Mumthaj Beevi w/o Mohd Arif v Niru and Co

• Jurisdiction: Singapore
• Judge: Foo Tuat Yien
• Judgment Date: 05 January 2005
• Neutral Citation: [2005] SGDC 4
• Plaintiff Counsel: Eddee Ng and Kevin Lim (Tan Kok Quan Partnership)
• Published date: 20 January 2005
• Court: District Court (Singapore)
• Defendant Counsel: Liew Teck Huat and Vivekananda (Niru and Co)
• Subject Matter: Civil Procedure,Civil Law,Claim for loss and damages arising from wrongful seizure,Assessment of damages

5 January 2005

District Judge Foo Tuat Yien

Introduction

1 On 13 September 2004, at the end of a hearing to assess damages, the deputy registrar entered final judgment for the respondent/plaintiff for $164,761.00 with 6% interest per annum from date of writ in April 2000 to date of judgment. On 22 November 2004, I allowed the appellant/defendant’s appeal on the ground that the respondent had failed to quantify her losses. I awarded the respondent $5,000 nominal damages, On 23 November 2004, I made an order that she pay the taxed costs (if not agreed) of the assessment hearing before the deputy registrar and fixed costs of $2,000 for the RA hearing. The respondent has appealed against my whole decision.

Background and History

2 This is a very contentious case, where parties have taken issue, at the assessment and on appeal on practically every point from burden of proof, admissibility and weight of evidence, quantification of damages and costs.

3 The history and context of the case are relevant. On 2 March 1994, the appellants/defendants, a law firm, obtained a judgment in a district court action against one Mohd Arif s/o Sahul Hameed (‘Mohd Arif’) for their unpaid legal fees for 2 matters. On 11 April 1994, the baliff, pursuant to the appellants’ instructions and under a writ of seizure and sale (‘WSS’) , seized certain goods and property at a convenience trading kiosk, known as Bhadhar Point (‘BP’) at the Toa Payoh Bus Interchange, which, to their knowledge, was owned and operated by Mohd Arif. One Mumthaj Beevi w/o Mohd Arif, the respondent/plaintiff in this case filed a claim to the items seized on the ground that Mohd Arif, her husband, had assigned his business at BP to her on 20 September 1991. At the conclusion of the whole interpleader proceedings on 22 August 1994, the District Judge in chambers affirmed on appeal, that the property seized be released to the respondent. The WSS was withdrawn on 26 August 1994. On 2 September 1994, Mohamed Arif was adjudicated bankrupt on the petition of another creditor.

4 Almost 6 years on, in April 2000, the respondent brought this action against the appellants for (1) loss and damages caused by the wrongful seizure of her goods and property and (2) damages for defamation caused by the wrongful pasting of court seals on her property at BP, which by way of innuendo, would be understood to mean that she was insolvent and experiencing financial difficulties. The respondent applied for and, on 13 September 2001, was granted interlocutory judgment with damages to be assessed. The appellants appealed all the way to the Court of Appeal. This aspect of the case was concluded on 23 January 2003, when the Court of Appeal allowed the appeal in part, by setting aside the interlocutory judgment insofar as it related to the claim in defamation and gave the appellants unconditional leave to defend. The appellants were ordered to pay the respondent, two-thirds of her costs of the appeal and the costs all the way below.

5 On 18 September 2003, the respondent discontinued her defamation claim. All costs for the summary proceedings/appeals and the discontinuance of the defamation claim have been taxed and accounted for by parties. The only issues, which remained were (1) assessment of the respondent’s loss and damages and (2) costs of the assessment.

Issues:

6 I would accept that there would have been some loss of profit or damages due to the respondent arising from the wrongful seizure of her goods and property. The real issue in this case is one of proof and quantification. Broadly, the issues are:

i) Burden of proof ;

ii) Admissibility and weight of evidence;

iii) Whether an adverse inference should be drawn because the respondent chose not to give evidence;

iv) My decision in SIC 17826 of 2004/Y on 28 October 2004, when I dismissed the respondent’s application to adduce further evidence at the RA appeal;

v) Whether a quantification of damages can be made based on so, any of the 3 methods proposed by the respondent and if whether it is necessary for the respondent to plead the last 2 methods;

vi) If the quantification of damages cannot be made based on any of the 3 methods, whether the respondent can prove and recover:

a) loss of perishables/consumables; and

b) Loss of use of the kiosk at BP for 4.5 months during the period of the seizure from 11 April to 26 August 1994;

and if so, whether it would be necessary for the respondent to so plead; and

vii) Costs of the Assessment of Damages hearing and the RA appeal.

