Northern Fish Shop v Odean [2016] FJHC 698; HBC27.2013 (5 August 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No.: HBC 27 of 2013

BETWEEN : NORTHERN FISH SHOP a firm of Nasea, Labasa

PLAINTIFF

AND : VIRENDRA ODEAN of Qelewaqa, Labasa, Fisherman

DEFENDANT

Counsel : Mr. Sen A. for the Plaintiff

Mr. Ratule K. for the Defendant
Date of Hearing : 7^th and 8^th July, 2016
Date of Judgment : 5^th August, 2016

JUDGMENT

INTRODUCTION

1. The Plaintiff filed this action seeking a sum of $ 20,754.10 and interest from the Defendant. The Plaintiff had sold a 22 feet fishing boat to the Defendant on credit and the payments for the same to be settled periodically by way of sale of the fish from each voyage. The Plaintiff had also supplied the essential requirements such as fuel for boat engine, food for the occupants for each voyage and also some cash and such expenses were deducted from the value of fish caught after each voyage. The amount in excess of the reimbursed sum for the voyage was used to settle the outstanding credit for the purchase of the boat. In the statement of Defence the Defendant had denied the purchase of the fishing boat from the Plaintiff. He further stated that the boat was purchased by late Anirudh and he had worked for him in the said boat. At the hearing two witnesses for the Plaintiff gave evidence and Defendant did not give evidence. The ex-wife of late Anirudh gave evidence and denied that the boat was purchased by her late husband. She said that the boat that she and her late husband used was not purchased from the Plaintiff, but from a third person. She also said that it was sold before demise of her late husband.
   

ANALYSIS

2. For the Plaintiff only Chief Operations Officer and the widow of late Anirudh gave evidence. They were cross examined by the counsel for the Defendant. Their evidence on the balance of probability proves that the Defendant had purchased a fishing boat from the Plaintiff on credit.
   
3. The Defendant did not give evidence and did not call any witness on behalf of himself, but in the statement of defence he had denied the purchase of the fishing boat from the Plaintiff. According to him it was purchased by late Anirudh and he had worked for him in the said fishing boat.
   
4. The widow of late Anirudh came and gave evidence. She said that her late husband had a boat and it was sold as he was getting sick, and he passed away on 8^th May, 2008. She said her late husband was a Police officer and used to go fishing for hobby. She further said her late husband used to go fishing with two others and one of them was the Defendant, but he had stopped working for her late husband long time before they sold their boat due to health condition of her late husband.
   
5. She said that Defendant had his own boat and he used to take fishing nets from her husband when he was living and after he died he had taken them for good. She also said that her late husband wanted to help the Defendant as he was a ‘poor person’ who supplied labour when needed. She said that her late husband did not engaged in commercial fishing but it was mainly for the consumption in the family. The boat used by her late husband was bought from a person by the name of Korovatu and it was not registered. The fishing licence was held by the witness, the widow.
   
6. From her evidence it clear that the Plaintiff’s late husband had a boat he had gone for fishing during weekends for their consumption. The widow had accompanied him at times and the Defendant had also gone when she was not going with her late husband. This boat was not purchased from the Plaintiff and it was sold before the demise of late Anirudh.
   
7. The Defendant had purchased a boat for himself and the issue in this case relate to the boat belonged to the Defendant, and not the boat owned and sold by late Anirudh.
   
8. The witness for the Plaintiff gave details of sums paid by them with details of the fish the Defendant supplied after each fishing voyage. The details of the each voyage was given explaining the documents already submitted to the court by an affidavit. This is an affidavit filed in this action for setting aside of default judgment.
   
9. On the balance of probability the Plaintiff has proved that a fishing boat was sold to the Defendant for a sum of $19,000 from which $3,000 was paid as the initial payment and the rest was a running account of debt owed to the Plaintiff.
   
10. The Defendant was also borne the expenses of certain essential items for each voyage and the boat was also repaired and parts were supplied on credit (the Defendant) to this account.
    
11. The Defendant initially had sold all the fish caught as his payment but later had sought to sell fish outside while taking all the advantages from the Plaintiff. This had resulted the Plaintiff’s refusal to supply materials on credit to the Plaintiff for fishing.
    
12. From the evidence given it proved that initial debt of $16,000 was increased by the conduct of the Defendant as he had not fully reimbursed even the expenses incurred by the Plaintiff for each voyage since the purchase of the boat. The reason for this was the Defendant not being honest and not selling entire fish stock to the Plaintiff as their verbal agreement and the understanding. This had resulted the Plaintiff stop further spending on the Defendant’s fishing expeditions. The agreement between the Plaintiff and Defendant was to sell all the fish caught to the Plaintiff.
    
13. According to the evidence of the Plaintiff the outstanding debt was calculated with reconciliation of his account and the details of the reconciliation was also supplied to the Defendant. The Defendant’s defence was total denial of the purchase of the fishing boat from the Plaintiff. So there is no dispute as to the amount owed. So on the balance of probability there is a proof of a debt of $20,754.10.
    
14. On the balance of probability the Plaintiff had proved that Defendant owed them FJ$ 20,754.10 at the time of the institution of this action. The Plaintiff had also sought interest for the said sum. There was no interest agreed between the parties for the said debt. The interest is granted from the date of writ to the date of judgment at 6%. The cost of this action is summarily decided at $3,000.
    

FINAL ORDER

1. The Plaintiff is granted a sum of $20,754.10
2. Interest for the said sum from the date of the writ to the date of judgment at 6%.

100. Cost of this action is summarily assessed at $3,000.
     

Dated at Suva this 5^th day of August, 2016

......................................

Justice Deepthi Amaratunga

High Court, Suva