Waiqele Sawmills Ltd v Udumasi [1998] FJHC 13; Hba0011j.97b (27 January 1998)

Fiji Islands - Waiqele Sawmills Ltd v Udumasi - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CIVIL APPEAL NO. 0011 OF 1997

BETWEEN:

WAIQELE SAWMILLS LIMITED
Appellant/Plaintiff

AND:

SEREMAIYA UDUMASI
Respondent/Defendant

Mr. A. Ram for the Appellant
Respondent in Person

JUDGMENT

This is an appeal against the judgment of the Labasa Magistrate Court delivered on the 14th of March, 1997 in which the trial magistrate in a seven (7) page judgment stated without making any findings of fact:

"I have carefully considered the evidence adduced by the plaintiff and the defendant in this case and I am of the view that the plaintiff has failed to prove his claim in hand to the satisfaction of Court as a balance of probability.

In the circumstances I dismiss the plaintiff's claim with costs to be taxed if not agreed."

The appellant's claim was endorsed on its Writ dated 22nd April 1996 as follows:

"PARTICULARS OF CLAIM

The Plaintiff claims to recover from the Defendant the sum of $1,387.96 (ONE THOUSAND THREE HUNDRED EIGHTY SEVEN DOLLARS AND NINETY SIX CENTS) being the balance sum due and owing as at the 31st day of March 1995, for timber sold and supplied to the Defendant dockets for each one of which purchases were given to the Defendant at the time of sale and delivery and full particulars whereof were supplied to the Defendant in a monthly statement, all of which are well known to the Defendant. The Plaintiff further claims interest in the said balance at the agreed rate of $13.50 per centum per annum and amounting to $0.51 per day as from the said 1st day of April, 1996 until the date of judgment. Demand for payment was made but not met.

AND THE PLAINTIFF FURTHER CLAIMS THE COSTS OF THIS ACTION."

For his part the respondent/defendant without referring in any way to the appellant's claim wrote an 'open letter' dated the 17th of August 1996 (p.57) stating inter alia:

"I have already paid the sum of one Thousand dollars ($1,000) to Waiqele Sawmill cashier on the 25.10.94 for my building material. My two eye witnesses are my son and my carpenter were with me when I gave the cash money there."

The appellant in seeking to prove its claim called a Salesman (PW1) and an Accounts Clerk (PW2) of the appellant company. They both testified that the respondent had purchased timber and hardware from the appellant company 'on account', on three (3) different occasions, and had been issued with three (3) separate invoices as follows:

(1) Invoice No. 21859 dated 25.10.94 for $1,144.80 (Exhibit 1);

(2) Invoice No. 21876 dated 28.10.94 for $9.00 (Exhibit 2); and

(3) Invoice No. 21890 dated 29.10.94 for $15.00 (Exhibit 3).

They were both adamant that the respondent had never paid $1,000 cash nor had he requested or been given a company receipt for such a payment since the Invoices clearly represented 'credit sales'.

There was also included in the court record (at p.55) an unmarked Form of the appellant company entitled: 'Application for Credit Account' dated 25.10.94 which appears to have been signed by the respondent and which purports to show that approval was granted by the Manager of the appellant company, Shafiq Khan, for the respondent to purchase goods on a '30 day account' payable in monthly instalments of $120.00.

The account had a 'credit limit' of $1,144.80 which, is the exact amount for the purchases included in the first Invoice No. 21859 (Exhibit 1 above) and co-incidentally, it also required an initial deposit of '$1000 TO BE DEPOSITED' which is the amount which the respondent says he paid on 25.10.94 !

It might be that the respondent did have an account with the appellant company and did buy the goods in the Invoices (Exs. 1, 2 & 3) on credit terms; and, it might be that the $1,000 cash was paid by the respondent not as payment for any particular Invoice or purchase(s), but by way of an initial 'deposit' for the opening of his credit account with the appellant company. Then it might be that the Invoice of 25.10.94 was originally issued as a 'proforma invoice' to facilitate and assist the respondent in his F.N.P.F. loan application and does not truly reflect any actual purchases by the respondent. But, whatever the true position might be, remains a matter of conjecture.

It is unfortunate that the appellant company did not call Shafiq Khan as a witness, neither was any evidence led from either PW1 or PW2 to explain the origin and significance of the Form, nor was the respondent cross-examined on the Form or indeed, upon the 3 Invoices (op.cit), as he should have been.

In the circumstances, the trial magistrate did not refer to the Form anywhere in his judgment nor did counsel for the appellant seek to rely on it in arguing the appeal. So much then for the appellant's case.

The respondent in his 'defence', called his son (DW1) and a carpenter (DW2) who testified that they had both accompanied the respondent to the appellant's sawmill to buy timber and had either seen the respondent 'paying for the timber' (per DW2 at bottom p.69) or had seen him '(take) out the money from his pocket and counted'. (per DW1 at top p.69). Neither testified to accompanying the respondent to the bank on the day in question or seeing him withdraw any money, nor were they directly cross-examined about the event as they could have been.

The respondent was unable to produce an 'official receipt' of the appellant company evidencing the $1,000 cash payment, instead, he produced a copy of his cheque account statement (Exhibit D1) which contained a debit entry dated the 25th of October 1994 evidencing the withdrawal of $1,100 from the account. He also produced a photostat copy of a personal cheque leaf No. 076407 (Exhibit D2) dated the 25th October 1994 by means of which he personally withdraw $1,100 cash from his account.

