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In re Scotts Hotels Ltd [1992] FJHC 36; Hbc0316j.91s (11 September 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 316 OF 1991

IN THE MATTER of SCOTTS HOTELS LTD.
claiming an Innkeepers Lien over one motor vehicle
being a Range Rover registered No. G 386 VYE
Chassis No. LHAMM3GA420972

- and -

IN THE MATTER of the purported seizure of the said Range Rover
registered No. G 386 VYE by the Fiji Police

Mr. M. Raza for the Scotts Hotels Limited
Mr. A. Cope for the Commissioner of Police
Mr. J. Flower for Forward Trust Limited

JUDGMENT

On the 1st of July 1991 the Scotts Hotels Ltd. issued an originating summons seeking several orders in respect of a Range Rover vehicle which was seized from its hotel premises at 16 Bau Street, Flagstaff by members of the Fiji Police Force acting under a search warrant issued on the 17th of April 1991. More particularly, the plaintiff company seeks an order (in the nature of a declaration):

"1. THAT the Applicant Company has a valid Innkeepers Lien over the said Range Rover ..."

The claim is a rather novel one and necessitates an examination of the law relating to Liens and more particularly that of Innkeepers.

It is common ground that there is no relevant legislation in this country dealing with the subject matter of Innkeepers and accordingly resort must be had to the law of England as applied to Fiji by virtue of Section 22(1) of the Supreme Court (now High Court) Act (Cap.13) which reads:

"The common law, the rules of equity and the statutes of general application which were in force in England ... on the 2nd day of January, 1875, shall be in force within Fiji ..."

In this latter regard the only relevant English statute of general application in force in 1875 was the Innkeepers Liability Act 1863 (hereafter referred to as the '1863 Act') which sought to impose restrictions on an innkeepers general liability for the goods and property of any guest brought to his inn. The law relating to innkeepers was and still is largely a matter of common law.

There are however 2 definitions in Section 4 of the '1863 Act' which bears repeating. Firstly, an "inn" is defined as 'any hotel, inn, tavern, public house or other place of refreshment ...'; and secondly, the word "innkeeper" is circularly defined as 'the keeper of any such place'.

It is also worth noting that the limitation of liability imposed in the '1863 Act' of an innkeeper for a guest's goods or property did not extend to cover amongst other things, "... any carriage". This latter term although not defined in the '1863 Act' is clearly contemplated by the '1863 Act' and is capable of and in my view does include a 'motor vehicle' which is defined (inclusively) in our Traffic Act (Cap. 176) as:

"A contrivance that is equipped with wheels upon which it moves propelled by mechanical power and constructed for use on roads."

It is beyond argument that the Scotts Hotel is by definition an "inn". Furthermore although the definition of an "innkeeper" appears to contemplate a natural person there is no compelling reason to doubt that a corporate entity operating an "inn" through its employees may also qualify as one. (See: Para 1206 Vol. 24 Halsbury Laws of England (4th edition.)

Having thus dealt with the applicable statutory provisions governing this application I turn next to examine the common law characteristics of an 'Innkeepers lien'.

In Mulliner v. Florence [1878] UKLawRpKQB 11; (1878) 3 Q.B.D. 484 where the properties concerned were horses, carriages and harnesses, the English Court of Appeal considered the question of the nature and extent of an 'innkeepers lien' and answered it in terms that are correctly summarised in the headnote which reads:

"The lien of an innkeeper is general, and extends to all goods and chattels belonging to his guest and therefore a chattel, although deposited with the innkeeper and placed by him apart from the personal goods of the guest, may be detained by him on account of money owing to him for the lodging food and entertainment of the guest."

The relevant question however that is raised in the context of this present case is: "What if the goods or chattels do not 'belong' to the guest?"

Halsbury's Laws of England (Vol. 24) (4th edtn) provides the following relevant answer at para 1248:

"The Innkeepers lien extends to all the goods ... which the guest brings with him, even though they do not in fact belong to the guest, and are brought without the owner's knowledge, or have been stolen or otherwise wrongfully obtained, provided the hotel proprietor was ignorant of the fact when he received them. The hotel proprietor can assert his lien against the true owner as well as against the guest. Consequently hired goods brought with him by the guest and received by the hotel proprietor are also subject to the lien."

In Chesham Automobile (Limited) v. Beresford Hotel (Birchington) (Limited) (1913) 29 T.L.R. 584, the car, which was the plaintiff's property but which had been lent to a hotel guest under a hiring agreement, was brought by the guest to the defendant's hotel and was continuously kept (when not used by him) in the hotel garage during the course of 3 months that the guest stayed at the defendant's hotel until his departure leaving the car and an unpaid hotel bill. On the plaintiff's action for the return of the car the defendant hotel set up a lien on the car for the guests unpaid hotel bill.

On the above facts Mr. Justice Rush held that the defendants were and are entitled to assert their lien for the expenses incurred by the guest in respect of food and accommodation and the cost of keeping his goods but did not extend to sums lent to, or disbursed for him.

Furthermore in Marsh v. Commissioner of Police and Anor (1944) 1 K.B.43 in which the item of property over which the 'innkeeper's lien' was asserted was a ring which the hotel guest was later convicted of stealing and which was seized by the police as an exhibit. In competing claims by the hotel company (which knew nothing of the stolen nature of the ring) and the jewellers (from whom the ring was stolen), against the Commissioner of Police for the return of the ring it was 'held: that the innkeepers lien attached to the ring'.

