Koreropa v Kare (No 2) [2005] PGDC 118; DC417 (24 October 2005)

DC417

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1626OF 2005

BETWEEN

Robert Kare Koperopa
Complainant

V

Michael Kare
First Defendant

Edward Kae as Chairman of Bogasi Clan
Second Defendant

Port Moresby: Bidar, Pm
2005: 24th October

Civil claim – Claim for non payment of goods and services provided in breach of Agreement dated on or about 25 January 2003 – Non payment of K9 000.00 as per agreement whether or not a breach occurred-

Cases cited
There are no cases cited in the Judgment

Counsel
D. Keta for Complainant
G. Misina for the Second Defendant
First Defendant appeared in person

DECISION

24th October 2005

BIDAR, PM: On the 29th April 2004 complainant filed Default Summons on a complaint for Civil Debt against the Defendants, claiming non payment of K9 000.00 in breach of an oral agreement entered into between the complainant and second defendant as chairman of Imave Bogasi Incorporated Land Group.

The oral agreement dated on or about 25th January 2003 was that in return for goods and services provided to the second defendant as chairman of the Incorporated group by the complainant, complainant would be paid K9 000.00, when the second defendant and his group received royalty and equity payment from the Mining and Petroleum Department.

It is not disputed that an oral agreement was entered into between the complainant and second defendant as chairman of the Incorporated Group. As to the mode of payment it is not clear but according to the complainant, he gave his account number to the second defendant. The first defendant Michael Kare was not a party to the oral agreement, but he seems to know about the agreement. According to the second defendant, he gave K10 000.00 to the first defendant, who is the complainant’s son, in appreciation for goods and services provided to the second defendant’s group by complainant. This K10 000.00 payment was made to the first defendant at Crowne Plaza. The first defendant totally denied receiving any monies from the second defendant. The first defendant contradicts himself. He says he come to Port Moresby in 1998 and lived here ever since. The agreement between the complainant and second defendant was made at Erave, Southern Highlands Province. He was not present and did not know the terms of the agreement.

On paragraph 5 of his affidavit sworn on 6th July 2005, he deposed that, the complainant and second defendant agreed that when royalty monies become available the second defendant would deposit monies to the complainant’s account which he gave to second defendant, Edward Kae. How did the first defendant know about the agreement and the terms of it as he was in a Port Moresby all the time, unless one of the parties to the agreement told him. He also says the complainant did not authorize him to collect his money from the second defendant. Assessing his evidence, it is suspect and doubtful. He makes a number of contradictions in his evidence.

In respect to the second defendant’s case, he says in appreciation of what complainant did, providing goods and services, he paid K10 000.00 to the first defendant on account of the complainant. He expected the first defendant to hand the money to the complainant, who is his father.

The mode of payment may not have been that agreed to by parties but the fact is that the second defendant discharged his obligation on behalf of the Incorporated group. I find, no evidence to doubt that although, complainant alleges conspiracy between the first and second defendants, which I find no evidence to substantiate that allegation.

In respect to the oral agreement it was entered into when Lesley Ope was the chairman of the Incorporated Land Group. When the current chairman Edward Kae became chairman he was made aware of the existing, agreement between the complainant and Imawe Bogasi Incorporated Land Group. It would seem that the mode of payments requiring payments to be made into complainants account was a recent term. It is said that, complainant gave his account number to the second defendant. I am unable to find whether that term was in the initial agreement. Whether the mode of payment was or was not in the initial agreement, the second defendant on behalf of his incorporated group knew his group was under an obligation to pay some money to complainant for goods and services provided.

In pursuance of that obligation, he paid K10 000.00 to the first defendant at Crowne Plaza, who received the money on account of complainant, his father, and gave assurance that he would handover the money to him.

As I alluded to, I find no reason to doubt second defendant’s evidence, which he deposed to in his affidavit. As I also, alluded to, the first defendant was in Port Moresby all the time, including the time oral agreement was entered into between the complainant and former chairman of the Incorporated Land Group. There was no way he could have known about the agreement and its terms unless of course he was told by someone. I reiterate that I find his evidence quite contradictory and therefore not credible and reliable.

In all the circumstances, I find that, there was no breach of the agreement by the second defendant. He has discharged his obligation on behalf of his group, when he paid K10 000.00 to the first defendant at Crowne Plaza on account of the complainant. The submission by complainant that there was conspiracy between the first and second defendant. I reject that submission, as there is not an iota of evidence to substantiate that allegation.

In the result, I find that there was no breach of the oral contract and I find the second defendant not liable. I dismiss the proceedings against the second defendant with costs. With respect to the first defendant, the complainant has services of a lawyer, in these proceedings, the first defendant cannot be sued for breach of contract, as privity of contract would prevent complainant from doing so. Perhaps, he has another cause of action other than contract against the first defendant.

I find the first defendant not liable and I dismiss the case against him as well.

David Keta Lawyers: Complainant
Young and William Lawyers: Defendant