Karo v Perdacher [2001] PGDC 19; DC437 (4 May 2001)

DC437

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 92 OF 2000

Simon Karo
Complainant

V

Wally Perdacher
First Defendant

Panga Coffee Factory Ltd
Second Defendant

Mt.Hagen: M. M. Pupaka
2001: 04th May

Counsel
Complainant In Person
First Defendant For Himself And The 2nd Defendant

13th July 01

M. M. PUPAKA PM: The complainant sued the defendants for the following orders:

"The refund of K8000.00 plus interest; the return of a Hino dump truck Reg. No. HAC. 048; & Damages for loss of business".

He sought these reliefs on the bases that he and the 1st defendant had finalised a verbal agreement that the defendants would release ownership of the subject vehicle, Hino dump truck Reg. No. HAC.048, to him. The complainant said he, as a consequence of the said verbal agreement, had paid in a deposit of K4000.00 to the 1st defendant. He paid in another K4000.00 for repair and maintenance expenses and had generally paid off the vehicle through commission payment deductions within three years.

The parties contested every point of fact. There is virtually no common ground between them. This completely contentious situation, coupled with the brevity of evidence from both sides, makes the ascertainment of clear findings of fact by the Court that much harder. However difficult the task seems to be the Court must proceed to decide this controversy in accordance with law and proper principles of reasoning, in a logical and fair manner. It is necessary to sound this warning to the parties so that it is clear on the record, that sufficient thought and consideration has been afforded to this matter. It must be stated that the decision that has been arrived at is not ‘off the cuff’, but rather it is the result of a protracted and deliberate consideration of all evidence that has been presented into court by both parties.

The Complainant’s Evidence:

The complainant claims that the 1st defendant and he have had, until things turned sour, a long and quite beneficial association. The complainant said, after working for the defendants for some time he decided to go to Lae. While he was there the 1st defendant came to Lae and took him back to Mt. Hagen. He says that the 1st defendant gave certain undertakings and promises that caused him to come back to Mt. Hagen with the said 1st defendant. The complainant said due to ethnic tensions along the Highlands Highway, he and the 1st defendant travelled to Mt. Hagen in a charted plane.

The complainant said that the defendants were engaging other men around that time, in a scheme whereby certain men were asked to pay in a deposit of some money. They were in turn given vehicles by the defendants. These men would then buy coffee for the defendants. Part of these men’s commission would be deducted towards paying off the vehicles they were allocated. Over time, (the long or shot of it depending on one’s initial deposits), they would pay off their respective vehicles and become full owners. The complainant said that in 1997, after he had started working for the defendants, the 1st defendant asked him to look around for a used vehicle, which the defendants would buy and the complaint then participate in the defendants’ scheme.

The complainant says he had only K4000.00, which he was asked to put in as deposit by the 1st defendant. His deposit was not enough for a new vehicle so he kept a look out for a suitable used vehicle. The 1st defendant told him to look out for a vehicle that would cost below K20, 000.00. One day he identified a Hino dump truck, Reg. No. HAC. 048, that was being sold within the range. So the complainant and the vehicle owner – one Peter Kaewa – drove down to see the 1st defendant at the 2nd defendant’s coffee factory.

At the 2nd defendant’s coffee factory the 1st defendant bought the Hino dump truck for K16, 000.00. The 1st defendant wrote a cheque worth K16, 439.00 to Peter Kaewa for the truck. Apparently there was an outstanding bank loan of about K21, 561.00 over that truck with the Bank South Pacific (BSP). Peter Kaewa also transferred the loan to the defendants. The defendants therefore acquired the truck for the sum of K38, 000.00. A formal sale agreement was executed as evidence of all these events on the 07/05/97. John Kaewa and Wally Perdacher – the 1st defendant – signed the "Agreement" as vendor and purchaser respectively. The complainant also signed upon it as a witness.

After the vendor had left, the 1st defendant told the complainant that his K4000.00 had been used for other purposes so that is why the vendor had been paid in cheque. The complainant said he and the 1st defendant had a solemn discussion then, wherein the 1st defendant told him he had a heavy responsibility. He was told to work hard and forgo much of his commission entitlements, which would be used to pay off the bank loan.

