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Waiqele Sawmills Ltd v Begg [2016] FJHC 481; Civil Action 23.2014 (16 May 2016)

In the High Court of Fiji
At Labasa
Civil Jurisdiction Civil Action No. 23 of 2014

Between: Waiqele Sawmills Limited

Plaintiff

And: Wahid Begg

Defendant

Appearances: Mr A.Sen for the plaintiff

Mr S.Sharmafor the defendant

Date of hearing: 19^th April , 2016

Judgment

1. In these proceedings, the plaintiff company claims a sum of $ 29,943.59, in respect of timber and various hardware goods purchased by the defendant from the plaintiff company.
   
2. The defendant, in his statement of defence states that he entered into an agreement with Mr. Aziz Begg, a Director of the plaintiff company to supply timber and other hardware materials to him, in exchangefor the defendants’ farm house at Nabekavu, Labasa.The defendant states that section 16 of the Limitation Act precludes the plaintiff from instituting this action.
   

The hearing

3. The hearing commenced with the defendant’s evidence, in the light of the agreed fact that the plaintiff supplied timber to the defendant.
   

The defendant

4. The defendant, in evidence in chief said his “real” brotherAziz Begg, Director of the plaintiff companysupplied timber to him, in 2004 and 2005. The arrangement was that he give his house in Nabekavu, in exchange for the timber supplied.He required timber to build his house in Delailabasa. He did not make an application to the plaintiff company, to supply him timber on credit nor sign any document that he was supplied with timber on credit.He said that he did not receive the invoices from the plaintiff company of 4^th November,2004, to 8^th December,2004.
   
5. The defendant said that he had worked for the plaintiff company. He transported labourers of the plaintiff company, in his van. He paid $100 on 4^th April, 2011, and $100 on 31^st May,2011, on account of diesel supplied to him by the plaintiff company,on credit.
   
6. In cross-examination, Mr Sen, counsel for the plaintiff showed the witness several invoices for timber supplied to him. He agreed that the invoices were issued by the plaintiff company and do not refer to Aziz Begg. Except for one invoice, the others were signed by him. Another,he said, was signed on his behalf .The debit notes of the plaintiff company depicted that the plaintiff company supplied timber to him, not Aziz Begg.
   
7. It was put to him that in the affidavit filed by him in these proceedings to set aside the default judgment entered, he had lied that:(i)Aziz Begg was his cousin,and (ii)he will issue proceedings against him. PW1 replied that he cannot file proceedings against his real brother.
   
8. Next Mr Sen showed him the Sale and Purchase Agreement between Aziz Begg and the defendant of 8^th July,2004, for the purchase of the house inNabekavu,for $ 7000. DW1 said that it was for the land, not the house. It was put to him that when his father’s estate was being distributed, the witness was paid $7000 for his house and the sugar cane plantation of 5 acres. It was also put to him that a 2 bedroomed house could not be worth $ 30000.
   
9. DW1 admitted that he paid $ 200 on account of timber supplied, as stated in the receipts dated 4^th April, 2011, and 31^st May,2011. He denied that he told his brother that he will pay his debt for timber supplied, when he sells his house at Tuatua. He said that he had no money left after the sale of his house. He only had a taxi. He sold his house for $ 25,000.
   
10. In re-examination, the defendant said that he could not understand the terms of the Sale and Purchase Agreement. His brother did not advise him.
    

PW1

11. PW1(Rakesh Kamaraj, Company Accountant of the plaintiff company) testified that the plaintiff company was in the business of logging and saw milling. He said that the defendant owed money to the plaintiff company, on account of timber supplied .The defendant said that he would make payment from his fixed term deposits and the sale proceeds of his house. Timber was supplied by the plaintiff company. It was not a private dealing between a Director of the plaintiff company and the defendant.
    
12. He produced the several invoices issued by the plaintiff company to the defendant, the corresponding debit notes and the receipts of payments for $100 on 4^th April, 2011, and $100 on 31^st May,2011. The defendant did not have an account with the plaintiff company, on account of diesel for his van.
    
