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Bulileka Transport Ltd v Credit Corporation (Fiji) Ltd [2022] FJCA 21; ABU134.2016 (4 March 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT


CIVIL APPEAL NO. ABU 134 OF 2016
(HIGH COURT LABASA CIVIL ACTION NO. 14 of 2013 CONSOLIDATED WITH Civil Action No. 44 of 2012)


BETWEEN:


BULILEKA TRANSPORT LIMITED

Appellant


AND :


CREDIT CORPORATION (FIJI) LIMITED
1st Respondent


AND:


NORTHERN BUSES LIMITED
2nd Respondent


AND:


RAJENDRA DEO PRASAD
3rd Respondent


Coram : Basnayake JA
Lecamwasam JA

Guneratne JA


Counsel : Mrs. A. Sumer for the Appellant
Mr. A. Kohli for the 1st Respondent
Mr. A. Pal for the 2nd and 3rd Respondents


Date of Hearing : 17 February 2022
Date of Judgment : 4 March 2022


JUDGMENT


Basnayake JA


[1] This is an appeal filed by the Appellant to have the judgment dated 25 October 2016 (pgs. 9-31 of the Record of the High Court (RHC)) set aside. This judgment is on two civil actions. One is No. 44 of 2012. The other action is No. 14 of 2013. Both these actions were combined by an order of court. In No. 44 of 2012 (statement of claim is at pgs. 33-38, statement of defence is at pgs. 41-49) the Plaintiffs are Northern Buses Limited and Rajendra Deo Prasad. The first Defendant is Bulileka Transport Limited. The 2nd Defendant is Ravindra Deo Latchman. He had been a director and a shareholder of the 1st Defendant Company. The 3rd Defendant is Saleshni Devi. She is the wife of the 2nd Defendant. Action No. 14 of 2013 was filed by the Credit Corporation (Fiji) Limited against Bulileka Transport Limited. Subsequently the Northern Buses Limited was added as a third party.


[2] No.44 of 2012: In this action the 2nd Plaintiff and the 2nd Defendant are brothers. In both these cases the 1st Defendant is Bulileka Transport Limited. By an agreement marked D8 (pgs. 521-524, Vol. 4) the 1st Defendant as vendor and the 1st Plaintiff as purchaser agreed to sell and purchase the bus operation and goodwill attached to 3 Road Route Licenses (3 RRL) together with 18 buses. The purchase price was $450,000.00. Of this sum $250,000.00 was to be paid on the day of execution. The balance payment was to be made on the settlement date (60 days after execution of the agreement (clause 1 (c)). As per item No. 2 (c) of the agreement the purchaser has agreed to, “if necessary make immediate arrangements with Merchant Finance and Credit Corporation Limited to discharge any encumbrance to facilitate the transfer of the said transfer property”(emphasis mine).


[3] Paragraph 10 of the agreement is under the heading, “Preceding Conditions”. It has four conditions under sub paragraphs (a), (b), (c) & (d) which are as follows:

(a) Both parties acknowledge that the route service is regulated/owned by LTA and the vendor is merely a service provider on the said routes.

(b) For avoidance of any doubts, both parties agree that this agreement is in no way designed for the sale of the service routes.

(c) Both parties agree that for the purchaser to conduct the bus-operation it will require the Route License, thus it is the purchaser’s responsibility to make necessary application for the transfer of route license.

(d) This agreement is subject to the LTA transferring the said route license to the purchaser.


[4] The Plaintiffs aver that the 1st Defendant failed to disclose legal proceedings pending against the 1st Defendant in respect of the 3 RRL and that they were subject to cancellation pursuant to Regulation 12 of the Land Transport Regulations 2000. The Plaintiffs aver that the 1st Defendant induced the Plaintiffs to purchase the 3 RRL, goodwill and the buses. Pursuant to the agreement a sum of $257,000.00 was paid to the 1st Defendant. On 25th November 2011 the 2nd Plaintiff has paid the Merchant Finance & Investment Company Ltd., a sum of $110,176.81 being debts of the 1st Defendant (Bulileka Transport Limited).


[5] The Plaintiffs aver that on 12 October 2011 the 2nd Plaintiff discovered the legal proceedings pending against the 1st Defendant and as a result the LTA refused to transfer the 3 RRL to the Plaintiffs. On 19 October 2011 the LTA has cancelled the 3 RRL. In consequence the buses became useless. The Plaintiffs claim inter alia the rescission of the agreement dated 11 October 2011 and return of $ 367,176.81.


