Sinange v Namba Wan Finance [2002] PGDC 45; DC353 (23 December 2002)

DC353

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 120 OF 2001

BETWEEN

John Sinange
Complainant

V

Namba Wan Finance
Defendant

Mt Hagen: Appa
2002: 2nd, 23rd November

JUDGMENT

Civil Jurisdiction – Ownership of vehicle – vehicle wrong taken business loss as a result of impounding vehicle.

Counsel
John Sinange In Person
J.K. Peri For The Defendant

23rd December, 2002

APPA – PM. The complainant alleged that on an unspecified date he bought a second hand vehicle from one Philip Korua for a sum of K7,000.00. It was a Toyota Hiace 15 seater PMV bus Reg. No. P554W. The vehicle was sold to the complainant after it had been repaired at Mr. Korua’s workshop to recover his unpaid bills. The original owner was one Alphonse Maki.

The case proceeded ex parte defendant after several hearing notices were issued but failed to attend. Defence was filed.

Complainant has tendered his affidavit and vehicle documentation to confirm the brief history of the case as outlined above.

Defence claimed that the vehicle did not belong to the complainant or at least had no better title than the defendant since the vehicle was leased to Philip Korowa (Philip Korua) but he was behind with the rental payment so vehicle was impounded. Defendant did not provide any documents to sustain their defence as to ownership of the vehicle.

I have considered both arguments and found that the vehicle originally belonged to Alphonse Maki as established in the vehicle registration documents tendered by the complainant, no other owner shown on the documents. The complainant’s names appeared in some other documents produced such as receipts, vehicle inspection report, road worthy certificate. Generally there was no dispute on how the vehicle ended up with the complainant so he had sufficient interest in the property. It was apparent that defendant mistook the said vehicle for another vehicle leased to Mr. Philip Korowa (Philip Korua).

In the absence of any evidence in rebutted, I find that liability is established on balance of probabilities. The vehicle was wrongly taken from the complainant.

On the question of quantum, complainant claims K10,000.00 in loss of business (PMV) while the vehicle was taken from him by the defendant through the police and was locked away from 4th May to 3rd August 2002 when it was released to him. Complainant said in evidence that while he was operating the vehicle on route 100 he used to make about K800.00 per week after all necessary expenses. He said if it hadn’t been for the detention of the vehicle, he would have made well over K10,000.00 during the three months of detention but was content to claim only K10,000.00 to be dealt with in the District Court.

I am unable to award the full K10,000.00 claim because we could not be sure if complainant would have made the amount he estimated. The money to be made from PMV operation on daily basis would depend very much on member of passengers ferried. In any case he gave and estimation on how much he use to make in a week. To be fair to both parties, court has to strike a balance and make a global award only. In doing so, I assessed that an amount of K6,000.00 to be not too unreasonable to make up for the losses suffered. I allow 8% interest and cost.

I make the following orders:-

(1) The defendant is adjudged to pay the complainant K6,000.00 in damages.

(2) I allowed 8% interest and

(3) Nominal cost of the proceeding

In Person: Complainant
Warner Shand Lawyers: Defendant