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Shanaya & Jayesh Holdings Ltd v BP South West Pacific Ltd [2015] FJSC 10; CBV0007.2014 (24 April 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA


CIVIL APPEAL NO. CBV0007 OF 2014
(On an appeal from the Court of Appeal No. ABU 0058 of 2012)


BETWEEN


SHANAYA AND JAYESH HOLDINGS LIMITED
Petitioner


AND


BP SOUTH WEST PACIFIC LIMITED
Respondent


Coram: Hon. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Justice Sathyaa Hettige, Judge of Supreme Court
Hon Justice William Calanchini, Judge of Supreme Court


Counsel: Mr. J. Connors and Mr. R. Singh for the Petitioner
Ms. S. Devan for the Respondent


Date of Hearing: Thursday, 9th April 2015
Date of Judgment: Friday, 24th April 2015


JUDGMENT


Hon. Justice Saleem Marsoof

  1. The Petitioner seeks special leave to appeal against the decision of the Court of Appeal (Chandra JA., Lecamwasam JA. and Amaratunga JA.) dated 26th March 2014 by which it affirmed the judgment of the High Court at Lautoka (Fernando J.) dated 11th September 2012 dismissing the action instituted by the Petitioner against the Respondent and entering judgment in favour of the Respondents based on its counter-claim.
  2. Before adverting to the grounds on which special leave is sought by the Petitioner, it may be useful to set out the background facts.

The Factual Matrix


  1. In 2004 the Petitioner, Sanaya and Jayesh Holdings Limited, and Respondent, BP South West Pacific Limited, embarked on a venture whereby the Petitioner was to build a fuel service station at Nadi by contributing the land and capital expenditure necessary for the purpose, and the Respondent, being one of the three suppliers of bulk fuel in Fiji, was to provide the expertise and supply the equipment necessary for the fuel station.
  2. The understanding between the parties was that their relationship would be long term and that a written agreement regarding supply of fuel at the fuel station would eventually be entered into, and some terms were spelt out in a letter sent by the Respondent to the Petitioner dated 2nd February 2004. The said letter indicated that the fuel service station would be a "dealer owned site". Though a draft memorandum had been exchanged between the parties, it was never signed.
  3. The service station design and general layout and location of the tanks, tank installation and standards had been done and completed according to the Respondent's guidance and directions. Most of the tanks, tank installations and other equipments were procured by the Petitioner from various sources under the guidance and directions of the Respondent.
  4. It is significant that when it was found that the cost of pumps was extremely high, the Petitioner agreed to purchase from the Respondent 17 second hand pumps, which the Respondent installed in the fuel service station, and assured to the Petitioner that they were properly certified and calibrated to dispense fuel at certain defined rates within a certain range of accuracy at an agreed rate so as to enable the Petitioner to make certain percentage profit depending on the volume of the fuel sold.
  5. The Petitioner commenced operations of dispensing fuel in July 2005 and the Respondent supplied fuel on terms agreed upon by them regarding supply, payments and rebates. However, in view of certain difficulties that had arisen, in March 2007 the Petitioner had offered to lease or sell the service station to the Respondent, and it would appear that the Respondent had shown some interest in leasing out the fuel station, and some negotiations had taken place between the parties in this regard.
  6. However, in September 2007, the Petitioner leased out the fuel station to a third party and the dealings with the Respondent came to an end. As the Petitioner had delayed the payments for the supplies of fuel and was in arrears, the Respondent demanded payment of the monies due for the supply of fuel within 7 days by letter dated 25th September 2007, and stated that if they fail to make payment, legal action would be instituted against it. This was after several reminders had been sent earlier.
  7. The Petitioner responded to this notice through its lawyers by letter dated 25th September 2007 stating that the Petitioner was disturbed at the threat made and stating that certain investigations were being done regarding the supplying of the petrol pumps which were not properly calibrated which had caused loss to the Petitioners without mentioning about the amount claimed by the Respondent for supply of fuel.
  8. Thereafter the Petitioner instituted action against the Respondent in the High Court of Lautoka claiming damages for losses incurred by it from 1st July 2005 to 13th May 2007 and damages for breach of contract and breach of statute, general damages and interest.
  9. The Respondent, in its statement of defence, sought a dismissal of the Petitioner's claim, and made a counter-claim for losses for the intended term of 10 years on the supply and sale of fuel products, costs incurred in refurbishing pumps, and a liquidated sum for sale of fuel, general damages, interest and costs.
  10. The High Court dismissed the action of the Petitioner and granted the Respondent the liquidated sum on the sale of fuel with interest and costs.
  11. The Petitioner filed notice of appeal in the Court of Appeal setting out the following grounds of appeal against the judgment of the High Court.