[6] Defence: (Pgs. 41-48) The 1st Defendant states that the RRL were not sold. It is only the goodwill attached to 3 routes and 18 buses that was sold. The Plaintiff gave an undertaking dated 18 November 2011 to Credit Corporation (Fiji) Limited to pay out the Credit Corporation debts of the 1st Defendant, but reneged on the undertaking. The Defendants state that the Plaintiffs failed to pay Credit Corporation by 10 December 2011 (the supposed settlement date that is 60 days after the date of execution to fulfill obligations.) The Defendants aver that the buses have been used by the Plaintiffs to earn an income from 11 October 2011 to date.


[7] The Defendants in a counter claim state that the Plaintiffs undertook in writing on 18 November 2011 to Credit Corporation (Fiji) Limited to pay out the Credit Corporation debts of the 1st Defendant but reneged on the undertaking. The Plaintiffs undertook to take over the loan which stood at $114,808.11 on 31 October 2011. The Plaintiffs in breach of the agreement, had withdrawn the undertaking given to the Credit Corporation (Fiji) Limited and not made the payments.


[8] As a result of the breach the Credit Corporation (Fiji) Limited has seized the buses and received $6700.00 at a mortgage sale. Due to this action the 1st Defendant lost its business reputation and credibility and continues to suffer losses. The Defendants inter alia claim $120,857.35 as at September 2012. The Plaintiff has filed a reply to the counter claim (Pgs. 51-54).


[9] No. 14 of 2013: The Plaintiff is the Credit Corporation (Fiji) Limited. The Plaintiff sued the Defendant Bulileka Transport Limited. Northern Buses Limited was added subsequently as a third party. That is, on the basis of the undertaking given to the Credit Corporation (Fiji) Limited. The Plaintiff is a financier. The Defendant Bulileka Transport Limited has executed an Asset Purchase Agreement in favour of the Plaintiff to secure the sum of $55,449.00 together with interest at 10% per annum amounting to $27,771.00 for a period of 5 years and the total loan amounting to $83,220.00. The Defendant agreed to pay this amount by monthly installments of $1,387.00 commencing 30 May 2009.


[10] The Defendant had also entered into a Bill of Sale to secure the sum of $85,850.00 together with interest at 10.5% per annum amounting to $45,070.00 for a period of 5 years with a total of $130,920.00. The Defendant agreed to pay this amount in monthly installments of $2,182.00 commencing 15 October 2010. The Defendant defaulted the installment payments prompting the Plaintiff to make a demand. The Plaintiff having taken back the assets realized a sum of $46,900.00. The Plaintiff claims that the Defendant owes a sum of $118,796.42 and prayed for judgment on the said amount.


[11] The Defendant in a statement of defence (pgs. 64-69 vol. 1) stated that the Northern Buses Limited on 18 November 2011 had given a written undertaking to the Plaintiff to take over the Defendant’s bus account loan. The Northern Buses Limited has reneged on its undertaking. In a counter claim the Defendant averred that the Plaintiff had advertised and published in daily newspapers concerning the Defendant that it intended to wind up the Company as it was unable to pay its just debts due to which the Defendant has been severely injured in its credit etc. and suffered loss and damages. The Plaintiff filed a reply (pgs. 73-75).


[12] Judgment (Pgs. 9-32) No. 44 of 2012: The learned Judge has dismissed the Plaintiffs’ action and the counter claim of the Defendant. The learned Judge in paragraph 82 B (1) (pg. 30) states thus, “I find the Plaintiffs” have failed to satisfy me that they are entitled to recessions of the agreement dated 11 October 2011. They have affirmed the agreement. They have indulged in laches and acquiescence. Therefore they are not entitled to return $ 367,176.81...The Plaintiff’s evidence satisfied me they entered into the agreement with their eyes wide open as to what they were going into” (82 B (2)) (emphasis mine). The Plaintiff (Northern Buses Limited) did not challenge this judgment. On the counter claim (82 B (5) pg. 31) the learned Judge said that, “The 1st Defendant’s counter-claim stems from the letter of undertaking to the Credit Corporation (Fiji) Limited. I have found that it was invalid and ineffective for lack of consideration”.


