Koloba v Sabir [2002] FJHC 224; HBC0033j.1998b (27 August 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0033 OF 1998

Between:

SITIVENI KOLOBA
Plaintiff

and

MOHAMMED SABIR
Defendant

Mr. A. Sen for the Plaintiff
Defendant in Person

JUDGMENT

The Plaintiff issued a writ of summons against the defendant claiming, inter alia, damages and specific performance of an agreement dated 9 February 1998.

The defendant was represented by Mr. M. Sadiq who filed a Statement of Defence and Counterclaim. On the hearing of the action the defendant agreed to Mr. Sadiq withdrawing as solicitor for him and he preferred to conduct his own defence.

Evidence for the Plaintiff was given by the Plaintiff himself; he called witnesses Inia Kinikinilau B (PW2), Iowane Manoa (PW3), Mikaele Cea Qalo (PW4) and Ulaisi Vere Voi (PW5) to testify on his behalf.

The Defendant gave evidence himself and called witnesses: Jakir Hussein (DW2) and Mohammed Alim Hussein (DW3).

The Plaintiff testified along the lines stated in his Statement of Claim which is, inter alia, as follows:

1. THAT the Plaintiff is a cultivator and resides in Vunibasoga and the defendant is a businessman residing in Natua, Seaqaqa.

3. BY a contract in writing dated the 9th day of February 1998, the defendant purchased and agreed to accept from the Plaintiff 120 mature plants of Yaqona plants from his farm for an agreed price of $8,000.00.

4. THAT in exchange and delivery of said Yaqona the defendant agreed to transfer his motor vehicle registration No. CJ 884 which was valued at an agreed price of $8,000.00 and that the delivery of the said vehicle was to be done contemporaneously with the delivery of the Yaqona.

5. PURSUANT to the said agreement the defendant on the or about the 13th day of February 1998 uprooted 53 plants, on or about the 20th day of March 1998 he uprooted 52 plants and on or about the 21st day of March he uprooted 91 plants of Yaqona.

6. THAT the defendant without any authority or right uprooted additional 76 plants of Yaqona of the value of $5066.66.

7. IN the premises the 120 Yaqona plants have passed to the defendant on or about 21st day of March 1998 and who became liable to deliver the said motor vehicle together with the transfer form held at Messrs. Gibson and Company.

8. THAT in breach of the said agreement in particular in breach of paragraph 4 of the said agreement the defendant refused to give the delivery of the said motor vehicle to the plaintiff.

9. FURTHER and in breach of the said agreement the defendant continued to use the said vehicle and deprived the Plaintiff the enjoyment of the same whereby incurring loss and damages to him.

10. PURSUANT to paragraph 8 of the said agreement the defendant is the defaulting party is liable for liquidated damages in the sum of $1,000.00.

The Claim

The Plaintiff claims as follows:

(a) Judgment for the sum of $5066.66.
(b) An Order for Specific Performance directing the defendant to forthwith deliver to the plaintiff motor vehicle Regd. No. CJ884
(c) Judgment for $1000 as liquidated damages
(d) Loss of use of the motor vehicle or damages to be assessed by the Court
(e) General damages
(f) Costs.

Pleadings

The Defendant, through his then solicitor filed a Statement of Defence and Counterclaim. The Plaintiff then filed a Reply to Defence and Counterclaim and Defence to Counterclaim.

Minutes of Pre-trial Conference

Before I discuss the issues the following are the Minutes of the Pre-trial Conference:

AGREED FACTS

1. An agreement dated the 9th day of February, 1998 was executed between the Plaintiff and the Defendant.
   
2. The Defendant uprooted some plants of Yaqona from the Plaintiff=s Land.
   
3. The Plaintiff signed a piece of paper on the 2nd day of March, 1998.
   

ISSUES

1. HOW many plants were uprooted by the Defendant.
   
2. WHEN was the Plaintiff entitled for the vehicle.
   
3. IS the purported agreement dated the 2nd day of March 1998 valid and binding on the parties.
   
4. IS the Plaintiff entitled for the vehicle and/or any damages.
   
5. HOW many plants of Yaqona was the Defendant entitled for?
   
6. IS the Defendant entitled for any damages.
   
7. DID the Plaintiff take vehicle registration number DB 259 and if so is the Defendant entitled for any damages.
   

Plaintiff=s oral evidence

The plaintiff further testified, inter alia, that the defendant pulled out more yagona plants than the agreed number, that is 76 extra plants valued at $5066.66. At the time of the >third pulling= the plaintiff was not present. He went to the defendant=s house and complained to him about the >extra pulling=. The defendant did not say anything except that some more should be pulled >than he will give the vehicle=; he refused to give the plaintiff the vehicle registration No. CJ 884 as required under the agreement.

The plaintiff said that the vehicle was in running order at the time the yagona plants were pulled and the defendant was using it; but after he obtained the Court Order to get the vehicle it was on >ramp= and >out of order= and >gear box was missing=. The vehicle had to be towed which cost him $55.00 (exhibit 2).

The plaintiff tendered to Court the Agreement dated 9 February 1998 made between the parties (exhibit 1).

