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All Shop Fittings (Fiji) Ltd v Singh [2012] FJHC 1290; Civil Action 64.2009 (22 August 2012)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 64 of 2009
High Court Appeal No. HBA 001 of 2011
(On Appeal from the Magistrate's Court in the Western Division at Lautoka)

BETWEEN:

ALL SHOP FITTINGS (Fiji) LIMITED, a limited liability company
having its registered office at Ruve Place, Lautoka.
PLAINTIFF-APPELLANT

AND:

SACHINDRA NARAYAN SINGH of Saru Back Road, Lautoka.
DEFENDANT-RESPONDENT

Mr S Krishna for the Plaintiff-Appellant
Defendant-Respondent in Person

Date of Hearing: 27 July 2012
Date of Judgment: 22 August 2012

JUDGMENT

1. The plaintiff-appellant (the appellant) instituted action before the Magistrate's Court against the defendant-respondent (the respondent) claiming, inter alia, damages in a sum of $ 50, 086.90.
   
2. The action was founded on two causes of action. The first related to an alleged breach of terms and conditions of employment by the respondent, while the second was based on an alleged use of confidential information and data of the appellant's trade by the respondent whilst in employment at the appellant-company.
   
3. At the trial, Mr Ajesh Kumar, a director, and Mr Isveen Vimal Vikash, a salesman, of the appellant-company gave evidence on behalf of the appellant. The respondent testified on his own behalf and called no any other witnesses.
   
4. Learned Magistrate, at the conclusion of the trial, came to the findings that there was an oral agreement between the appellant and the respondent as to the employment where the respondent had undertaken to provide a loyal and faithful service with skill and diligence. Learned Magistrate also came to the finding that the respondent was under instructions as to how he should deal with sales on credit.
   
5. The first cause of action whether the respondent had breached the terms and conditions of employment resulting in loss or damage to the appellant was specifically addressed by the learned Magistrate and came to the conclusion that the appellant had failed to prove such breach and consequential loss or damage.
   
6. As regards the second cause of action, learned Magistrate found that the appellant had failed to show evidence that the respondent had used confidential information of the trade of the appellant or that any loss or damage was caused by the use of such information.
   
7. Learned Magistrate, accordingly, dismissed the appellant's action against the respondent without costs by a well-reasoned judgment dated 09 December 2010.
   
8. The appellant, by his notice dated 20 December 2010, appealed to this court. The grounds urged before this court are:
   

(i) That the Learned Magistrate erred in law and in fact in making a finding that no evidence was placed before this Honourable Court to prove that the Defendant was in fact involved in a similar business while in employment with the Plaintiff Company and which resulted loss to the Plaintiff Company.

(ii) That the Learned Magistrate erred in law and in fact in holding that there was no clear evidence that the Defendant was running a business of similar nature in contravention to the terms and conditions of the employment.

(iii) That the Learned Magistrate erred in law and in fact in making a finding that the Plaintiff's witness, Ajesh Kumar evidence amount to nothing more than hearsay evidenced.

(iv) That the Learned Magistrate erred in law and in fact in holding that the Plaintiff did not suffer a loss on Bright Homes Shop Fittings, when the Learned Magistrate failed to take into the totality of evidenced of the Plaintiff Witness, Ajesh Kumar and the other witness that gave evidence.

(v) That the Learned Magistrate erred in law and in fact in holding that the Plaintiff's witness, Ajesh Kumar did not give evidence or no other independent evidence was proved that the Defendant used his mobile phone and the vehicle of the Plaintiff Company to run his own business.

(vi) That the Learned Magistrate erred in law and in fact in holding that the Defendant did not act in contravention to the instructions of no credit sales to be given, without approval of the boss.

(vii) That the Learned Magistrate erred in law and in fact holding that the Defendant did not tamper with changing the figures on the invoice.

(viii) That the Learned Magistrate erred in law and in fact in holding that the Defendant did not cause loss to the Plaintiff Company by using the data and information of the Plaintiff Company.

(ix) That the decision of the Learned Magistrate is unreasonable and cannot be supported having regard to the evidence as a whole.

(x) That the Appellant reserves its right to file additional and/or amended grounds of appeal upon receipt of the certified copy of records of the proceedings.

