In The First Class Magistrates Court
At Nausori
Fiji Islands

Civil Case No: 82 of 2008

LAGI PETERS
Plaintiff

vs

NEMANI MATANIMEKE and
DONASIA MATANIMEKE
Defendants

Before: C. Lakshman
Resident Magistrate 

For Plaintiff  			:  Mr. Ronal Singh (Patel Sharma Lawyers, Suva)
For the Defendants		: Mr Titoko (Naco Chambers) 

JUDGEMENT
Introduction

1).	On 18th November 2008, the Plaintiff’s Solicitors, filed a Writ of Summons and Statement of Claim, claiming as follows: (i) special damages in the sum of $27,000.00, (ii) damages to be assessed by this court (iii) interest, (iv) costs, (v) such further and/or Orders as the court deems fit and just.   

2).	The Defendants Solicitors on 6th February 2009 filed a Statement of Defence. On 23rd February 2009 the Plaintiff’s lawyers filed a reply to defence.  

3).	The Hearing for the case took place on 29th January 2010 and the Party’s were given time to file submissions simultaneously within 4 weeks of the hearing. 

4).	The Plaintiff in this action claims for loss suffered due to breach of an agreement made with the Defendants for the Plaintiff to purchase a vehicle and for him to operate the van as a mini-bus. The 2nd Defendant was a mini bus permit holder.  

THE HEARING 

he Plaintiff’s WITNESSES

The Plaintiff’s called 2 witnesses, Lagi Peters and Iva Peters.  

The DEFENDANTS WITNESSES

The 1st Defendant Nemani Matanimeke gave evidence for the Defendants. 

THE EVIDENCE

The Material Evidence of the Plaintiff – PW-1 - Lagi Peters – ’61 years old, married to Iva Peters. Was an Insurance consultant before. Know defendant as friends for some time. Know defendants had mini bus permit and few other gentleman drive using this permit. When I retired I had money to invest. Towards 2003 end early 2004. Since my wife was a civil servant knew 2nd defendant who was a civil servant and approached defendants for mini bus to pay rent on weekly basis. I asked my wife to release $10,000.00 to put as deposit for the bus. 

There was no written agreement. Took it as a relations dealing. Took it on face value. For 3 years. Party to initial purchase of the vehicle. Guarantor of the vehicle with Carpenters. Notice of re-possession not seen by me until now. 20th November 2004 guarantee document to Carpenters. I was the guarantor – Guarantee Document tendered as - PE-1. 

I had the minivan from 2004 to 2007. During that period I made payments to carpenters. Ledger account obtained and tendered to court as PE-2. Collective receipts of the vehicle tendered as PE-3 a, b and c. Collective documents given to Plaintiff evidencing lease given to Plaintiff tendered as PE-4. Insurance schedule tendered as PE-5. Original third party of LM40 tendered as PE-6 a, b and c. On own expense passed vehicle at LTA vehicle test result sheet tendered as PE-7. Vehicle was worth $30,000.00 when bought. Made down payment of $10,000.00. Used part of my FNPF funds. Cash withdrawal from Colonial National Bank. Wife paid on my behalf. Colonial bank statement MFI-1.  Had an agreement with the Defendants. I did all registration, insurance and made it road worthy.

My agreement was to pay the Defendants $50.00 per week. Later on he came back to me, if I can increase to $75.00/week. I did not agree – later I agreed as to his demand. It was tough – it moved up to $75.00/week. In 2007 he approached me to increase it to $100 per week. The engine was not in order. If I even fixed the engine I can then bring down the payment. We went to $100/week. 

In September 2007 my driver was still at Nausori stand. He (Defendant) approached the driver and took the van from the driver and not returned the van to me. Later on I saw the van travelling up and down. The same driver was driving from Suva and back. The next day I saw the van break down in Valelevu. The driver was not there. The van was empty. The van had engine breakdown. That Sunday I went to church on my return I saw both defendants were at home. Both started crying. They ask for forgiveness from me and my wife. The husband said we ask forgiveness and we made a mistake. They said for me to get the van and run it our self. I asked him not to do it again. They said they will not do it again. I paid all expenses and got the van. Took the tow truck. I went to Rask Auto as engine was gone. Made arrangements with Rask  - fit engine. Towards November the van was back on the road. The next day Donasio took it back from the driver without telling me. He took the van back and said I did not pay him and the payments to Carpenters. From that time I sought a solicitor. Claiming $27,000.00 from the Defendants. Claim interest and costs. Lived in nausori for 35 years. I never cheat anybody. I make my payments. PE-8 recollection of Mr Peters agreement – oral. Defence – no objection.”