In cross-examination the defendant denied that 76 extra plants were pulled. The plaintiff said that he counted the holes and that is how he knew that extra >pulling= was done. The plaintiff said that he signed another agreement dated 2 March 1998 (exhibit D1) which was written in English but he says that he does not read >much= English. This agreement is not witnessed but signature of both parties appear thereon.

The PW2 testified that he towed the truck for PW1; he says that the vehicle was on ramp with some parts missing. In cross-examination he said that before he towed it, Police inspected the vehicle; there was no battery in it.

The PW3 testified that he assisted in the first pulling when the plaintiff was present. He counted the >holes=.

The PW4 said that he was there for the first >pulling= of 53 plants. The defendant was also there.

The PW5 testified that he was present at the >third pulling= when 91 plants were pulled. He said that the plaintiff counted the number of plants pulled and told him that it was 91 at his home after a week. The witness was not there for the first two >pullings=. The plants were pulled by the defendant and his labourers. The plaintiff was not present for the >third pulling=.

Defendants=s evidence

The defendant testified that he pulled yagona plants in the quantity stated in the said agreement and no more.

In cross-examination he denied that he >stripped= the vehicle. He said that the gear box >must be there= and that he had no ramp.

DW2 testified as to the number of plants pulled on each of the three days. His testimony differs materially from the evidence of the defendant (DW1) and DW3. He said in cross-examination that the Plaintiff was there >all day= on the third day whereas in fact he was not there at all. He talked about how a document was signed when he says the plaintiff agreed to give 50 plants more. He said that the plaintiff read the agreement in the Fijian language whereas the document was written in the English language by the defendant himself.

The DW3 testified that altogether 70 plants were pulled. He also said plaintiff was present the >whole day= on the third day. He said that the plaintiff helped to pull grog plants. In cross-examination he said that the plaintiff went to defendant=s home after the third pulling. He was very angry and alleged that more than 120 plants were pulled. The DW3 said that there was >settlement= after that. He said that the plaintiff was talking in English and he did not understand anything; he does not know why the plaintiff was angry. The witness I find has not told the truth on material issues.

In his evidence and in his Statement of Defence and Counterclaim the defendant said that on 21 March 1998 the plaintiff unlawfully and forcefully took away another van of the defendant that is, van registered No. DB 259 and held it until about 25 March 1998. He claimed, inter alia, sum of $745.00 being >the loss of income, unnecessary expenses incurred in travelling, towing expenses and money missing from the van=.

Determination of the issues

The decision in this case rests entirely on my findings of fact. The plaintiff and his witnesses testified; the defendant did the same. The decision rests entirely on the credibility of witnesses, that is, which witnesses I believe and which I do not.

The Court had the opportunity of hearing the witnesses and to watch the manner in which they gave their evidence.

After having carefully analyzed the whole of the evidence, I find as fact that the defendant had on the third day pulled 76 extra grog plants. He was supposed to pull 120 plants altogether. The plaintiff was not present on the farm on the third day when these extra plants were pulled. The plaintiff came to know later and he confronted the defendant. In regard to the pulling of the extra plants I prefer to accept the evidence of the plaintiff and his witnesses to that of the defendant and his witnesses. The defendant=s witnesses testified merely to assist him; they did not seem to know much about what had happened on the material issues. One of them testified that the plaintiff was present on the >third pulling= when in fact he was not on the farm at all for he did not come on the third day. This witness has not told the truth.

It is not in dispute that there was an agreement (the Aagreement@) dated 9 February 1998. The defendant was required under the agreement under clause 4 to deliver the van in question being Daihatsu Rocky 4 x 4 Van Registered No. CJ 884 Acontemporaneously@ with the delivery of yagona. I find that this was not done. The defendant should have delivered it the same time after the Athird pulling@. The defendant is therefore in breach of that clause of the agreement. Consequently, under clause 8 of the Agreement he is liable to pay $1000.00 as liquidated damages.

As for the signed agreement of 2 March 1998 (exhibit D1), it was prepared by the defendant himself and he got the plaintiff to sign it. The plaintiff said that he does not understand >much= English and whether he can read any English or not is not clear. In any case the document would have carried more weight if it was explained to the parties by a third person and the signature of parties witnessed. In the light of my findings of fact this document does not enhance the defendant=s case and cannot be relied upon for the determination of the issues before me.

On the issue whether the said vehicle DB 259 was taken by the plaintiff, I am not satisfied on a balance of probabilities on the evidence before me that that was so to entitle the defendant to any damages. His counterclaim therefore fails.

In the outcome, for these reasons there will be judgment for the plaintiff as follows and it is ordered accordingly:

(a) the sum of $5066.66 is payable by the defendant to the plaintiff being for the extra yagona plants uprooted from the plaintiff=s yagona plantation;

(b) specific performance of the agreement dated 9 February 1998 directing the defendant to forthwith deliver to the plaintiff the motor vehicle Regd. No. CJ.884 if he has not already done so;

(c) the sum of $1000.00 is payable by the defendant to the plaintiff as liquidated damages under the said agreement; and

(d) Costs of the action in the sum of $400.00.

D. Pathik
Judge

At Labasa
27 August 2002