1. The Learned Judge erred in law and/or in fact in:-


(a) in not taking into account the express requirement by the Respondent by law of its own letter that as part of the contract/arrangement between the parties the fuel pumps had to be owned by the Respondent (and in the control of the Respondent by implication) until the Petitioner could become a principal licensee of its own and thereafter purchase the pumps;

(b) holding there was illegality on part of the Petitioner by using pumps which were dispersing extra fuel (page 21 paragraph 33 to page 24 paragraph 43 of the judgment) and failed to take into account that pumps were owned by the Respondent and was in their effective control with the Petitioner having no control over the rate of disbursement of fuel;

(c) applying the case of Latchman v Ajudhya Prasad FCA ABU No.0008 of 1960; 7 FLR 95 against the Petitioner when it did not own the pumps and had no ability to measure the discharge of each pump itself and when the illegality was on part of the Respondent as owner of the pumps rather than the Petitioner and when the said case was distinguishable; and

(d) applying the case of Latchman v Ajudhya Prasad FCA ABU No.0008 of 1960; 7 FLR 95 against the Petitioner and then going on to deliver judgment against it in the counter-claim despite discrepancies in the evidence of the Respondent and the lack of delivery evidence and failed to take into account that a lot of the evidence was hearsay.

2. The Learned Judge erred in law and in fact and applied incorrect principles in holding that the dip stick readings not being produced by the Petitioner led to the inference that the evidence from the same would be unfavourable to the Petitioner and did not take into account the same evidence could have been produced by the Respondent who was the sole supplier of the fuel.


3. The Learned Judge erred in law and/or in fact in holding that the Parties refused to enter into 'further agreements' and preferred to remain in a state of negotiations and that the parties could not expect the Court to make a contract for them when:-


(a) the pleadings of the Respondent accepted there was an agreement for at least 10 years;

(b) there was substantial or part performance by the Petitioner to the requirements laid down by the Respondent;

(c) the Respondent itself had assisted in supply of underground tanks and installed 17 fuel pumps owned by them and provided services by its engineers; and

(d) when the judgment itself held (page 28 paragraph 56 of judgment) that Agreed Bundle of Documents No.1 prepared by and signed by the Respondent was the agreed and binding document between the parties.

4. The Learned Judge erred in law and/or in fact:-


(a) not taking into account that the Respondent as owner of the petrol pumps was bound to see the same were at all times properly calibrated and by held themselves out as experts in the area and that as such it was bound to provide pumps which were of reasonable standard and quality and which would remain calibrated for a minimum period of one year given the requirement of certification of calibration for one year; and

(b) holding the presumption that the fuel pumps were fit for the purpose they were meant for as a presumption against the Petitioner and in holding that the Petitioner repaired the pumps illegally within the period of certification.

5. Further and/or in the alternative that the Learned Judge erred in law and/or in fact in entering judgment against the Petitioner for fuel supplied in the circumstances when it was accepted there was leakage from the pumps and when there was non-compliance with Section 6 and 7 of Sales of Goods Act and when there was no evidence adduced of delivery and when there was no adequate cross-examination of the same of the Petitioner's witnesses according to the principle in Browne v. Dunn (1893) 6 R. 67, H.L.


  1. By its judgment dated 26th March 2014, the Court of Appeal affirmed the decision of the High Court both with respect to the dismissal of the Petitioner's claim and the upholding of the Respondent's counter-claim.