PW-1’s response in Cross Examination – “ I had approached the defendants. I knew the Defendants had a permit. I proposed to them I will purchase the van. I agreed to pay $10,000.00 deposit. No written agreement. I proposed to pay $50/week. I agreed to pay Carpenters $865/month. 10 seater mini bus. At times I got good profits. Not many mini buses then. Did not get $150/day. $80 to $100 per day. Worked 6 days per week. Rest on Sundays. Got $400 per week (gross). Had agreed to pay Carpenters. I did not fail to pay Carpenters. In 2008 van was with defendants.  From 2004 to 2007 van with me. Not that I can recollect van was repossessed from me.

Yes, I missed some payments. From 2004 to 2007 I paid the defendants.  I honoured my payments to the Defendants. Every week I paid them. Cannot recall that I paid it into Westpac. I cannot recall 2 payments to Westpac. Yes. I made 2 payments to Westpac. Yes, when he threatened me- then I did. I had bought an engine. I did inform the defendant that I was buying the engine. Earned $100/day. Worked 6 days. $600/week. $2400/month. $28000.00/year. For 3 years $86,400. Did not make a lot of profit. Bill of sale was $31,000.00 when it was bought. I cannot recall $29,000 in Statement of Claim, Para -6. I did not know that the bailiff approached them. I approached Carpenters to buy as Guarantor. They will come to me as it is repossessed. 

Wages of driver (6 days). Payments for the van. Figure of $86,400 is gross. $850 –Carpenters, $150- Driver, $50 – payment to defendant. I have been paying the defendant before the engine broke. 2004-2007 I have been paying the defendants. Honouring the payments most of the times. I told Carpenters in the event the van is repossessed, I want to be the 1st buyer. Van was broken down in September 2007. All along I was handling the van. 

In re-examination PW-1 stated “ repaired van engine. Informed the defendants that I will repair the van. They knew I was looking for an engine. It was never agreed that the van will be transferred to me. I was just leasing.”   
 
The Material Evidence of – PW-2 – Iva Peters – “married to plaintiff. Hold account at Colonial bank. My account. My statement. Withdrew $10,000.00. purpose for my husband to make deposit for the van.”

There was no cross-examination of PW-2.

The Material Evidence of Defendants– DW-1 – Nemani Matanimeke – “5 children, know Plaintiff as good friends, I came to know plaintiff through his wife. The plaintiff approached us several times. I had to consult my wife as she was a permit holder. Plaintiff persuaded us to run the permit. Registered owner is me and my wife. Plaintiff agreed to do all payments. When van was bought in 2004 – 2007 van with plaintiff. All the payments and maintenance by plaintiff. We were not aware unless we approached him. Carpenters came to us when arrears. When we approached Carpenters on the situation. They told us they knew us. Bailiff started to come by 2007. I approached the Plaintiff. He did not do the payments as agreed. In 2007 the instalments was paid for 3 years. After 3 years van was not paid for carpenters repossessed the van. The plaintiff ignored all this. 

It was our responsibility to clear the arrears. The $50 Plaintiff agreed to pay us went for 3 weeks when we checked Westpac we had no money. At times I had to return the same day. At times I was chased out. I asked Plaintiff to clear my name with Carpenters. I told him I will forgo $50 if our name is cleared from Carpenters. In 2006, I was building my house. I tried to buy from carpenters. I had a bad record. I told Plaintiff this. The only option was to re-finance. I went to police to seize the van. I am the legal owner of the van. 2nd hand van from Carpenters. It was used by FEA before. We are 2nd owners. After 3 years Carpenters repossessed the van. They took it to bond. At 1st it was agreed that Plaintiff will pay $865 to Carpenters. I paid $3000 - $4000 to Carpenters and did some repairs. Repossession of van – DE-1. We made another agreement with Carpenters to clear the arrears. The van was with me. I paid Carpenters whole of amount due under the bill of sale. According to Carpenters I breached the agreement as the agreement was between us.” 

