Wallen v Kalo [2004] PGDC 46; DC380 (7 April 2004)

DC380

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 187 OF 2004

BETWEEN

Jim Wallen
Complainant

V

Peter Kalo
Defendant

Mt. Hagen: L. Kangwia - Magistrate
01, 06, 07 April 2004

DECISION

The complainant 'sued the Defendant for K6,600.00 in damages for a Motor Vehicle engine (the engine). It was alleged that by an agreement between the parties the Defendant would pay K6,600.00 to the complainant for the engine. The engine was allegedly sold to a 'third party from the Defendant's custody without making any payment due to the complainant under the agreement. The defendant denied liability contending that there was no agreement between the complainant and himself for the engine to be bought by him. He further countered that he was not responsible for the, sale of the engine to a third party.

Both parties consented to proceed with affidavit evidence. Witnesses affidavits were filed and served on each other earlier. Attempts by the complainant to tender affidavits on the hearing day were objected. The court upheld the objection on the grounds that both parties had ample time to file and serve affidavits prior to the hearing date.

By consent a few of the witnesses were examined and Cross-examined on their affidavits. The undisputed facts are that the complainant and defendant reside in Mt. Hagen. The defendant needed an engine for his vehicle. The complainant had an engine similar to the type required by the defendant in Laiagam. The complainant was picked up at his house on, the morning of 17th March, 2001 by the defendant's driver in the defendant's vehicle to go to Laiagam and turn to Hagen with the engine. The engine was taken to the defendant the same day and left in the store belonging to the defendant's son. The engine was never fitted on the defendant's vehicle.

Sometime later the engine was sold to a Kagua man for K2,000.00. When the complainant was told of the sale he demanded from the defendant a payment of K6,600.00 which he said was the agreed price of the engine between the defendant and himself.

When the defendant failed to pay upon demand the matter was reported to Police who took the defendant to the Police station where some 'agreement was reached to settle out of Court. When no payment was forthcoming out of the deal at the Police Station, the complainant commenced action in court to recover the amount, the subject of this proceeding.

The defendant disputes there ever was an express agreement between the complainant and himself for the sale and purchase of the engine for K6, 600,00. He stressed that if there was a deal then it was between the complainant and some other people and not him personally. He further contended that the engine was left. in his store by the complainant himself and whatever happened to it later was not his Going and as such was not liable for what transpired.

The complainant maintained that although the initial negotiations were between relatives, of both parties, the final agreement for the sale and purchase for engine for K6,600.00 was between the complainant himself and the defendant at his house. He further claimed that the defendant confirmed their agreement by sending his own vehicle the next day with his own driver to' pick him (complainant) up to go to Laiagam and transport the engine to Mt. Hagen.

It was further maintained that while the engine was still in the custody of the defendant it was disposed of without his knowledge. The complainant stated further that the defendant failed to return the engine even after numerous requests were made to him to do so. The issue is whether there was an agreement for the sale and purchase of the engine between the complainant and defendant.

The witnesses for both parties have been of no assistance to the Court. The witnesses for the complainant averred that there was an agreement between "the parties while defence witnesses contended that there was no such agreement.

Communication between the parties is crucial to found the existence of an agreement. The evidence on the one part supports the allegation that there was express communication between the parties on 16th March 2001 while the evidence on the other part disputes that there was no express communication between them.

In order to determine whether there was an agreement given the above scenario, the court needs to apply the objective test i.e. what in the light of the evidence a reasonable bystander might have assumed to have been their intention. I refer to three sets of facts which stand unchallenged by the defence.

First is the use of the defendant's truck with his driver to travel to Laiagam purposely to bring the complainant's engine down to Mt. Hagen. It is hard to comprehend how the defendant allowed his driver to drive his truck all the way to Laiagam and back for no apparent reason.