[13] No. 14 of 2013: The learned Judge states that, BTL (Bulileka Transport Limited) admits debt to Credit Corporation (Fiji) Limited. However, BTL contends that it should be paid by Northern Buses Limited on account of an undertaking given. This undertaking was held to be ineffective for the reason that there was no evidence suggestive of the Credit Corporation (Fiji) Limited accepting the undertaking or passing any consideration to Northern Buses Limited. On that ground the Defendants undertaking was rejected and the judgment was entered in favour of the Plaintiff Credit Corporation (Fiji) Limited.


[14] Grounds of Appeal

  1. THAT the Learned Judge erred in law and in fact in failing to properly and/or adequately evaluate all the evidence in arriving at his findings.
  2. THAT the Learned Judge erred in law and in fact in ordering the Appellant, Bulileka Transport Limited (BTL) to pay $118,684.22 together with interest at the rate of 8% when no interest was claimed in the 1st Respondent’s, Credit Corporation Limited (CCL) statement of claim.
  3. THAT the Learned Judge erred in law and in fact in failing to evaluate the evidence as to the Appellant’s (BTL) counterclaim and grant the counterclaim in Civil Action No. 14 of 2013.
  4. THAT the Learned Judge erred in law and in fact in dismissing the Appellant’s (BTL) claim against the 2nd Respondent, Northern Buses Limited (NBL) when there was adequate evidence to make a finding of liability.
  5. THAT the Learned Judge erred in law and in fact in finding that 25% interest charged on the overdue accounts by the 1st Respondent (CCL) was acceptable and not unreasonable, unconscionable and unlawful.
  6. THAT the Learned Judge erred in law and in fact in holding that the undertaking given by the 2nd Respondent (NBL) was unenforceable when the said undertaking was given pursuant to the Sale and Purchase Agreement, to avert the seizure of buses with permission of 1st Respondent (CCL) and at the request of the 1st Respondent (CCL) (confirmed by the 1st Respondent’s (BTL) Counsel).
  7. THAT the Learned Judge erred in law and in fact in holding that the undertaking had to be accepted by 1st Respondent (CCL) when the said undertaking had been produced and given on the insistence and request of the 1st Respondent (CCL). Further the 2nd Respondent (NBL) gave the undertaking to hold the situation and retain the possession of the 2 buses. The 2nd Respondent (NBL) was also obliged under the Sale and Purchase Agreement to provide the said undertaking.
  8. THAT the Learned Judge erred in law and in fact in holding that the Appellant’s (BTL) debt to the 1st Respondent (CCL) was not disputed and was agreed when only the allocations to the bus and van accounts had been sorted out prior to trial. Other issues like penalty interest and transportation charges were still litigated.
  9. THAT the Learned Judge erred in law and in fact in holding that the Appellant (BTL) had not been defamed by the 1st Respondent (CCL) when the amount of the debt claimed had been altered by the 1st Respondent (CCL) prior to trial and the 1st Respondent (CCL) always knew the debt was disputed and still proceeded with a winding up action.
  10. THAT the Learned Judge erred in law and in fact in not holding that the 1st Respondent (CCL) incurred unnecessary transportation costs to Suva for the 2 buses when the same could have been stored in Labasa after seizure.
  11. THAT the Learned Judge erred in law and in fact in not holding that Motor Vehicle FM311 was sold at an undervalue leading to a loss of $6,000.00.
  12. THAT the Learned Judge erred in law and in fact in dismissing the Appellant’s (BTL) third party claim in Civil Action No.14 of 2013 and counter claim in Civil Action No. 44 of 2012 when the Sale and Purchase Agreement and undertaking clearly stated the 2nd Respondent (NBL) was to pay the Appellant’s (BTL’s) debt with the 1st Respondent (CCL).
  13. THAT the Learned Judge erred in law and in fact in failing to hold that the 2nd Respondent (NBL) was liable to pay the 1st Respondent (CCL) in light of the findings that the 2nd Respondent (NBL) had waived the use of clause 10(d) of the Sale and Purchase Agreement, affirmed the contract, and had acted to perform the agreement rather than rescind the same even though the Road Service Licences were not transferred.

