Takiwa v Aoae [2005] PGDC 40; DC197 (20 October 2005)

DC197

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 2385 OF 2005

BETWEEN

EDWARD TAKIWA
Complainant

V

JOSEPH AOAE
Defendant

Port Moresby: Bidar
2005: 20th October

Civil claim

– Claim for reimbursement of expenses incurred for improvement of defendant’s trade store

- Oral contract

- Action not based on breach of contract but for reimbursement of monies spent on improvement of trade store

- Duty to prove both liability and loss

- Mere assertion by providing quotations and figures not proof of loss

- Judgment for defendant

Counsel
P. Yange – Trainee lawyer LTI for complainant
D. Keta for defendant

DECISION

20th October 2005

BIDAR, PM: On 2nd June 2004 complainant filed summons upon complaint among other things, reimbursement of expenses he incurred for improvements of defendant’s trade store. He claims the sum of K10,000.00.

In his statement of claim, he states that on or about September 2000, he entered into an oral lease agreement with the defendant who owns a trade store at 9 mile.

In pursuance of the lease agreement, complainant moved into the trade store on or about November 2000. It is not known what the terms of the lease agreement were, particularly what rent complainant was to pay and at what intervals.

He states he had a good progress and expended in excess of K20,000.00 for improvements of trade store and this was with knowledge and consent of the defendant.

As he progressed, he encountered problems with his shop assistants, Daniel Harali and John Elape. The defrauded complaint of over K5,000.000 cash. He took these men to Court and successfully obtained judgment in his favour.

During the litigation, which lasted from 2001 to 2002, the trade store did not operate. After the litigation complainant tried to revive the trade store but he found out that, defendant had entered into a fresh lease agreement with Daniel Harali and John Elape. Finding himself in that situation he wrote to the defendant to reimburse him half of K20,000.00, the money, he allegedly spent on improving the trade store.

On the other hand, defendant maintained that the only lease agreement he had was between Messrs Daniel Harali, John Elape and himself. He denies existence of any agreement between himself and complainant.

Complainant, as I alluded to, claims for reimbursement of K10,000.00 against the defendant. The action is not for breach of agreement, despite alleging existence of oral lease agreement. It is as I alluded to, one for reimbursement of monies spent on improvement of the trade store.

Complainant bears the onus to prove both liability and loss. Simply submitting quotations and figures is mere assertions and not proof of monies actually spent. Complainant despite, alleging existence of oral lease agreement between the parties, which on the evidence, I am unable to find, he claims reimbursement of expense as I alluded to.

In all the circumstances, I am unable to be satisfied on the balance of probabilities that the complainant has proven his case. Consequently, I find defendant not liable. I dismiss the proceedings with costs to the defendant.