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Cosmetics Black Peal (Fiji) v Kumar [2011] FJMC 151; Civil Case 93.2009 (18 November 2011)

IN THE MAGISTRATES COURT AT NASINU, FIJI ISLANDS

Civil Case No. 93/2009

BETWEEN:

COSMETICS BLACK PEARL (FIJI) having its registered office at 71 Moala Street, Samabula, Suva.
Plaintiff

AND:

VINEETA NANDANI KUMAR and SIDHANTH CHAND f/n Bal Mukund Trading as HAPPY MEALS INVESTMENT (FIJI) having its registered office at 48 Vo Place, Valelevu, Nasinu.
Defendants

Mr. Sunil Kumar for the Plaintiff
The Defendant 2nd Defendant was present and appeared in person.

Judgment

Background

1] By writ of summons the plaintiff company commenced this action against the Defendant Company. The Facts of the Plaintiff's case are as follows;

a) THAT the Plaintiff is IMPORTER, EXPORTER & WHOLESALERS of the Cosmetics.

2. THAT the defendants are running a business of General Merchants, Sales and Services.
   

100. THAT the Plaintiff claims from the Defendant the balance sum of $23,436.82 (Twenty three thousand four hundred and thirty six dollars and eighty two cents) being for cosmetics goods sold and delivered to them at their request.
     

4. THAT the defendants are well aware of the full particulars of the claim and.
   
5. THAT the Plaintiff made several demands on the Defendants and the second named defendant admits owing the balance sum but neglects or refuses to pay.
   

2] Therefore the Plaintiff prays the following Orders:

1. Judgment in the sum of $23,436.82.
   
2. Interest at the rate of 10% and 2.5% service chargeable on overdue accounts.
   

100. Cost of this action.
     

4. That the total judgment sum cost, interest and service charge to be confined within the jurisdiction of this Court.
   

3] The Defendant Company opposed the claim. They filed statement of defence and made counter claim. Their claim can be summarized as follows;

1. THAT the 1st Defendant is the owner of HAPPY MEALS INVESTMENTS (FIJI).
   
2. THAT the 2nd Defendant is the Director of HAPPY MEALS INVESTMENT (FIJI).
   

100. THAT above named COSMETICS BLACK PEARL (FIJI) with permission in writing have appointed defendants and or its company to provide service as distributorship and wholesaler of COSMETICS BLACK PEARL (FIJI) and ALMEX MARKETING AUSTRALIA and its products to sell in the western division and in outer islands in Fiji, in November 2008.
     

4. THAT HAPPY MEALS INVESTMENT (FIJI) and the Director of SIDHARTH CHAND was having a five (5) year contract with COSMETIC BLACK PEARL (FIJI) dated from 24th November 2008 to 24th November 2013.
   
5. THAT upon sudden change of the distributorship by COSMETIC BLACK PEARL (FIJI) Director of HAPPY MEALS INVESTMENT (FIJI) have filed a legal suit against the Plaintiff on the 10th day of August 2009.
   
6. THAT the writ is held at the Court House at Nasinu.
   
7. THAT the suit is yet to be answered by the Plaintiff wherefore the Plaintiff is the defendant in the other matter (Civil Action Number 83 of 2009).
   
8. THAT we, VINEETA NANDANI KUMAR and SIDHARTH CHAND have invested a large sum of monies which is involved in the distributorship and advertising of the Plaintiff's merchant.
   
9. THAT we VINEETA NANDANI KUMAR and SIDHARTH CHAND hereby pray to this Honorable Court that this matter may be held until it is cleared that's why our distributorship was withdrawn by COSMETIC BLACK PEARL (FIJI).
   
10. THAT the defendant in this matter is the Plaintiff in the other matter (Civil Action Number 83 of 2009).
    
11. THAT we, VINEETA NANDANI KUMAR and SIDHARTH CHAND do wish to contest this matter until the other matter is resolved.
    

4] Therefore the defendant sought this matter be stayed until the other matter is resolved (Civil Action Number 83 of 2009). But No other relief is sought by the Defendants in their statement of defence.

5] On 05th October 2011, this case was heard. The presence of 1st Defendant was excused on the application of 2nd Defendant. They are wife and husband. The Plaintiff counsel then asked default judgment as the Defendant did not deny the claim in the statement of defence. Then, 2nd Defendant asked date to file amended statement of defence. This was vehemently objected by the Plaintiff. By that time the pleading were closed and the defendant has given ample time to file the amended defence if necessary. But he failed to do so until the eve of trial and adjournment was refused as ignorance of law is no excuse for anybody.

Evidence

6] At the trial, on behalf of the plaintiff company, one Ms. Lily Silivia, gave evidence. She said she the account clerk of the plaintiff company. It owns by Mr. Susil Chand. The Defendants owes $23,436.82. But out of that amount the defendant has paid $632.38. Therefore the plaintiff seeks reduced judgment for sum of $22864.24. She produced Ex-1 the invoices and Ex-2 summary as documentary evidence. The good has accounted on invoices. She prayed for judgment. The plaintiff further claimed 10% and 2.5% interest from overdue accounts.

7] The witness was cross examined at length. She said that she is well aware of outstanding debts of defendants. The witness was shown 3 receipts (Defence Ex-1) and those were issued on Aldex trading's receipts. The Defendant asked why those were issued under different company name receipts. The witness said Aldex and Cosmetic pearls are brothers and if there is no one from Cosmetics, the Aldex receive it on their name and later it will be transferred to Cosmetics. In Ex-1 the witness pointed out the signature of the second defendant accepted the goods except on invoices number 0128 and 0431. The witness said the person who delivered the goods must have forgotten to take the signature. The witness admitted that invoice number 0431 is not an invoice and it was done as credit note. The witness said the money of D-EX-1 has been deducted and claim is correct. The witness further said that the Aldex basically supplies cosmetics to the plaintiff company.