9. A perusal of the grounds of appeal, as reproduced above, shows that they are unnecessarily multiplied by duplication and repetition. Such multiplicity of appeal grounds leads to confusion and obscures the real issues that need be properly adjudicated on appeal. Mr Krishna alluded to such multiplicity by submitting that grounds (i)-(v) '[were] inter-related and [could] be dealt [with] as one' at the hearing and withdrew ground (viii). Ground No (ix), too, is couched in other grounds of appeal.
   
10. It was not disputed at the hearing that 'Bright Home Shop Fitting', which the appellant claimed to have been a competitor in its trade, was registered on 19 September 2006 in the name of Arunesh Arshareen Lata, the wife of the respondent. The respondent himself was registered as a partner of Bright Home Shop Fitting only on 05 March 2007 after he was admittedly terminated as a Manager of the appellant-company on 20 January 2007.
    
11. The appellant contended in his lead ground of appeal that the respondent, in fact, involved in a similar business whilst in employment with the appellant, which resulted in loss to the appellant. He relied on an assumption that the respondent 'was running the business...' '... as his wife could not have run the business as there [was] no other alternative explanation'. Learned counsel was repeatedly relying on' similar business' to advance his case.
    
12. Engagement in trade or business is a fundamental human right that a citizen enjoys; and, that cannot be curtailed or denied. In limited circumstances, some restriction may be imposed to secure business secrets and/or confidential information to safeguard proprietary rights of a trade. Such restriction needs be clearly spelt-out and made explicit in a contract of employment. An oral agreement, as is seen here, cannot extend, in the first place, to limit the engagement in a similar trade by an employee because 'similar trade' is a wide entity, which knows no bounds. In any event, factors relied on by the appellant are based on conjecture, surmise and assumptions rather than on similarities of trade, if any, particularized by evidence. They, in my view, sound false senses of feminine inferiority and masculine superiority, which had no legal or factual basis. I agree with the learned Magistrate that there was no evidence to conclude that the appellant engaged in a competitor trade; and, the appellant had, in any event, failed to establish loss or damage as a result of such trade.
    
13. Learned counsel relied on Hivac Ltd. V Park Royal Scientific Instruments Ltd. (1946) 1 ALL ER 350. Facts are, however, dissimilar to the facts of the case in hand. The vigorous test on 'same trade' as opposed to 'similar trade' was met by concrete evidence in that case as opposed to conjectures, which pervade through-out in this case. Learned counsel also relied on Sybron Corp. and another v Rochem Ltd. and Others [1983] 2 ALL ER 707 and Pepper v Webb [1969] 2 ALL ER 216. I, however, do not find authority in them to support the case for the appellant.
    
14. The 6th ground of appeal was that the learned Magistrate erred in law and in fact by holding that the respondent did not contravene the instructions of 'no credit sales to be given without the instructions of the 'boss'.
    
15. The issue lay on the point whether the 'boss', in fact, had given instructions or not. It was admitted at the trial that the 'boss' referred to was one Mr Vinod Kumar, in his capacity as the Managing Director of the appellant-company and the author of such instructions. Learned Magistrate seemed to have been alive to this disputed issue before him and ruled against the appellant as Mr Vinod Kumar's evidence was not presented to establish that credit sales, if any, were without his instructions. Evidence on behalf of the appellant, instead, was to the contrary as witness Isveen Vimal said that:
    

There was a policy to give items on credit. Sachin [the respondent] had powers to give on credit. Document 18 says not to give items on credit. It is addressed to Sachindra Narayan. I do not know who authorized Sachin to sell items on credit.

16. I am of the view that this contradictory evidence fell far short of the burden of proof on a balance of probability that the appellant undertook to establish its case before the learned Magistrate. I find that the learned Magistrate did not err either in law or in fact in his conclusion on the issue.
    
17. The matters raised in the 7th ground of appeal appear to be in relation to an act of fraud or making a false document. There was no cause of action formulated either in the statement of claim or in the course of the trial. Hence, I find no legal basis for this court to consider the matter at this stage. I accordingly reject it.
    
18. In the result, I find no merit in any of the grounds of appeal. Appeal is, accordingly, dismissed with costs fixed at $ 350.00.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
22 August 2012