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Fijian Concrete Company Ltd v Remington Ltd [2008] FJHC 286; HBA02.2006 (16 April 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL APPEAL NO. 02 OF 2006
(On Appeal from the Lautoka Magistrates Court in Civil Action No. 234/2004)

BETWEEN:

FIJIAN CONCRETE COMPANY LIMITED
a duly incorporated company having its registered office at Nanuku Lane,
Namoli Industrial Subdivision, Lautoka
Appellant/Original defendant

AND

REMINGTON LIMITED
a limited liability company having its office at 14 Amra
Respondent/Original plaintiff

Appellant: No Appearance
Respondent: Mr. Qoro on Instructions of Diven Prasad Lawyers

Date of Hearing: 16 April 2008
Date of Ruling: 16 April 2008

JUDGMENT

[1] This is an appeal from a judgment delivered by the Lautoka Magistrates Court on 14 December 2005. At the hearing this morning the appellant was not represented by a lawyer. Mr. Ashok Kumar, General Manager of the appellant appeared and sought an adjournment of hearing to enable the appellant to instruct a new lawyer. Leave had been granted on 11 April 2008 to Gordon & Company, the appellant’s previous solicitor on record to withdraw as counsel on record. The Affidavit of Service of the Summons for Leave to Withdraw as counsel for the appellant reveals that the appellant was served with the application on 5 April 2008. The appellant has been aware for more than a week of the need to engage new counsel. Mr. Kumar informed me that the appellant took no steps to inform counsel for the respondent of the application for adjournment of hearing made this morning. That would explain why Mr. Qoro who appeared on instructions for the respondent was not instructed on the adjournment application. Having considered the record of this proceeding I have declined to grant any further adjournments in this matter. There has been substantial and undue delay in finalizing this appeal. The record shows that the appellant sought an adjournment or further time to file written submissions on the following dates: 11 August 2006, 18 August 2006, 1 November 2006, 20 November 2006, 19 January 2007, 8 June 2007 and 20 July 2007. In my view the application for adjournment is unmeritorious given the failure to notify the respondent’s lawyers of the proposed application and also taking into consideration the numerous prior adjournment applications on what is essentially an uncomplicated matter. Moreover I consider that the appellant has had sufficient time to engage another lawyer to argue the appeal this morning. The adjournment application is declined.

The Magistrates Court Decision

[2] The claim before the Magistrates Court was a liquidated claim for $15,000.00 for the installation of a PABX Telephone System in the Lautoka office of the appellant company in accordance with its invoice of July 2003. In a carefully reasoned judgment, the presiding Magistrate found that there was no dispute that the appellant entered into a contract with the plaintiff to supply and install a PABX Telephone System. She found that there was no dispute that an invoice had been sent which was never paid. The learned Magistrate haled that whilst there was evidence of problems after the installation of the new telephone system, it was scant and neither was it clear to what extent the problems were due to the telephone system itself and the extent they were due to Telecom. She held that there was little evidence to substantiate the appellant’s claim of loss and damage due to the allegedly faulty telephone system. Given the paucity of the appellant’s evidence, the Magistrate held that the appellant had failed to prove its counterclaim on the balance of probabilities. The learned Magistrate found that the respondent had installed the telephone system in accordance with the contract between the parties and gave judgment in favour of the respondent in the sum of $15,000.00.

The Appeal

[3] The appellant filed 25 grounds of appeal. The appellant also filed written submissions which attempt to address the grounds of appeal. However in the 21 pages of submissions filed there has been no submission made in law as to how the Magistrate erred in law in each of the 25 grounds of appeal filed. There was no legal submission made as to the legal principles applicable to the facts relied on or to the claimed legal errors made by the Magistrate. The sentiments expressed by Justice Lyons about submissions are relevant here:

"The first task of any lawyer making submissions is to assemble the relative facts. The facts are those matters which distinguish each case from any other. Having assembled the relative facts and pointed them out to the court, the legal principles applicable to those facts must then be identified. Having performed that task, the submissions surrounding both the law applicable and the facts are then made .."

Dhan Kaur & Anr –v- Tevita Mara Vitukawalu & Others (Unreported Civil Action No. HBC 0233 of 1993L, p.4)

[4] The appellant has completely failed to address me on the law relevant to each of the grounds of appeal raised. In the circumstances I find that the appeal lacks substance. The legal basis of the appeal has not been established. The Magistrates Court record shows that the Magistrate’s finding and finding and judgment was based on credible evidence. The grounds of appeal having not been established in law lack merit.
Accordingly the appeal fails and is dismissed with costs to the respondent assessed in the sum of $1,000.00.

Gwen Phillips
JUDGE

At Lautoka
16 April 2008