Ali v Raihman [1977] FJSC 174; Action 177 of 1975 (24 March 1977)

IN THE SUPREME COURT OF FIJI
Civil Jurisdiction

Action No. 177 of 1975

BETWEEN:

JAFFAR ALI
Plaintiff

AND

TITUS PHILLIP RAIHMAN
Defendant

Mr. A.H. Rasheed for the Plaintiff
Mr. H.M. Patel for the Defendant

JUDGMENT

In this action the plaintiff seeks to recover from the defendant a sum of $2,957.50 which is alleged to be the balance amount owing by the defendant to the plaintiff for river gravels supplied and delivered and for hire of a tractor by the defendant from the plaintiff.

According to the plaintiff during the month of January 1975 he supplied and delivered river gravels for the defendant. The total number of loads (each of 6 cubic yards) river gravels supplied was 261 and for which the agreed charge was $10 per load. Furthermore, according to the plaintiff during the same period the defendant hired his tractor at an agreed rate of $10 per hour. The plaintiff alleged that the total cost for the supply of river gravels and hire of the tractor to the defendant was $3,457.50 (see Exs. 1, 2 and 3). Of this amount $500 the defendant has paid, leaving a balance of $2,957.50 which is the subject matter of the present action.

The defendant denies owing the plaintiff the sum claimed and says that the actual amount to which the plaintiff is entitled is only $1,462.50 calculated on the basis that $5 was the correct charge for each truck load of river gravels supplied plus a self-claimed deduction for damage allegedly done to the defendant's culverts by the plaintiff's tractor.

The deduction made was $190. According to the defendant the rate agreed for each truck load of gravels was $5 and not $10 as alleged by the plaintiff.

From the evidence it is clear that there is no dispute between the parties as to the number of loads of river gravels which was supplied nor is there any dispute as to the number of hours for which the plaintiff's tractor was hired or the rate to be charged thereon. What is in dispute is the rate agreed to be charged on each truck load of gravels.

In his evidence the plaintiff says that he and the defendant are close neighbours in Navua. According to him the defendant came to see him one Sunday and asked to be supplied with river gravels for the driveway he was building at his house. The plaintiff said he told the defendant the cost per track load would be $12 but the defendant persuaded him to reduce the amount to $10 per load. The plaintiff said no one was present when they discussed the price to be paid f or the gravels.

The defendant who gave evidence also said that in October 1974 he started building an access road from the main road to his house on his land in Raiwaqa, Navua. His foreman for the job was a Narain Singh. Also working for him was one Rup Narayan. He said he used to travel fortnightly from Suva to pay his workmen. According to the defendant the plaintiff came to the work site one day whilst his men were digging a creek for a causeway. The plaintiff approached him and said he has got a large heap of boulders mixed with gravels, mud and grass which would be suitable for his swampy land. The defendant said after some discussion the plaintiff agreed to charge him half the normal price for screened gravels i.e. $5 per cubic yard. The defendant said following their agreement he received from the plaintiff 261 truck load of boulders mixed with mud. He said when they fixed the price at $5 his job foreman and Rup Narayan were present.

Both Narain Singh (D.W.2) and Rup Narayan (D.W.3) testified to the fact that they were present on the job site when the plaintiff and the defendant discussed the price to be charged for the gravels. They said they heard the agreement reached between the plaintiff and defendant under which the price for gravels would be $5 per load.

I have carefully considered the whole of the evidence adduced in this case. There are two conflicting accounts as to the price agreed to be paid for a truck load of gravels - $10 v. $5. The onus is of course on the plaintiff to satisfy the Court on the balance of probabilities that his account as to the agreed price of gravels is accurate and trustworthy. On the whole of the evidence before me I find that the plaintiff has not discharged the onus of proof which rests on him. In the circumstances I have no alternative but to hold that the agreed price for the gravels supplied to the defendant was $5 per load.

Thus, the amount properly payable for 261 truck loads of gravels supplied and delivered to the defendant should be $1,305 (261 x $5) Which when subtracted from $3,457.50 leaves $2,152.50 from which a further $500 (being monies already paid on account by the defendant to the plaintiff) should be deducted giving a net sum of $1,652.50 for which the plaintiff is entitled in judgment.

The further deduction of $190 from that amount by the defendant cannot be allowed. The amount was not pleaded by the defendant either as a counterclaim or a set-off in accordance with the Rules and is clearly outside the scope and jurisdiction of this inquiry.

For the reasons given there will be judgment for the plaintiff in the sum of $1,652.50 with no order as to costs.

Sgd. T. U. Tuivaga
JUDGE

Suva
24th March, 1977