13. In cross-examination, PW1 was asked whether the defendant had made a credit application. PW1 said that the timber was supplied on “good terms” by the Operations Manager. Ahamed Begg and Aziz Begg approved the supply of timber to the defendant .The defendant made part payment for the supply of timber. The part payments were not towards diesel supplied by the plaintiff company for the defendant’s van. The cost of diesel supplied by the plaintiff company to the defendant was deducted from monies paid for the hire of his van.
    

PW2

14. PW2(Aziz Begg, Managing Director of the plaintiff company) said that he does not combine his personal dealings with the business of the company. He paid $ 7000 to the defendant for the land and house. The land and house belonged to his father’s estate. He produce the relevant Sale and Purchase Agreement. The plaintiff company supplied timber to the defendant, as a separate transaction.
    
15. PW2 denied in cross-examination that he agreed to supply timber to the defendant, as Managing Director of the plaintiff company. He was not empowered to make a decision on behalf of the plaintiff company.
    

The determination

16. The issues raised at the PTC are as follows:

WASthe supply of timber by the plaintiff to the defendant to an agreement between the defendant and Aziz Begg?

ALTERNATIVELYwas the sale of timber by the plaintiff to the defendant a credit transaction?

DIDthe defendant pay to the plaintiff a sum of $100 on 4^th April 2011 and a further sum of $100 on 31^st May 2011?

IS Section 16 of Limitation Act Cap 35 applicable as a defence to the defendant?

ISthe plaintiff entitled for a sum of $29,943.59 together with costs and interests.

17. I will first deal with the issue of limitation.
    
18. Mr Sharma, counsel for the plaintiff, in his closing submissions submits that the claim is time barred, since the cause of action arose in 2004. The case was instituted in April,2015.A claim for damages for breach of agreement is required to be filed within six years from the date of breach, in terms of section 4 of the Limitation Act.
    
19. Mr Sen, in his closing submissions refers to section 12(3) of the Limitation Act, which provides that “ 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 person 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.”
    
20. I find that there was acknowledgement of the debt by the defendant when he made part payments on 4^th April, 2011, and 31^st May,2011, which brings the case within section 12 (3).
    
21. On an examination of the copy of the receipts dated 4^th April, 2011, and 31^st May,2011, issued by the plaintiff company to the defendant, I am satisfied that:(1)the plaintiff company entered into an agreement with the defendant to supply timber, (2)the defendant paid a sum of $200 to the plaintiff company on “ account of timber”, as expressly stated in both receipts and admitted by the defendant in cross-examination.
    
22. I do not accept the defendant’s evidence that Aziz Begg and the defendant entered into an agreement to give the defendant’s house in Nabekavu, in exchange for the timber supplied by the plaintiff company to him.
    
23. In my view, the sale of the defendants’ house was a separate transaction between Aziz Beggand the defendant, as evidenced in the Sale and PurchaseAgreement.
    
24. The second disputed issue recorded at the PTC raises an issue whether alternatively, the sale of timber by the plaintiff to the defendant was a credit transaction.
    
25. Mr Sharma, in his closing submissions argues that there is non-compliance with section 6 (1) of the Sale of Goods, as the defendant had not signed all the invoices produced by the plaintiff.
    
26. In cross-examination, the defendant accepted that he signed all but one of the invoices. One invoice was signed on his behalf. He said that the invoice marked “P6 ” was not signed by him.
    
27. I do not accept his evidence that he did not sign that invoice. The contents of “P6 ” are similar to the other invoices issued to the defendant. I find no reason to doubt that the invoice was not signed by the defendant.
    
28. I need hardly deal with the submission on behalf of the defendant that the Consumer Credit Act, 1999, applies to the transaction between the parties.
    
29. It suffices if I refer to the long title of the Act which states that it regulates“consumer credit agreements and related mortgages, guarantees, sale contracts and insurance contracts, for the regulation of consumer leases and hire purchase agreements, and for related matters”
    
30. I note that the defendant at the conclusion of his cross-examination stated that he did not have any money left, after he sold his house. He said that he only has his taxi now.
    
31. In my judgment, the evidence establishes that the plaintiff is entitled to judgment against the defendant in a sum of $ 29,943.59.
    
32. Orders
    • (a) The defendant shall pay the plaintiff a sum of$ 29,943.59.
    • (b) The defendant shall pay the plaintiff a sum of $ 1000 as costs summarily assessed.
      

A.L.B.Brito-Mutunayagam

Judge

16^th May,2016