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Amasia v Aife [2015] SBHC 36; HCSI-CC 170 of 2013 (12 May 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona PJ)

Civil Case No. 170 of 2013

BETWEEN:

DICK AMASIA
(Trading as D A Printer)
Claimant

AND:

ALICE AIFE AND LILIAN MAFANE
First Defendants

AND:

LILIAN MAFANE, ALICE AIFE, CHARLES MAEFANE
(Trading as Charlyian Printers Service)
Second Defendant

Date of Hearing: 20th April 2014
Date of Assessment of Damages: 12th May 2015.

Ms A. Willy for the Claimant
No one for the Defendants
(have not actively participated since service was done).

JUDGMENT ON ASSESSMENT OF DAMAGES

Faukona PJ: The first claimant is a private proprietor running a business of printing and trading as DA Printers under business number 244 of 2004. He operates his business at White River, West Honiara.

2. The second named first Defendant was the General Manager of DA printers whilst the second named first Defendant was a senior employee.

3. The first Defendants were the proprietors of the Second Defendant with a registered business BN 1065 of 2011, and was located at Tanuli, Honiara.

4. In the course of employment with the Claimant, the first Defendants incorporated the second Defendant in December 2011. What they did as appears, is purpose to transfer new and existing clients of the Claimant to the second Defendant and making payment to it under the pretext of expenses and related payments. They also forged payment invoices and secure payments for the second Defendant and for themselves.

5. The first Defendants' secret deals were uncovered hence their employment with DA Printers was terminated on 23rd January 2012. After termination, the first Defendants still informed clients that they were part of DA Printers company, therefore issue invoices to the Claimant's clients and obtain payments and forged documentations including invoices. This was done purposely to continue hold themselves as part of Claimant's company.

6. On 30th May 2013 a claim in category A was filed. On 11th October 2013 an application for default judgment was filed. The application is necessary because the Defendants had failed to file response or defence with in time limit provided by the Rules.

7. On 13th November 2014 Default judgment was entered against the Defendants. The Claimant now comes to Court for the assessments of damages.

General damages:

8. The first category of damages claim is in the nature of general damages. Claim for general damages in this case is premise on fraudulent activities whereby which the first Defendants had engaged in misrepresentation conduct. "Fraud is proved and is shown that a false representation was been made (1) knowing, or (2) without belief in its truth, or (3) reckless, careless whether it be true of false, see Deny V Peek[1]. General damages is defined in Oxford Law Dictionary[2] as thus;

... 1. General damages are given for losses that the law will presume are the natural and probable consequences of a wrong. 2. General damages may also mean damages given for a loss that is incapable of precise estimation, such as pain, and suffering or loss of reputation.

9. It would appear the incorporation of the second Defendant whilst being in employment was purposely to divert payments, collection of commissions and duplication of the Claimant's business. The activities indulged in were forging the Claimant business stamp which were affixed to pro-forma invoices and later procure payments to the second Defendant which they own. Consequently, the first Defendants' conduct was purposely to secure monies for their own gain. Even after termination, for about a year the first Defendants still issued Claimant's pro-forma invoices to their clients with high quotations so that printing contract be given to the second Defendant on less quotation manufactured for attraction.

10. The Claimant suffered loss of business which cannot be measured or quantified. However, the Claimant claim $50,000.00 as shown in schedule Exhibit RS-3 attached to sworn statement of Rose Sonoma, for the loss of general revenue collection which was reduced in 2010 and 2011. There is evidence to belief that there was a loss margin. I am satisfied on the evidence the conduct of the first Defendants which aimed at drawing money unlawfully from the Claimant was an act of forgery to promote self gain. Therefore, I must award general damages of $50,000.00 to the claimant.

Special Damages:

11. Special damages are loss of revenue and interest which a business expected to collect. In the case of Nimelia V Solomon Islands Home Finance Ltd[3] the Court cited and adopted the definition from Chow V Attorney-General[4] case. It stated;

"... loss of revenue and accrued interest were consequential loss that ought to have specifically pleaded"

12. What the Courts are saying is because of the fraudulent act of the first Defendants the Claimant had suffered loss in revenue collection and that includes interest accrued. In this case the first Defendants had forged payments in the form of commission payments payable to unknown persons using the Claimant's cheque, and later cashed the cheques from Bank South Pacific. The schedule of payment annexed and marked RS-3 of R. Sonoma's sworn statement was an impression of evidence of which such activity is grounded.

13. According to the schedule the amount paid out as commission in 2010 was $119,295.00, and amount paid out in 2011 was $89,150.00. The total amount the first Defendants had fraudulently enriched themselves with is $208,445.00, and that is the amount the Claimant seeks under special damages of which I must award accordingly.

Order:

1. The Claimant is awarded General damage in the sum of $50,000.00 and Special Damages of $208,445.00, total damages of $258,445.00 be paid by the Defendants.

2. Cost be paid by the Defendants to the Claimant.

The Court.

^[1] (1889) 14 App. 337, Lord Herschell, page 374.
^[2] ED Martin (ed) Dictionary of Law, Oxford, Oxford University of ......1997
^[3] (2008) SBHC 69.
^[4] (2002) SBHC – CC 127