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Magistrates Court of Fiji |
IN THE MAGISTRATES COURT AT NASINU
Civil Case No. 107/10
BETWEEN:
MOHAMMED IMRAN QARAM of Nakasi, Businessman.
Plaintiff
AND:
NATIVA HOLDINGS LIMITED is a limited liability company having its Registered Office at 10 Karsanji Street, Vatuwaqa, Suva.
Defendant
Mr. Ram Chand for the Plaintiff
Mr. Ritesh Naidu for the Defendant
Judgment
Background
1] By writ of summons the plaintiffs commenced this action against the Defendant Company- Nativa Holdings Limited. The Facts of the Plaintiff’s case are as follows;
2] Therefore the Plaintiff prays the following Orders:
3] The Defendant Company opposed the claim. They filed statement of defence and made counter claim. Their claim can be summarized as follows;
Particulars
| Description of Vehicle | Storage Period | Charges |
| Toyota Townace CR 21 | 18/9/08 – 22/12/08 (96 days) | $1,440.00 @ $15 per day) |
| Toyota Mark II | 18/9/08 – 10/9/09 (287 days) | $4,305.00 @ $15 per day) |
| Hino Dump Truck | 18/9/08 – 1/9/09 (349 days) | $10,470.00 @ $30 per day) |
| TOTAL | | $16,215.00 |
4] Therefore the defendant claims that the Plaintiff in breach of the agreement failed to pay to the Defendant’s storage charges. The Defendant has made several demands but the Plaintiff has refused and/or neglected to make payments.
5] The Defendant Counterclaims:
(1) Judgment against the Plaintiff in the sum of $16,215.00 (sixteen thousand two hundred fifteen dollars).
(2) Interest on overdue moneys at 23% per annum. Alternatively, statutory interest on the Judgment sum at 5% per annum from the date of Judgment Pursuant to Order XXXII Rule 8 of the Magistrates Court Rules;
(3) Costs on an indemnity basis;
6] for this counter claim the plaintiff replied; the Plaintiff admits that the Defendants is a limited liability Company from Mohammed Rizwan Haroon and that they have a bonded warehouse but further states that he only dealt with Mohammed Rizwan Haroon except that when he started pressuring Mohammed Rizwan Haroon for the payment of the charges as claimed in the sum of $7,400.00 the second Director Roopal Patel came in the picture and issued an invoice backdated to 1st day of December 2009 whereas the same was given to the Plaintiff on 15th day of March 2010 after some 9 months of the sale of the vehicle to a customer via Fiji Development Bank loan had taken place. Therefore the plaintiff denied the counter claim and prayed judgment be entered in his favour.
Evidence
7] On 04th May 2011, 18th May, 2011 trial was heard and both parties have filed their written submission respectively. Initially, Martino from Carz and CarZ gave evidence, but I take the plaintiff’s evidence first.
MR. MOHAMMED IMRAN QARAM (the Plaintiff); He said he is a dealer in motor vehicles. He sells vehicles and Company named as Tokuso Corporation Limited. He said he is the overseas director of this company. He said he knows the director of Nativa Holdings, Mr Riswan Ali. They dealt with him personal basis. He used CARZ and CARZ warehouse but he did not pay any rental. The plaintiff said they entered a deal with Nativa Holdings Company. The terms and Conditions were if they got any client they can sell the plaintiff’s vehicle at any price but defendant to pay CIF (Cost, Insurance and Freight) price to the plaintiff and they should also pay duty charges after selling the vehicle. The plaintiff categorically said there was no agreement to pay warehouse charges. There were three vehicles in dealing and the defendant sold Toyota Mark II and he signed the authorization papers in mid 2008. He said the CIF price was $7400 he asked the money from the defendant but they never paid it. The vehicle was sold through Credit Corp; he does not know the exact selling price. It was never revealed in this trial. The plaintiff said that he waited 6 to 8 months but they did not pay the CIF price for that vehicle to him. The plaintiff said there were two more vehicle and he paid the duty and took them back in month of September 2009. When he took those vehicles they did not inform that storage charges to be paid for these vehicles. The plaintiff said after six months of removal of those vehicles, in March 2010, the defendant company issued storage bill to him. It was three months back dated and he received it in March 2010. He said the directors allowed him to take back the vehicles, but, at that time no storage charges were claimed or mentioned. Therefore he prayed the judgment in favour of him.
