IN THE HIGH COURT OF FIJI
At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0115 OF 2005

BETWEEN

LIVE FISH EXPORTS (FIJI) LIMITED
Plaintiffs

AND

THE COMMISSIONER OF POLICE OF FIJI
First Defendant

THE ATTORNEY GENERAL OF FIJI
Second Defendant

Counsel: Mr. V. Maharaj & Ms. A. Maharaj for the Plaintiffs
Mr. S. D. Turaga for the Defendants

Dates of Hearing: 7th February, 2007
Date of Ruling: 22nd February, 2007

RULING UPON QUANTUM

[1] On the 19th of January 2007 I gave judgment upon liability in this matter. The case was then adjourned to 7th of February for further argument from counsel upon matters of quantum.

[2] The court raised a number of issues:

1. Whether the plaintiffs, Live Fish Exports (Fiji) Limited (LFEL), can claim for loss of items which did not fall within the Fiji Islands Trade and Investment Bureau (FTIB) foreign investment certificate's approved activity, namely "to catch and export live reef fish".

2. Whether the plaintiffs could claim for loss of the freezers and other tools when their business was that of exporting "live" fish.

3. Whether the plaintiffs were entitled to the full costs of the building works carried out at the premises or for some lesser sum or not at all (This issue was addressed in the original closing speeches.)

4. General proof of items of damage (these issues were addressed in the original closing speeches).

[3] In broad terms the items claimed are set out in document 8 entitled "Stock take". I will deal in turn with each of the above questions.

1. Whether the plaintiffs, Live Fish Exports (Fiji) Limited can claim for loss of items which did not fall within the Fiji Islands Trade and Investment Bureau (FTIB) foreign investment certificate's approved activity, namely "to catch and export live reef fish".

[4] Counsel for the plaintiffs accepted that it could not be suggested the items in the container, such as soap powder, lotions etc. could be regarded as part of the business of LFEL. He made application to add Mr. Kong Ou Wee trading as Wee Kong Trading Company as a second plaintiff. He said it was clear from the outset of the proceedings and indeed in letters of demand sent before the commencement of proceedings that claims were being made in respect of the container goods. The evidence given by Mr. Kong was unequivocal in that he was claiming for the value of the lost container goods, was doing so as Kong Wee Trading and no one could or would be taken by surprise.

[5] Counsel for the defendant responded that it was far too late in the day to start adding plaintiffs. It was clear from the face of the documents that the container contents belonged to someone other than the plaintiffs and that if, through oversight, the proposed second plaintiff hadn't been included in the proceedings that was a matter between the plaintiff company and its counsel.

[6] This is a matter for the court's discretion. Order 15 Rule 6(2) of High Court Rules makes provision for the addition of a party if it is required to do justice and the case of Merrett and Another v. Babb, Times Law Reports, 2nd March 2001, has been cited to me. In that case, a plaintiff was joined when it was before the Court of Appeal. It had been clear throughout who the second plaintiff was, her claim and the fact the case was run on the basis the first plaintiff's claim encompassed that of the second.

[7] I do find that on the face of all the documents and evidence I heard during the trial that it was clear that claims were being made in these proceedings by Wee Kong Trading Company. No affidavit is required, (Order 15(6)(3)). Mr. Kong did not on the face of his evidence seek to suggest the container goods belonged to LFEL and indeed all the documents produced in support of the claim show Wee Kong Trading. No point was taken during the trial itself by the defendants. In the circumstances, albeit very late in the day, I will allow the addition of Mr. Wee Kong Trading as Wee Kong Trading Company to be added as a plaintiff.

[8] I find from the evidence of Mr. Kong that in accordance with my judgment upon liability the defendants are liable for the value of the goods that came from the container. Documents 33 and 34 show that the container goods arrived in the country a few months before the premises where sealed. I also have evidence that some of the goods were seized by Mr. Kong's landlord and purportedly sold in respect of outstanding rent. The landlord said some were unsaleable as a result of rats and rotting. It is not entirely possible to say whether all the contents of the container went into the storage at the premises of LFEL or whether some had been sold or otherwise disposed of before they reached there. I will accept the evidence of Mr. Kong in this regard and award their value.

