Vosaniveibuli v Brighton Garments Ltd [2005] FJHC 28; HBA0013.2004 (18 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

{Suva Magistrate’s Court Civil Case No.: 545 of 2002}
CIVIL APPEAL NO.: HBA 13 OF 2004

BETWEEN:

FANI VOSANIVEIBULI & BOARD OF TRUSTEES
APPELLANTS

AND:

BRIGHTON GARMENTS LIMITED
RESPONDENTS

Mr. N. Vere for the Appellant
Mr. V. Maharaj for the 1st Respondent

JUDGMENT

The appellant appeals against the decision of the learned Magistrate Mr. Ajmal Gulab Khan delivered on 8th April 2004.

The plaintiff’s claim was for purchase price of certain umbrellas it allegedly sold to the first defendant in her personal capacity and in her capacity as trustee of the second respondent. The plaintiff alleged that the first respondent was supplied the umbrellas and she gave her assurance to pay.

In the defence the defendant says she was not the trustee of the second defendant nor Chairman of Parents Teachers Association in April and May 1996 the time the alleged sale took place. Her defence is that she was only acting as agent of the Parents Teachers Association of Ratu Kadavulevu School and the contract was not with her personally and that the contract was entered between the Principal of the school Jimione Buwawa and the respondent.

Mr. Vere in his submissions submitted that there was no privity of contract between the appellant and the respondent and there was no intention to create legal relationship. Any assistance which the appellant gave in selling the umbrellas was a result of friendship arising out of previous dealings between the appellant and the respondent. He submitted that the learned Magistrate made incorrect inferences.

It is upon the appellant to show that the learned Magistrate made an error in his findings of facts. Unless the appellate court is satisfied that the trial court was in error in his findings of fact the appeal will be dismissed – Colonial Securities Trust Co. v. Massey - [1895] UKLawRpKQB 192; (1896) 1 QB 38 at 39.

The issue is could the learned Magistrate have made the inferences he did. The facts show that the umbrellas had originally been ordered by the principal of the school one Jimione Buwawa who later was no longer the principal. He was no longer in the picture. The umbrellas had school logo on them.

The appellant was known to the respondent. Evidence shows that she was involved with the Parents Teachers Association of Ratu Kadavulevu School. She took delivery of umbrellas at her own home. They were not delivered to the school. The receipt of the umbrellas by her is not denied. The umbrellas were sold to her at $9.00 each. After the umbrellas came into her possession, she distributed them for sale at $10.00 each making one dollar profit on each umbrella. She therefore exercised all the rights of an owner.

A contract need not be in writing. A contract can be deduced from conduct of parties. The delivery note being exhibits 1 and 2 coupled with her acceptance of umbrellas shows there was a contract. Subsequently the appellant exercised all the rights of an owner by selling these umbrellas.

The appellant submitted that she signed the delivery documents and received the documents as an agent. An agent who signs a document or a contract in his own name, without qualification, is personally liable on a contract unless it appears from the face of the contract that he is signing as mere agent of someone else, and the signature was not intended to bind him – Lester v. Balfour Williamson Ltd. – (1953) 2 QB 168. It is for her to satisfy the court as to who the principal was and that dealings were done with the principal and she was their agent. The trial Magistrate was not satisfied as to agency, a conclusion he was quite justified in coming to on the evidence adduced.

The defendant in cross-examination stated that “the umbrellas were dispatched to parents, school, old boys etc. It was dispatched by me. I waited for money to come back to me to pay plaintiff”. The appellant therefore expected to sell the umbrellas at a profit and pay the respondent. Those to whom she had dispatched the umbrellas may have let her down but that was not the concern of the appellant. It only points to perhaps a too trusting an attitude by the appellant towards those to whom umbrellas were given. These facts must be read in conjunction with annexure C which is an undertaking not to pay but to use her resources to ensure that payments were made. It points very significantly to a nexus between the appellant and sale of umbrellas.

If the appellant considered that someone other than her was responsible for payment she could have joined them as defendant or as third party. That she did not do.

The appellant has not been able to satisfy me either that she was assisting the respondent on basis of friendship or that she was a mere agent. The appeal is therefore dismissed with costs fixed in the sum of $300.00 to be paid in fourteen (14) days.

[ Jiten Singh ]
JUDGE

At Suva
18th February 2005