The respondent also testified on oath in his further cross-examination (at p.71), that on the day in question '(he) withdrew from the bank $1,100 before going to Waiqele Sawmill. (He) went alone to the bank while the other two (i.e. DW1 & DW2) went to Waiqele Sawmill.'

The appellant now appeals against the dismissal of its claim on the following 3 grounds:

"1. THAT the Learned Magistrate erred in law in holding that the burden of proof lay with the Plaintiff in the face of the fact that the Defendant admitted the purchases and claimed payment for the same.

2. THAT the Learned Magistrate erred in law and in fact in holding, assuming that the evidence of the Defendant is to be believed that payment of the whole of the purchase price had been paid in full and further in failing to enter judgment for the unpaid portion of the amount claimed.

3. THAT the Learned Magistrate has failed to analyse the evidence in particular those of the Defendant and his witnesses as to the payment and to reach a proper conclusion therefrom and hence the Learned Magistrate has erred in giving proper weight to the evidence tendered thus assuming at an incorrect conclusion."

At the hearing of the appeal counsel for the appellant argued Grounds 1 & 3 together. He has also very helpfully filed comprehensive written submissions which I have considered.

As to Ground 1 counsel referred to a passage in the trial magistrate's judgment (at p.81) in which he stated that the appellant had the burden of proving non-payment of the $1,000 to the satisfaction of the Court on a balance of probability.

Counsel submits however that 'as the Defendant asserts payment ... the onus lies upon him to prove so'. In other words the respondent should prove the payment and not the appellant prove the negative.

In support of this proposition counsel referred to the decisions in Seldon v. Davidson (1968) 2 ALL E.R. 755 and Jasoda v. F.S.C. 25 F.L.R. 145. Both cases however are easily distinguished from the present case on the facts. Firstly, in Seldons case, the submission as to the 'onus' and therefore who should begin in the case, was made before trial and at a time when only the pleadings were available; secondly, the pleading of the defendant in that case, not only, "admitted the receipt of the money ... but alleged that (the monies) were intended as a gift".

In similar vein, in Jasoda's case, the defendant corporation had admitted in its pleadings that the sum claimed had been due to the plaintiff but was already paid and Kermode J. (as he then was) in allowing the plaintiff's appeal said at p.148:

"In my view having admitted that there was a sum of $974.00 owing to the appellant (plaintiff) the burden of establishing payment or satisfaction of this sum rested on the defendant and it was not incumbent on the appellant (plaintiff) to establish non-payment."

I respectfully agree with the result in both cases but the question remains: "Did the respondent (defendant) in this case, admit the purchases or sales claimed by the appellant company in its pleadings or evidence?"

In this regard in his written submissions, counsel for the appellant company opens with the following paragraph:

"A look at the pleadings will show that the Statement of Claim is for timber sold and delivered and interest thereon. The Statement of Defence (if one can call the defendant's 'open letter' at p.56 by that name) says that he admits the purchases but that he has paid $1,000.00. In evidence the defendant admits all the purchases, but says he paid $1,000.00 in reduction of the sum claimed."

I confess that having considered the respondent's so-called Statement of Defence (at p.57) and his evidence in the trial (at pp. 65, 67 & 71), I am unable to agree with the contents of the above paragraph which appears to be based on a host of unrecorded assumptions.

No-where in the respondent's 'open-letter' does he agree or 'admit all the (unparticularised) purchases' averred in the appellant company's Particulars of Claim nor in his evidence, was the respondent cross-examined as to the contents of the three (3) Invoices (Exs. 1, 2 & 3) upon which the appellant company's claim was based. Indeed, the Invoices weren't even put to the respondent in cross-examination for the simple purpose of getting him to explain and identify his signatures upon them, let alone, admit the itemised purchases! Quite simply, on neither score, was there any admissions made by the respondent.

It seems to me that given the absence of any admissions by the respondent and the diametrically opposite positions of the parties concerning the '$1,000 cash payment' it was, to adapt the words of Herschell L.C. in Browne v. Dunn (1893) 6 R.67 at p.70,:

"... absolutely essential to the proper conduct of ('the appellants') case, where it is intended to suggest that the (respondent) is not speaking the truth on (the payment of $1,000 cash), to direct his attention to (the respondent's signatures on the respective Invoices) by some questions put in cross-examination (about the Invoices) showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, which it is suggested indicated that the story he tells ought not to be believed, to argue that he is a witness of unworthy credit."

Having regard to the conduct of the trial, there does not appear to be any 'common ground' (other than the date 25.10.94), in either the appellant's claim or the respondent's 'defence'. The appellant company for its part, claims the balance amount owing with interest, on credit sales evidenced by three (3) signed Invoices, whereas, the respondent, wrote and testified about a single purchase of timber for which he paid $1,000 cash.

Given that rather confusing 'state of affairs', no assumption(s) could properly be made that the respondent was talking either about the same debt or even about the same transaction. In other words, the parties had never really 'joined issue'.

In the absence of any material admissions either in the 'pleadings' or in the respondent's evidence, I am satisfied that the trial magistrate's holding as to the evidentiary 'burden of proof' was correct. In my view, having regard to the disunited state of the pleadings and the untested evidence of the respondent, it was incumbent on the appellant company to establish not only the incurring of the indebted amount(s) by the respondent but, in addition, its non-payment.

The appeal is accordingly dismissed with costs to the respondent to be taxed if not agreed.

D.V. Fatiaki
JUDGE

At Labasa,
27th January, 1998.

Hba0011j.97b