Supreme Court
Action No. 410 of 1980
9th December, 1982
Moe, J.

Mr. Dean Lindo, S.C. for the Plaintiff
Mr. Oscar Sabido for the Defendant

Counterclaim arising from oral agreement for importation of construction steel by Plaintiff and its sale to Defendant - Plaintiff obliged to credit Defendant's account with equivalent of 10% of import duty on steel imported - Whether Plaintiff discharged its obligations under agreement - Counterclaim of Defendant not supported by evidence - Counterclaim dismissed.

JUDGMENT

By a counterclaim, the Defendant Company claims that under an oral agreement between the Plaintiff and Defendant, the Plaintiff imported in or about June 1980, 100 tons of construction steel and wire mesh rolls for the exclusive and sole use of the Defendant. That the Plaintiff was required to sell all such goods to the Defendant Company, which was required to purchase such goods at current market prices inclusive of duty and the Plaintiff was required to credit to the Defendant's account after the Defendant had purchased the 100 tons the sum of $10,000.00 representing 10% import duty on the 100 tons. That the Plaintiff sold the Defendant steel to a total cost of $65,001.60 and has not refunded the Defendant with the amount of import duty thereon. That the Plaintiff failed to sell the Defendant the full amount of 100 tons of goods but discontinued selling to the Defendant on 4th September, 1980. As a consequence the Defendant had to purchase the balance of the 100 tons elsewhere at a cost inclusive of import duty. The Defendant claimed from the Plaintiff the amount of $10,000.00.

The Plaintiff Company in its reply and defence to the claim admitted an agreement made in March, 1980 to import steel for the sole use of the Defendant on a duty free permit to be obtained by the Defendant from the Government of Belize. It averred that it imported under the Defendant's duty free permit 23.05 tons of steel on 7th April and 70.04 tons on the 1st June, 1980. That on 27th June, 1980, the Defendant owed the Plaintiff a balance of $7,212.90 in respect of steel purchased under the agreement and on that day by agreement between the parties the Plaintiff credited the Defendants account with $6,281.00 representing duty value of steel imported by the Plaintiff under the Defendant's duty free permit but not purchased by the Defendant.

The Managing Director of the Defendant Company gave evidence that the company bought 40 tons of steel under the agreement and paid $65,000.00 therefore. He insisted that his company did not buy any more steel from the Plaintiff under the agreement as the Plaintiff stopped selling the Defendant because of a misunderstanding with a Mr. Espat of the Plaintiff Company. He did not agree to bringing the agreement to an end. He tried to get back the duty free permit but to date had not gotten it back. I was not impressed by the evidence presented by the Defendant. The Managing Director appeared confused as to what was the true position and his evidence was shown to be unreliable especially when tested in relation to various earlier statements made in affidavits and in relation to the pleading.

There is clear evidence that the Plaintiff imported steel twice under the Defendant's duty free permit, amounting to 93.19 tons. The first importation was on 17th April, 1980 of 23.15 tons, import duty value being $2,026.53 and the second on 18th June, 1980 of 70.04 tons, import duty value being $6,199.37. Thus at June, 1980 in pursuance of the agreement on purchase of the total amount the Defendant was entitled to a credit of those two sums totaling $8,226.90. There was also clear evidence that on the 27th June, 1980 the Plaintiff credited the Defendant's account with the amount of $6,281.00. The question which arose was whether the Plaintiff credited the Defendant with any further amounts.

The Defendant's Managing Director said at one stage the Defendant never received any duties from the Plaintiff in respect of the 40 tons the Defendant purchased but later said the Defendant received some credits on the purchases. He could not say how much credit it was and finally agreed the last credit was $6,281.00 on 27th June, 1980 but the previous credits he doesn't remember. The accountant and general manager of the Plaintiff gave clearer and consistent evidence. He said the Defendant purchased 22.18 tons of steel out of the first importation of 23.15 tons duty free and was credited with $81.52 the duty value on the remaining of .97 tons. That the Defendant was also credited with $6,199.37 duty value on the 70.04 tons of the second importation making a total of $6,280.89 which was rounded to $6,281.00. He gave as the reason why the Plaintiff credited the Defendant with that amount at that time that the Plaintiff was having difficulty in getting payments for goods sold to the Defendant and the Plaintiff wanted to terminate the arrangement and in fact after the credit told the Defendant the arrangement was at an end. The Defendant conceded that this was so. Moreover the Plaintiff went on, the Defendant having got all the credit it was entitled to, still owed a balance of $931.00 which it later paid.

I found that the Defendant got credit for the amount of the duty value on all steel imported under the two duty free permits of the Defendant up to the 30th June, 1980. There is no evidence to support the claim that the Plaintiff imported 100 tons of steel and to be under an obligation to sell to the Defendant steel over and above the 93.19 tons referred to above.

The counterclaim fails. The Defendant to pay the Plaintiff his costs.

----------OO----------