Latchman v Singh [2009] FJMC 24; Civil Case 007.2008 (5 November 2009)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Civil Case No: 007 of 2008

LATCHMAN
Plaintiff

V

MADHWAN SINGH
Defendants

Before: C. Lakshman
Resident Magistrate

For Plaintiff: Mr. Samad
For the Defendant : Mr. Sunil Kumar

RULING – EXAMINATION AS TO MEANS

Introduction

1). His Worship, Mr Eparama Rokoika on 11th December 2008 entered judgment for the Plaintiff for the principal amount of $9650.00 and 10% agreed interest for 7 years which amounted to $ 6666.66 and cost of $150.00. 5% interest was also payable from the date of judgment.

2). On 6th July 2009 following default in payment for the judgment sum the Plaintiff filed Judgment Debtor Summons for the Defendant to personally appear on 4th August 2009 to be examined on oath by the Court touching the means he has had since the date of judgment to satisfy the sum payable and also to show cause why he should not be committed to prison for default of payment of the judgment sum.

3). On 4th August 2009 the Defendant offered to pay $50 per month to the Plaintiff. The Court gave the party’s time to discuss the option.

4). On 4th September the Counsels confirmed in Court to having discussions on the offer by the Defendant. The Plaintiff refused the offer of payments for $50 per month.

5). The examination as to means commenced on 4th September 2009.

THE DEFENDANTS EVIDENCE

The Defendant gave sworn evidence as follows:

- "Employed by British American Tobacco.

- Earned $588.62 per fortnight after tax.

- Was a patient at Suva Private Hospital. Seen every 6 months.

- Had brought goods on hire purchase from MH.

- Paying $88.50 per month to MH.

- House insurance $305/annum.

- $80.00 per month loan paid to ANZ.

- Domestic expenses – water rates - $10 per month, FEA - $25-$30 per month, town rates $180 per annum.

- 2 children in school

- Fare paid $4.00 per day (50 cents/trip per each child)

- School fees $50 per term for each child.

- 5 family members.

- Weekly groceries expenses - $120.00

- Monies on the side about - $1500.00

- Cannot save anything from 2 weeks pay.

- Flat on rent at $150 per month."

Cross Examination

In cross examination the defendant stated as follows:

- "Sold taxi business 10 years ago for $18,000.00

- Money with brother.

- Not paying to FNPF."

The Plaintiff’s also gave the Court searches from LTA which showed that the Defendant owned two taxis. One Taxi at the date of examination of means remained in his name.

Documents Submitted

1. LTA Search dated 9th September 2009– vehicle T1015 owned by Defendant until 28th October 2003.
   
2. ANZ – Interim Statement of account – dated 7th September 2009.
   
3. An agreement – for sale of T613 by defendant dated 10th January 2001.
   
4. Undated letter and unsigned – by tenant Roqica Bulidreketi
   
5. ANZ Access account Statement – dated 17th February 2009
   
6. Copy of CT 27542
   
7. Discharge report from Suva Private Hospital.
   
8. Copy of pay slip.
   
9. LTA Search dated 2nd September 2009– vehicle T1613 held by Defendant as at date of letter.
   
10. Nausori Town Council rate payer history.
    
11. Fea Bill
    
12. Water Bill.
    
13. House Insurance renewal certificate.
    
14. Carpenters account portfolio.
    

These documents were submitted and considered.

ANALYSIS OF EVIDENCE

The analysis of the evidence for examination as to means is based on the evidence tendered and the financial standing as at the date of examination as to means.

INCOME

From the Defendants evidence it is not disputed that the Defendant earns $1177.24 per month from his employment with British American Tobacco. The other income he has is $150.00 per month from rental income. The total income per month is $1327.24.

The Court here notes that the Defendant apart from denying that he currently owns T1613 (Taxi) has not submitted any supporting evidence to the satisfaction of this Court that he does not own the said taxi. The Plaintiff’s have tendered evidence from LTA that as at 2nd September 2009– Vehicle T1613 (Taxi) was held by the Defendant. After the Plaintiff tendered this evidence the onus was on the Defendant to adduce evidence that he did not own the taxi. This could have been by way of an agreement that the Taxi was sold as the Defendant tendered evidence (sale and purchase agreement) for LT613 or other supporting evidence. The Court therefore holds that the Defendant is still the owner of the taxi and derives income from the said taxi. The exact figure cannot be ascertained and is therefore not added to the income of the Defendant.

EXPENSES

As per the evidence the Defendants expenses are as follows:

(a) MH - $88.50 per month.

(b) The defendant pays $305.00 per annum for house insurance which equates to $25.41 per month.

(c) The defendant is also paying a loan to ANZ for $80.00 per month.

(d) Water rates are about $10.00 per month.

(e) Electricity is about $25.00 per month.

(f) Town rate is $180.00 per annum which equates to $15.00 per month.

(g) Children’s fare is about$4.00 per day (for both children) which equates to about $80.00 per month.

(h) Groceries expenses $480.00 per month.

The total expenses for the month amounts to $723.91.

Income over expenditure /month

Total income of the defendant is	$1327.24
The total expenses of the Defendant	$723.91
	-----------
Surplus	$ 603.33

The Court allows another $150.00 deduction per month for miscellaneous expenses not accounted for in the examination. That leaves the Defendant with surplus of $450.00 per month.

THE ORDERS

Following the Examination as to the means the Court Orders as follows:

(a) The Defendant within One month of this ruling pays $1000.00 to the Plaintiff.

(b) The Defendant is to forthwith pay $450.00 per month until the judgment sum is paid in full.

Right of Appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

5/11/09