Perry v Gendua [2003] PGDC 6; DC85 (30 October 2003)

DC85

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 114 OF 2003

BETWEEN

MOIAM PERRY
Complainant

AND

WAINE GENDUA
Defendant

Mt. Hagen

S W SENEKA
30 October 2003

Civil Case - agreed to sell bus to complainant - bus partly fixed - defendant sold it - complainant possessed the bus - defendant reposes bus and return to new buyer - complainant has propriety right.

S W SENEKA. Complainant is claiming that defendant is indebted to him in the sum of K2, 020.33 being for purchase of part to a 15 seater Bus Reg. No. Jaa 601. Defendant has failed to repay and complainant claim repayment in full plus cost and interest.

Defendant had denied the claim. Six (6) witnesses were called (4) for complainant and (2) two for defendant.

According to complainant and his witnesses, he had seen a (15) seater Bus at Kenem Workshop at Minj. He asked the Manager who said, it belongs to Waine Gendua. In early February 2003 there was a verbal agreement that Complainant wanted to get Defendant's (15) seater Mazda Bus blue in colour. Defendant had gone to Complainant's house and had discussion over the bus.

David Mek and Sotty Pund were also present in the house. The bus has no engine in it as it had been stripped. It has been lying there for some two (2) years. Second time was at the main gate Sotty Pund was present. Complainant then promised to put the parts together or buy parts that were missing. The price can be negotiated after the bus is fixed.

With that understanding he got a mechanic and fixed the bus, but three (3) to four (4) weeks later, defendant came and claim the bus complete fixing and had it driven out. Mark Dilu was the driver.

Defendant then wanted to sell it to complainant at K10, 000.00. Complainant want to get a mechanic to check it and while awaiting that defendant sold it to another person at K10, 000.00. Complainant found out two weeks later that it was sold so he got some boys pulled the engine from the bus and had the bus towed to his premises. Police came to his premises and return the bus claiming that it was a stolen bus.

On the other hand defendant said complainant had sent two messages to him to go to Complainant's village. He went and complainant want the body of the bus and offer K600.00. Defendant said to return with his older brother.

Two weeks later, a Kiap wanted to buy it but bus still at the workshop. Charged K8, 000.00 but he paid K5, 400.00 and got the bus, outstanding K2, 600.00. Two weeks later, complainant went and towed the vehicle out.

They never bought the bus so with police towed the bus to Kunjip Police station.

Police told us to return the vehicle to new buyer and refund money for parts. His witness Dilu Mark generally agreed with complainant and defendant about the bus in the workshop. They were looking for parts when complainant came and fitted the parts. He claim there never was an agreement to sell but when it was eventually sold, complainant towed it to his house. He agreed that he went to Complainant's house to offer at K10, 000.00.

Obviously Defendant had gone to Complainant's house for the bus and some discussion took place. The bus was in the workshop and some parts were taken out. Though defendant did not say it but his witness Dilu Mark said rings and bearings were worn out and was looking for them.

There were no witnesses to support Defendant's evidence as to what was discussed in the first meeting. But Complainant had raised certain matters that will support his contention that they agreed that the bus be sold to him after he fixed it.

The first is that two (2) witnesses for complainant confirmed that there was agreement for Complainant to fix the engine and Defendant to sell it to him. That he want to deposit K1, 000.00 which no agreement was reached. But when Defendant relayed this to his brother Dilu Mark he refused.

Dilu Mark was not in the first meeting so was not aware of the terms of the agreement. But I believe there were the terms and defendant has not complied or refused to adhere.

Both have agreed to selling of bus to Complainant. Complainant was to put engine parts together and any missing will replace.

He did and was in the process of completing when Defendant took it away and sold it for that much. Complainant therefore had some rights over the vehicle as some of his parts and fittings were in the vehicle.

Question now is how much can defendant pay to complainant. Complainant told the court that he bought engine parts and fittings and there were confirmed with the invoices. He also said he engaged a mechanic, but there is no evidence to show he spent money on travel message and towing.

There being no evidence, I shall not order those that I have no evidence to support. I will therefore only order K1, 370.33 made up of parts - K720.33 - Mechanic - K450.00 and Fitting Engine - K200.00.

In person Complainant

Non appearance Defendant