Kimkoon & Company (Pty) Ltd v Harold Jean Louis & Ors (SCA 14 of 1987) [1988] SCCA 7 (21 July 1988)

TIT:E COMT OF AT= OF SEYCI-LiLLDE, CIVIL APPEAL NO. 14 OF 1987 EI: OON A7D 021PANY (Pty) LTD. . . . A2d1d=r vecaus EAROLD J= LOUIS JC77 "17 SC'CLASTIONE 1St IIMISPONDENT 2nd RESPOMTNT Goa: for appellant lct reopondent absen t, unrepresented TeaC recTondent in person JUDGIAErT OF EIMA2A, P. The apaellant is a limited liability company and owned a nul. Ler of shape. The let respondent was it employee and was =a= of one of its retail shops. The Oald respondent was .• clic:mod. to ',.eve nurchesed a number of articles on credit ftbm the retail shop managed by the 1st respondent. n both the respondents jointly for the The appellant filed an action ithe Supreme Court against he recovery of R8.63,018.60 IT:ar; a cum allegedly due for goods sold and supplied by the 1L;t respondent to the 211d. re-a-pendent, and for which the 2nd reeponlent had not paid. As aegards the claim against the let respondent the appellant had alleged that the 1st respondent. had been ncalicent in selling good s far such a large sum on credit t'o the 2nd respondent, and he was being sued in negligence. The elcim c7ainst the 2nd respondent was for the money due for goods cold and suplied to him by the 1st respondent. The let respondent in his statement of defence denied liability for negligence and averred that he had sold goods to the 2nd respondent on credit for ahs. 60,074.20 only. The 2nd reayondent in his statement of defence denied liability one averred. that he had purchased his moods for cash and had the receipts. The suit came before Seaton, C. S. who found that the foflowing issues were before the court: A 2 — As regards the lot respndent Did he in fact give credit Did he have authority to give goods on credit (3) Was he acting with authority or negligently in giving credit at all, and in particular tbgthe 2nd defendant. As regards the 2nd respondent • (1) Did he purchase goods on credit If yes, was it an agreed term that he should pay for those goods. If yes., did he pay for them. At the trial, one Daniel Him Keen, a director of the appellant, testified. He stated that the 1st respondent had strict instructions to sell the shop seeds for cash, and if he wanted to sell anything.. on credit, he had to obtain express authorisation from a director to do so. Daniel said that no authorisation was sought by the 1st respondent to sell goods to the and respondent on credit, and in any event, if it was sought, Daniel would have refused remission, owing to the past reputation of the 2nd respondent. The Goods sold, amounting to R2.63,813.60 were all entered on cash sole roceipts, as reflected in the carbon copies of the receipt book, with no name of the buyer. T he lot respondent had told • Dsniel that those goods were sold to the 2nd respondent on credit, and the sum remained unpaid. Daniel was not cross—examined by the 1st respondent. The 1st respondent testified. He said he never used to sell Goods on credit in the shop. He alleged however that the 2nd respondent had . persuaded him to sell and respondent goods on credit and he did so, but he put down all those sales as cash soles'as he believed that the 2nd respondent would carry out his promise to pay him cash. The 2nd respondent did not however pay. This happened on at least 13 occasions, He also • ssid that in 1933 he had personally lent the 2nd respondent - 260,000 which despite repeated promises, the 2nd respondent had not paid back, /3 - 3 - The 2nd respondent gave evidence. Ito alleged that he always purchased goods from the 1st respondent's shop for cash. Ho produced 10 cash sale receipts for goods so purchased, and the total added up to Rs.35,500 add— The items of goods So purchased tallied with a number of articles listed on 'he ' "cash sale receipts" allegedly sold to the 2nd respondent on credit by the 1st respondent. In his judgment the learned Chief Justice stated that it woo. only the word of the 1st respondent which was relied on to saddle the 2nd respondent with liability. He was satisfied. that the cash receipts produced by the 2nd respondent indicated that he had purchased goods for cash and not on credit. He did not rely on the word of the lst respondent and preferred the evidence of the 2nd respondent. He made the following findina:a on the issues before