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Carpenters Fiji Ltd v Munaf [2004] FJHC 508; HBC0074.1997L (22 November 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0074 OF 1997L

BETWEEN:

CARPENTERS FIJI LIMITED
Plaintiff

AND:

ABDUL MUNAF
f/n Abdul Rahiman
Defendant

Counsel:
Ms. S. Sahu Khan for the plaintiff
Mr. D. Naidu for the defendant

Hearing & Ruling: 22 November 2004

EXTEMPORE RULING ON NO CASE TO ANSWER

With respect to the submission made on behalf of the defendant that there is no case to answer. The submission having been made at the close of the plaintiff’s case.

The evidence that has been placed before the court by the plaintiff comprises the oral evidence of Mr. Nilesh Karan, Credit Officer – Legal, at the plaintiff company. In his evidence, he indicates that he is a recent, in the context of this litigation, employee of the plaintiff and has no personal knowledge of the affairs of the plaintiff company throughout the period covered by the statement of claim, that is 1992 to 1997. His evidence of necessity deals with the present day procedures of the plaintiff company. His evidence of a general nature is, that when a purchase is made from one of the plaintiff company’s outlets in Fiji, an invoice is generated and that invoice is in triplicate, one copy is given to the customer and two copies are forwarded to the plaintiff company’s head office in Suva. The details contained or some of them at least in those invoices are then posted to a computer system.

The statement of claim filed by the plaintiff pleads that the defendant applied to the plaintiff to be granted credit in May 1992 and to be supplied with goods and services on credit and that thereafter, purchases were made and that the defendant became indebted to the plaintiff in the sum of $17,170.44. The demand was made for the payment of that money that wasn’t paid and that sum attracts interests at a pleaded rate of 1.25% per month until payment.

The witness tenders to the court various documents. First of which, Exhibit P-1, is a letter from the Fiji Police Force addressed to Carpenters Fiji Limited dated the 19^th February 1999 and this letters confirms that on Friday, 4^th December 1998 at about 9.00pm a fire occurred at the Morris Hedstrom Department Store, Thompson Street, Suva and that the premises were totally gutted by the fire damaging the whole of the building, its contents and documents.

The evidence of the witness is that the records relevant to these proceedings, that is the two copies of the invoices forwarded to the head office in Suva were destroyed in that fire. It is noted that the witness gives that evidence notwithstanding his recent employment with the company.

The plaintiff then tenders via the witness, Exhibit P-2, which is a business credit account application made by the defendant on which there is a received stamp of the 25^th May 1992 and in which the defendant seeks a credit limit of $1,000.00 and the maximum limit per month of $500.00.

Through the witness is also tendered Exhibit P-3, which is an application for registration of the business name of the defendant and Exhibit P-4, which is a certificate of registration of that business name.

There is then tendered Exhibit P-5, which is a computer printout of the records of the plaintiff’s company, certified in accordance with the provisions of section 11 of the Civil Evidence Act, the document has been tendered and admitted into evidence by virtue of those provisions.

Page 1 of this document shows that the customer number is 157878 and the customer name is A. Munaf & Sons, that is the defendant. The document then shows that under that customer number and reference “BM”, a reference which was later evidenced to be a reference to building merchants; it shows a balance of $3,180.00 and then under the same customer number and reference “MH”, which was evidenced to be Morris Hedstrom, shows an amount of $10,750.42 outstanding. These amounts totaled $13,930.42.

Page 2 of the document deals solely with the sum of $10,750.42 and otherwise contains the same client number, customer name and shows a last receipt of $10,750.43 on the 30^th December 1999. It is very difficult to reconcile the contents of the document.

Page 3 deals solely with the sum of $3,180.00 again with the same customer number and customer name. It shows a last receipt of $2,134.84 with a minus sign of the 22^nd March 1997 which the witness acknowledged was a credit on that date and shows a balance outstanding of $3,180.00.

Page 4 of the document is perhaps what one would expect to be printed out and that is the detailed ledger but it relates only to the “BM” transactions and for the period 9^th December 1996 to 14^th December 1996 and shows as at December 1996, a balance outstanding of $3,000.00. There were then interest calculations whereby the sum of $45.00 is added on 4 occasions, through to June 1997 resulting in the balance of $3,180.00.

The credit of $2,134.84 of the 2^nd March 1997 does not appear on that document and as it is shown to be a last receipt and is acknowledged to be a credit and is dated the 22^nd March 1997 it is very difficult to reconcile with the page 4, which shows a balance of $3,000.00 in December 1996 and a resultant balance of $3,180.00 at June 1997 when the only additional amounts are 4 debits of interests of $45.00 each. Clearly, the receipt if it is receipted is not being credited.

The witness as I have said has no knowledge of what actually occurred throughout the relevant period. He was in other employment at that time, completely unrelated to the plaintiff’s business. He does however say, the source of which is not stated, that the company has a network computer system enabling access to the computer network from any outlet and it is from his office that he has printed out, Exhibit P-4. He then says that the file server for that computer network was based in the head office in Suva which was destroyed by fire and is the subject of the description contained in Exhibit P-1. If the file server was destroyed by fire, there must then be some doubt as to the accuracy of the records contained on it. That doubt is to whether the records that is now produced as Exhibit P-5, are in fact a reconstruction from some records that existed after the fire in 1998.

The defendant has tendered by cross-examination a customer copy invoice no. 719116 as Exhibit D-1. That invoice is for purchase apparently made on the 20^th August 1996, it is a period prior to the limited period detailed in page 4 of Exhibit P-5 but it does show that there were in fact transactions from Carpenters Builders Merchants prior to that limited period shown in page 4 of Exhibit P-5. The computer printout, Exhibit 5, does not contain the totality of the transactions.

Where an application is made for no case to answer or effectively for a verdict by the direction, it will succeed if there is no evidence on which a properly directed tried of fact, which in this case is me, there being no jury, would be entitled to find the material facts of the claim proved on the balance of probabilities -Metropolitan Railway & Co. v Jackson [1877] 3 App 193 at 207 but there is authority that it may also succeed if:

“Evidence is so weak or so unsatisfactory that it should not be accepted” – Tate v Johnson (1953) 53 SR (NSW) 492 at 495.

The evidence that is before the court in this matter whilst being some evidence that the defendant may be or may have been indebted to the plaintiff is in my opinion so weak and so unsatisfactory that it should not be accepted to satisfy the test that the plaintiff has proved on the balance of probabilities that the defendant is indebted to it as alleged in the statement of claim or at all and accordingly, I find that there is in fact no case to answer and there shall be a verdict for the defendant.

I order the plaintiff to pay the defendant’s costs in the sum of Seven Hundred and Fifty Dollars ($750.00).

JOHN CONNORS
JUDGE

At Lautoka
22 November 2004