The application for special leave to appeal


  1. The Petitioner by its petition of appeal dated 29th April 2014, sought special leave to appeal against the aforesaid judgment of the Court of Appeal on the following grounds:-

1. The Fiji Court of Appeal erred in law in holding that the Petitioner 'must' be the owner of the pumps when:


(a) The other "facts" or documents on which held it could infer and conclude the Petitioner was the owner was also consistent (in most part if not all) with the representation made by the Respondent that it must be the owner of the pumps as a principal licensee.

(b) The said representation of the Respondent to the Petitioner being false (despite holding itself out as an expert) brought into application the legal principle that a party cannot take advantage of its own wrong.


(c) There was an estoppel created against the Respondent from maintaining the Petitioner had become the owner of the pumps without having becoming a principal licensee until it adduced credible evidence and discharged the onus of proof upon it that the Petitioner was not labouring under its misrepresentation.


(d) The Petitioner's directors had given evidence on oath that they had relied on the said representation of the Respondent and been cross-examined with the Trial Judge not making adverse findings on their credibility.


(e) The Judges of the Appeal were not in a position to make findings of fact and assess credibility as they had not heard the evidence or had opportunity to assess the demeanour of the Petitioner's witnesses on the question of ownership.


(f) There were factors such as:-


(i) the counter-claim of the Respondent had said that the pumps were part of its contribution to the project implying that the Respondent had owned the same and gave it to be used until the Petitioner purchased it in August 2007.


(ii)The Respondent had the pumps certified in 2006 for a further year which it would not have done if it was not the owner.


2. The Learned Judges of the Fiji Court of Appeal erred in law in holding that the case of Latchman v Ajudhya Prasad FCA ABU No.0008 of 1960; 7 FLR 95 was applicable in favour of the Respondent and that the High Court was correct in upholding the finding that the Petitioner had acted illegally and in breach of Section 26 (1) (iii) of the National and Trade Measurement Decree of 1989 when:-


(a) That case concerned a bill of sale by a Bankrupt and thus a situation where the illegality was such that the Court could not give relief and to allow relief would have meant the Court had allowed its processes to be abused.


(b)The Respondent had not pleaded illegality as the Petitioner had done.


(c) The Respondent could not take advantage of its own wrong representation to the Petitioner (New Zealand Shipping Company Limited-v-Societe Des Ateliers Et Chantiers De France [1991] AC) 1 being a principal licensee and having made representation that it had to be the owner.


(d) The Petitioner was faced with a situation of necessity given that the Respondent was not repairing the pumps. (if the Petitioner is successful in its plea that the Respondent was the owner of the pumps until August 1987).


(e) If illegality was to apply than it would also apply to the Respondent in its claim for fuel as it was also tainted by dispensation through pumps not being used legally.


3. The Fiji Court of Appeal erred in law in not restricting itself to reviewing the decision of the High Court which was their primary function especially in the absence of a Respondents's Notice and in making findings of credibility without having heard the evidence of the witnesses.


4. The Fiji Court of Appeal erred in law in relation to the judgement against the Petitioner for fuel allegedly supplied to the Petitioner in that:-


(a) It held that the evidence of Petitioner's Director Mr Shiu Ram that there was a credit arrangement was proof of supply of the fuel allegedly supplied and when the same had been denied by the Petitioner.


(b) In paragraph 37 of the judgement holding that section 6 of the Sale of Goods Act was not relevant to supply of fuel pumps when the same referred to alleged supply of fuel.


