Civil Appeal No. 66 of 1973
IMAM ALI
(s/o Bakaridi)
RESPONDENT
(Original Plaintiff)
&>
Date of Hearing: 7th March, 1974
Date of Judgment: 18th March, 1974
K.P. Mishra for the Appellant
B.C. Patel for the ndent
JUDGMENT OF MARSACK, J.A.
This is an appeal against inst a judgment of the Supreme Court dismissing an appeal from the Magistrates Court in favour of the respondent.
By virtue of Section 12(1)(d) of the Court of Appeal Ordinance this appeal is limited to questions of law only.
The relevant facts may be shortly stated. The respondent had travelled to New Zealand in 1965, his passage being arranged through
the appellant travel service. In 1966 he wished to go to New Zealand again and approached the appellant firm who assured him that
this could be easily arranged. He paid to appellant a deposit of £5 on 8th October, 1966, and the balance of £40.16.0 on the 12th November, 1966. The respondent informed the appellant firm that he wished to join a group of teachers travelling to New Zealand in
December, 1966, at concession fares. It was agreed that all arrangements for this purpose, including the obtaining of the necessary
travel permit, were to be made by the appellant. The permit was not obtained on the 9th November, 1966 the Immigration Officer, Suva wrote to the appellant firm returning the respondent's passport and informing them that
respondent was not eligible for a New Zealand permit.
Although the permit had not been granted, the appellant paid the full amount of the passage money to the Qantas Airline. Application
for a refund was refused by the Airline because of the condition attached to concession-fare tickets, that the fare would not be
refunded if the passenger were unable to travel. The respondent did not know of this condition.
The learned Magistrate found as a fact that the appellant did not follow the proper procedure, of which the respondent knew nothing,
and by its actions put the respondent into a position where he could not qualify for a refund under terms of a contract of which
he was not aware. The learned Magistrate also found as a fact that the appellant did not issue a ticket or a proper receipt to the
respondent. He held that the appellant negligently failed to protect its client - the respondent - from the consequences of his failing
to obtain a permit.
The learned Judge on appeal held that the appellant not only promised to obtain the appropriate air ticket for the respondent but
also undertook to obtain the necessary travel permit to New Zealand for him. The Judge in dismissing the appeal based his judgment
on the ground of total failure of consideration, in that the appellant had failed to procure such a ticket as it had unequivocally
promised to do.
In his argument on this appeal counsel for the appellant submitted that the appellant had throughout acted as agent for the Airline,
and that there was no contractual relationship between the appellant and the respondent. This point had been argued before the learned
Judge in the Court below and in the course of his judgment he stated:-
"With regard to the contention that the appellant was only an agent for the airline, I do not think that the facts warrant such
a conclusion. The airline was at no stage a party in the transaction between the appellant and the respondent."
In my view, the Judge has drawn the correct inference from the facts found on the evidence. There was a definite contract between
the parties by the terms of which the appellant undertook to furnish the respondent with a ticket which would enable him to travel
to New Zealand. This the appellant failed to do; and it was found as a fact that the blame for this failure rested entirely on the
appellant.
Mr Mishra further contended that the action of the respondent was really a claim in tort, and in this respect counsel emphasised the
finding of the learned Magistrate that the failure of the appellant to protect its client, the respondent, was negligent. He also
submitted that as the statement of claim made no reference to tort on the part of the appellant, the claim could not succeed. In
my respectful view, the law on this aspect of the question is correctly set out in Bagot v. Stevens Scanlan & Company Limited (1966) 1 Q.B.D. 197 at p.204 where Diplock L.J. quotes with approval from the judgment of Greer L.J. in Jarvis v. Moy (1936) 1 K.B. 399:-
"The distinction in the modern view, for this purpose, between contract and tort may be put thus: where the breach of duty alleged
arises out of a liability independently of the personal obligation undertaken by contract, it is tort and it may be tort even though
there may happen to be a contract between the parties, if the duty in fact arised [sic] independently of that contract. Breach of
contract occurs where that which is complained of is a breach of duty arising out of the obligations undertaken by the contract."
There was, in my view, a definite breach of duty arising out of the contractual obligation on the part of the appellant to obtain
a valid travel ticket to New Zealand for the respondent. It would therefore not be correct to say that this action was founded in
tort.
As I see it, the obligation undertaken by the appellant firm in this dealing with the respondent was to obtain a proper travel ticket
in return for the payment of the appropriate fare. The breach committed by the appellant occurred when the appellant paid over the
amount of the fare to the Airline without receiving in return such a passenger ticket as would enable the respondent to make the
desired journey to New Zealand. That was a definite breach of the contract entered into between them. On the facts as found, it cannot
be said that the appellant was acting only as an intermediary between the respondent and the Airline. There never was at any time
any privity of contract between the respondent and the Airline concerned. The respondent through its own fault failed to do what
it had contracted to do, and through that failure involved the respondent in the loss of the money paid.
These facts in my opinion fully establish the right of the respondent to recover the moneys from the appellant firm and I would accordingly
dismiss the appeal with costs to the respondent.
C.C. Marsack
JUDGE OF APPEAL
Suva,
18th March, 1974
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/1974/2.html
