Mel v Brian Bell and Company Ltd [2005] PGDC 114; DC287 (16 October 2005)

DC287

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 151 OF 2005

BETWEEN

Philip Mel
Complainant

V

Brian Bell & Company Limited
First Defendant

John Korae
Second Defendant

Simon Kumo
Third Defendant

Thomson Gigmai
Fourth Defendant

Port Moresby: Gauli, Magistrate
2005: 16 October

DECISION OF THE COURT

Nature of the Complaint

The defendants entered into an agreement where they hired the complainants taxi cab and used it to recover stolen good owned by the first defendant. The defendants have failed to fulfill the agreement and the complainant now claims K1,500.00 the amount of the hire of the taxi cab.

Brief Facts

On the 16th October 2004 at about 7:00pm the 3rd defendant Simon Kumo approached the complainant to hire his taxi cab to go to Gordons 5 Talair Compound. He paid K10.00 for the trip from 4 Mile bus stop. They arrived at the residence of the 2nd defendant Mr. John Korae, the security manager for the first defendant, Brian bell & Company Limited. The third defendant asked the second defendant for his approval for the hire of the complainant’s taxi to recover the stolen goods of the first defendant.

The second defendant assured the complainant that upon recovery of the stolen goods and arrest of the criminals responsible the first defendant (Brian Bell & Company Limited would compensate him on two factors, K70.00 per hour for the hire of the taxi and a risk allowance of K1,000.00.

They then proceeded to Boroko Police Station and to Waigani Police Station for Police assistance but the police did not have vehicle to give them the assistance. They proceeded to Morata No. 1 without the Police and sighted the criminals selling the stolen items. They returned to Waigani Police Station. This time they were able to get the Police assistance. They proceeded to Morata No. 1 and arrested the criminals and recovered the goods. However the complainant had not been paid for the service contract agreement since. The agreement is one of verbal agreement.

Evidence

The second defendant John Korae is employed by the first defendant Brian Bell & Company Limited as a security manager. The 3rd and 4th defendants are the members of the Police Force.

The complainant has no witnesses. He relied on his affidavit evidence. Basically his evidence is as stated in the facts above and I need not restate them. In reading his affidavit there was no direct agreement made between him and the first defendant (Brian Bell & Company Limited).

The evidence for the defence came from the second defendant John Korae and a reserve policeman Simon Kumo. The second defendant denied entering into any agreement with the complainant for and on behalf of the first defendant. He said that the third defendant Simon Kumo was given K40.00, the collection from the reservist policeman who paid K10.00 to the complainant when he first engaged the taxi to go to the second defendant’s residence. And later paid K30.00 to the complainant after the job was completed, that is after arresting the suspect that same evening or night. The complainant was paid a total of K40.00 in all.

The third defendant Simon Kumo in his evidence confirmed the evidence of the second defendant.

The 3rd defendant is a reserve policeman could not enter into an agreement for and or on behalf of the Brian bell Company. They do not have any legal authority to commit the Company into any agreement be it verbal or written. If there was any agreement then the reserve policemen would be personally responsible for the agreement entered with the complainant.

The second defendant who is a security manager employed by the Brian Bell & Company Limited also does not have a legal capacity to enter any agreement for an on behalf of the Company. Again if he did enter into an agreement with the complainant that agreement could not be binding on the Company. He would have to bear the liability himself.

The second and third defendants totally denied entering into any agreement with the complainant. They claim that the third defendant (Reserve Policeman) has paid for the hirer of the taxi for K40.00 which the complainant has accepted it.

The job required was to locate the criminals who were in possession of the stolen properties belonging to Brian Bell & Company Limited and recover them who were in Morata No. 1. Generally this is a criminal infested area and it is a risky business for any one including the taxi cab owners to use taxis for such a job unless of course a very good offer is given to them. No taxi driver or owner could risk his life and or the taxi for a lousy K40.00 for a couple of hours involving a risky job.

Having said this I find on a balance of probabilities that both the second and the third defendants have convinced the complainant that the first defendant would pay him well if he let his taxi be hired and used that evening for the job. The complainant did not give them his offer of the hire rate but he accepted what was offered to him by the second and third defendants, namely K500.00 hire of the taxi and K1,000.00 risky allowance. They were using the name of the Company when knowing that they lacked the capacity and or authority to commit the Company in entering into such an agreement. Although the job required to be carried out was for the benefit of the first defendant there was no undertaking made by the Company authorizing the second and or the third defendants to make such a commitment on behalf of the Company.

I find that the first defendant (Brian Bell & Company Limited) is not liable for any agreements entered by its servants or agents who are unauthorized by the Company. I find that the second and the third defendants have entered into a verbal agreement with the complainant and they are liable personally.

The Court hereby enters judgement in favour of the complainant in the sum of K1,500.00 against the second and the third defendants, less the K40.00 already paid. The second and the third defendants are to pay the complainant in equal shares the remaining amount of K1,460.00 within the period of six (6) months from the date of this Order.

Ordered accordingly.