Lord Goddard in delivering the judgment of the Court of Appeal said at p.45 (ibid):

"It has not been contested - and the authorities seem to be perfectly clear and uniform on the point - that an innkeeper's lien will attach to property brought by a guest to the hotel although the property has been stolen."

So much then for the law. I turn next to consider the evidence in this application which is derived exclusively from affidavits filed by the following persons:

(1) Affidavit of Peter Bott, Managing Director of Scotts Hotels Ltd. (in liquidation) dated 12th June 1991;

(2) Affidavit dated 21st October 1991 of Lepani Moceleka, Deputy Superintendent, in the Fiji Police Force responsible for the conduct of criminal investigations into the circumstances surrounding the importation of the Range Rover into Fiji;

(3) Affidavit dated the 23rd December, 1991 of David Paul Cannon, Police Officer, in the London Metropolitan Police in charge of criminal investigations in which one Celina Tomic-Brown was charged and convicted inter alia of stealing the Range Rover in question;

(4) Supplementary affidavit of Peter Bott dated 14th January 1992;

(5) Affidavit dated 29th May 1991 filed on the 16th of January 1992 of Bryan Leitch, Senior Manager, Risk of Forward Trust Limited a company registered in the United Kingdom which claims ownership of the Range Rover; and finally

(6) A 'statement' dated 15th April 1992 of Robert Nicol a principal in the firm of the same name who act as recovery agents for Forward Trust Limited and who deposed to various meetings and conversations he had with Peter Bott in January 1991 concerning the Range Rover.

This latter 3 page 'statement' (for want of a neutral description) of Robert Nicol purports to be "subscribed and sworn" before an unverified German notary on the 15th April 1992 was filed in this Court on the 30th of April 1992 several seeks after written submissions had been filed and 3 months after the time given for the filing of affidavits had expired.

The statement, if believed, fundamentally undermines the entire claim presently before the Court and in particular, Peter Bott's assertion in his supplementary affidavit of 14th January 1992 that:

"2. At all relevant times (he) did not have any knowledge of Cesare D'ayala aka Ildebrand de Franco's background nor was (he) aware of any other claims in respect of the said Range Rover G 386 VYE."

Not surprisingly perhaps learned counsel for Scotts Hotel objects to the 'late filing' and improper form of the 'statement' which is described in counsel's submissions as "totally misleading" and "strongly denied".

I accept as well-founded both grounds of objection raised by learned counsel for Scotts Hotel. In the absence of an appropriate application for leave to file and use the 'statement' and mindful of the critical nature of its contents, I have decided to place no reliance upon it in the determination of this application.

The facts in this case in so far as they relate to the asserted lien are not seriously challenged and may be briefly summarised as follows - In early December 1990 an Italian national by the name of Ildebrand de Franco (hereafter referred to as 'de Franco') was accepted as a guest at the Scotts Hotel. He brought with him to the hotel his pet dog a golden labrador and a Range Rover vehicle bearing a foreign number plate G 386 VYE of which he claimed to be the owner.

de Franco stayed at the Scotts Hotel for about 7 weeks and left on or about the 22nd of January 1991 leaving an unpaid hotel bill. He also left his dog and the Range Rover on the hotel premises.

On the 19th of April 1991 the Range Rover was "forcibly removed" from the hotel premises by police officers acting under the authority of a search warrant and since then has been detained in police custody. No charges have been laid against anyone in respect of the Range Rover nor does it appear likely at this stage.

I am satisfied from the evidence that Scotts Hotel Ltd. is prima facie entitled to assert an 'innkeepers lien' over the Range Rover and I so declare. The fact that it no longer has possession of the vehicle does not in my view affect its 'lien' having regard to the circumstances under which the vehicle was removed from the hotel premises.

Equally I am satisfied that the police were entitled to seize the Range Rover pending criminal investigations. The status of such investigations however has not been disclosed in any of the affidavits as might be expected and the undisputed absence of the primary suspect 'de Franco' from the country renders any possible criminal charges extremely unlikely.

For the sake of completeness it should be pointed out that this Court has before it various affidavits filed by the solicitors acting on behalf of Forward Trust Ltd seeking to establish that the Range Rover legally belongs to it and/or is regarded as stolen property in the U.K.

In the absence however of any submissions from counsel for Forward Trust Limited (who appeared throughout these proceedings) I do not consider that either factor is determinative of the issues raised in this application nor does this Court's order against 'de Franco' in Civil Action 317 of 1990 advance the matter any further.

In the result the continued retention of the Range Rover by the police can no longer be considered justified and accordingly pursuant to Section 106(3) of the Criminal Procedure Code (Cap. 21) I direct that the Range Rover registered number G 386 VYE be, (in the words of the subsection) "... restored to the person from whom it was taken", namely, Scotts Hotels Ltd. or its authorised representative.

In so directing this Court must not be taken to have accepted in any way the precise items or quantum of the account furnished by Scotts Hotel in support of its claim nor has it been necessary in these present proceedings to determine the rights (if any) of Forward Trust Ltd. to maintain an action for the recovery of the Range Rover.

(D.V. Fatiaki)
JUDGE

At Suva,
11th September, 1992.

HBC0316J.91S