  1. At the hearing of this appeal, learned Counsel for the Petitioner focused on two main issues, namely whether-
  2. Learned Counsel for the Petitioner has submitted that the petition seeking special leave to appeal raised far reaching questions of law pertaining to passing of property of goods supplied where a supplier allegedly possessing expertise, had misrepresented to the Petitioner that it must be a principal licensee to be able to own the pumps in terms of the applicable legislation, thereby giving rise to issues of estoppel. He has further submitted that the petition raises matters of great general and public importance and of substantial general interest to the administration of civil justice in regard to the power of the Court of Appeal to make findings and inferences when the High Court has declined to do so. He invited the attention of Court to a number of decisions of this Court and emanating from other common law jurisdictions on these issues, some of which have been adverted to in the Petitioner's grounds of appeal.
  3. Ms. Devan, who appears for the Respondent has strenuously objected to the grant of special leave to appeal in this case on the basis that the impugned judgment of the Court of Appeal was plainly right and was not attended with sufficient doubt or difficulty to justify the grant of special leave. She has stressed that grounds of appeal 1(b), 1(c), 1(d) and 1(f)(ii) were not matters that were properly put before the Court of Appeal as grounds of appeal, and the other grounds of appeal raised by the Petitioner in his petition seeking leave to appeal have been adequately and properly considered and dealt with by the Court of Appeal.
  4. This application for special leave to appeal has been made pursuant to section 98(3)(b) of the Constitution of the Republic of Fiji, 2013, which confers on the Supreme Court the exclusive jurisdiction, "subject to such requirements as prescribed by law", to hear and determine appeals from all final judgments of the Court of Appeal. Section 98(4) of the Constitution of the Republic of Fiji (2013) provides that "an appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal".
  5. The aforesaid provisions of the Constitution of the Republic of Fiji have to be read with section 7(3) of the Supreme Court Act of 1998, which lays down stringent threshold criteria to be satisfied by an applicant for special leave to appeal, and provides that in relation to a civil matter, special leave to appeal should not be granted "unless the case raises-

(a) a far reaching question of law;


(b) a matter of great general or public importance;


(c)a matter that is otherwise of substantial general interest to the administration of civil justice. "


  1. The provisions of Section 7(3) of the Supreme Court Act quoted above, echo the sentiments expressed by Lord Macnaghten in Daily Telegraph Newspaper Company Limited v McLaughlin [1904] UKLawRpAC 45; [1904] AC 776, which was the first case involving an application for special leave to appeal from a decision of the High Court of Australia to be decided by the Privy Council. Lord Macnaghten, at page 779 of his judgment, after observing that the same principles should apply as they did for an appeal from the Supreme Court of Canada, referred to the case of Prince v Gagnon [1882 – 83] 8 AC 103, in which it was stated that appeals would not be admitted,

"save where the case is of gravity involving a matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character."


  1. These criteria have been examined and applied by the Supreme Court of Fiji in decisions such as Bulu v Housing Authority [2005] FJSC 1 CBV0011.2004S (8 April 2005), Dr. Ganesh Chand v Fiji Times Ltd.,(31st March 2011), Praveen's BP Service Station Ltd., v Fiji Gas Ltd.,(6th April 2011), Native Land Trust Board v Lal [2012] FJSC 11; CBV0009.2011 (9 May 2012), Star Amusement Ltd v Prasad [2013] FJSC 8; CBV005.2012 (23rd August 2013) and Suva City Council v R B Patel Group Ltd [2014] FJSC 7; CBV0006.2012 (17 April 2014), and it is clear from these decisions that special leave to appeal is not granted as a matter of course, and that for the grant of special leave, the case has to be one of gravity involving a matter of public interest, or some important question of law, or affecting property of considerable amount or where the case is otherwise of some public importance or of a very substantial character.
  2. As noted by Lord Macnaghten in Daily Telegraph Newspaper Company Limited v McLaughlin, supra at pages 778 to 779, even in such cases special leave would be refused if what is canvassed is the decision on the facts of a particular case, where the judgment sought to be appealed from was plainly right, or not attended with sufficient doubt to justify the grant of special leave. Special leave to appeal is only exceptionally granted, and in Dilip and Jyotishna Kumar v National Insurance Company of Fiji Ltd., CBV 009 of 2008 (9th May 2012), Justice William Marshall (with whom Chief Justice Anthony Gates and Justice Sriskanadarajah J concurred) observed as follows:-

"I am surprised that leave was given by the Court of Appeal in this case which at all times has been barely arguable. I do not think the Court would have given special leave on a petition. That is because of the little chance of success, where the Courts below had fully and correctly expounded the applicable principles."