8] The Plaintiff, in his cross examination said he has the license for the business. It was given to him by Tokuso Corporation Limited- Japan. The witness said the company is the dealer and he is the representative of the company. The company has registered his company in Fiji. He admitted that this vehicle imported by Tokuso Corporation Limited. When Tokuso Corporation Limited imports vehicles, those go to the Carz and Carz yard. Once the duty paid by the company, it takes the vehicles out. The witness said he chose to go to Nativa Holdings. He reiterated that arrangement was that him to get CIF price other profits goes to the Nativa Holdings. Apart from this Toyota Mark II, there were Hino truck and Town ace. For Hino and town Ace he paid the duty. The plaintiff admitted that defendant also imports vehicles and they invested $80000 to keep the warehouse. The plaintiff said that invoice was backdated and it was not given when last vehicle was released. The Plaintiff said he did not demand this money in writing, but he was promised to pay, but the defendant evaded the payment.
9] In re examination, the Plaintiff said he has the authority of the company.
10] The plaintiff called Mr. Maritino Daundcamika as witness. He said he works in Carz and Carz from 2003 as an Account Officer. He said he knows the Plaintiff and he does vehicle importing business. He said the plaintiff did not pay any rental charges or any sort of bondage charges for his vehicles.
11] In cross examination the witness said Carz and Carz provided service for storage and importing Japanese vehicles. They have bonded warehouse for that. He said an individual can store vehicles for that he has to pay storage charges. But in the case of the plaintiff they did not charge as both are Pakistani Nationals. In bonded warehouse, until custom duties are paid vehicles cannot move. The custom duties should pay by bonded warehouse owner.
12] Then the Plaintiff closed the case.
13] For the Defendant Company, a directress Mrs Roopal Patel gave evidence. She said she is one of director of Nativa Holdings and other director is Mr Riswan Ali Haroon, her husband. They engaged in importation of second hand Japanese vehicles and also operates custom bonded general warehouse. Nativa Holdings started in 2004 and they provide storage place for other customers on charges. She produced warehouse original register book to the court and relevant pages marked as DEX-1. In 2008, the Plaintiff and they discussed regarding three vehicles and they inspected the vehicles at Carz and Carz. She said the plaintiff wanted secure place to store because some of vehicle parts were missing when those were at Carz and Carz. The witness extensively elaborated the function of bonded warehouse in her evidence. She said after inspection they agreed with the Plaintiff to facilitate their warehouse. She said “we have not given anybody to general bonded warehouse on free basis, I was present that meeting, Rizwan explained the charges to Mr. Imran. This happened when he came to give details of Carz and Carz . Then after inspecting the three vehicles, we went to Imran’s office. Mr Imran agreed....There was not an agreement not to pay storage fees...” She said that two vehicle were taken much earlier. But no storage charges were paid. But she mentioned that he (the plaintiff) supposed to pay storage charges. She said that her husband said that the plaintiff is a Muslim and he will pay the storage charges. On that good faith they released vehicles without paying storage charges. She said they finally issued invoice to Mr. Imran. This invoice was tendered as DEX-2. The witness clarified the details of DEX-2 in her evidence. The witness said they sold Toyota Mark II and the plaintiff transferred the ownership, he claimed $7400 and they agreed. The witness said that money is still in their custody. She said that the plaintiff is not a personal friend of them and he called on odd times asking money. The plaintiff was fussing. She said that if the plaintiff pays the storage charge they are ready to release this money. Whenever they asked storage charges the plaintiff did not show any initiatives. She said that for warehouse they employed security guards, warehouse is on under flood lights, vehicle are washed therefore they charged storage charges. Therefore, as a counterclaim they seek $16,215 and other charges as prayed in their statement of defence.
