Hurst v Johnston (Civil Side No. 256 of 2010) [2011] SCSC 54 (30 June 2011);

THE REPUBLIC OF SEYCHELLES

 

IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA

 

Civil Side No. 256 of 2010

 

Robert Hurst==============================================Plaintiff

 

Versus

 

Su Lin Johnston==========================================Defendant

 

 

Lucie Pool for the Plaintiff

 

Clifford Andre for the Defendant

 

 

 

JUDGMENT

 

 

 

Egonda-Ntende, CJ.

 

  1. The plaintiff is a resident of Seychelles with an account at the First National Bank, Jeffrey's Bay, South Africa. The plaintiff contends that the defendant on 14 October 2009 sent a fax instruction to the Manager fraudulently pretending that it came from the plaintiff instructing the bank to transfer the sum of One hundred thousand South African Rand to her bank account at HSBC Bank, 1 Queens Road Central, Hong Kong. 2 other faxes similar to the first one were sent on 23 November 2009 and 30 December instructing the transfer of 50,000.00 and 40,000.00 South African Rand respectively. All the said funds were transferred from the plaintiff's said account into the defendant's account.

 

  1. The plaintiff contends that the said fraudulent and unlawful acts of the defendant caused the plaintiff to suffer financial loss and moral damages arising out of anxiety, depression, loss of enjoyment of life and general deprivations. The plaintiff claims the funds transferred from his account totalling to 190,000.00 South African Rands equivalent to Seychelles Rupees 330,070.21 and interest thereon at the rate of 4% per annum for one year R13,202.81 and moral damages of R100,000.00.

 

  1. The defendant denied all averments set out in the plaint save for paragraph 1 describing the parties. She put the plaintiff to strict proof of all the allegations.

 

  1. At the trial the plaintiff testified in person. The defendant testified in person and called one other witness, her ex husband. From the evidence adduced by both sides it is clear that 3 faxes were sent on the dates mentioned in the plaint to the Manager of the plaintiff's bank in South Africa and as a result of those faxes a total of South African Rand 190,000.00 was transferred into the defendant's bank account in Hong Kong. These transfers were not authorised by the plaintiff though the fax instructions purported to bear his signature.

 

  1. The issue that has to be decided is whether the defendant fraudulently caused this transfer of the said funds from the account of the plaintiff to her own account. The defendant denied this in her statement of defence and put the plaintiff to strict proof thereof. She denied it too in her testimony though she acknowledged that the funds in question were remitted to her bank account in Hong Kong. The defendant attempted to set up an explanation as to how these funds could have ended up on her account but it is pertinent to observe this version was not pleaded. She cannot rely on the same in support of her case.

 

  1. The plaintiff produced a statement he had made to police complaining that a fax sent from Mr Robin Johnston's fax number to his bank in South Africa had fraudulently conveyed instructions for the transfer of SA R 100,000.00 from his account into the account of the defendant on the 14 October 2009. I have examined the fax in question admitted in evidence as exhibit P3 and indeed on the fax there are Mr Johnston's names and fax number- +248 344057 and date of October 14. This fax was admitted in evidence without objection from the defendant's attorney. I take it that its contents are not disputed.

 

  1. Though this fax was not put to Mr Robin Johnston when he turned up to testify in this case, Mr Johnston stated that he knew the plaintiff but he had no dealings with him. One cannot therefore imagine that the plaintiff could have sent the fax in question from Mr Johnston's fax number himself. Mr Robin Johnston is the ex husband of the defendant who came to testify on her behalf.

 

  1. It appears to me that once the plaintiff is able to show that without his authority money was moved from his account to the the account of the defendant it is reasonable to infer, unless the defendant was able to explain satisfactorily how this money ended up into her account, that this transfer was fraudulently executed with the participation of the defendant. On her pleadings the defendant denied virtually all the allegations in the plaint including the fact that the sums of money in question on the respective dates mentioned in the plaint were transferred to the account of the defendant. Having denied even this fact, knowing that her denial was false, it is reasonable, in my view, to infer from this denial that she was aware, that the transfer was fraudulent. This would explain her denial of something she knew to be true.

 

  1. I am strengthened in this view by three matters. Firstly that the first fax of 14th October 2009 bears a fax number and name of her ex husband being its probable origin. Secondly the defendant's version of how the sums in question were remitted to her bank account in Hong Kong which she attempted to put forward seems so implausible as to lead to no other conclusion other than that she was aware of the fraudulent nature of the transfers of this money into her account. She could not remember the name of the person who told her he would remit this money to her account and whom she paid the equivalent in Seychelles rupees. These were significant sums of money by any account.

 

  1. Thirdly the defendant testified that she did not know the plaintiff. Neither did she have any dealings with him. It is inconceivable therefore with no relationship of any sort that funds from the plaintiff's account would be remitted to the defendant's account unless the defendant had participated in the transfer of such funds. The failure of the defendant to acknowledge at first opportunity that this money had ended up on her account, which she knew to be the case, when confronted with the plaintiff's action points, in my view, to fraudulent participation in the transfer of the said funds. On her pleadings she denied receipt of the said funds only to admit in court. This is not conduct consistent with innocence or lack of awareness of the fraudulent nature of the transfer scheme.

 

  1. In the result I am satisfied that the plaintiff has proved his case on a standard higher than a balance of probability. I am satisfied that it has been established that a total of South African Rand 190,000.00 on three occasions was fraudulently transferred into account of the defendant. I am satisfied that the defendant was aware of the fraudulent nature of these transfers. I find the defendant liable to the plaintiff for the loss suffered.

 

  1. I order the defendant to refund to the plaintiff the sum of South African Rand 190,000.00 or its equivalent in Seychelles Rupees at the time of payment with interest at 4% from the respective dates of transfer of the said funds until payment in full. In addition I am satisfied that the plaintiff has suffered moral prejudice and damage as a result of these events. I award him SR75,000.00 as moral damages, given the suffering that he was put too. Finally I order the defendant to pay the plaintiff costs of these proceedings.

 

Signed, dated and delivered at Victoria this 1st day of July 2011

 

 

 

 

FMS Egonda-Ntende

Chief Justice