Supreme Court of Mauritius, 16 janvier 2020, 2020 INT 3 – Gokool S. v OTF Export Ltd (Ocean Tropical Foods)

1 Gokool S. v OTF Export Ltd (Ocean Tropical Foods)

2020 INT 3

Cause Number 302/13

IN THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:

Mr. Sanjiv Gokool

Plaintiff

v.

OTF Export Ltd (Ocean Tropical Foods)

Defendant

Judgment

The averments of the present plaint are as follows:- 1. On or about 12 November 2012, Defendant had entered into a commercial agreement with Plaintiff for the purchase of 30,000 pineapples at the agreed price of Rs.18.00 per kilogram.

2. On or about 20 November 2012, Defendant came and harvested 3,000 out of the said 30,000 pineapples and caused ripening solution to be sprayed on the remaining 27,000. The spray of ripening solution required that the fruits be harvested within 4-5 days from the date of spraying as otherwise the fruits would become unsalable and worthless.

2 3. Defendant failed to harvest the fruits after the spraying and it failed to pay for the purchase of the said fruits on the ground that the price had gone down and it was no longer profitable for it to purchase same. 4. Defendant was fully aware of the accepted practice that once a purchaser sprays ripening solution on a crop, the purchaser is bound to harvest the crop and to pay the price of the crop so sprayed.

5. A declaration to the police has already been made in the matter and the police has effected a visual inspection of the fact that the crop had been sprayed and was lying in the plantations in or about the 27 th November 2012.

6. Despite several amicable requests to Defendant to pay for the aforementioned purchase price of 27000 units of pineapples at Rs.18 per kilogram and by way of notice served on it on the 25 th January 2013, Defendant has up to now failed and neglected to do so.

7. Due to Defendant’s acts and doings which amount to a breach of contract, Plaintiff has suffered damage and prejudice valued at Rs.200,000 and for which Defendant is responsible. Defendant in its plea has denied having entered into a commercial agreement with Plaintiff on or about 12 November 2012 for the purchase of 30,000 pineapples at the agreed price of Rs. 18.00 per kilogram. It has in fact harvested 3946 kilograms of about 6,500 pineapples from one of the plantations of the Plaintiff after it has caused same to be sprayed for which it has paid the sum of Rs. 62,571. Defendant avers that as an exporter of pineapples, it is not its practice to buy a whole plantation but only big and baby pineapples from its suppliers, Plaintiff being one of them. Defendant has also averred that it has additionally purchased about 6,890 kilograms of pineapples from Plaintiff’s plantations. Defendant too has its own plantations of pineapples but its main business is to export and only a small amount from its own plantations goes to the local market. Plaintiff is a privileged supplier who benefits from preferential price for his pineapples and Defendant has regularly purchased from him specific-sized pineapples. It had in fact harvested all the pineapples which it had caused to be sprayed. Defendant avers that Plaintiff has acted mala fide as in the summer 2012, there was an abundance of pineapples on the local market due to

3 the unusually hot weather and Plaintiff who is a local supplier as opposed to Defendant who is an exporter, may have suffered from the subsequent drop in the price. Plaintiff is now trying to make up for his alleged loss by claiming from Defendant and the latter does not buy to sell to the local market. It has moved that the case be struck out with costs. Now, the evidence adduced on behalf of the Plaintiff unfolded by the Plaintiff departing from his own above averments by having said the following in Court. All the 3000 pineapples were sprayed with ripening agents together with the 27000 pineapples and that they would go stale if not plucked after 6-7 days. As from year 2010 till year 2012, he did not have any problems with Defendant. He admitted that Defendant purchased pineapples while they were in the process of growing in size and being of good quality and that it took only big and baby pineapples as it was an exporter of those fruits. He further admitted that for some of his plantations he caused the spraying to be done himself as he sold them for the local market. Indeed, his admissions are compatible with plea of Defendant. Plaintiff’s witness, Mr. Atmajay Dabydyal, a planter of pineapples close to his plantation of pineapples at Camp de Masque, departed from the averments of the plaint by having said in Court that an excess of the dose in the spray could cause decay to the pineapples irrespective of the limitative delay for plucking. Another witness for the Plaintiff, PC Jokhoo, who called on the locus following the declaration made by Plaintiff on 27 November 2012 departed from the averments of the plaint by having said in Court that when he went on the locus, the pineapples were more than ripe and smelling bad as they had passed harvest time but he could not say whether they could not be marketed. At no time he testified that he saw that the pineapples had been sprayed with ripening agents but conceded that it was the complaint of the Plaintiff that Defendant did so and that he was aware that such spraying caused the pineapples to ripen quicker than usually although he did not grow pineapples himself. He as a consumer would not have purchased them as they were not fit for human consumption. The last witness for the Plaintiff, Mrs. Nirmala Ramburn, in her capacity as Principal Research Scientist was deputed by the Director of Food and Agricultural Research & Extension Institute to depose on any research conducted on the spraying of artificial ripening agents on pineapples. She has stated in Court that the institute carried the research of ripening agent not for ripening purposes but for

