclaimed”. So the plaintiff filed another application on 16 March 2009 for substituted service by advertisement in the local newspapers. The application was granted by the Master on 18 September 2009. Ms Patel then appeared as counsel for the defendants on 30 October 2009 and afterwards. Further adjournments followed and on 26 January 2010, the first defendants were given 21 days to file an application to set aside the default judgment and the hearing set down for 30 March 2010. The first defendants did not file any application so the assessment for damages hearing proceeded on 30 March 2010 before Master Tuilevuka. His judgment is the subject of this appeal.

CONSIDERATION OF THE GROUNDS OF APPEAL

[5]	The first ground of appeal is that the Director of Lands did not give consent at any time for the bringing of the High Court proceedings. Section 13 of the Crown Lands Act [Cap 132], so far as relevant, provides:

“13.-(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.” (my emphasis)

[6]	It is not disputed that the land in question is a “protected” lease and that the Director of Land’s consent had not been obtained. But it seems to me that these proceedings are not caught by the section because these are proceedings for the payment of cane proceeds and not proceedings “dealing with” the lease.

[7]	It is true that there was reference to the Instrument of Tenancy and relief in that regard was granted in interlocutory applications but none of that relief was sought in the Statement of Claim. Whether the interlocutory orders were rightly granted has never been contested and are not the subject of this appeal. The first ground of appeal fails.

[8]	The second ground of appeal is that special damages were not pleaded for the 2001 cane proceeds. The prayer for relief in the Statement of Claim is as follows:

(a)	An order that the Second Defendant do transfer cane contract no 1515, Rarawai sector to the plaintiff

(b)	An order that all monies presently held under cane contract no 1515, Rarawai sector be paid to the plaintiff

(c)	The defendants do pay the plaintiff damages.

(d)	The defendants do pay interest on damages at the rate of 10% per annum under the Law Reform (Miscellaneous Provisions)(Death and Interest) Act to the date of payment

(e)	Costs.

[9]	The Statement of Claim at paragraphs 4 and 5 states:

4.	The first defendant and/or her servants and/or agents are uplifting cane proceeds in respect of the cane cultivated in the said 16 acres which lawfully belong to the Plaintiff under the tenancy declared on 1 April 2003.

5.	The first defendant and her predecessors in title have not paid any monies for the Plaintiff’s share of cultivation in 2001 and this has caused the plaintiff considerable losses, distress and inconvenience.

[10]	There is no other reference or claim for loss or damages in the Statement of Claim except in the prayer for relief (c).

[11]	The need to specifically plead special damages has been explained by the Court of Appeal in Credit Corporation (Fiji) Ltd v Khan [2008] FJCA 26; ABU0040.2006S (8 July 2008):

“13. … It is well established in cases such as Monk v Redwing Aircraft Co Ltd [1942] 1 KB 182; Haywood & Another v Pullinger & Partners Ltd [1950] 1 All ER 581; and British Transport Commission v Gourley [1956] AC 185 that in order to found a claim for special damages, the claim must be specially pleaded. Not the least basis for this rule is fairness: to ensure that the party against whom such damages are claimed has proper and particularised notice of the claim.

14. For this purpose, general damages consists in all items of loss which the Plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damage consists in all items which must be specified by him before they may be proved and recovery found. The basic test of whether damages are general or special is whether particularity is necessary and useful to warn the defendant of the type of claim and evidence or the specific amount of the claim that which he will be confronted with at trial. In this regard, in Ratcliffe v Evans [1892] 2 QB 524, 528, Bowen LJ held that special damage "means the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the Plaintiff's claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial." In the court below, Finnigan J followed a decision in Sharma v Dominion Wire & Cables Ltd HBC 352 of 1998. He cited in particular from a passage in that judgment which in turn quoted from McGregor on Damages, 17th edition, paragraph 43-010. One part of the passage quoted was: "where the precise amount of a particular claim of damages becomes clear before the trial, either because it has already occurred and so crystallised or because it can be measured with complete accuracy, its exact loss must be a pleaded as special damage."

[12]	It seems to me that the defendants cannot complain that they have been surprised by the prayer for relief. I think the claim has been sufficiently particularised in so far as the cane proceeds for 2001 is concerned. The appeal on this part of the judgment is not that the Master had not correctly assessed quantum but rather that it was not pleaded in accordance with the requirements of Credit Corporation (Fiji) Ltd (supra). The appeal therefore fails on this ground.

[13]	The third ground of appeal is that the Master erred in awarding to the plaintiff his share of the cane proceeds for 2002 because the claim was not pleaded. I must agree with Ms Patel that this part of the damages should be disallowed. The Master had entertained the claim for the 2002 cane proceeds but there had not been an application before him or an order for amendment of the Statement of Claim to include this claim. I therefore allow the appeal in so far as the damages included the plaintiff's 2002 share of cane proceeds, namely, $4,387.49.

COSTS

[14]	Neither party has won outright so I make no order as to costs.

ORDERS

[15]	The orders are therefore as follows:

(a)	The appeal is dismissed as to paragraph 17[i] of the Master's judgment of 7 March 2011 for payment of $6,526.11.

(b)	The appeal is allowed as to paragraph 17[ii] of the Master's judgment of 7 March 2011 for payment of $4,387.49.

(c)	There is no order as to costs.

……………………………………………………
Sosefo Inoke
Judge