him: re 1st respondent He did give goods on credit but not to the 2nd respondent as alleged in the plaint He had no authority to give goods on dredit (3) 3rd issue has become irrelevant. fe 2nd respondent (1) purchased no goods on credit as alleged in the plaint. The learned Chief Justice accordingly dismissed the suit against the defendants with costs to the 2nd defendant. Mr. Georges for the appellant has submitted before us that . since the 2nd respondent had admitted that he had purchased goods, then in terms of Article 1315 of the Civil Code, the onus was on him to establish that he had paid for them. The 2nd res2ondent had only produced cash receipts totalling Hs.35,500 odd; there was still a sum of las.24,500/— or so outstanding in respect Of other items listed in.the "cash sale receipts" prepared by the 1st respondent for which the 2nd respondent had not accounted. /4 - 4 - I think that wos a distortion of the evidence of the 2nd rea:pondent. He never said that he had bought all the goods .-- lieted on the "cash sale receipts" prepared by the 1st respondent. He said he did not buy goods on credit, only for cash, and paid thc goods he had purchased. Mr. Geore'c's submisdIon is totally without merit. Another submission by Mr. G eorocs was in respect of the - lot respondent. He said that since the Chief Justice had found that the 1st respondent had no authority to give goods on credit, he- cu at to have found against the 1st respondent. As to that the memorandum of appeal filed was directed at the Chief Justice for disbelieving the 1st respondeni; and for believing the and respondent and for not holding that the and respondent had pl7._:chased goods on credit. I do not think I can entertain Georges submission on the let respondent at this late stage, sines it was not included as a ground of appeal. I would dismiss the appeal with costs to the second respondent. fated at this day of 1988. ttIALCipt; President. F •"- -'a"w"e` frb.,.- • IN THE SEYCHELLES COURT OF APPEAL Kimkoon v/s 1. Harold Jean Louis 2. Jonathan Scholastique Appellant Respondents Civil Appeal No. 14 of 1987 • Judgment of Goburdhun J. A L The appellant alleged before the Supreme Court that (1) the first respondent was during 1985/86 the Shop Manager of one of his retail'shops in Premier Building, Victoria (2) the first respondent sold to the. second respondent goods on credit to the value of 863,818.60, (3) the second respondent has failed to pay for the.goods sold on credit to him. The appellant further alleged that the first respondent was negligent in giving the goods on credit to the second respondent. The appellant claimed from both respondents jointly the sum of R63,818.60. After hearing evidence the learned Chief Justice who heard the case dismissed the claim against both respondents . The appeal is directed against the findings of fact of the learned Chief Justice quoad the second respondent only. The relevant parts of the judgment of the learned Chief Justice read as follows: "As between the plaintiff and the second defendant, there is nothing to prove that the goods were given on credit rather tban for cash except the word of the first defendant. It is the word of the first defendant against the word of the second defendant. In favour of the second defendant is the bundle of'receipts that he produced. They are marked "cash" and it is prima facie evidence that. cash was paid for them. I do not find that it has been proved that the bundle of receipts is false because I cannot rely completely on the word of the first defendant." .../2 • - 2 - "But there is nothing in the cash books (Ex.1) which would indicate whether other items described as "cash" sales were in fact taken by the second defendant or by some other persons. After seeing and hearing the parties I accept the evidence of the second defendant rather than that of the first defendant." 7v I have gone through the record and I cannot find fault with the conclusion of the learned Chief Justice. He was entitled to accept the evidence of the second respondent and find that he purchased no goods on credit as alleged in the plaint. As the appellant failed to discharge the•burden which rested on him the learned Chief Justice was fully justified to dismiss the claim. The appeal is dismissed with costs. Supreme Court Victoria June 1988 4(4, H Goburdhun Justice of Appeal -