| Fiji Islands - Carlton Brewery (Fiji) Ltd v Bubble Up Investments Ltd Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 0228 OF 1996
BETWEEN:
CARLTON BREWERY (FIJI) LIMITED
Applicant
AND:
BUBBLE UP INVESTMENTS LIMITED
First Respondent
AND:
SADIQ AHMED SHAH
(f/n Habib Shah)
Second Respondent
AND:
SAHZAD AHMED SHAH
(f/n Habib Shah)
Third Respondent
AND:
BASEER AHMED SHAH
(f/n Habib Shah)
Fourth Respondent
IN THE MATTER of an Application by
CARLTON BREWERY (FIJI) LIMITED for Orders of Committal.
AND IN THE MATTER of proceedings pending
in an action bearing Action No. HBC 0228 of 1996
S. Sharma for the Applicant
A. Singh for the First and Fourth Respondents
Date of Hearing: 30th April 1998
Date of Judgment and Sentence: 22nd May 1998
JUDGMENT AND SENTENCE
On 23rd May 1996 I granted various orders against the Respondents in chambers. Those orders provided so far as is relevant to the
present proceedings as follows:
"1. An injunction that the Defendants and each of them be restrained until further Order of the Court in the meantime from doing
or authorising the doing as regards all Defendants whether by their servants, agents, officers or in respect of any corporate Defendant
by their directors or by their officers, servants or agents or any of them or otherwise howsoever the following acts that is to say:
(a) From passing off or attempting to pass off and from assisting, enabling or procuring others to pass off and from doing any act
calculated or intended to lead to the passing off of any glass bottle having embossed, stamped moulded, blown, branded or otherwise
marked on each or any such bottle the Fiji Trade Mark No. 7023 in class 43 being a clover leaf device with the letters CBF and the
words FIJI BEER THIS BOTTLE ALWAYS REMAINS THE PROPERTY OF CARLTON BREWERY (FIJI) LIMITED (hereinafter 'the bottle') containing a
liquid product as or for or as being in any way connected with the liquid contents of the bottle of the Plaintiff or as by virtue
of its being contained in the said bottle as being made by or under the supervision of or with the approval of the Plaintiff.
(b) In any making, selling, offering to treat, advertising or offering for sale, distributing or otherwise manufacturing or parting
with the possession, power, custody or control of or over, or destroying or defacing or hiding any stacks of the bottles being the
totality of the supplies of all bottles filled and empty wheresoever situated and bearing the trademarks referred to in paragraph
(a) above such trademarks being the sole and exclusive property of the Plaintiff or to which the Plaintiff has a proprietary interest
thereto."
On the 12th of July 1996 the First and Fourth Respondents appeared before me in chambers with their counsel Mr. J.J. Udit when by
consent it was ordered:
"1. That the Fourth Defendant's Summons for dissolution of Injunction and other Orders dated 4th day of June, 1996 and filed
herein BE WITHDRAWN;
2. That save as stated in paragraph 3 herein the Fourth Defendant consents to permanent and final Orders in terms of the Order herein
of 23rd day of May, 1996;
3. That the Plaintiff undertakes not to enforce the Orders as to damages against the Fourth Defendant."
The Applicant's claim against all four Respondents was essentially that they had infringed its trademarks of which it was registered
as proprietor and which were embossed on the bottles and the conversion of its property in the form of the bottles as a result of
which it suffered and was continuing to suffer damage.
The First Respondent is a manufacturer of aerated waters and fruit juice cordials which it manufactures bottled as soft drinks under
the name "Bubble Up" and fruit juice cordial.
The Fourth Respondent is and was at all material times the Managing Director of the First Respondent.
Towards the end of 1996 the Applicant received information which led it to believe that the Respondents had been disobeying this Court's
order of the 23rd of May 1996 and it therefore caused action to be taken with a view to deciding whether or not such was the case.
As a result a group of individuals (hereinafter called "the E. Team") was gathered together for the purpose of supervising
and enforcing if necessary the Court's orders. The team consisted of:
(a) Suruj Prasad Sharma - Counsel for the Applicant.
(b) Joeli Raketekete - Supervisor with the Applicant.
(c) Shankar Singh (f/n Udraj Singh) - Registered Bailiff and Photographer.
(d) Rajan Maharaj (f/n Dip Narayan) - Bailiff /Legal Clerk with the Applicant's lawyer, photographer.
(e) Rupeni Mavoa - High Court Sheriff Officer.