  1. It is in the backdrop of the extensive jurisprudence that exists on the stringent criteria that must be satisfied for the grant of special leave to appeal that I propose to examine the main issues raised by the submissions of Counsel for the Petitioner as has been highlighted in paragraph 16 of this judgment.
  2. Before adverting to these issues, it may be useful to note that in the impugned judgment of the Court of Appeal, Justice Suresh Chandra (with whom Hon. Justice Lecamwasam and Hon. Justice Amaratunga concurred), noted that though it is envisaged in the letter dated 2nd February 2004 sent by the Respondent to the Petitioner, that a written agreement will be entered into by the parties, no memorandum of understanding had in fact been entered into, though various drafts had been exchanged between the parties. In those circumstances, Justice Suresh Chandra highlighted the importance of the agreed facts, which he quoted in full at paragraph [10] of his judgment.
(1) The duty to maintain the fuel pumps
  1. In regard to the question as to whether the Respondent was obliged, as the Petitioner claims, to maintain the 17 fuel pumps installed on the fuel service station by the Respondent, it is worth noting at the outset that there was an issue before the High Court (issue No. 15) as to "whether the fuel pumps remained the property of the Defendant until 31st August 2007." It is noteworthy that no issue was framed on the question of passing of risk, and it may be assumed that there was no disagreement between the parties that in the absence of any intention to the contrary, the rule set out in Section 22 of the Sale of Goods Act, to the effect that the risk in the goods will pass to the buyer with the property in the goods, would apply.
  2. It is common ground that the fuel service station in question was conceived of as a dealer owned station, and it remained to be so throughout the period material to this appeal. As noted by the Court of Appeal in its judgment, the fuel service station had been in operation from July 2005 to 31st August 2007, until the Petitioner leased it out to Total, having first offered to lease it out to the Respondent.
  3. There is no doubt that all tanks, installations and other equipment of the fuel station belonged to the Petitioner between July 2005 and 31st August 2007, but the Petitioner contends that the property in the 17 pumps supplied and installed by the Respondent did not pass to the Petitioner in view of the following representation contained in the letter dated 2nd February 2004 sent by the Respondent to the Petitioner:-

"Under existing legislation, pumps will need to be owned by the Principal Licensee and that it is BP. However we are having discussions with Weights & Measures on information and process to be followed that will allow you to have a principal licence and therefore own your pumps. We will have a written confirmation on this issue from Weights & Measures by the end of the week."(emphasis added)


  1. Mr. Connors, who appeared for the Petitioner in support of its application for special leave to appeal, has submitted that since the said representation was made by the Respondent, which possessed considerable expertise on the subject of the marketing and distribution of fuel, to the Petitioner, who is not an expert in this regard, and who relied on the representation, the Respondent is esstopped from asserting that the Petitioner owned and was liable to maintain the 17 pumps supplied and installed on the fuel station which was in operation from July 2005 to the end of August 2007.
  2. This Court cannot, however, overlook the tentative nature of the above quoted representation regarding the fuel pumps found in the letter dated 2nd February 2004, which needs to be examined in the light of the other relevant evidence that were taken into consideration by the lower courts. In this context, it is useful to note that Justice Suresh Chandra, in the impugned judgment of the Court of Appeal, has observed as follows:-

[20] Mr. Kobiti who had written the letter of 2nd February 2004 was cross examined as regards the said clause and his position was that for the Appellant to be able to operate or make repairs and open up a pump that they would need a principal licence from Weights and Measures. He also stated that the Appellant was limited to owning the pumps and were not allowed to open and repair the pump if there was any problem. On being asked as to who was responsible for the maintenance and upkeep of the pumps, his answer was that it was the Appellant's responsibility and that there was nothing to prevent the Appellant from using other companies that had a principal licence.


