IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Case No. 10/2008

BETWEEN:

G.M.R. MUHAMMED & SONS LIMITED 
a limited liability company having its registered office at Gulam place,9 ½ miles, Fiji.
Plaintiff

AND:

KAILASH WATI 
(Fathers name unknown to plantiff) of Lot 42,Ura Place,Valalvu, Nasinu, Fiji.
Defendant

Ms. Narayan I (Diven Prasad Lawyers) for the Plaintiff
Mr.Naidu.K for the Defendant 

Judgment

[1] The Plaintiff of this action filed statement of claim 13th February 2008 claiming the balance sum of $ 6,281.09 and other remedies from the defendant as the price for perches items by the defendant more specifically remaining dues of defendants purchased hardware and timber from the Plaintiff in the total sum of 15,781.09 on or between August 2001 and 15th October 2001. 

[2] The defendant filed statement of defence and The Defendant categorically denies the claim and further stated that the Defendant at no material time bought any goods from the Plaintiff Company. Therefore the defendant sought struck out the action and other remedies as The Plaintiff has no reasonable/no cause of action against the Defendant as The Plaintiff is trying to unjustly enrich itself; The action is an abuse of Court process; seek Costs on a full solicitor/client indemnity basis. 

[3] The defendant further stated that the transaction so claimed by the Plaintiff is well outside the time limit stipulated in the Limitation Act (Cap 35) of Fiji and therefore the Plaintiff is statute barred to instigate any action in any competent Court of Law. Then, the plaintiffs counsels filed their submissions to this court, stated above mentioned legal barrier is not applicable to this case as plaintiff has paid some monies at year 2003. 

[4] The basic issue before this court was to determine whether 

 a) as per the time limit stipulated in the Limitation Act (Cap 35) of Fiji the Plaintiff has statute barred to instigate any action in any competent Court of Law or not? And 

 b) If the answer is "no" as per statement of claims what are the remedies available for the plaintiff of this action? 

 [5] The defendant based their argument on Section 4 of the said Act. The section 4 of the act has provided as follows;

Sec 4.-(1) the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

a.	Actions founded on simple contract or on tort;
b.	Actions to enforce a recognizance;
c.	Actions to enforce an award, where the submission is not by an instrument under seal:
d.	Actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by of penalty or forfeiture:

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action. 

[6] The plaintiff responded to and stated their claim is not based on section 4 but 12(3) of the Limitation Act (cap35) of Fiji. Section 12(3) could be sited as follows; 

 "12(3) Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased persons or to any share or interest therein, and the person liable or accountable therefore acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement or the last payment." 

[7] This court has ruled in favorer of plaintiff on above legal issue on 25/02/2009. Further this court has stated that the court will determine the remedies available for the plaintiff after hear the evidence. The matter fixed for hearing on 2/10/2013 and 5/11/2013. The plaintiff called 01 witness and he marked EX-1 to ex-17 and defendant gave evidence for the defendant's case. The issues of this case could be listed as follows.

i.	 Whether the Defendant did in fact, purchase the material goods during the material time?

ii.	If the Defendant purchased the material goods as pleaded by the Plaintiff, whether the Defendant owed the sum of $15781.09?

iii.	Whether the Defendant paid the Plaintiff the sum of $9500.00 at the material time?

iv.	If the Defendant is held to be liable to the Plaintiff for the sum of $19781.09 and the Defendant is established to have paid the Plaintiff the sum of $9500.00, then, whether the Defendant is liable for the balance thereof?

Since the defendant has denied the existence of contract with the plaintiff for perches of hardware items on a credit account the main issue is whether there was a contract or not? If the answer is "NO" then the other issues will not arise. And if the answer is "YES" then the other issues to be answered accordingly. 

[8] According to evidence of the plaintiff following facts reviled.