[15] Legal Analysis:


The matter involves two actions and one judgment:- No. 44 of 2012 and No. 14 of 2013. The Defendant is the same in both actions. Bulileka Transport Limited (BTL). In Civil Action No. 14 of 2013, the 1st Defendant BTL had some borrowings from the Credit Corporation (Fiji) Limited (CCL). The 1st Defendant BTL was unable to pay its debts. Hence BTL entered into an agreement with Northern Buses Limited (NBL). The agreement was to sell 18 buses belonging to BTL. Along with 18 buses BTL also agreed to sell the goodwill attached to the three 3 road route licenses (RRL). The agreement specifically states that the agreement is not to sell RRL. The RRL belong to the Land Transport Authority. Therefore BTL has no capacity to sell RRL.


[16] After execution of the agreement the Land Transport Authority has refused to grant the 3 RRL enjoyed by the Defendant BTL to the Plaintiff. In the meantime the Plaintiff refused to pay the Defendants (BTL) debts with CCL. The Plaintiff NBL filed action No 44 of 2012 to rescind the agreement and to recover the moneys paid so far on account of the agreement.


[17] Civil Action No. 44 of 2012


The agreement entered into is very important. The execution of the agreement was on 11 October 2011. Few terms of the agreement are mentioned below:-

  1. The vendors have agreed to sell and the purchaser has agreed to purchase the “bus-operation” and goodwill attached to Road Route License described as RRL 12/23/23, 12/23/49, 12/23/53 together with 18 buses (Registration numbers given)

1 (a) The vendor agrees to sell the buses and the goodwill attached to Route License to the purchaser on the settlement date (60 days from the date of execution).

(d) Possession of the transfer property will be given by the vendors and taken by the purchaser on the date of the execution of the agreement.


[18] In terms of the above agreement The NBL states that the vendor was paid as per the agreement a sum of $257,000.00. The 2nd Plaintiff also states that a payment of $110,000.00 was paid to the Merchant Finance Limited. That was on 25 November 2011. That is within 60 days as per clause 1 (c). Clause 1 (c) (pg. 522) is as follows:-


Unless otherwise agreed in writing between the parties the sale and purchase of the transfer property is to be settled on the “the settlement date” which is 60 days after execution of this agreement subject to the purchaser making the payments under clause 2 of the agreement.

In terms of the agreement the purchase price is $450,000.00. The above payments ($257,000.00 and $110,176.81) further affirm the agreement. The complaint of the vendor or the Defendant (BTL) is (in No. 44 of 2012) that the purchaser having complied with part of the agreement, reneged part of it.


[19] The learned Judge states (pg. 30, para. 82 B (1)) referring to case No. 44 of 2012, that, They have affirmed the agreement...Therefore they are not entitled to return (have) the $367,176.81 (This sum is the total amount paid at the execution, namely $257,000.00 plus $110,176.81 paid to Merchant Finance).


[20] In terms of the Sale & Purchase Agreement, the purchaser is bound to make payments as per clause 2 (c). According to the clause the purchaser will pay the balance on the settlement date or if necessary make immediate arrangements with the Merchant Finance Limited and the Credit Corporation Limited to discharge any encumbrances....The settlement date is 60 days from 11 October 2011 (execution date). This could be 9th or 10th December 2011. In terms of this agreement the purchaser (Northern Buses Limited) made a payment of $110,176.81 to Merchant Finance Investment Company Limited on 25 November 2011. The other encumbrance was with regard to the debts owed by the Defendant (BTL) to Credit Corporation Limited.


[21] Apart from the undertaking in the agreement as per paragraph 2 (c) (pg. 522) to pay the debts of the Defendant (BTL) due to the Credit Corporation Limited, the 2nd Plaintiff, as Managing Director of Northern Buses Limited, has issued a letter to the Manager, Credit Corporation (Fiji) Limited on 18 November 2011 (P 14 (Pg. 485)) reiterating the undertaking to take over the debts of the 1st Defendant. The letter reads, “We hereby give an undertaking to take over the loan for bus account only by Bulileka Transport Limited as per our Agreement”. Our agreement meaning the agreement signed between the Plaintiff and the Defendant (BTL).


[22] This letter P14 further strengthens clause 2(c) of the agreement which states that the purchaser will pay the balance on the settlement date or if necessary make immediate arrangements with Merchant Finance Limited and Credit Corporation Limited to discharge any encumbrance to facilitate the transfer of the said transfer property. As per the agreement the Plaintiff paid the Management Finance Limited. The learned Judge states in the judgment that the Plaintiff Northern Buses Limited has affirmed the agreement and is therefore not entitled to rescind. On that footing the learned Judge has gone to the extent of dismissing the Plaintiff’s action. Having confirmed the agreement the learned Judge on the same breath (para 82 B (5) Pg. 31) states that the counter claim stems from the letter of undertaking to Credit Corporation (Fiji) Limited and holds it, invalid and ineffective for lack of consideration. The learned Judge then dismisses the counter claim.