[21] The position set out by Mr. Kobiti regarding ownership of the pumps was confirmed by Mr. Bimal Kant Singh who was an Inspector with Trade Measures and Standard Department who said that it was not correct that only a principal licence holder could own fuel pumps as the law implied a different meaning to whom a principal licence holder was. According to him any business owner could own pumps but repairing pumps or opening pumps could be done only by a principal licensee and that an owner could have repairs effected under another company's principal licence.(emphasis added)


  1. It is clear that according to the aforesaid evidence, the Petitioner was entitled to own the pumps but could not repair or open them without obtaining the services of a principal licence holder. It would appear that this was the basis on which the Petitioner obtained the services of Mr. Rudi Fesaitu who was a licensed repairer, who had testified in the High Court regarding the repairs he had carried out.
  2. Furthermore, the representation contained in the letter dated 2nd February 2004 should be understood in the light of the fact that it is evident that in the drafts of the memorandum of understanding between the parties that were exchanged from time to time albeit never signed, it was indicated that the aforesaid fuel pumps, as much as the other installations and equipment supplied by the Respondent shall be owned by the Petitioner. In any event, the alleged misrepresentation, if at all, was a misrepresentation as to the state of the law as to whether a person who was not a principal licensee could lawfully own fuel pumps, and the Petitioner as much as the Respondent is presumed to know the law, a subject in which the Respondent did not claim any special expertise.
  3. The evidence in this case indicates quite clearly that the fuel pumps, as much as the fuel supplies, were provided by the Respondent on cash on delivery (COD) terms, but credit terms had subsequently been negotiated by the parties in regard to both, and that it was only at the eve of the leasing of the fuel service station to Total that it occurred to the Petitioner that it had not paid for the fuel pumps that were installed prior to the commencement of operations of supply of fuel in July 2005.
  4. Thus, although in the Respondent's letter dated 30th November 2004 to the Petitioner a list of the pumps were provided, it was indicated that the Respondent would forward a proforma invoice once the Petitioner decides which of the pumps listed in the said letter it intends to acquire. It is evident that a proforma invoice for $16,100.00, being the price of the 17 fuel pumps, was in fact forwarded by the Respondent to the Petitioner only after the latter had by its letter dated 31st August 2007 advised the former that its records show that "we have not settled this account."
  5. The point at which the Petitioner acquired the "ownership" (which in the Sale of Goods Act (Cap 230) is signified by the word "property") of the pumps which were admittedly sold and paid for by the Petitioner, is governed by the provisions of sections 3, 19, 20 and 21 of the Sale of Goods Act. According to section 19(1) of the said Act, the intention of the parties determine the point at which the property in the goods pass to the buyer, and the five rules set out in section 20 assist in ascertaining the intention of the parties. There is no doubt that in the circumstances of this case, Rule V of section 20 applied, and the property in the pumps passed to the Petitioner, in the latest, when the pumps were installed by the Respondent at the fuel service station of the Petitioner. In terms of section 22, the "risk" in the pumps would usually follow the property, and undoubtedly the Petitioner became obliged to maintain the pumps the moment they were installed at the fuel service station. In paragraphs 24 to 26 of the judgment of Justice Chandra which are quoted below, these aspects of the case have been dealt with in the following manner:

"[24] The learned trial Judge in dealing with the issue of the ownership of the pumps stated that submissions as to who was the owner in view of the several provisions of the Sale of Goods Act are academic. This was on the basis of his conclusion that the Appellant was a 'user' of the pumps and that the Appellants had offended the provisions of paragraph 26(1)(iii) of the National and Trade Measurement Decree No.14 of 1989 by using defective pumps which constituted an illegality and therefore restrained the court from providing its assistance to the Appellant for the recovery of damages suffered by the use of the said pumps.


[25] Although the learned Judge did not consider the provisions of the Sale of Goods Act regarding the ownership of the pumps, there was evidence before Court to consider same. If the provisions of the Sale of Goods Act are considered, it is clear that the Appellant had agreed to purchase the pumps and when they were installed at the Appellant's fuel station the property in the goods had passed to them in terms of S.3(3) of the said Act. The payment of the price was not the basis of conferring ownership of the pumps. It was acknowledged by the Appellant that the payment was outstanding which was ultimately paid on 31st August 2007, but by that time the property in the goods had passed to the Appellant. Once the property in the goods have passed to the Appellant, risks relating to same also passed on to them in terms of S.22 of the said Act. Further, there was no warranty given by the Respondent regarding the said pumps.