Context of Case

7 The respondent ran her business as a sole proprietor. Her business was a small convenience kiosk business at BP, which she had taken over from her husband, Mohd Arif in September 1991. Her son, one Mohd Rashideen s/o Mohd Arif (‘MR’), who was the respondent’s sole witness, said that he ran the business. The respondent did not give evidence. The appellants’ sole witness was one Liew Teck Huat (‘Liew’), a solicitor from the appellants’ firm. He had been involved in this case since 1994 and he was also the appellants’ counsel. His evidence was essentially an expression of the appellants’ views on the inadequacies in the respondent’s evidence.

8 MR in his affidavit, said that at all material times, BP was essentially a newspaper and magazine kiosk, which also sold items such as snacks, drinks, chocolates, tidbits, cigarettes etc to bus commuters using the Toa Payoh Bus Interchange. It also had money-changing services and a coin-a-phone just outside the kiosk. These activities were brought to a halt from 11 April to 26 August 1994, when execution of the writ of seizure and sale caused the respondent to close her business resulting in a loss of profits. It is MR’s evidence that he did not operate the kiosk at BP then, as they were under the impression that they could not carry on business.

Events directly leading to the Assessment of Damages and at the Assessment

9 On 6 January 2004, when affidavits of evidence in chief for the assessment were due for exchange, Liew filed the appellants’ affidavit, stating in essence, that the respondent’s documents disclosed in discovery were incomprehensible, incomplete and inconsistent. On 7 January 2004, the respondent filed a supplementary list of documents setting out 107 documents, not previously disclosed. On that same day, the appellants applied to strike out the respondent’s claim for failure to file her affidavit of evidence in chief. On 5 February 2004, the court granted the respondent, an extension till 12 February 2004 to file her affidavit of evidence in chief. On 11 February 2004, Liew filed another affidavit alleging that the documents disclosed on 7 January 2004 were also incomprehensible, incomplete and inconsistent. After the respondent had filed MR’s affidavit of evidence in chief and the notice of appointment for assessment on 11 February 2004, the appellants filed a notice on 19 February 2004, objecting to MR’s affidavit on the ground that the whole affidavit was not filed from personal knowledge and that paragraphs 17 to 23 and in particular all references to the respondent’s Profit and Loss Accounts (‘PLAs’) for 1992, 1993 and 1994 and sales figures were hearsay.

10 At the assessment on 26 May 2004, the appellants again objected to the PLAs as hearsay as the originals were not produced and the respondent, who had signed them, was not giving evidence. A key issue is whether, as alleged by the respondent, it was MR,who had prepared the PLAs and could therefore give evidence on them. The deputy registrar overruled the appellants’ objections on admissibility and the assessment continued.

11 Another key issue was the weight to be accorded to the PLAs, if admissible in evidence. The respondent had produced 3 letters from IRAS dated 22, 9 and 8 March 2000 signed by 3 different IRAS officers stating that the respondent had reported her income for the years of assessment 1993, 1994 and 1995 at $95,502, $163,142 and a loss of $35,457 respectively. These were the same 3 profit/loss figures shown in the PLAs for the preceding years of operation in 1992, 1993 and 1994. In essence, the respondent is inviting the court to conclude that because her income reported to IRAS is the same as the profit/loss figure shown in the 3 PLAs, this is proof that the figures in the PLAs are true and correct and that these details in the PLAs must have been the information on her total income for those years submitted to IRAS. MR had said in his affidavit, that the respondent would not have dared to submit false accounts to the IRAS as the penalty for doing so is a harsh one.

12 That the respondent’s profit/loss reported to IRAS for each of the those years of assessment correspond with the figures stated in the 3 PLAs does not, by itself and without more, establish on a balance of probabilities that (1) the figure in the PLAs are true and correct and/or (2) the figures in the PLAs are the details of the respondent’s total income submitted to IRAS. The appellants argue that the IRAS letters carry little weight as they only show what the respondent had declared as her total income. The letters do not prove that the details of her income submitted to IRAS square with the information in the PLAs. The appellants say that the respondent had income from other sources not covered in the PLAs, which was reported to IRAS. One important missing information is the respondent’s income from her money-changing business. We know from paragraphs 11 and 14 of MR’s affidavit and oral evidence, that she also ran a money-changing business at BP at all material times and made substantial profits. The 1994 PLA entitled ‘ Bhadhar Point – 502 Toa Payoh Bus Interchange, Blk 189, Lor 6, Toa Payon, Singapore 1231’, shows an income of $19,667.28 from this business for 27 August to 31 December 1994. At the appeal, respondent’s counsel confirmed that although the respondent ran a money-changing business at BP at all relevant times, she is not...