From then on the complainant used the vehicle exclusively to buy coffee for the defendants. The complainant said he would buy coffee for the defendants and part of his commission entitlements, (he was not strictly an employee in the sense that the complainant was not on a fixed salary, much like the others as alluded to above), would go towards paying for the vehicle. The complainant said the commission rates were fixed. He was entitled to be paid K450.00 per trip for coffee buying trips he made out of the province. For trips within the Western Highlands Province he was paid K100.00, except trips to the Baiyer River area for which he was paid K150.00.

The complainant said "half" of all his commission payments were deducted and retained by the defendants for the purpose of servicing the outstanding BSP loan liability that come with the vehicle. However he was neither specific about how much was deducted from out of each of his various commission payments nor did he say how much altogether was deducted.

In 1998 the complainant had an accident whilst driving the vehicle. The vehicle was quite badly damaged. The complainant says the 1st defendant asked him to bring enough money to fix the vehicle, so he paid in another K4000.00 in cash towards it. The complainant said he put together that money from his own savings and loan from friends. After having had the vehicle towed to Kaiwe Motors for repairs the complainant says he paid compensation for certain injuries and damages occasioned in the accident. He said he paid these also from out of his own commission entitlements due to him. The 1st defendant said though, that all such compensation payments necessitated by that accident were paid for by Panga and not by the complainant. The 1st defendant further denied receiving K4000.00 from the complainant for the purposes of fixing the vehicle.

The complainant said he replaced the windscreen of the vehicle twice when it was damaged that many times. He recalled paying for and registering the vehicle when the same expired. He recalled being booked by the police over the condition of the vehicle, whilst on coffee buying trips, and he paid for the traffic fines him self. The complainant’s argument is that he did all those things and paid for the expenses himself because he was the acknowledged owner of the vehicle. However the 1st defendant generally denied all of these occasions and expenditures, saying the company paid for all expenditures related to the maintenance of the vehicle.

In light of the blanket denials, the complainant put to the 1st defendant as to why he had not taken any action against him, especially why he (the complainant) was not sacked instantly from employment. The 1st defendant said the complainant was sacked for damaging the vehicle. However I must find some merit in the contention of the complainant, in questioning the 1st defendant like that. It seems clear enough that the complainant had full control of the vehicle for some relatively considerable time after the accident, without doing any work for the defendants. He was neither asked by the defendants to account for his conduct, nor sacked or reported for any criminal offence. The defendants seem to have had no control over how and where the vehicle was kept by the complainant since it was first bought, perhaps very much content so long as the complainant made the trips as expected.

Then there is the matter of the registration of the vehicle. When the vehicle’s registration expired, the complainant had it registered. That is clear enough. The registration papers show that a "S. K. PANGA COFFEE" of P. O. Box 538, Mt. Hagen, owns it. Various roadworthy Certificates were paid by and receipts made out to one "S. K" between 1998 & 1999. Whether the defendants authorised the complainant to register the vehicle for them in this way and whether the defendants provided the funds for the registration is not clear. However the defendants proffered no contradictory evidence when the complainant based his claim on this pivotal point, so I can only accept that the complainant actually registered the vehicle. Just why he had "S. K. PANGA COFFEE" as the registered owner of the vehicle is not clear though. Nevertheless I must hasten to add that what appears on the registration certificate is, on that bases alone, not conclusive proof of ownership of the vehicle by either party.

The complainant has not produced any receipts for the two lots of K4000.00. He called one witness who said he gave tyres to the complainant. That witness also said he loaned K1000.00 to the complainant, who repaid him back some time latter. The witness, one Jim Pek, said the complainant specifically requested him for the K1000.00 to fix the vehicle after having had it damaged in the accident alluded to earlier.

The complainant produced no documentary or other collateral proof of his agreement/arrangement with the defendants. He has particularly failed to call any other coffee buyer who participated in the scheme put in place by the defendants. Any evidence pertaining to these aspects would have proved valuable for a much easier resolution of this controversy between the parties.