14] In cross examination, the witness said the plaintiff came on his own to their office. The witness admitted that they owe $7400 to but they counterclaim $16.250 storage charges. But the plaintiff did not agree and dispute the storage charges. The Plaintiff suggested that there was no storage charge, but the witness said “No, There was an agreement. He did not answer anything. He said he will sell Hino truck and pay this storage charge. But he did not have any intention to pay it” This was a new edition that the plaintiff said to the witness that he will sell the Hino Truck and pay the storage charges. The witness said this version in the first time of her evidence under cross examination. The witness admitted by 01-12-2009 all vehicles were taken out and on 10-06-2009 Toyota Mark II was sold. But they tried to set off that money to storage the bill, the plaintiff refused. The Plaintiff was questioned “On 01-09-2009 you asked Imran to pay the amount, now you are changing tried to set off on 10-06-2009? I kept on mentioning him. Question: You sold the vehicle on 10-06-2009; did you reconcile the accounts on that date? Yes! I did on 10-06-2009. The duty was paid 10-06-2009, vehicle out of the bonded warehouse, vehicle was taken away after two months”. The witness admitted that Mark II’s money belongs to the plaintiff and every time he comes to them they remind him about the storage fees. But the Plaintiff did not want to deduct the storage fees and further said that Mark II’s profit belongs to Nativa holdings. At this time that witness said that the defendant did not claim the storage charges for Mark II and $4305 to be deducted from the counter claim. The witness admitted that the plaintiff strongly resisted that storage fees to be deducted and consequently they held the plaintiff’s money and the profit. The witness admitted that DEX-2 has mistakenly mentioned 4 units and it was a human error. While on cross examination, the witness admitted it was wrongly mentioned storage charges for Mark II. The witness admitted that DEX-2 is wrong. The plaintiff suggested that DEX-2 was issued in March 2010. The witness said she held other two vehicles till December 2009, but her husband agreed to release those vehicles without storage charges. The Plaintiff suggested that last vehicle was sold Toyota Town Ace. The witness said it was sold in 2008. According to DEX-3 Toyota Mark II entered to the bonded warehouse on 18th September 2008. It was delivered (Sold) on 10th June 2009. On 18th September 2009 Hino Dump Truck came and it was released on 01st September 2009, on 18th September 2011 Toyota Town ace came and it was delivered 24th December 2008. It is to be noted all three vehicles came on 18th September 2008 but went out different dates and last one was Hino Truck 18th September 2009. It seen that DEX-2 was issued 01st December 2009 after two months of Hino was removed. According to the plaintiff this invoice was backdated. The plaintiff suggested that there was no agreement for storage charges, it was made up and come afterwards. But witness said that there was a verbal agreement to pay storage charges.
15] In re examination she said they charge storage fees for the bonded warehouse only. She said once the duty is paid they do not charge for storage. Therefore they charged $11,910 as storage charge. When the plaintiff came to release the Hino Truck she took a print out (DEX-2) and gave it to the plaintiff. They did not release the Hino Truck. But the plaintiff did not agree to pay storage charges. But witness later said the plaintiff agreed to pay storage charges when Hino truck being sold. The court notes that this piece of evidence contradicts per se.
