Aziz v Carpenters Fiji Ltd [1979] FJSC 22; Appeal 14 of 1979 (12 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELATE JURISDICTION

APPEAL No. 14 of 1979

BETWEEN

MOHAMMED AZIZ
s/o Abdul Wahid
Appellant

AND

CARPENTERS FIJI LIMITED
Respondent

Mr. M.V. Pillai, Counsel for the Appellant
Mr. A. Kuver, Counsel for the Respondent

JUDGMENT

This appeal arises from a short but not easy case in the magistrate's court.

It is lodged by the defendant who was adjudged indebted to the plaintiffs for $857.

The claim is for goods sold and delivered and annexed are two copy invoices addressed to the defendant Mohammed Aziz of T/AS Eagle Transport, Sigatoka. The account number is shown as 4111066 on each invoice indicating it as the defendant's account number with Carpenters Ltd., the plaintiffs.

The first invoice dated 2/3/77 is $56.27 and the second one dated 5.3.77 is $731.10. They are for motor vehicle parts which is not surprising when the customer owns Eagle Transport.

The written defence denies liability whilst admitting that the defendant is a customer of the plaintiff. It admits buying goods from time to time from the plaintiff and that on 3 occasions the defendant authorised A.M. Khan to purchase goods, amounting to $827 on the defendant's account for which the defendant had paid. It then denies liability alleging that the goods in question were obtained by A.M. Khan without the defendant's authority.

At the hearing on 7.12.78 P.W.1, a superviser in the plaintiff's credit section tendered invoices dated 1/12/77, 7/2/77, 11/2/77, 19/2/77, 1/10/76, & 5/10/76 signed by A.M Khan for goods supplied to the defendant. All those goods were paid for by the defendant. The witness explained in cross-examination that when a third party obtains goods on credit for a customer he should produce the customer's credit card, but if the third party was known to the salesman and produced only the customer's number the salesman would let him have the goods and charge them to the customer.

P.W.2, Makesh Prasad, the salesman stated that he does not know the defendant but he knows A.M. Khan and supplied him with goods for the defendant on the occasions mentioned in the foregoing invoices. He said that he also supplied the disputed goods to A.M. Khan for the defendant. It appears that A.M. Khan was never in possession of the defendant's "credit card" but produced the defendant's number only. This was accepted as sufficient by P.W.2.

On several occasions, as the evidence and the written statements of defence show P.W.2 had been justified in accepting A.M. Khan as the defendant's agent and the latter had paid for the goods.

No evidence was tendered by the defence.

The learned magistrate in his judgment stated that the defendant had acquiesced in a practise whereby A.M. Khan ordered goods on the defendant's account without producing the defendant's credit card and thereby had laid the ground for A.M. Khan to resort to this practice. He concluded that A.M. Khan had been held out as having the authority to do this and the defendant must accept the consequences.

The defendant appeals on the ground that the magistrate erred in holding that A.M. Khan had such implied authority from the defendant.

Mr. Pillai argued that no evidence was tendered to show what card number the defendant had. All the invoices referred bear the number 4111066. Clearly that was the defendant's account number. P.W.2 the salesman stated that the defendant's account number was produced. That evidence was not challenged by cross-examination nor by any evidence from the defence.

The magistrate was entitled to accept that the number produced to the salesman, P.W.2 was the defendant's number. In any event the defendant admits in his pleading that it was his account which was used throughout.

Mr. Pillai for the defendant further submitted that the evidence did not support a finding that A.M. Khan had been held out as the agent of the defendant. He submitted that the notification of A.M. Khan's purchases did not place him in the category of an agent. He argued that if A notifies B's act purportedly done on A's behalf that does not make B the agent of A. With respect to Mr. Pillai I do not regard the circumstances as amounting to the notification of an act. The law in such circumstances is set out in two cases which appear in 171 English Reports, Todd v. Robinson, (1825) at p. 999 and Gilman v. Robinson 1825 at p. 1350. Those cases are interesting in that the defendant in each case was obviously the same and they were heard on February 26th and February 22nd respectively by differently constituted courts and the defendant was represented by different counsel. The facts in each case were identical. The defendant, a shop-keeper in Driffield, Yorkshire employed one womac to order goods for him from wholesalers in London. In the first case six orders were delivered and paid for by the defendant, in the second case there were several such orders.

In each case the agent, ordered goods in the name of the defendant, which the defendant had not asked for. They were delivered to Womac for the defendant and Womac fraudulently used them for his own purposes. When invoiced for the goods the defendant denied liability but judgment was given against him in each case. The trials were with jury and in the first case Abbott Ld.C.J summed up to the jury as follows: -

"The liability of the defendant depends on whether he has by his own acts and conduct constituted Womac his general agent to order goods. The authority actually given in each particular instance to Womac can only be known to the defendant himself; the plaintiffs can only look to the appearances held out by him; and it is for you to say whether the defendant by his own act and conduct had induced the plaintiffs to believe that Womac was his agent for the purpose of ordering these goods. If you think he has authorised the plaintiffs to treat Womac as his agent, then the defendant is answerable notwithstanding he may in this particular instance have given Womac no such instructions."

The jury found for the plaintiffs.

It is apparent from that direction that the issue of holding out Womac as an agent was one of fact. Had there not been sufficient to justify a jury arriving at a finding the Court would have withdrawn the case from them.

In the second case Best C.J. said during the hearing:-

"There is abundant evidence to go to the jury. I agree that one transaction is not enough to raise the presumption of general authority, but several instances are, I think, sufficient. This case cannot be distinguished from the cases of master and servant, unless the jury should be satisfied that Womac's authority was terminated at the end of each transaction. One of two innocent persons must suffer for the fraud of a third. The defendant should have notified that his authority only applied to the particular transaction; and if he held out the part as his agent, and the seller trusted him upon that, the defendant is the one of the two innocent persons who ought to suffer."

The jury found for the plaintiffs.

Those two cases are on all fours with the instant case. If anything the instant case may be a little stronger in that the goods ordered by A.M. Khan and paid for by the defendant were motor parts; the defendant as a transporter no doubt needs motor parts from time to time. The goods in dispute were motor parts supplied by the same department as had supplied the previous orders. As Best C.J. said, one transaction alone would not be sufficient to lead the plaintiffs to believe that A.M. Khan was the defendant's agent, but several such transactions are enough to raise that presumption. If A.M. Khan, has indeed acted fraudulently then either the plaintiffs or the defendants have to suffer for that fraud. It is apparent that there is sufficient evidence to presume that the defendant by his own conduct could have led the plaintiffs to believe that A.M. Khan was his agent.

The approach of the magistrate was correct in law in admitting and considering that evidence. Upon the evidence so admitted he found as a fact that A.M. Khan was the defendant's agent. In my view he was justified in so finding.

The appeal is dismissed.

Judgment in favour of the plaintiff is confirmed. The defendant will pay the plaintiff's cost of this appeal.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA
12th OCTOBER, 1979.