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Ba Town Council v Deo [1979] FJSC 101; Civil Appeal 21 & 22 of 1978 (8 June 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate JurisdictionN

Civil Appeal No. 21 & 22 of 1978

BETWEEN:

BA TOWN COUNCIL
Appellant

AND:

SUKH DEO s/o Lakhia
SHIU PRASAD & JAI SINGH
SHIRI RAM
all sons of SUKH DEO
Respondents

Mr. G.P. Shankar, Counsel for the Appellant
Mr. S.D. Sahu Khan, Counsel for the Respondents.

JUDGMENT

The appellant is Ba Town Council and it sued the defendants for rates allegedly due in 1974 amounting to $654.50c. with interest at 7% up to 30.9.75 of $68.68 giving a total of $723.18 in action 296/78 at the Ba Magistrate's Court.

There is further claim in action 297/78 for rates for 1972 and 1973 totalling $1583.70.

The actions were consolidated at one hearing and the appeals are likewise consolidated.

The persons sued were six in number being Sukh Deo and his four sons Shiu Prasad, Hari Prasad, Jai Singh and Shiri Ram, the sixth defendant being Western Development and Investment Co. Ltd.

Each writ is very briefly worded as a claim for general and special rates on C.T. 11650 and each was filed on 27.6.78.

Messrs. Sahu Khan, solicitors, filed notice of intention to defend on behalf of all six defendants on 3.7.78 and very brief defences were filed on behalf of defendants 2 to 6 inclusive jointly. It appears that defendant No.1 died. The defences are the same in each action and were filed on 28.8.78. I quote the defence:-

"The 2nd, 3rd, 4th, 5th & 6th defendants say:-

1. That the defendants deny each and every allegation contained in the statement of claim.

2. That in any event the defendants deny that the plaintiff had a right to levy rates as claimed."

The plaintiff called one witness who is the Mayor of Ba Town Council.

The defence counsel called no witnesses and made no address to the court.

The learned magistrate found on the evidence adduced by the plaintiff that the rates were properly levied in each case and remain unpaid. He then said that the only issue remaining was whether the defendants are liable.

The Mayor (Mr. Govind) stated in his evidence that the first defendant (he obviously meant Sukh Deo and his sons defendants 1 to 5) owned the land and it was transferred to 2nd defendant (he obviously meant Western Land Development Co. Ltd.) when it was going to be sub-divided. He tendered Ex.3 which was not before me but it is the Rate Book and according to the magistrate's record of the proceedings it gives the Assessment No. as 634 against C.T. 11650.

The learned magistrate in his judgment referred to Ex.4 a judgment in the Supreme Court against defendants 2 to 6 inclusive for the 1971 rates. However, that is no proof as to who was liable in succeeding years.

He did say that Ex.3, the Rate Book, records Sukh Deo, Shiu Prasad and Hari Prasad as the owners. Later in his judgment he said that although he was satisfied that some or perhaps all the defendants were liable he could not say with the requisite degree of certainty which of them is liable. His reason for that finding was that the Mayor's evidence of ownership was in no way precise concerning the periods for which rates were sued.

He dismissed the plaintiff's claims.

The plaintiff's appeal is set out in the petition and I do not propose to quote the grounds.

Mr. G.P. Shankar for the plaintiff/appellant points out that the magistrate's finding that the rates were properly levied on the property disposes of the second para of the defence and leaves only the first paragraph which is a general denial of the allegations in the writ. He argues that the magistrate applied too strict a proof and had he simply applied the principle of deciding liability on a balance of probabilities he must have found for the plaintiffs at least as against defendants 2 and 3.

Mr. Shankar referred to Ex.3 the Rate Book as evidence that defendants 2 & 3 are owners. Defendant 1 who is named therein is dead.

Para 1 of the statement of defence is of very little assistance and one cannot tell what it means. It could be taken to mean that although rates are in arrears the amount claimed is inaccurate but it would not be a denial of liability. However, the plaintiff's slip-shod pleading invites a similar response. Why did the writ not allege that the defendants are joint owners, or that certain defendants were owners when the rate was made or have become owners of the land with arrears remaining unpaid? More precise and specific pleading would have called for specific denials by the defendants. Why did the plaintiff not plead service of demand notes under S.73 (1) upon the persons who were served? That again would have called for specific denials.

In cross-examination the Mayor stated that the land had been transferred to Western Land Development Ltd. (6th deft.) and he was aware of this because he was the defendant's solicitor at that time. He could not give the exact date; however, he was able to state that Western Land Development Ltd. had the land vested in it at the time the writ was issued. The writ was filed on 27.6.78 and at that stage the rates for 1972, 1973 and 1974 were clearly in arrears.

No evidence was tendered in rebuttal of the Mayor's evidence involving Western Land Development Ltd. as owners nor to rebut the evidence in Ex. 3 involving defendants 2 & 3.

In the circumstances I am of the opinion that the magistrate erred in saying that it was not possible to say which of the defendants was liable. I agree that it was not possible to say that all were liable but in the absence of any evidence at all from the defence he could and should have deduced that defendants 2, 3 & 6 were liable.

Mr. Sahu Khan for the respondents argued that defendants 2 & 3 are not necessarily liable because it is not apparent when the land was transferred and therefore the rates may have become due after they had ceased to be owners. S.68 of the Ordinance enables persons who have parted with ownership to cause the Council to remove their names from the Rate Book. If defendants 2 & 3 had ceased to be owners before the 1972, '73 & '74 rates fell due then they could have said so in evidence explaining why they had not required the Town Council to delete their names from the Rate Book Ex.3 under S.68 of that Act. Their failure to challenge the accuracy of the Rate Book, Ex.3, indicates a probability that this is because they could not do so truthfully.

Mr. Sahu Khan further argued that the plaintiff, under S.75, had to decide whether he would sue the persons who were owners at the time the rate was made, i.e. defendants 2 & 3, or the person, i.e. defendant 6, who became owner with the arrears still existing. I cannot regard that as a valid submission because if the plaintiff were bound to make such a selection and chose to sue defendants 2 & 3 and failed he would not be able to sue defendant 6. However, the rates are, according to S.57, a first charge on the land and it would be absurd to say that the current owner is no longer liable because the Council had unsuccessfully sued the former owners when the rates are a charge on the land.

In my view defendants 2, 3 & 6 were properly joined and are liable for the rates. In that connection S.77 states that an unsuccessful judgment against one person does not bar the Council from proceeding against some other person who is liable under the Act.

The appeal is allowed.

The magistrate's decision is set aside. There will be judgment for the plaintiff as claimed in each of the actions. The defendants will pay the plaintiff's costs in the Court below which for convenience I will fix at $50.00, and the costs of this appeal which I fix at $70.

(Sgd) (J.T. Williams)
JUDGE

LAUTOKA
8th June, 1979.