(f) Satya Narayan (f/n Dip Narayan) - Video Camera Operator.
As a result of the investigations carried out by this team evidence was acquired showing that the Respondents had been in breach of
the Court's orders and accordingly the present committal proceedings were instituted against the Respondents on the 23rd of May 1997.
On 27th of April 1998 the First and Fourth Respondents appeared before me and pleaded guilty to breach of the orders 1(a) and (b).
On the 30th of April I heard submissions on behalf of the Applicant and the First and Fourth Respondents.
To understand the nature of these proceedings it is necessary to go back to 1989 when in Action No. 150 of 1989 between Carlton Brewery
(Fiji) Limited and Orange Bubble Up Company (a firm) and Bubble Up Industries Limited two Anton Piller Orders were made by this Court
against the Defendants. The first was made by Jesuratnam J. on 3rd of May 1989 and the second by myself on the 18th of October 1989.
It is not disputed that the First Respondent was incorporated on 19th December 1989 when it took over the operations of Orange Bubble
Up Company.
Following the consent of the First and Fourth Respondents on the 12th of July 1996 to the orders made on the 23rd of May 1996 being
made final the Applicant took no further action to enforce its claim for damages against the First Respondent naturally believing
that the Court orders would be obeyed by the Respondents. In the event they were not. To further understand the serious nature of
the breaches of both orders now admitted by the First and Fourth Respondents I must refer to some of the affidavits which have been
sworn and filed in support of the present applications. The first is by Shankar Singh a registered Bailiff who swore an affidavit
on the 23rd of December 1996 as to the action that he and the other members of the "E Team" took to enforce the Court orders.
Mr. Singh deposes as to the seizure of bottles belonging to the Applicant but filled with the First Respondent's soft drink in an
area ranging from Sigatoka to Raki Raki, Tavua and Nadi and from Nausori to Nakasi, Nasinu, Sigatoka and Nadi between the 27th of
November 1996 and 11th of December 1996.
Apart from a quantity of bottles seized which totalled 806 dozen and 3 Mr. Singh also says that his team took into custody various
exercise books, Cash Sales Docket Books and an Invoice Book belonging to the First Respondent which he says show active trading in
the Respondent's product on a cash and credit basis in the Navua/Suva region. The exercise book seized has sheets torn out and not
in a continuous bound form which relate to the period 18th June 1996 to 24th October 1996 which is the period covered after the Acknowledgment
of Service on 4th June 1996 and the orders of 12th July 1996.
An affidavit sworn on 23rd December 1996 by Rupeni Mavoa, High Court Sheriff Officer another member of the "E Team" states
that the facts, acts and circumstances observed by Mr. Mavoa disclosed in his opinion that the First Respondent and its Directors
and staff were actively acquiring the Applicant's bottles, washing, labelling and filling the same and plying them for sale to wholesale
and retail outlets.
It was estimated by those concerned in enforcing the Court's order that in the period 4th November to 11th December 1996 the First
Respondent had acquired more than 1800 dozen of the Applicant's bottles in breach of the orders.
After the evidence forming the basis of the charges of contempt of Court was obtained the Applicant filed a Notice of Motion to have
the Respondents committed to prison for breach of the orders of 23rd May 1996. Service of the order of 23rd May 1997 in the normal
way however proved difficult because there is clear evidence which is not denied by the Fourth Respondent on behalf of himself and
the First Respondent that deliberate attempts were made by the Respondents to evade service.
These attempts are set out in the affidavit of Suruj Prasad Sharma the solicitor for the Applicant sworn on 3rd of November 1997 and
Mohammed Kazim Yasin, a Legal Clerk in the employ of Messrs A.K. Narayan & Company, Solicitors of Ba who are the agents for the
Applicant's solicitor, sworn on the 1st of November 1997. I shall not repeat them here but they are not denied by the Respondents.
A brief passage from the affidavit of Mohammed Yasin indicates the nature of the avoidance of service by the Respondents.
In paragraph 19 of his affidavit Mr. Yasin says:
"At each attempt to serve it there has been no success as the efforts have been thwarted by the access being barred and the vigilance
of the Security Personnel warns the Respondents wherever they are to avoid service. Similarly at their residences the attempts have
come to nil. The avoidance of service has been accompanied with threats and insults which are meted out to intimidate and/or frighten
off any process server."
Accordingly on the 3rd of November 1997 the Court made an order for substituted service on the Respondents.
I have set out the history of these proceedings at some length so as to give an idea of what I regard as the gravity of the offences
now admitted by the First and Fourth Respondents.