The Plaintiff and the Defendants husband has involved in some transactions with regard to purchasing of building materials. The plaintiff is stating that Due to relationship between husband of the defendant and the managing director of plaintiff, they did not sign written contact but continued with chain of transactions which were based on oral agreement between the parties. The plaintiff had opened a credit account for the defendant as K.Wati with the reference no: K 10 which they have mentioned as required in the invoices. The plaintiff does not have any contractual document to prove their agreement except the invoices issued upon the delivering of the goods. The Plaintiff has received 3 cheque s which were issued by the "NASINU HOME BIULDERS "signed by the husband of the defendant. The plaintiffs witness has joined the plaintiff company in year 2005 after issue of this case aroused. Therefore his evidence based on the record and he does not have personal knowledge about the defendant. As at 2002 the defendant has owed sum of $15,700.00 to plaintiff. One Michael Shanker (the husband of the defendant) used to pay these monies as instalments. Later the defendant failed to pay the dues and the remaining credit balance is $ 6,281.09 and that is the claim of this case.
 
[9] According to evidence of the defendant following facts reviled.

The defendant denied any agreement or credit transaction whatsoever between her and the plaintiff company. The defendant denied the invoices and copies of cheques involved in the transaction shown to her as she is unaware of the same.The defendant admits the existence of "NASINU HOME BULDERS" as the business of her husband, the address mention in invoices and vehicle registration number which has used to deliver the relevant goods. The defendant denied the signature appeared in the invoices no: 67495 and 67920 which bear the total of $ 377.61. 
 
[10] According to Law the Burden of Proof is incumbent on the Plaintiff to prove its claim on the balance of probabilities. The Court in Narayan n Krishna [2012] FJMC 223, held that:

"11. The burden of proof lies upon the party who substantially asserts the affirmative of the issue (Robins v National Trust Co. (1927) A.C. 515). The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is "Ei qui affirmant non ei qui negatincumbit probation". It was held in Levy v AssicurazioniGenerali (1940) A.C. 791 that "this rule is adopted principally because it is but just that he who invokes that aid of the law should be the first to prove his case, and partly because in the nature of things, a negative is more difficult to establish than an affirmative".

[11] The standard of proof required in civil cases is generally expressed as proof on the balance of probability. Lord Denning in "Miller v Minister of Pensions (1947) 2 All E.R 372) held that "if the evidence is such that the tribunal can say "we think it more probable then not' the burden is discharged, but if the probabilities are equal it is not".

 Accordingly it is incumbent on the Plaintiff to show the Court that it is more probable than not, that the Defendant had a credit account with the Plaintiff, bought the material goods from the Plaintiff and short paid her credit account with the Plaintiff as pleaded by the Plaintiff.

[12] When evaluating the evidence placed before this court it is evident that the defendant husband or "NASINU HOME BUILDERS" has some business transaction on credit basis with the plaintiff. There were some short payments or dues have occurred with regard to transactions in issue .But has the plaintiff failed to establish the connection or agreement between defendant and plaintiff with regard to all the transaction in issue?

[13] All the transactions mentioned at this case could be listed as sale of goods. Therefore it is vital to mention the law related to sale of goods Especially with regard to implied contracts of sale of goods.

 Section 5 of Sale of Goods Act Cap 230 provide on how contract of sale are to be made as follows:

"Subject to the provisions of this Act and of any Act in that behalf, a contract of sale may be made in writing or by word of mouth or partly in writing and partly by word of mouth or may be implied from the conduct of the parties. Provided that nothing in this Section shall affect the law relating to corporations".

In addition, Section 6 of the Act states that:

"6-(1) A sale of goods on creditor an agreement to sell goods on credit in the course of trade shall not be enforceable by action at the suit of the seller, unless

(a)	At the time of the sale or agreement to sell, an invoice or docket, serially numbered, be made in writing in duplicate, both original and duplicate containing-

(i)	The serial number
(ii)	The date of the transaction
(iii)	The name of the buyer
(iv)	The nature and except in the case of goods exempted from this provision by order of the Minister, the quantity of the goods, in the English language and in figures and
(v)	The price in English words or figures and

(b)	At the time of delivery of the goods, the original or duplicate of the invoice or docket be delivered to the buyer or to some person to whom the goods may properly be delivered on his behalf;

 Provided that the provisions of this section shall not apply to an agreement to sell, over a period of time, goods of nature such as are commonly delivered at regular intervals, such as newspapers, bread or milk, or to any sale in pursuance of such agreement, where a written order signed by the buyer or his agent in that behalf is given to the seller at the time of the agreement to sell".