4 induction of flowering in the pineapple plants. If a pineapple fruit was immature, the ripening agent would only de-green it. A ripening agent when sprayed on a fruit would accelerate its ripening process which meant that the pineapple would change in colour from green to yellow and that there would also be a change in sweetness and firmness. She meant that there was a decomposition of starch into glucose and the fruit became sweet to the taste and then it would further decompose. The fruit would decompose no matter whether it was harvested or not. If it was not sprayed depending on climatic conditions prevailing during that period, but usually up to fifteen days the fruit looked attractive meaning that when the fruit was ready it could stay fifteen days to be consumed. After a fruit had been sprayed, it would depend on the concentration of the product and the higher the concentration the shorter the time it would stay when ready to be consumed. Indeed, in that manner, she departed from the averments of Plaintiff that the spray of ripening solution required that the fruits be harvested within 4-5 days from the date of spraying as otherwise the fruits would become unsalable and worthless. The representative of the Defendant, Mr. Vickram Hurdoyal, in his capacity as Director gave evidence in Court. The business in the local market of Defendant was 5% while for export it was 95% as far as pineapples were concerned. Plaintiff was one of its suppliers and it depended on the size like baby pineapples and medium size pineapples meaning big ones and which was the case in 2012 in relation to Plaintiff’s plantation in Camp de Masque so that he was not aware whether there were 30,000 pineapples but in the beginning the price was high and for which he paid for. Before plucking the pineapple fruits from Plaintiff’s plantation, he caused the size and quality he desired to be sprayed with a ripening agent for export purposes in order to have a uniform colour and size. He did not agree that he caused 30,000 pineapples to be sprayed and only harvested 3000. He harvested all the pineapple fruits he caused to be sprayed with the ripening agent and which fruits he had paid for and which were meant for export and the rest that were left in the plantation were sold to the local market by the Plaintiff. In November and December 2012, it was very hot and pineapples were ripening naturally and were plentiful causing the price to go down. The spraying of the ripening agent on the said fruits to ripen depended on the maturity of the fruits and weather conditions which varied from 3-4 days to 10- 15 days. He did not agree that in November 2012, Defendant agreed to buy 30,000 pineapples from Plaintiff as the whole field was not sprayed by Defendant, but only targeted fruits were sprayed for the purposes of export. Indeed, the testimony on behalf of the Defendant is compatible with its plea.

5 I have given due consideration to all the evidence adduced before me and the submissions of both learned Counsel. At this stage, it is significant to note that the tenor of the evidence adduced has to be imperatively within the bounds of the pleadings for it to be of any weight as highlighted in the Supreme Court case of Tostee J.Y. v Property Partnerships Holdings (Mauritius) Ltd [2015 SCJ 41] as follows: “The case of Ramjan v Kaudeer[1981 MR 411][1981 SCJ 387] may also be referred to whereby the court had relied upon cases of Chetty v. Vengadasalon[1901 MR 22], Deena v. Malaiyandee 1940 Pt.II MR 156 and Ramdharry v. Dhumun[1942 MR 108] as being examples of judgments which have been quashed on appeal on the ground that the decisions were based on issues which did not appear in the pleadings. The case of Ramjan v Kaudeer (supra) further referred to certain passages of Bullen and Leake, and Jacobs Precedents of Pleadings 12 th Ed. which were quoted in the judgment of Jagatsingh and Walter v. Boodhoo (supra) and explained that once a party has stated the facts on which he relies, these facts are binding and the Court cannot ground its judgment on other facts which may come to light in the course of the trial” (emphasis added). Now as per the answers to demand of particulars delimiting the averments in the plaint, there was no written agreement meaning for November 2012 but only an invoice in relation to another verbal commercial agreement where Plaintiff had delivered pineapples to Defendant in December 2012 and which agreement has followed the agreement in November 2012. It has also been delimited as per the answers given that Plaintiff had several plantations and Defendant used to buy from him pineapples on several dates. Likewise, averments of the plaint have also been delimited that had Defendant not agreed to buy the 30,000 pineapples meaning the whole harvest, had it not sprayed them with ripener, the harvest could have been sold on the market. It is significant to note that ex facie the plaint it is abundantly clear that when the Police made a visual inspection of the pineapples already sprayed at no time it

6 was averred that they were unsalable and worthless as they had not been harvested within a delay of 4-5 days after having been sprayed. Indeed, as per the answers to particulars, itself, Defendant did purchase pineapples in December 2012 from Plaintiff and for which there was an invoice as claimed by Plaintiff and as for the purchase of the 30,000 pineapples, there was no invoice and no written contract. Clearly it is not plausible that after having caused to be sprayed 27000 pineapple fruits and not harvesting them on time so that they have been allowed to go stale and for which Plaintiff has allegedly suffered loss in the sum of Rs. 200,000/- yet he would allow Defendant to have his fruits sprayed again by it a few days after in the month of December 2012 and for which Defendant has paid for them as per the invoice in Plaintiff’s possession. Indeed, the state of the pleadings itself lends support to the plea of Defendant as being more plausible and reliable that Defendant had paid for the specific sized pineapples it caused to be sprayed meant for export purposes and not for the local market. let alone that at no time it agreed in its plea as averred by Plaintiff to buy the whole harvest wherein there were 30,000 pineapples and came and harvested 3000 pineapples only out of the 30,000 without prior spraying and then caused the remaining 27000 to be sprayed and to get stale so that they could not be sold in the local market. Hence, I believe the version of the Defendant whose representative’s testimony is compatible with its plea rather than that of the Plaintiff given the aforesaid major departures from the material/essential averments of the Plaint by the Plaintiff himself and his witnesses and which affect the very root of his cause of action. A “cause of action” comprises of “every fact which is material to be proved to enable the plaintiff to succeed; in other words, every fact which, if traversed, the plaintiff must prove to obtain judgment” (- see Heera v Ramjan & Ors.[1976 MR 220]). Hence, in the absence of evidence in line with the averments of the plaint to prove liability as per the cause of action of Plaintiff which lends support to the testimony and plea on behalf of Defendant that it is not liable, I am unable to find that the case for the Plaintiff has been proved on a balance of probabilities. Accordingly, the case is dismissed with costs.

S.D. Bonomally (Mrs.) (Magistrate) 16.1.2020

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