I turn now to the submissions made most eloquently by counsel for the Respondents and by counsel for the Applicant which have assisted
me greatly in determining the sentences I shall shortly pronounce. For the Respondents Mr. Singh first said that the only evidence
before the Court as to breach of the orders of the 23rd of May and 12th of July 1996 is for the period from the 4th of November to
the 11th of December 1996 and that altogether only some 806 dozen bottles belonging to the Applicant were seized. However I put it
to counsel that if that were the yardstick by which I was to assess an appropriate sentence to be passed on the Respondents it would
mean that by sheer good fortune the Respondents could rely in mitigation on the fact that their retailers had been able to sell a
good quantity of the Respondents' product. Further that the fewer bottles found by the Applicant in these outlets meant correspondingly
that the sentence to be passed on the Respondents would have to be lighter. In the end Mr. Singh rightly conceded that these propositions
could not be correct.
I have no doubt that at least the number of bottles estimated by the Applicant to have been sold by the Respondents is correct.
Then it was said that the First Respondent is now using second-hand bottles and plastic bottles owned by it to sell its products and
it was therefore unlikely that the First Respondent will now use the Applicant's bottles. Further I was told the First Respondent
is now not only manufacturing plastic bottles for other customers but is also using them for the First Respondent's own products.
A letter dated 28th August 1997 from Eddie Hin Plastics Limited to the Fourth Respondent was tendered by him to show that the Respondents
are now no longer using the Applicant's bottles.
I was told that the current drought in Fiji and particularly the western part of Viti Levu is causing unemployment which must affect
the Respondent's business and that as a result of devaluation of the Fiji currency the First Respondent has had to reduce the number
of its employees from 24 to 13 so that in the current situation a heavy fine could ruin the company.
Other letters as to the good character of the Fourth Respondent were tendered praising the business ability of Mr. Shah and the respect
which he enjoys in his community based on his integrity and involvement with non-business organisations and religious activities.
Finally it was put to me by Mr. Singh that I should invoke Section 44 of the Penal Code and, having regard to the circumstances including the nature of the offence and the character of the Fourth Respondent either discharge
the Fourth Respondent absolutely or subject to the condition that he commits no offence during the period of 12 months from the date
of the order.
I regret I cannot accede to these submissions. The evidence satisfies me that there has been misuse of the Applicant's bottles over
an extended period and that two of the biggest offenders in this regard have been Western Bottling Company Limited and Bubble Up
Investments Limited. After the First and Fourth Respondents consented to the orders of the 23rd of May 1996 being made permanent
the Applicant was entitled to assume that those orders would be obeyed and that it would not be necessary for it to incur any more
expense in ensuring obedience to those orders.
Regretfully such has not proved to be the case.
In Attorney-General v. Times Newspapers Limited (1974) AC 273 at p.312 Lord Diplock remarked:
"The courts have therefore been vigilant to see that the procedure for committal is not lightly invoked in cases where, although
a contempt has been committed, there is no serious likelihood that it has caused any harm to the interests of the parties to the
litigation or to the public interest."
In this case I am satisfied beyond reasonable doubt that the conduct of the First and Fourth Respondents has caused serious harm to
the interests of the Applicant and to the public interest. It is in the public interest for the due administration of justice that
Court orders must be obeyed and that persons who deliberately disobey those orders must be prepared to take the consequences of their
disobedience.
The Courts representing the community must make it clear that they will do all they can for the preservation of law and order to ensure
that their orders are obeyed.
One of the principal purposes of sentencing is to punish the offender with a view to deterring him from offending again but not so
as to crush him and give him no hope for the future. That would simply be vindictive which is not the function of the Courts.
Taking all relevant factors into account but particularly the deliberate disobedience of both Respondents to the orders in question
I consider the appropriate penalties are to impose a fine of $15,000.00 on the First Respondent and a similar fine on the Fourth
Respondent, both fines to be paid within seven days in default distress in the case of the First Respondent and in the case of the
Fourth Respondent a term of imprisonment of three months.
I order the Fourth Respondent to deliver his passport to the Chief Registrar of this Court by 10.00 a.m. on next Tuesday the 26th
of May, which will be released on payment by the Respondent of his fine.
JOHN E. BYRNE
JUDGE
Legislation and authority referred to in judgment:
Penal Code Cap. 17.
Attorney-General v. Times Newspapers Limited (1974) AC 273.
Hbc0228x.96s
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