[9] There are some differences in the figures. In document 8, "Stock take", the container contents are valued at US$7020.00 with F$5,100.00 being paid. This, after conversion, gives a claimed total of a round $19,000.00. Document 33 shows a container value of US$7,169.00 and duty paid of F$6,205.00. The figure claimed in the pleadings of $28, 000.00 is arrived at as being the "selling price outside". In effect Mr. Kong is claiming for the profit he says he would have made on those goods.

[10] Given the fact the container goods had been in the country for a few months, there is nothing to say they were going to be sold in the immediate future. The claim for loss of profits from the business has not been pursued. I can only allow their actual value and the duty paid. Accordingly under this head I award Mr. Kong the sum of $19, 000.00.

2. Whether the plaintiffs could claim for loss of the freezers and other tools when their business was that of exporting "live" fish.

[11] The plaintiff company claims for the value of freezers which it says were on the premises when possession was taken by the police but which were unrecoverable or gone once the premises where relinquished. An example of the type of freezer is to be seen in the upper picture on document 69(11). The court raised the question as to whether there could be such a claim when the FTIB approved business of the plaintiff company was the export of "live" fish.

[12] When this was raised the plaintiff sought to introduce a letter of the 16th of March 2001 from the Ministry of Agriculture, Fisheries and Forests granting permission to Wee Kong Trading Company "to import shark fin, beach-de-mar and snapper and re export the same". This letter was addressed to Wee Kong Trading Company. There was a further letter from the Ministry dated 15th of July 2003, addressed Mr. On Wee Kong stating that the Ministry did not object to Live Fish Exports (Fiji) Limited diversifying into other marine seafood. This included beach-de-mar and shark fin. Finally, the plaintiffs sought to introduce a letter from FTIB dated 22nd August 2003 giving their approval to the extension of LFEL's activities to include "import, process and export of beach-de-mar and shark fin". This letter is dated one day after the date of the "shoot out" at Mr. Kong's premises.

[13] It is clear from the evidence that a considerable quantity of frozen shark fin was already at the premises as these were later collected, with the consent of the police, by relatives of those who had died.

[14] It would appear therefore that LFEL was already in the business of importing, processing and exporting of shark fin before FTIB approval had been given. On balance, the evidence is that the freezers belonged to LFEL and not Wee Kong Trading, (see: for example document 64, although document 49 shows Wee Kong Trading as purchasing one freezer). It might be argued that the purchase and presence of the freezers was in anticipation of and preparation for the approval. The reality, is that freezers had already been used for frozen shark fin before FTIB approval had been given.

[15] The defendants objected to the introduction of these three documents. Again saying it was far too late in the day.

[16] The late introduction of these documents is again a matter of discretion. Although it has been apparent from the outset that claims were being made for the value of the freezers it was not clear on the face of the evidence and documents how such claim could be made within the cartilage of these proceedings. Further, I cannot overlook the fact that at the time of sealing of the plaintiff's premises by the police the freezers were being used by the plaintiff company for a business for which they had no FTIB approval. For both of these reasons I refuse to allow the late admission of those three documents. Therefore, no claim can be made by LFEL in respect of the freezers or anything else which necessarily could not be said to be used in the business of the export of live fish. I will consider the tools at paragraph 26 below.

3. Whether the plaintiffs were entitled to the full costs of the building works carried out at the premises, for some lesser sum or not at all

[17] LFEL rented the premises on a monthly rental of $1,200.00 from Waikava Marine Industries Limited. The land and building were owned by J.S. Hill and Associates who had leased it out to Rel Fisheries Limited which in turn had subleased to Waikava, (see: para.6 of Mr. Kong's brief of evidence).

[18] The premises were an empty shell. LFEL constructed an upper part to these premises consisting of office space with four desks, a well fitted kitchen and lounge and living quarters, (see: the photographs at document 69). At document 69(4) there are what appear to be well drawn plans for the premises. The defendants contend that the size and nature of all this construction work clearly shows that it was to become part and parcel of the premises and not for removal at the end of the tenancy. In this regard, there is evidence that beams were bolted into the walls and it can be seen at photograph 69(3) (c) that the central stanchion is concreted into the floor.

[19] The plaintiffs have provided oral evidence and a volume of supporting documentary evidence to show both the labour and material costs in constructing this office and living quarters. The plaintiffs' witness stated it would be no difficult job to remove the wall bolts and make good the walls and drill out the concrete base to the extension and make good the floor.