[26] It was also in evidence that the pumps were second hand pumps. However, they were properly installed and calibrated and were put to use by the Appellant and they were fit for the purpose at least on the basis of the evidence of the Appellant up to January-February 2007. The assertion of the Appellant was that the pumps were not of merchantable quality, but their own evidence goes against that assertion as according to them there were no problems at least up to January-February 2007 taking into account the fact that they were second hand pumps and the Appellants had been satisfied when obtaining them after inspection."(emphasis added)


  1. In my opinion, the grounds relating to estoppel advanced by the Petitioner do not satisfy the stringent criteria laid down in section 7(3) of the Supreme Court Act, and are unarguable in the circumstances of this appeal. I do not therefore see any basis for granting special leave to appeal to the Petitioner in regard to the question of duty to maintain the fuel pumps discussed above.
(2) Paying for the fuel supplies
  1. In regard to the question as to whether the Respondent had produced sufficient documentary and other evidence in support of the judgment of the High Court which upheld in part, the counter-claim of the Respondent and entered judgment in favour of the Respondent in the sum of $303,098.19, being the cost of the fuel alleged to have been supplied to the Petitioner by the Respondent with 10 per cent interest, it is worth noting that the value of the counter-claim was much larger, and that the learned trial Judge had dismissed the Respondent's claim for damages for loss of business, the Respondent's claim based on monies expended by the Respondent for engineering support and in getting the pumps refurbished and for an air gauge, after considering the evidence before court. There was no cross-appeal before the Court of appeal in regard to the rejection of these claims by the High Court, and there is no necessity to deal with these here.
  2. What is in contention in this application for special leave to appeal is the decision of the High Court to enter judgment in full on the amount claimed by the Respondent as unpaid cost of fuel supplied, which was $202,065.46 as reflected in issue No.18 raised in this regard, which when 10 percent interest till date of judgment was added, worked out to of $303,098.19. Mr. Connors has argued that the Court of Appeal erred in failing to appreciate that the Respondent has failed to lead reliable evidence regarding the delivery of such fuel.
  3. Mr. Connors who appeared for the Petitioner stressed the alleged paucity of evidence in support of the claim for the cost of fuel unpaid, Ms. Devan has, very rightly, relied on the fact that the Petitioner had been awarded rebates on the amounts claimed by the Petitioner. While in my opinion, this fact cuts across the case of the Petitioner in this regard, again, I can do no better than to quote the following paragraph from the impugned judgment of Justice Suresh Candra in relation to this claim:-

"[42] As regards the position of the Appellant that the Respondent had not led evidence regarding delivery of fuel the learned trial judge in his judgment has referred to it in paragraphs [75] to [78] and allowed same being satisfied that there was evidence adduced by the Respondent through Nemani Kobiti's affidavit marked as P6 to which had been annexed the delivery dockets which had been signed as received for the fuel supplied from 27/7/2007 to 11/9/2007 and also considering the oral evidence given regarding same. Even though the Appellant has submitted that the Appellant's witnesses were not cross-examined on such aspects thus bringing in the principle in Dunn v Brown, an examination of the evidence of the Appellant's witness Mr. Shiu Ram shows that he was questioned about the delivery of fuel on cash on delivery term and later on credit terms which he admitted."(emphasis added)


  1. In these circumstances, even this aspect of the Petitioner's application for leave to appeal does not satisfy the stringent criteria set out in section 7(3) of the Supreme Court Act, and is hardly arguable, and I do not therefore see any basis for granting special leave to appeal to the Petitioner in regard to the question of payment for the fuel supplied to the Petitioner, that has been discussed above.

Conclusions


  1. For these reasons, I am of the opinion that the application of the Petitioner seeking special leave to appeal has to be dismissed with costs in a sum of $8,500.00.

Hon. Justice Saleem Marsoof
Judge of the Supreme Court


I agree.


Hon. Justice Sathyaa Hettige
Judge of the Supreme Court


I agree.


Hon. Justice William Calanchini
Judge of the Supreme Court


Solicitors:


Patel & Sharma Solicitors for the Petitioner
Neel Shivam Lawyers for the Respondent

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