The Defendants’ Evidence:

The 1st defendant alone testified for the defence. Whilst he did agree (with the complainant) that the subject vehicle was purchased from one Peter Kaewa, and that the purchase price tag consisting of a direct payment to vendor and a transfer /assumption of loan liabilities, he denied just about every other scrap of evidence adduced and nearly every other word spoken by the complainant. He consistently accused the complainant of lying in court.

Much of the evidence of the defendants is contained in the affidavit of the 1st defendant, sworn and filed on the 26/09/00. An annexure to the said affidavit bear out the contention of the defendant that the contract to purchase the vehicle was entered into between the person Peter Kaewa and the 1st defendant, but then that was never contested by the complainant. The 1st defendant vehemently asserted that the complainant had never been responsible for identifying the vehicle as one suitable for purchase. He had said further that the complainant had been engaged as driver of it only after the vehicle was purchased. The 1st defendant gave the impression that the complainant was never in or around the scene until much later when a driver was needed to drive the vehicle. However I note with interest that the complainant actually was present at the signing of the agreement for purchase of the vehicle. When the 1st defendant signed for the company and the vendor Peter Kaewa signed for himself, the complainant – Simon Karo – signed as witness. I get the impression that the complainant, quite unlike the ignorant bystander who came into the picture much later as the 1st defendant would have the Court believe, was in the thick of all that took place relative to the purchase of the subject vehicle.

The 1st defendant denied the complainant’s assertion that the defendants deducted part of his commission entitlements towards the service of the loan outstanding over the vehicle. Whilst he never actually gave the total deducted, the complainant reckoned the loan from BSP was paid off with his commission deductions at about the time matters came to a head between himself and the defendants. The 1st defendant has attached certain invoices, which obviously show details of total coffee weight brought in and commission paid out. All these show no deductions but then again these copy invoices show no details of who the recipient was so I can not conclusively reach a finding on these matters at any rate.

That is the evidence of the defendants.

Finding of Facts:

I find as matter of fact that the complainant and the defendants have had a relatively long association. There is uncontested evidence of the complainant working for the defendants prior to 1997. This must mean, inter alia, a mutual working relationship at least. Based on and as a result of this long association the 1st defendant did advise the complainant that if the complainant wished to, he could deposit some money towards purchase of a vehicle which could be exclusively used to transport coffee for the defendants. There is uncontested evidence that certain other men like this complainant, were engaged in a scheme put in place by the defendants, whereby they paid in deposits with the defendants for a vehicle. They would then be each allocated a vehicle, which they would ultimately own by gradually paying it off. They would use the vehicle to work exclusively for the defendants for a certain number of years after which time they would have, one way or other paid off the vehicle. They were not on the defendants’ payroll but were paid commissions.

There is no direct evidence that the complainant paid any deposit of K4000.00 to the defendants. There is also no such evidence that he paid another K4000.00 to the defendants after the subject vehicle was damaged in the accident as alluded to. Further more there is no direct evidence that the complainant paid for maintenance and replacement of parts. However there is clear evidence that the complainant at some stage fitted tyres from his own sources. There is clear evidence that the complainant paid for the road safety stickers of the vehicle, after safety inspections, more than once.

There is evidence that the complainant registered the vehicle. With regards to the registration of the vehicle I accept that it was the complainant who went about registering the vehicle. Whether he used his own money or the defendants’ is not clear though. Further the defendants do not have the copies of the vehicle’s papers. If they do, they have not produced them. The defendants have said they paid for and registered the vehicle themselves. Yet they have no explanation as to why the complainant was allowed to temper with the registration details at the motor traffic registry by inserting his own initials on the registration certificate, and just how it is that the complainant alone has the registration papers. Therefore, on the balance of probabilities, I accept that the complainant paid the cost of registration.

I accept as a matter of fact that the complainant was in exclusive control and custody of the vehicle for most of the time. He kept it at his village and used it exclusively for his own purposes when not working for the defendants. The complainant’s assertion in relation to this stands uncontradicted. The first defendant did say something about pulling the vehicle off the complainant but could only deny (without any evidence to the contrary) that the complainant and others participating in the scheme paid for the running expenses of their respective vehicles.