DW-1’s response in Cross Examination – “letter from Carpenters Finance addressed to me dated 14th October 2009. Got van from Plaintiff in 2007. 2 years after the van was re-possessed. Payment cleared in 2009. Does not state amount paid. I do know how much I paid.”

In re-examination DW-1 stated “I paid $9000.00 to clear the account.”

Analysis of the Evidence

From the evidence of the Plaintiff and the Defendant it is clear that they had an agreement for a van to be acquired in the name of the Defendants. The 2nd Defendant held a Mini bus permit. There is also no evidence disputing that the Plaintiff contributed $10,000.00 towards the deposit of the van. The Plaintiff was the guarantor of the finance arrangement that the Defendants had with Carpenters. 

The Court has the benefit of the Finance Debtor System, Ledger Account Enquiry (of Carpenters) of the Defendants which was submitted by the Plaintiff. This shows the payments made, account balance, balance due, arrears and with corresponding dates. 

The crucial evidence that this Court wishes to draw to the attention of the Party’s is:-

-	No written agreement. (by plaintiff)
-	On face value. (by Plaintiff)
-	For 3 years. (by Plaintiff)
-	Van taken away from Plaintiff sometime in September 2007. (by Plaintiff) 
-	Plaintiff agreed to pay deposit of $10,000 for the van. (by Plaintiff)
-	Pay Defendants $50 per week (by Plaintiff)
-	All payments and maintenance by the plaintiff ( by Defendant)
-	Duration of finance by Carpenters was 3 years. (by defendant)

The Ledger Account Enquiry submitted by the Plaintiff shows arrears of $2979.22 as at 21st March 2007. Account Balance at that date was $10,801.18. The Plaintiff also tendered evidence that he fitted new engine in the van. This is supported by receipts dated 3rd May 2007 and 7th May 2007 respectively. The Plaintiff’s evidence was that the van was taken by the Defendants in September 2007. This therefore means that the Plaintiff still had the vehicle with him when the engine broke-down in May 2007. The Plaintiff also gave evidence in November the van was back on the road. The next day the Defendants took it. The documentary evidence of the receipts of the change of engine do not reconcile with the dates given by the Plaintiff. The Plaintiff cannot claim for the repairs to the engine

From the Defendants evidence he cleared the arrears with Carpenters. The Plaintiff in PE-8 – his recollection of agreement writes that the van was re-possessed in November 2007. And balance due to Carpenters was $9000.00 in November 2007. This supports the Defendants assertion that the Plaintiff was no up to-date with the Payments to Carpenters and was in arrears. The finance term was 3 years and by November 2007 was to have been paid in full as the loan was taken in November 2004. 

The Defendant has tendered evidence to prove that he cleared the arrears due to Carpenters. The Courts finds that the Plaintiff did not make regular payments to Carpenters.

There is no evidence in this case as to what is supposed to happen after the expiry of the 3 year term when the Plaintiff’s ‘lease’ of the mini-bus finished. Was he to be refunded his $10,000.00 by the Defendants? The Plaintiff who is educated and knowledgeable knew the risks of the investment. He paid a deposit for the Van and had use of the van for almost 3 years. He paid the defendants and made payments to Carpenters. At the end of the 3 year loan term for the van Carpenters was still owed $9000.00 which was to be paid by the Plaintiff. This later was cleared by the Defendant. The Plaintiff now cannot claim the $10,000.00 deposit he paid for the van. The Court finds that there was no agreement for refund of the deposit after the 3 year period. 

The Plaintiff also made payments to Carpenters from the money earned in his use of the van. The Plaintiff knew the Defendants were legal owners of the vehicle and he was paying off for their van from the money he earned in using the van. The Plaintiff cannot now claim the deposit, the payments made and any money he spent on his use of the vehicle. The Plaintiff’s claim fails. 

The Party’s have the right to appeal.

Chaitanya Lakshman
Resident Magistrate

12/03/10