Further Section 30 of the Act further provides that:

"Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract express or implied between the parties. Apart from any such contract express or implied, the place of delivery is the seller's place of business if he has one, and if not, his residence; Provided that, if the contract be for the sale of specific goods which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery". 

[14] As per law of contract what is required to raise a claim before court is valid contract. There are different type contracts which range from simple sale of good in daily life to very complicated business agreements such as the banking or insurance contracts. And it may be byway of orally made face to face offer and acceptance or well prepared written format or invoice. The essence of entire contracts is same and that's offer acceptance and consideration nothing else. In HP Kasabia Brothers Ltd v Fiji Development Bank [2000] FJHC 29, that;

 'It is trite law that a contract is complete upon offer, acceptance of offer and the existence of consideration". 

Further The Court of Appeal in International Property Auctions Ltd v Fiji Development Bank [2008] FJCA 46, para 4 stated: 

 "Express and implied contracts are both contracts in true sense of the term, for they both arise from the agreement of the parties, though in one case the agreement is manifested in words and in the other case by conduct..." 

The defendant has raised objection to claims as the initial contract was with the husband of the defendant and plaintiff and she is not liable or abide by the same. In Pacific Transport Company Ltd v Latchan Express Services Ltd [1997] FJHC 264:

"What the basis of this action is, it is not clear at all. The situation that prevails here leads me on to consider the 'doctrine of privity of contract'. There is no privity between the parties to this action. The doctrine as stated in Halsbury's Vol 9 4th Ed. Para 329 is as follows and it is pertinent to bear it in mind in considering the issues before me. 

"The doctrine of privity of contract is that, as a general rule, a contract cannot confer rights or impose obligations on strangers to it,that is persons who are not parties to it. The parties to a contract are those persons who reach agreement and whilst it may be clear in a simple case who those parties are, it may not be so obvious where there are several contracts, or several parties, or both, for example in the case of multilateral contracts; collateral contracts, irrevocable credits, contracts made on the basis of the memorandum and articles of a company, collective agreements; and contracts with unincorporated associations.

Despite some earlier doubts, the doctrine of privity has been accepted by the Courts and would seem to be intimately connected with the doctrine of consideration and the rule that consideration must move from the promises".

Therefore this court has to find out whether there is offer, acceptance and consideration existing among these parties and whether the defendant is a stranger to contracts in issue. 

[15] Mr. Shamsheer Ali the witness of the plaintiff in his evidence stated that customers have to apply for a credit account and go through other procedures but with the Defendant they did not follow the same under special circumstances. But the witness stated that there was an implied credit agreement and the agreement (which is denied by the Defendant) on the face of the invoices. It is noted that as per law of sale of goods there is no hard rule expecting that all the sale of goods agreements must commenced with written formalities or contract. This court can see some evidence to support an implied credit agreement. The Defendant has denied the existence of any credit agreement from the outset but the Plaintiff did adduce evidence to show that there existed a credit agreement between the parties. The witness for the plaintiff has joined the plaintiff company in year 2005 after issue of this case aroused. Therefore his evidence based on the record and he does not have personal knowledge about the defendant or what really happened between parties. 

[16] Even though the defendants stand that there is no evidence before the Court to show the existence of a credit account or there is no document signifying an application for a credit account this court has noticed 13 invoices in which the defendant has placed order herself and (in some of them) received the good herself by signing the invoice from the same address. It is hard to accept the argument that the defendant was unaware of these transactions of her spouse and plaintiff at a situation where the defendant and borrower stayed together at the material time at the same address and goods has been delivered to the same in a vehicle belongs to them. It is impossible to say that all this as co incident or setup. As per exhibit -11 the name k.wati "NASINU HOME BUILDERS" And account number K10 are one unit and the defendant has admitted that "NASINU HOME BUILDERS" was her husband's business. Further As per the statement of defence the defendant denied claim against her and stated in paragraph 3 that "the defendant at no marital time bought any goods from the plaintiff company". But at the trial the defendant said that she went to Plaintiff to buy goods but for cash and no credit.Therefore defendant has estoppels by her admission at the evidence. 