It was imperative for the defendants to produce evidence to counter the evidence of the complainant in relation to the custody and control of the vehicle. It was equally imperative for the defendants to say just why the complainant was allowed to register the vehicle and pay for things like Road Worthy Stickers. They did not. Being a company, Panga Coffee is in a position to produce records of expenditure in areas of its vehicles’ registration and maintenance. In the circumstances the complainant’s evidence on these matters stands uncontradicted.

It is evident the vehicle in question has been since paid off. The property in the same now no longer remains with the AGC Finance under the mortgage, after its loan advances have been paid. The question then, in the light of all the evidence available, is as to who now owns it? Or put another way, who is now entitled to own it?

Are the Defendants entitled to ownership of the said vehicle?

Without the assertions of the complainant there is no doubt they would be entitled to ownership.

Is the Complainant entitled to ownership of the vehicle?

This is the crux of the issue. It bears repeating, in a summary form, what the evidence of the complainant amount to.

The complainant has continuously kept physical possession of the vehicle for almost three years. He paid for the registration and other associated costs related to registration. He had control of the registration papers whereas the defendants did not. The complainant has evidently fitted tyres for the vehicle when it was in need of roadworthy tyres. He has paid for other expenses, especially compensation for injuries and damages done in the course of the use of the vehicle. Control of the vehicle and payment of its expenses would have been the lawful responsibilities of the vehicle’s owner. It is significant that the complainant took upon these responsibilities without any objection from the defendants and there is no explanation as to why the defendants allowed that to happen.

It is significant that the complainant was right there at the time when the vehicle was purchased from the person John Kaewa. I reject the first defendant’s evidence, if there is any evidence at all, as to the ‘chance’ presence of the complainant at the factory to sign as witness on the sale agreement between John Kaewa and Wally Perdacher. At best the first defendant was shifty and could not explain just why the complainant was allowed to sign upon the purchase agreement as a witness. I accept the complainant’s explanation as to why and how he was present there at the time. The complainant’s explanation that he had an interest in the vehicle being purchased becomes more credible in the light of the shifty answers and mere denials of the first defendant in relation to the complainant’s presence and his signing as a witness.

Further I would ask why a person like the complainant, a reasonable and mature adult, would mount court proceedings to claim something he is not entitled to. I had occasion to gauge his demeanour in court. He was clear and confident. He looked the first defendant in the eyes and put his case to him in court. I did ask the first defendant, when he testified under oath, as why the complainant would sue him and his company for so much without at least some justification. The first defendant said the complainant was plain and simply lying in court to get money from him.

I do not share that view. As I said a long-standing relationship between the first defendant and the complainant is evident. The complainant had possession of the subject vehicle as if he was the owner in more ways than one. People in fact thought he owned it. In the circumstances there has to be a reason I think, for the complainant to sue the defendants in the way he has done.

The complainant’s assertion that he gave the defendants K8, 000.00 towards his eventual ownership of the vehicle in question, and his further assertion that the defendants, towards the same end, deducted his commission monies, are in the circumstances credible assertions.

In the end, I think, the complainant has made out his case against the defendants. He is therefore entitled to the relief he sought, principally to be allowed ownership of the vehicle. The defendants, being quite content to deny the claim, failed to suggest that the complainant has not otherwise paid off the vehicle, even if the agreement for eventual ownership as asserted by him was true. Therefore I can only accept that the complainant has otherwise paid for the vehicle, both by way of the two lots of K4, 000.000 and by way of the deductions on his commission entitlements.

I would answer the question posed in the affirmative. I hold that the complainant is entitled to ownership of the vehicle in question, identified as a Hino Dump Truck, Reg. No. HAC.048. Consequently I order that the vehicle be released to the complainant forthwith.

That conclusion necessarily means that the complainant is not entitled to be repaid the K8, 000.00. That money went towards the payment of the vehicle. Further the complainant did not suggest or give evidence as to what business losses he has incurred. He may have lost opportunities, either potential or real opportunities, however just what those opportunities were or would have been, he did not say. He can not have judgement on matters he did not give evidence of. Therefore I decline to award damages for loss of business.

I make no order as to costs as the parties appeared in person

In Person: Complainant
In Person: Defendant