16] Second witness for the Defendant Company was Mr. Rizwaan Ali Haroon. He is a director of Nativa Holdings. He said in mid of 2008 the plaintiff came to his office and wanted his vehicles to be removed from Carz and Carz to his Nativa Holdings. He said he disclosed storage charges to the plaintiff at their first meeting. It was $15 per day for small vehicles and $30 per day for bigger vehicle. The witness said the plaintiff happily agreed to the rates. The witness elaborated the description and removal of vehicles from Carz and Carz. The witness adduced that the plaintiff said money is not issue for him when vehicles were sold storage charges could be dealt with. He said that the last vehicle was removed on 01-12-2009, when they did ask the storage charges the plaintiff said “We are brothers of Islam”. When he took last vehicle he asked CIF price, then they ask storage charges. Then he refused to pay. The witness tendered DEX-4 and said the plaintiff has no connection with Tokuso Corporation Limited according to company search. Therefore the claim storage charges for Town Ace and Hino Truck and it comes $11910.
17] On Cross examination the witness said he hold equal share with other director. The plaintiff agreed to pay storage charges before vehicles were moved. When vehicles were moved those were in running conditions. For Mark II duty was paid and vehicle was sold after one month. He did the body work. (This is new piece of evidence that they did the body work and it was never said by first witness for the defendant, Mrs. Roopal Patel.) But witness failed to prove exact selling date or they did body work. Then witness said “once we received the Mark II money, I told him that money received. He told to keep the money with us. He did not demand the money at that time; after he took last vehicle then he started demanding us” The witness admitted according to the DEX-3 they brought 7 vehicles from Carz and Carz through the plaintiff. He said three belongs to the plaintiff and other 4 belongs to the Carz and Carz. The witness said “for other four vehicles belongs to Carz and Carz. They took 3 vehicles and one was auctioned-C37475, custom took that vehicle. He (the plaintiff) should responsible to pay storage charges, but I did not charge for that”. Then witness went on saying Question:”Hino Truck kept as a Security, because he did not pay storage charges? Yes I confirm. Q: You held it for three months. Why did you release after three months without paying? He promised me that he got a customer when he sold it, he will pay storage charges, I trusted him and I could have sold it through us.” The court notes that now witness is changing the stance as he earlier said that “We are brother of Islam”, for that they released the vehicles, but now, they hold Hino Truck for three months as he admitted despite, they could have sold it. The witness admitted that Company Search was done after court hearing.
18] In re-examination, witness said initially they agreed storages charges for all three vehicles but for Mark II, there was no storage charge to be paid. According to the DEX-1, the custom entry shows the owners name. In that, even, court notes 5 vehicles belong to the plaintiff and 2 vehicles belongs to the Carz and Carz. But the Defendant claims storage charges for 3 vehicles in this case, later they amended it to Town Ace and Hino Truck and Mark II was released from storage charges.
19] Then the defendant closed their case. I am mindful of respective written submissions which both parties have made.
Determination
20] I now evaluate the evidence before me. The Defendant admits in their statement of defence and in their evidence that they owe $7400 to the plaintiff. But their contention is that the plaintiff owes $16,215.00 (sixteen thousand two hundred fifteen dollars) and they are rightfully holding plaintiff’s money. Later this amount was reduced to $11910. The Plaintiff states that this was a claim the Defendant made up after 9 months of his pursued for his money in the sum of $7,400.00 which the Defendant agreed to pay all along but finally at the end it refused to pay and issued the invoice backdated to 1st day of December 2009.The Defendant apparently amended its storage claim during trial by reducing the sum of $4,305.00. Hence, the storage charges for Mark II excluded after giving evidence. Thus, plainly, it seems that there is no agreement between the parties on the Defendant’s claim for the Plaintiff to pay storage charges.