[20] The plaintiffs claim the full value of all the works stating that that is what the plaintiff company had expended: the improvements were going to be used in its business and they had been deprived of their benefits by the actions of the defendants. The office was for the clerical staff of LFEL and the living premises for its workers.

[21] The defendants challenged the claim. They asserted that the size and nature of this construction clearly shows it was intended to be and indeed is an integral part of the building which cannot be removed without considerable work and damage. Further, in the alternative, they argue that at best the plaintiffs are entitled to the value of the timber and material when removed from the premises, less the cost of the removal. This sum will inevitably be a fraction of what is claimed as the timbers have already been cut and nailed.

[22] I have considered carefully the evidence of Mr. Kong and also looked at the various pictures at document 69. I look to see whether the beams have been affixed to the property for temporary purpose and the better enjoyment of it or with a view to effecting a permanent improvement of the property. It is also a question of fact as to whether these items have become part of the premises or whether they can be removed without causing serious damage to the property and without losing their essential utility in the process of removal.

[23] It cannot realistically be said that these improvements could be dismantled and reassembled somewhere else. Further, they have clearly been purpose made for the size and shape, albeit regular, of these premises. The affixing of the beams was by bolt which, although removable, would take some degree of work and by their nature had a degree of permanence. Further, the concreting in of the vertical stanchion confirms the degree of permanence. It is also pertinent to note that if removed, the value of the timber would be a fraction of its original.

[24] In the circumstances, I find that the building work for the offices and living accommodation carried out by the plaintiffs cannot be the subject of a claim in this case. At the conclusion of the tenancy, LFEL could not have taken these improvements with them. I find that this extends to the carpets, kitchen fittings, cabinets etc. as these are necessary and integral parts of those improvements and were put there as part of them even though individually, e.g. a carpet, could be removed. This does not apply to items such as desks, chairs, televisions which are not affixed to the premises and are not part of the construction work carried out. I will consider these items in section 4.

[25] I am not able to make any award of damages in respect of the items claimed in the writ as "upgrading, fixture and fittings".

4. General proof of items of damage.

[26] Mr. Kong gave evidence that documents had been lost while the premises were in the possession of the police and therefore he could not substantiate every claim to loss with an invoice or receipt. I accept what he says in this regard. At document 8 he lists some eight tools he says were on the premises, were being used in LFEL's business and which have been lost. The prices he gives are new prices. He states the tools had hardly been used when the premises were cordoned off. There is some supporting documentation for this claim (for example document 9(4)) although the figures do not always match. The list is entitled "renovation tools". I will accept the new figure that Mr. Kong gives for these tools of $7,910.00. However, given the fact that they had been used, doing the best I can in the circumstances, I value the lost tools at $6,000.00.

[27] There is then a list in document 8 of freezers, washing machines, air-conditioners, office equipment etc. The total of this is $18,000.00. Given my findings above I can make no allowance in respect of the 4 x 4 feet and 1 x 2 feet freezers, total value $4,500.00 and the dry machine, value $3,500.00. The latter by its price is clearly not a machine for domestic drying of clothes. I will accept the claims in respect of the remaining items. I allow the sum of $18,000.00 less $8,000.00 namely $10,000.00 under this head. In doing this I have accepted the plaintiffs' argument that there should be no allowance for goods returned under document 65. There are two "schedule A's", the type face of each does raise questions.

Exemplary Damages

[28] There is a claim for $10,000.00 in exemplary damages. The plaintiffs say the police were grossly negligent in returning the keys to the wrong people and were slow in releasing the premises.

[29] I do not accept this argument. It is clear from the correspondence they returned the keys to a reputable lawyer who appeared to be entitled to them on behalf of his client, (see: for example document 64). The plaintiffs immediate landlord regarded its tenancy as having ended as he sought, perhaps unlawfully, to sell the plaintiffs' goods to recover arrears of rent. There is nothing in the conduct of the plaintiff requiring the imposition of exemplary damages.

Conclusion

[28] Accordingly I award damages as follows:

1.	Container goods	-	$19,000.00	
				
	Renovation tools	-	6,000.00	
				
	Miscellaneous items	-	10,000.00	
	TOTAL	=	$35,000.00	

[29] I will hear the parties on costs.

R.J. Coventry

JUDGE