Filia v Talo [2011] SBMC 2; Civil Case 73 of 2010 (1 February 2011)

IN THE CENTRAL MAGISTRATES COURT
Civil Case No. 73/2010

BETWEEN:

PATTESON FILIA
Applicant

AND:

WILLY TALO
First Defendant

AND:

ATTORNEY GENERAL
Representing the Director Kukum Traffic,

Kukum Traffic

Second Defendant

Date of Hearing: 9 February 2011
Date of Judgment: 10 February 2011

Counsel for Claimant: Mr Gabriel Suri
First Defendant: No Appearance
Second Defendant: Mr John Muria

JUDGMENT

1. The claimant is an employee of Solbrew Company Limited and on 18/1/10 he put in a tender to purchase a Toyota truck registration no. AB 2121 for the sum of $25,000.00. This was not a public tender.
   
2. On 28th January 2010 the Claimant won the tender to purchase the above truck from his employer in the sum of $25,000.00.
   
3. The Claimant did not have cash available to pay for the tender and borrowed a sum of $25,000.00 and paid it to his employers as follows:
   
   • (a) a sum of $10,000 on 8/2/2010

(b) a sum of $10,000 on 12/2/2010

(c) a sum of $5,000 on 17/2/2010

(4) The arrangement between the claimant and the first defendant was that the truck was to be transferred in the claimant's name and it was to be used for doing business and any profits derived was to be shared between them after payment of the sum of $25,000 to the first defendant.

(5) Despite this agreement the truck was transferred in the first defendant's name on 12th March 2010 and he had exclusive use of it until about early January 2011. In doing this the first defendant breached the agreement regarding profit sharing and in that period he used the truck for cartage of timber, coconuts and market produce.

(6) According to the evidence of the claimant the first defendant used the truck to cart timber from Tina River to Ranadi at $1000 per trip and he made 3 trips per day and this cartage continued from March to December 2010 from Mondays to Saturdays (six days per week). In this period the first defendant would have accumulated a large sum of money. The first defendant also carried out other cartage of timber and coconut and market produce. The first defendant pocketed all the earnings and unjustly enriched himself in breach of the agreement that he entered into with the claimant about profit sharing. According to the evidence of the claimant which I accept the first defendant would have earned far in excess of the sum of $25,000 that he lent to the claimant.

(7) In the circumstances I hold that the claimant is no longer obliged to pay back the sum of $25,000 to the first defendant.

(8) I therefore order that the truck shall be transferred in the name of the claimant and I further order that the first defendant shall execute all necessary documents and deeds to effect the transfer of the truck in the claimant's name within 7 days. If the first defendant shall fail to execute the documents and deeds necessary to effect the transfer of the truck in the claimant's name then I order that Mr Hegstad Koga, Court Administrator and Deputy Registrar of the Magistrate Court shall execute all the transfer documents and deeds on behalf of the first defendant and this shall be sufficient to effect the transfer of the truck in the claimant's name.

(9) I order that the truck shall be released to the claimant forthwith.

(10) With respect to cost I order that the first defendant shall pay the claimant's

costs as the successful party to be taxed if not agreed and also the second defendant's cost who were brought in this proceedings because of the first defendant's actions. Again I order that the second defendants cost is to be taxed if not agreed.

Shafi Khan
Principal Magistrate