21] I now turn to consider the legal implication of a valid contract, specially, verbal contract. Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated "agreements to be kept" or “pacts must be kept". Contract is an agreement entered into by two or more parties with the serious intention of creating a legal obligation or obligations, which may or may not have elements in writing. Contracts can also be formed orally (parol contracts). It is seen that there is no legal impediment to the parties entering into a contract based on their conduct and verbal statements or representations. When parties agree the terms of the contract by verbal statements, the binding terms of the contract are more difficult to ascertain. Usually a court will look to the history of the statements made by the parties and the performance of the parties to obtain assistance in determining what was actually agreed by the parties. Where one person however has not performed their part of the obligation, and court is left to more uncertain means in reaching a decision. Draft contract documents, emails, letters and order forms may lend assistance to deciding the terms of a verbal agreement in this regard, and courts have used similar agreements with third parties to apply a standard of reasonableness in determining the terms of the contract in the absence of writing. As I noted earlier, there is no legal impediment to the parties entering into a contract based on their conduct and verbal statements or representations. When parties agree the terms of the contract by verbal statements, the binding terms of the contract are more difficult to ascertain. In this instant case the court to ascertain whether there was an agreement to pay storage charges. In terms of Agreement, at common law, the elements of a contract are mutual assent and consideration. Mutual assent is reached through offer and acceptance, that is, when an offer is met with an acceptance that is unqualified and that does not vary the offer's terms. The latter requirement is known as the "mirror image" rule. If a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore, simultaneously a rejection of the original offer. In this case, there was no evidence with regards to this. The most important feature of a contract is that one party makes an offer for an arrangement that another accepts. This can be called a concurrence of wills or consensus ad idem (meeting of the minds) of two or more parties. This court cannot read minds and the existence or otherwise of agreement is judged objectively, with only limited room for questioning subjective intention. This was held in Smith v. Hughes (1870-71) LR 6 QB 597.
22] Therefore, there must be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to form a contract. Offer and acceptance does not always need to be expressed orally or in writing.
23] In this case the parties to prove their case balance of probabilities. It is adduced by the defendant that they owe $7400 and this is the best evidence to prove the plaintiff's case. The Plaintiff has nothing to prove beyond that. Thus, the defendant to prove their counter claim. As I noted earlier, the evidence revealed some of vehicles were released without claiming storage charges. They defendant said last Hino truck was released on 01-12-2009. But According to DEX-3, it was released on 01-09-2009. This is written in DEX-3 and the defendant cannot adduce evidence against it. On 01-12-2009 DEX-2 was issued, but the plaintiff claims it was backdated. I find there are several contradictions in defendant's evidence per se and inter se. I need not reiterated those inconsistencies as I highlighted in my judgment earlier. The plaintiff never agreed to pay storage charges according to his conduct. His CarZ and Carz witness proved that there were no storage charges were claimed by Carz and Carz from the Plaintiff. This may be because of they are Pakistani Nationals. Interestingly, the second defendant witness said that the plaintiff said "We are Brothers of Islam". By gesture, this may leads to not to charge storage charges from the plaintiffs. When, the defendant refused to pay the plaintiff was fussing. This is a natural behavior of a reasonable man. It proved that the plaintiff has no intention to pay storage charges. I am mindful that evidence must be weighed and evaluated not to be counted. Though, Defendants have given evidence glamorously, they did fail to prove their counterclaim balance of probabilities. Mainly, in the middle of their evidence they reduced the counter claim. If there was a fixed storage policy, why this was happened? It is unclear whether and counter offers in this verbal agreement (If so) according to mirror image rule. I hold there is no assent by the plaintiff to pay storage charges. The evidence placed before me by the defendant is highly unsatisfactory. The defendant did not prove their counterclaim on balance of probabilities. I therefore disbelieve and reject their evidence. Consequently the plaintiff proved his case.
24] Finally, the defendant tendered DEX-4 to prove that the Plaintiff has no "locus standi" for this case. This type of objection must be taken at the very outset of the case. By filing a Statement of Defence, they defendant has admitted that there is cause of action to the plaintiff. I lament, now they cannot go back. This objection is therefore dismissed.
25] Therefore, I make following orders.
26] Judgment to be entered accordingly.
On 18th October 2011, at Nasinu, Fiji Islands
Sumudu Premachandra
Resident Magistrate-Nasinu
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