[17] This court is mindful that the defendant has denied the signature appeared on the invoices. But would it be reasonable to think that a company will deliver the goods for unknown person for more than 8 months continuously on several occasions unless they received money for their earlier deliveries? Especially the invoices carries a condition stating that ownership for the items detailed in the invoice shall only be transferred to the purchaser when payment for this items has been made in full & realized. All the invoices got a sealed on it "delivered" but none of the invoices has "paid" seal on it. This gives an impression that the transactions were on credit basis and not on cash payments. She admitted that her husband has made some payments as "NASINU HOME BIULDERS" for the account named " k.wati". Further the defendant couldn't justify the payments valued $ 9500.00 by her husband or "NASINU HOME BUILDERS" to Plaintiff company with regard to said account named " K.Wati". When considering the all this facts together this court can come to a conclusion that the defendant had involved in this transaction willingly and that the defendant knew or supposed to know about her liability with regard to the same. 

[18] Therefore this court upon the balance of probability of the evidence and as per section 5 and 6 of sale of goods Act Cap 230 finds there is a contract between the plaintiff, defendant and her late husband for sale of good on credit basis. These invoices itself are written credit contracts between of the parties. Offers have been made by the defendant and acceptances have done by plaintiff by issuing of the same and delivering of valuable hardware was the consideration for this contracts. There is clear meeting of the minds or 'consensus ad idem". And the defendant is not a stranger but a party to the contract. The evidence of the Defendant that she has no knowledge of a credit account with the Plaintiff or of receiving any deliveries from the Plaintiff has less credibility. Therefore based on this fact it obviously gives right to the plaintiff to make a demand and which the plaintiff has done by way of exhibit -15, 16 & 17. And the defendant has failed to reply to the same. 

[19] The defendant completely denied the transactions with the plaintiff. And at the evidence she was fully depended on the denial but did not dispute the documents tendered by the plaintiff before this court Other than try to mention some defects on the documents such as blanks, writing mistakes. It is unreasonable and impractical to expect issuing of invoices/document from a hardware shop at day to day business transactions but from a bank. Therefore as per section 3 of the evidence Act this court will accept the documents tendered by the plaintiff and will not considered mistakes mention by the defendant on the documents as sufficient to defeat or rebut the plaintiff's evidence or stand of this matter. 

[20]Therefore after consider the documents marked by plaintiff this court answers the issues of this case as follows;

i.	Whether the Defendant did in fact, purchase the material goods during the material time? 
Answer: Yes

ii.	If the Defendant purchased the material goods as pleaded by the Plaintiff, whether the Defendant owed the sum of $15781.09? Answer: Yes 

iii.	Whether the Defendant paid the Plaintiff the sum of $9500.00 at the material time? 
Answer: Yes

iv.	If the Defendant is held to be liable to the Plaintiff for the sum of $19781.09 and the Defendant is established to have paid the Plaintiff the sum of $9500.00, then, whether the Defendant is liable for the balance thereof?
 Answer: Yes

[21] Based on the above mentioned reasoning this court order;

a)	I grant Judgment against the defendant in the sum of $6,281.09 (Six Thousand Two Hundred and Eighty one Dollars Nine Cents only) as the Plaintiff prayed in the evidence and the statement of claim.

b)	In addition the Defendant should pay $ 1,500.00 as cost of the plaintiff including Court Fee, Bailiff Fee, Solicitor Cost within 14 days from the date of this judgment and; 

c)	Pursuant to Order 32 Rule 8 of the Magistrates Court Rules legal Interest at the rate of 5%, from the date of this judgment until the full sum is paid by the Defendants to the Plaintiff, but total sum is limited to $50,000.

[22] Judgment to be entered accordingly.

On 10th December 2014, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate