Tei v Beng [2003] PGDC 1; DC79 (1 January 2003)

DC79

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 10 OF 2003

ANNA TEI
Complainant

AND

BIMUNDI BENG
First Defendant

NOMAN NORUM
Second Defendant

Mt. Hagen

SW Seneka, P.M.
2003

Counsel
Complainant, Mr. Bisor
Defendant, Ms. Stegman

JUDGMENT
2003

SW SENEKA. Complainant on behalf of Kalap, Pint Panda and Atipuri Women's Association claimed that they had received K6000.00. This money was deposited into Wangdui Women's Association account so that after its clearance will be repaid to the complainant. Defendants withdrew this money and was never paid to complainant.

Complainant then sought Court order for refund of the K6000.00 plus cost and interest. First defendant to be referred to the relevant authority for investigation.

This case was partly heard orally and partly by affidavits. The reasons or circumstance being that Presiding Magistrate went on six (6) months leave from (December 2003 to June 2004) and when the matter was ready for trial in July 2004 tribal fighting flared up causing parties and complainant's lawyer seeking refuge and not attending court sittings. Complainant's lawyer not being present (in Port Moresby) and defendant still in hiding. Complainant and defendant's lawyer (Ms. Stegman) agreed to tendering of defendants' affidavits. Defendant's affidavits are Bimundi Beng, Norman Norum 14/10/03, Wendy Peter, Ruth Wiri 15/10/03 Bimundi Beng and Paul M. Manjil both sworn on 08/09/04.

While on the other hand oral evidence were obtained from Anna Tei, Jessie Gun, Ana Kepta and Cecilia Kuman. From these the evidence before the court is as follows:-

Complainant is the President for Kotna District Council of Women and in this court she stands for Kalap, Pintpanta and Antipuny Women's groups. Complainant (hereinafter also Anna Tei) all affiliated to Western Highlands Provincial Council of Women (WHPCW).

In 2002 Western Highlands Provincial Council declared to its members that mini loans are open and they can apply. The three groups applied for K2000.00 each and by May 2002 were successful and cheques were issued to the following;-

PNGBC Cheque No
652468	K2000.00	Kalap
652446	K2000.00	Pintipanda
652447	K2000.00	Atipuri

Anna Tei picked up the three cheques totalling K6,000.00 and gave the other cheques to Thresia Gunn President of Kalap Women's Association and Alma Gelta President of Antipuri Women's Association. They could not cash them as they could not sign them nor could they opened a new account in the bank as the bank required further identification. Their cheques were returned to second defendant who cancelled the three cheques and draw up one for K6000.00 payable to Wengdui Women's Association. This cheque was written out by Cecilla Kuman and had it counter signed (three signatories). Bimundi Beng had come a number of times to pick it up and eventually did on the 4th September 2002. Bank reconciliation showed the K6,000.00 was withdrawn the next day 5th September 2002.

Bimundi Beng was introduced to Cecilia Kumo prior to the picking up of the cheque as the new President of Dei LLGC. In cross examination Cecelia Kumo said she hand it to him on the basis of Noman's instruction. Noman Norum being the Loans Committee Cecillia Kumo trusted her and acted upon her words.

Anna Tei learned of the single cheque issued and went to collect the money from Noman Norum and Bimundi Beng. They were told on number of times to return and pick up the money at a later date. But all those occasions their trips to get the money were all negatives.

They never received them. By 08/01/03 Mrs. Paula Mek, President of Western Highlands Province Council of Women wrote to village court for recoup of the money.

At one time when the president and first defendant went for funeral service the (3) women group put up a road block. There the first defendant promised to pay them at Mt. Hagen ANZ Bank. So they gathered at ANZ Bank and waited. He came in a vehicle but when he saw them he took off. Following this they went some more times to Noman Norum but same answer. By 08/01/03 Mrs. Paula Mek President of Western Highlands Provincial Council wrote to Village Court for recoup of the money. Ms. Cecilia Kuma was surprised and shocked to learn that the women never got their money so on 12/01/03 she referred first defendant to Ombudsman Commission.

On the other hand defendant by their (4) affidavits showed that first defendant is President of Kotna LLG replacing Mr. Kuman Dei and his deputy Mr. Tei Kome (husband of complainant).

First defendant said he was not involved in the withdrawal or use of the money. He only helped to obtain the cheque and had it signed by Mr. Wandil. His going to funeral is to show respect to Mr. Moses Paul Manjil over the death of this brother.

There was no road block. In support of this point is his witness Councillor Paul M. Manjil. However Councillor Paul M. Manjil's affidavit this court will not acknowledge nor accept as he was in the court room and heard what was said by the complainant's witnesses.

Noman Norum said she ask President Bimundi Beng to help her get the cheque and have it signed by Mr. M. Wandil. She had held this cheque for two (2) months (after two months previously held by the (3) women group) so sought first defendant assistance. She had it deposited into Wengdui Women's Association Account. After (14 days withdrew and gave to the Wengdui Women's Association. According to Wendy Peter (Secretary) Ruth Win president and Rosa (Vice President) they withdrew the K6000.00 and hand it over to Noman Norum. What happen to the money they do not know nor did they received any part of it.

Issue is whether defendants are responsible for the loss.

Norman Norum said she and Wangdui Women's Association withdrew the money and she gave it to them because she was of the opinion that they will repay. While Wendy Peter (secretary) and Ruth Wiri (president) admitted assisting Noman Norum to withdrew the money but they did not received the money nor used it. They handed it to Noman Norum and that was the end of it.

Mr. Bimundi Beng said he was not involved nor had any knowledge of its use. He said he is a successful businessman and has the capacity to raise the K6000.00. He could not misuse the women's money.

But evidence of the complainant showed that they heard of first defendant taking the cheque and complainant making various visits to Noman Norum's office and receiving negative results. So they had to make a road block to talk to first defendant.

Court will accept complainant's evidence because though first defendant had denied of a road block with Paul Moses Manjil to support his claim the Court had said earlier it will not accept Mr. Manjil's evidence as he was in the court while complainant and her witnesses were giving their evidence. Complainant's evidence supports each others that there was a road block and they talked to first defendant.

First defendant promised to pay them at the ANZ bank Mt. Hagen Branch. They went and waited for a long time at the bank but when he did arrived at ANZ Bank he drove off again. Complainant's evidence also showed first defendant had been to Cecelia Kuman's office a number of times to get the cheque. On these points first defendant had not commented nor denied it. At this stage all of defendant's witnesses were not in witness box to be cross examine to confirm or deny their evidence and to assess their demeanour if their evidence is in fact true and honest.

On that note first defendant was not in the witness box to confirm his claim. It seems obvious that first defendant had used his position as President to secure the cheque have it signed and deposited into Wangdui Women's Association Bank account.

First defendant's behaviour generally amount to negligence because though innocent of intention brought about the result in question. Failing to act to the standard of a reasonable man. That his state of mind the consequence he would have foreseen and regulate his conduct in the light of them. (Clerk S Lindell on TORTS 162ED 1989 P 52 PARA [1-79]).

First defendant is the president of Kotna Local Level Government. The Kotna people look up to him and rely on his words and actions. Complainant obeyed and acted on his words when they went and waited for him at ANZ bank Mt. Hagen branch. They were also told to return, numerous times their office and defendant's village, without being satisfied with the result.

Complainant was suspicious and Mrs. Paula Mek refer first defendant to Village Court and Ms. Cecelia Kuma also referred him to Ombudsman Commission.

From the quote above and in the same book and page, it went on to say defendant's conduct is negligence only because he had failed to foresee the consequences as a reasonable man would have done.

It is also obvious that second defendant was involved in its withdrawals and took the money. Wangdui Women's Association leaders who came and withdraw the money claim they did not benefit out of it.

It is not clear how the money was used. No clear evidence who used the money. But evidence is clear that the last K6000.00 cash was in second defendant's hands. We can speculate who used the money. But the course it took to came into second defendant's hand must be place squarely on both defendants.

First defendant used his position and influence to redraw the three (3) cheques into one cheque under the name of Wengdui Women's Association and had it signed. Then by both defendant influence to have the K6000.00 withdrawn.

There was a claim that K6000.00 was deposited and withdrawn the next day. This court could not accept this as there was no bank statement to confirm it. I accept the view that it was within (14) days later.

From the discussion above court is of the view that both defendants must be held liable for the loss of the K6000.00 the amount must be repaid into Mt. Hagen District Court for the (3) Women's Association to come and pick up.

Mr. Bisor: Complainant
Ms. Stegman: Defendant