8] In the reexamination the witness said that all payments were deducted and Ex-2 shows the outstanding balance. The outstanding balance is $23,436.82 after deducting all payments.

9] Then, the Plaintiff closed the case.

10] For the Defendant Company, 2nd Defendant, Mr. Siddharth Chand gave evidence. He said that claim is totally wrong. He got five years distributorship from Aldex Marketing Australia for Western division of the country. Then, in order to serve the company, he moved to western with the family. The defendant said on 16-01-2009 he returned the goods to one Rohit Chand. The amount was $20,508.52. The Rohit Chand took goods from his Lautoka premises and came in EW 508 vehicle. The defendant tendered D-EX-2 to 4 to prove that he returned the goods. Mr. Susil Chand is the director of Aldex Marketing and Cosmetics Pearl. He said that he made acknowledgement as D-EX-5 that he owes $11,000 to the Cosmetics Black Pearl and not $23,436.82. But he agreed that he owes sum of $3000 to the plaintiff company in his evidence in chief, but disputed $11,000 as he agreed in D-EX-5.

11] In cross examination, the witness said at the moment he is not a company director and just a salesman. But his wife owns the company. The witness was questioned that his statement of defence nothing mentioned about his payment or returned goods. The witness said he was unaware of the Magistrate Court's trial procedure as he had not been to a law school. The plaintiff questioned that all the documents tendered to the court by the defendant was prior to the writ of summons. The defended denied, but he admitted that he did not mention in his statement of defence that goods have been retured. He further said that Fiji Military after him and he did not get the originals. Referring to D-Ex-5, the defendant said that he will not call Solicitor Mr Mukesh Nand to prove this letter. The Plaintiff counsel suggested this is a fabricated letter (D-EX-5), but the 2nd defendant denied it. The defendant said that he was unaware of law suit. The Presiding Magistrate did not instruct him to get legal advice. He said he dispute the $23,436.82 to be paid. It was suggested on the statement of defence the defendant has not disputed the claim. The witness said he has not accepted claim but the statement of defence is based on other claim.

12] Then the defendants closed their case.

Determination

13] I now evaluate the evidence before me. The defendant in their statement of defence did not dispute the claim. The plaintiff's evidence shows apart from two receipts other all receipts have been duly signed by the second defendant. By an oversight, these two receipts may have not signed. 2nd Defendant said that he returned the goods to the plaintiff. Then, burden is on the Defendants that they returned the goods. The defendant said on 16-01-2009 he returned the goods to one Rohit Chand. The amount was $20,508.52. The Rohit Chand took goods from his Lautoka premises and came in EW 508 vehicle. But to prove this, no one was called. The Plaintiff's case is solely based on documentary evidence. But the defendants' documents did not prove that current claim has been settled. This case was filed in 2009. At the trial the 2nd Defendant said he did not get the legal assistance and need a date to file amended defence. Second defendant said that my predecessor did not give any instructions to retain a counsel or get instructions from a lawyer. In this country, we are in Adversarial system and not in the inquisitorial system. Therefore, the parties must prove their case against each other and the judiciary must maintain the neutrality. In R. V. Sussex Justices, ex –parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 Lord Hewart stressed " It is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done" (Emphasis is mine) . Therefore court cannot advice litigants whatsoever. The defendant said that he has never gone to a law school. It seems that law is a greedy mistress and you have to spend more money to get the outcome and shelter of law. However, the Ignorance of law is no excuse-Ignorantia Legis Neminem Excusat". This case was filed in 2009. The defendants have slept over their rights. I am relying on the legal maxim of "Lex Vigilantibus, Non Dormientibus, Subvenit- Law assists the wakeful, not the sleeping". I therefore lament, nothing can be done for ignorance and non filing of proper statement of defence.

14] I now turn to consider the actual amount to be paid by the defendants. The plaintiff is in her evidence in chief asked reduced judgment for $22864.24. The defendant in his evidence said that he still owes $3000. But his figure is not fixed. In D Ex-5, the defendant stated that he owes $11,000. This is contrary to own evidence. Therefore I cannot rely on 2nd defendant's evidence. The defendant said that he paid and returned some goods. In Ex-2, it could be noted that total sum of $15086.68 moneys and goods have been returned to the plaintiff. If the Defendants returned all remaining goods there should be proof for it. But the defendants failed to produce any receipts and all D-EX-1 to 4 documents were issued prior to the institution of this action. This is a civil suit and parties should prove their case on balance of probabilities. All EX-1 invoices prove that the defendants took the goods, but the defendant failed to prove that they paid or returned, but EX-2 shows that sum of $15086.68 paid and returned items have already been deducted by the claim.

15] Therefore, I am satisfied that the plaintiff company has proved it case on balance of probabilities, but the defendant failed to do so and did not file valid defence. In the statement of defence the defendant did not deny the claim. As I said earlier, lack of knowledge of law is no excuse.

16] I make following orders.

1. There will be a judgment for the Plaintiffs. I grant Judgment as the Plaintiffs prayed reduced judgment for sum of $22864.24.
   
2. The Defendant's Statement of Defence is hereby dismissed.
   

100. The Plaintiff Company is entitled to get 5% legal interest as set out in order XXXII-Rule of the Magistrates Courts Rules (Cap 14).
     

4. The Defendants should pay $1000 as cost to the plaintiff (summarily assessed).
   

17] Judgment to be entered accordingly.

On 18th November 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu