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Live Fish Exports (Fiji) Ltd v Commissioner of Police of Fiji [2007] FJHC 99; Civil Action 0115.2005 (19 January 2007)

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: 2nd, 3rd, 10th and 24th November, 2006
Date of Ruling: 19th January, 2007

JUDGMENT

[1] The plaintiffs, Live Fish Exports (Fiji) Limited were granted a Foreign Investment Certificate on 6th December 2002 "to catch and export live reef fish". They had premises at Lot 26B Wailada Subdivision in Lami. These premises were initially a large open space building. Mr. Kong Ou Wee is a Director and 60% share owner of the plaintiff company. He states that freezers and fittings were put on the premises to facilitate the business. Further, substantial work was done to provide office space, living and sleeping space. Supporting photographs were provided. He also stated that a secure wired area was constructed for the holding of goods. There was a variety of goods on the premises.

[2] On or about the 21st August 2003, at night, a "shoot out" took place at the premises and four employees of Mr. Kong died. Mr. Kong informed the police and they sealed off the premises for investigation purposes. Mr. Kong handed his keys to the police.

[3] Mr. Kong says that the keys were never returned to him despite his repeated requests. By late 2004 he had employed solicitors to obtain return of the keys. He was informed that the keys had been returned to another lawyer who was acting on behalf of a person who purported to be entitled to them.

[4] It would appear that in the interim the person from whom Mr. Kong rented the premises had sold some of the goods, whether lawfully or not, in respect of outstanding rent. Further, the premises were later repossessed by the head lessee. Mr. Kong therefore says he has not had access to the plaintiff company's premises since August 2003. He avers that it was the responsibility of the police to look after the property while they had possession of the premises. He itemises much property that was on the premises which has been lost to the company. He also detailed much improvement to the premises in respect of which he claims either for the cost of the improvements or alternatively the value of the items when removed. There was originally a claim for the loss of income for the period in question but this was abandoned during the trial. There is also a claim for exemplary damages.

[5] The defendants deny liability. They say the keys were returned properly to the person entitled to them. They state that even if they were wrong in this then the police were entitled to keep possession of the premises for the investigation of crime. The crimes were very serious. They aver that any losses were not as a result of any actions or omissions by the police. They put the defendant to strict proof of what he says was on the premises and the value thereof.

[6] I have heard the evidence of Rajnesh Prasad, Eserama Ledua, Lavenia Noca and Kong Ou Wee for the plaintiffs. I have heard the evidence of George Lai, Lote Resina, Waisea Tabakau, Mosese Rokobera for the defendants. I also have an agreed bundle of documents and a further agreed bundle of documents. It should also be noted that Kong Ou Wee, Lavenia Noca and Rajnesh Prasad provided a typed brief of evidence.

[7] Whilst no specific evidence was led to this point, over a year does seem to be an extraordinarily long time for the police to retain possession of premises for investigation, even given the seriousness of the offences involved in this case. The plaintiffs did not challenge the fact that the police would be entitled to take possession of premises for the purposes of investigation of crime. Their basic contention was that whilst premises are in the possession of the police then they must take reasonable measures to preserve those premises and their contents and return them to the person lawfully entitled thereto at the first reasonable opportunity.

[8] These propositions were not seriously challenged by the defendants. It was accepted in closing that due to a misunderstanding the keys were returned to the wrong person. It was also accepted by defence counsel in closing that third party proceedings should have been issued by the defendants against the plaintiffs' immediate landlords in respect of goods sold off by the latter for outstanding rent. The defendants also in closing attempted to allege contributory negligence and failure to mitigate loss by the plaintiffs but conceded that these had not been pleaded.

[9] Mr. Kong in evidence stated that he repeatedly asked for the return of his keys and visited the police station on a number of occasions for this purpose. I accept his evidence in this regard. There was much property on the premises belonging to the plaintiff company and Mr. Kong would have been anxious to regain possession of the premises and that property. He had also been told by a woman that items of value were being removed from the premises. This in itself would have made him anxious to regain possession.

[10] I do find that it was incumbent upon the defendants, whilst holding the possession of the premises to take all reasonable measures to keep the premises secure, preserve the plaintiffs' property and return the keys and possession to Mr. Kong at the first reasonable opportunity. No inventory or photographs of the premises and their contents has been provided to the court. Apparently no comprehensive inventory was made and any photographs taken have not been disclosed. Apart from locking the premises the defendants have provided no evidence as to what other measures if any they took to keep the premises secure or preserve the plaintiffs' property. Mosese Rokobera has worked for 21 years in the police forensic services department. He stated in evidence that he arrived on the scene on 22nd of August about 4.00 p.m. He stated the cordon on the premises, as far as forensic services was concerned, was lifted on the 26th of August. There is no specific further evidence from the defence as to why possession of the premises should be retained. There was some confusion in the defence witnesses as to who had the keys and was responsible for the securing of the premises and the return of the keys.

[11] I have found that there was a duty of care upon the defendants to take all reasonable measures to keep the premises secure, preserve the plaintiff's property and return the keys and possession at the first reasonable opportunity. The defendants were in breach of that duty of care.

[12] I now consider what losses the plaintiffs have incurred as a result of that breach. Paragraphs 6 and 7 of the statement of claim read as follows:

"(6) The plaintiff in consequences of the act and or omission on the part of the first defendant or its servants and agents suffered losses to stocks and trade and fixtures in the premises under the control and possession of the first defendant.

Particulars of Losses of Stock in Trade

Particulars of loss of fixtures and fittings

(7) The plaintiff further suffered losses and damages in business in relation to its operation.

Particulars of losses in business

[13] When considering the claims set out in paragraph 12 and the supporting evidence, both oral and documentary, a number of questions arose which were not addressed in closing by either counsel. It is an unusual course, but I will hear further from counsel in these limited issues before giving judgment upon the quantum of damages in this case.

(R. J. Coventry)

JUDGE