[23] I am of the view that the learned Judge has erred in declaring the undertaking invalid. The undertaking being part of the agreement cannot be separated from the agreement and is fully valid and effective. Therefore I am of the view that the counter claim based on the undertaking should have been allowed. Therefore I set aside the 2nd order of Civil Action No. 44 of 2012 which dismissed the Defendant’s counter claim with costs. I enter judgment in favour of the Defendant as prayed for in the counter claim dated 21 September 2012 in prayer (a) and (b).


[24] Civil Action No. 14 of 2013


This case involves the debt the Defendant (BTL) owed to Credit Corporation (Fiji) Limited. However, the Defendant, having brought the Northern Buses Limited as third party, justifies the amalgamation of these two cases for hearing. BTL (Defendant) defaulted payments owed to Credit Corporation (Fiji) Limited. The Defendant, although contesting some of the amounts levied did not have a valid defence to challenge the Plaintiff’s (CCL) claim. The third party namely the Northern Buses Limited was brought in to indemnify whatever the payment which was imposed on the Defendant BTL. The Defendant relied on the same undertaking given by the third party to the Credit Corporation (Fiji) Limited in the agreement under clause 2 ((c) pg. 522). The third party has also renewed this undertaking by letter dated 18 November 2011 (P 14 at pg. 485). The Plaintiff in action No. 14 of 2013 is not a party to the agreement between the Northern Buses and Bulileka Transport Limited. Therefore the Credit Corporation could not enforce this undertaking. Credit Corporation’s debtor is Bulileka Transport Limited.


[25] It appears that the reason to issue this undertaking was to prevent the Credit Corporation in seizing the buses belonging to BTL which were pledged and now used by the Northern Buses. The third party (NBL) stated that the agreement was subject to the transfer of RRL from the Defendant to the third party as per clause 10 (d) of the agreement. The third party claimed that the Land Transport Authority did not approve transfer of the 3 RRL to the third party and therefore the third party was no longer obliged to meet further obligations of the agreement including its conditional commitment to pay the Plaintiff, namely, the Credit Corporation (Fiji) Limited. This defence was already considered. Paragraph 10 (d) of the Agreement is as follows:-

(d) This agreement is subject to the LTA transferring the said route license to

the purchaser.

The learned counsel for the Defendant submitted that the third party has waived the condition 10 (d). The third party in their case against the Defendants in action No. 44 of 2012 stated in the statement of claim that on 12 October 2011 the 2nd Plaintiff first discovered that legal proceedings were pending against the 1st Defendant on the RRL by the LTA as per Regulation 2000. As a result the LTA refused to transfer the 3 RRL to the Plaintiff. On 19 October 2011 the LTA has cancelled the 3 RRL.


[26] The agreement to pay the debts owed to the Credit Corporation (Fiji) Limited was executed on 11 October 2011. The undertaking to settle the debts was given to Credit Corporation (Fiji) Limited by the Northern Buses Limited on 18 November 2011. That is nearly one month after the cancellation of the RRL by the LTA. The Northern Buses Limited has made a payment of $110,176.81 to Merchant Finance and Investment Company Limited on 25 November 2011 (Pg. 36 para 13, 16). Therefore to say that the obligation of the third party in respect of the Agreement dated 11 October 2011 was subject to the transfer of RRL from the Defendant to the third party as per clause 10 (d) is of no use. From the conduct of the Northern Buses Limited and its Managing Director (2nd Plaintiff in Action No. 44 of 2012 and third party in No. 14 of 2013) it appears that the transfer of the Licenses did not play a major role in this case. The sale has revolved around the buses that belonged to the Defendant (BTL). It was Merchant Finance and the Credit Corporation who had a lien over the buses belonging to the Defendant BTL. The Northern Buses Limited has paid Merchant Finance on 25 November 2011 to get some buses transferred in the name of Northern Buses Limited.