The time, expenses and risks involved in a trip likely to take more than ten hours cannot under normal circumstances be allowed to occur lightly without even a fuss. I fail to see the defendant being unaware of the purpose of his driver taking his truck to Laiagam and return on 17th March 2001.

The only conclusion I can arrive at is that the defendant's truck was driven to Laiagam following the alleged agreement between the parties to bring the complainant's engine to the defendant. There is no other reason to the contrary for the vehicle's trip to Laiagam.

Second is the fact that the engine was stored at the defendant's son's trade store at Tarangau. This occurred from the day the engine was brought down from Laiagam in the defendant's truck to the day it was disposed of. There seems to be no plausible explanation from the evidence as to why the complainant would want to go and leave his engine at the premises of someone else.

Engines generally are expensive items and owners of such items would in my view be very mindful of leaving them with just anybody without any guarantee of safety. The evidence clearly leans to no other reason than the agreement for sale and purchase between the parties.

The defendant on Oath denied knowing, anything of the engine, yet under re-examination by his counsel, admitted telling the complainant to take the engine away as he had another one. It can be inferred from this, that the defendant was quite aware of the complainant's engine in his premises all along. This inference also supports the evidence that the engine was left at the defendant's premises for no other reason than to satisfy the agreement to sell and purchase between the parties.

Third is the settlement deal made at the Mt. Hagen Police Station between the complainant and defendant. The uncontested evidence of independent witness, Police Sergeant Dickson Lakaio who attended to the complaint of fraud over the engine averred that the defendant admitted to an agreement between the complainant and himself for the sale of the engine to him for K6,600.00. The defendant further agreed at the Police Station to settle by paying K1,000.00 initially arid "the balance of K5,600.00 later which never eventuated.

This evidence in my .view also goes to support the proposition that there was an agreement between the parties which the defendant breached. It can be inferred that the defendant avoided criminal prosecution for fraud by reverting" to the original agreement to pay the agreed sum of K6,600.00 in instalments.

Having deliberated the factual situations above it is the duty of the Court to also ascertain whether the parties intended the agreement to be legally binding. I find that the engine is an expensive item which cannot be easily obtained and discarded at will.

Although the agreement between the parties seemed to be a casual arrangement I am of the view that the parties intended that their agreement to be legally binding as this was a typical commercial contract. There is no clear intention to the contrary.

The law is that the terms proposed in an agreement may take the form of writing, spoken words or by conduct. See "Roebuck" Law of Contract, Text and Materials, (1st Edition) at Page 9. In this case I find that the Conduct of both parties clearly demonstrates their willingness to the sale and purchase of the engine. I am satisfied from the evidence adduced that there was an agreement .for the complainant to sell his engine to the defendant. Based on this finding I come to the conclusion that the defendant breached his part of the bargain by not paying for the engine.

It then follows that the remedy for the breach is damages for the aggrieved party. Having said that I'm .of the view that it is not necessary for the court to go further and deliberate on how the engine was disposed of or who disposed of it. These are matters which the defendant himself should sort out as they do not affect the agreement between the complainant and defendant. The onus rests with the defendant to take whatever action he deems necessary to recover the engine. After all, the engine was in the domain of the defendant from 17th March 2001 till disposition.

Having found that there was an agreement between the parties and having ruled that the defendant breached his part of the agreement I now look at the amount of damages which can be awarded.

On the issue of damages the complainant claimed in his statement of claim K10,600.00 being the original price of the engine. I find that the agreement itself was not for the original price but the reduced price of K6,600.00. There is no evidence to show that when the defendant breached the agreement the damages payable would revert to the original price.

I therefore find that K6,600.00 is the damages payable by the defendant.

As to out of pocket expenses the claim is not supported by evidence and therefore I refuse to grant the amount claimed.

As to the 8% interest claimed I allow interest of 8% from the 7th July 2004 to 29th April 2005.

As to costs I am of the view that each party bear their own costs.

Orders Accordingly.

Jim Walle: Complainant
Mr. Puri: Defendant