[27] It was the same with the Credit Corporation. The Credit Corporation moved to repossess some of the buses due to non-payment of installments. It is this move that made Northern Buses Limited to give an undertaking on 18 November 2011 regarding the debts of the Defendant BTL. It appears that the Credit Corporation on the strength of this letter has allowed Northern Buses to have those buses in their (Northern Buses) custody. Therefore I am of the view that the learned Judge has erred in holding that the undertaking given (referring to the letter dated 18 November 2011) has no value due to lack of consideration. The undertaking was given originally in the Agreement executed on 11 October 2011 and not by letter dated 18 November 2011. The undertaking was given by Northern Buses Limited to Bulileka Transport Limited. The letter dated 18 November 2011 was issued to Credit Corporation (Fiji) Limited to prevent the seizing of buses which were in the custody of Northern Buses Limited. Those (buses) were the goods attached to the Agreement dated 11 October 2011.


[28] I am of the view that the learned Judge has lost sight of the undertaking given in the Agreement which the learned judge held to be valid and could not be rescinded. If the Agreement is valid, the undertaking given therein too is valid. Therefore the fact of refusal to issue RRL is of no value and will not be a good defence to overcome liability. For that reason I am of the view that the learned Judge has erred in rejecting the counter claim of the Defendant BTL. Therefore I allow the Defendant's claim against the third party (to indemnify) with costs fixed at $5000.00.


[29] The Defendant appellant could not justify his claim for defamation against the Plaintiff respondent. The defamation was due to the fact of the Plaintiff advertising in the newspapers of their intention to move in winding up the Defendant Company due to their inability to meet its debts. No doubt the Defendants had been defaulting payments for a considerable period with no arrangement made to settle payments. The Plaintiff would not have had much choice in this matter which ultimately made the Defendant sell his buses to Northern Buses Limited. In doing so they got NBL to agree to pay the debts the Defendant (BTL) owed to CCL.


Lecamwasam JA


[30] I agree with the reasons given and conclusions arrived at by Basnayake JA.


Guneratne JA


[31] I agree with the reasons and conclusions contained in the judgment of Basnayake JA.


Orders of Court are:


The appeal is partly allowed as referred to in the orders below.


In the Action No. 44 of 2012


  1. The learned Judge’s order No. 1, dismissing the 2nd and 3rd Respondents (Plaintiffs’) action with costs at $2500.00 stands.
  2. Order No. 2, dismissing the counterclaim is set aside.
  3. Judgment entered in favour of the (Defendant) Appellant (Bulileka Transport Limited) in a sum of $120,857.35. as per the prayer in the counterclaim. On the finding that the agreement dated 11 October 2011 (D8) is valid and therefore the sum of $120,857.35 being payable to the Appellant (BLT), if the said sum is paid by the 2nd Respondent (Northern Buses Limited) the need to indemnify the said sum of $118,684.22 as referred to in the Order No.3, Civil Action No.14 of 2013 will not arise.
  4. The Appellant is (Defendant) entitled to interest until payment in full as per Law Reform (Miscellaneous Provisions) (Death and interest) Act.

In the Civil Action No. 14 of 2013


  1. The 1st order of the learned Judge to stand. That is that the Appellant (Defendant) (Bulileka Transport Limited) is to pay the 1st Respondent (Plaintiff) (Credit Corporation (Fiji) Limited) a sum of $ 118,684.22 together with interest as per the Law Reform (Miscellaneous Provisions) (Death and Interests) Act with costs of $3500.00.
  2. The 2nd order of the learned Judge to stand. That is to dismiss the counterclaim with costs $1500.00.
  3. The dismissal of the Appellant’s (Defendant) claim against the third party (2nd Respondent) is set aside. The 2nd Respondent (third party) is held liable to indemnify the Appellant (Defendant) to the total sum awarded against the Appellant (Defendant).
  4. The Appellant (Defendant) is also entitled to costs in the High Court in a sum of $2500.00 from the 2nd Respondent (third party) namely Northern Buses Limited.
  5. The Appellant is entitled to costs in this court in a sum of $5000.00 from the 2nd Respondent (third party, namely, from Northern Buses Limited).
  6. The 1st Respondent (Credit Corporation (Fiji) Limited) is entitled to costs in a sum of $5000.00 payable by both the Appellant and 2nd and 3rd Respondents in equal amounts.

........................................
Hon. Justice E. Basnayake
JUSTICE OF APPEAL


.....................................
Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL


........................................
Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL


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