Nanwon v Moh [2005] PGDC 5; DC109 (30 May 2005)

DC109

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 28 OF 2005

BETWEEN

HENDRICK NANWON
Complainant

AND

JACKSON MOH

Defendant

Vanimo

R Koronai
4, 24, 30 May 2005

REASONS FOR DECISION

Counsel
Complainant, In Person
Defendant, C Karo

KORONAI, PM: This is an action by the complainant against the defendant for defendant's alleged failure in paying for the 9 kilos of Vanilla beans sold to him by the complainant for a sum of K5, 660.00.

FACTS

The complainant comes from Lawa Village in Edwaki District of Telefomin and deals in Vanilla buying and selling in that District while the defendant is the Managing Director of Sap Vanilla Limited based at Vanimo.

On or about 25th of April, 2004, the complainant and the defendant on behalf of Sap Vanilla Limited purportedly entered into an agreement whereby the complainant was to sell his 9 kilos of Vanilla beans to the complainant who would pay for it in the total sum of K5, 660.00. This payment was to be done after a month from date of sale by the complainant.

After a month this did not eventuate so the complainant kept on going to see the defendant at different dates totalling eight such visits to obtain payment but these were unsuccessful and the defendant gave the excuse that the buyer of his Vanilla in Jayapura had not paid for the Vanilla as yet. Then on Thursday the 16th of December, 2004 at about 3:00 pm, complainant made a last check with the defendant who told him, "Mi ino inap mekim dispela. Yu klia mi les pinis". The complainant then sought Police assistance in form of Constable Tonny Babia and another Policeman who went with him to the defendant to assist in mediating their disagreement and when the defendant was shown a piece of paper in which he wrote in the agreed price, defendant took it from complainant and tore it to pieces which could not easily be taped together to make it legible. The matter was then brought before this Court now.

ISSUE

Whether there was a binding agreement between the complainant and the defendant for the sale and purchase of Vanilla beans at the price of K5, 660.00.

THE LAW

The law of contract covers this issue.

EVIDENCE

Evidence of the complainant was what is basically stated in the facts of this case. The defendant denied that he agreed to buy this 9 kilos of Vanilla beans at K610.00 per kilogram totalling K5, 660.00 but he did not contest or dispute the facts about the eight visits by the complainant and the 9th together with Policemen to his house for the purpose of mediation in getting this payment after these eight visits by the complainant failed. His evidence of advancing K4, 000.00 to complainant for the purpose of buying Vanilla beans is supported by documentary evidence but that cash voucher (JMI) was made out to Henry Yawai and I do not know if its same as Hendrick Nanwon, the complainant and it was made on 10th February, 2003, some thirteen months or so before this event of 25th of April, 2004. He did not complain about it until this complaint was taken out against him. The defendant said that by then the price of Vanilla had dropped to K30.00 per kilo for 'A' grade Vanilla beans so told complainant he could not pay him any money for the 15 Kg of Vanilla as price had dropped to K30.00 per kilo and only provided him with airfares to his village. The defendant was using plain paper then to work out the price of payments. JM2, JM3 & JM4 shows that the defendant exported Vanilla beans of 941 Kg to Jayapura to CV Abadi Jaya at K30.00 per Kilo and invoiced Abadi Jaya for Rp28, 230.00. All this took place on 11th of June, 2004. This piece of evidence supports the complainant's evidence of selling to the defendant 9.280 Kg "A" Grade Vanilla beans on 25th April, 2004 at price of K610.00 per kilo totalling K5, 660.00.

Evidence clearly showed that the complainant and the defendant agreed to sell and buy 9 Kg of "A" Grade Vanilla beans and price was to be at K610.00 per Kg totalling K5, 660.00 and payment to the complainant was to be made after one month from date of sale, i.e.; 25th April, 2004. This agreed price was reached when prices for "A" Grade Vanilla beans were high but when the defendant finally exported them on 11th June, 2004, price had dropped to K30.00 per Kg and he could not honour his part of the original agreement and when the complainant went to get his payment from the defendant, defendant advised him of this fact and did not pay him any money for this 9 Kg of Vanilla beans as agreed to on 25th April, 2004, but only paid for complainant's airfares home. Therefore there was valid and enforceable agreement between them. In this agreement nothing is said about price fluctuation which may affect the price finally paid to the complainant so they're bound by their agreement of 25th April, 2004. The basic conclusion is that the defendant could not meet his contractual obligation because price had dropped and as all normal businessmen should do is take or make agreements subject to price fluctuations and which is not the case here. He is an experienced spice buyer dealing with foreign buyers and knows and should be prudent in his dealing by taking into account price fluctuations which is foreseeable and cannot be termed as a frustrating factor affecting this agreement.

As to his claim of lack of payment voucher to support complainant's claim for this 9 kilos of 'A' Grade Vanilla beans, he did not issue one because he has not made any payments to the complainant as yet at the time this agreement was entered into between them on 25th April, 2004.

Their conduct at the time they entered into this agreement showed that they were dealing between themselves as individuals. The defendant's outward behaviour and actions then led complainant to believe he was dealing with Jackson Moh and not any other person, organization or company known as Sap Vanilla Limited. This fact is shown by JMI of defendant statement of 27th April, 2005, i.e., the petty cash voucher issued on 10th February, 2003, for K4, 000.00 cash advance for buying Vanilla made to a Henry Yawai and that the complainant has rightly sued the defendant personally in this Court.

As to the advance of K4, 000.00 given to the complainant on 10th February, 2003, it is a different matter which is in dispute and not connected to this case and if the defendant wants to he could sue for and prove his claim against the complainant to recover it as I am of the view that this transaction is of a different nature to the current one as it occurred on 10th February, 2003.

CONCLUSION

From the above reasoning, I find this complaint to be proven on the balance of probabilities and for the amount claimed.

FORMAL ORDERS

SO THE FORMAL ORDERS OF THIS COURT ARE THAT THE DEFENDANT IS ORDERED TO PAY TO THE COMPLAINANT THE FOLLOWING:-

1. PRINCIPAL SUM K5, 660.00

2. INTERESTS FOR 60 DAYS AT 8% 74.50

3. COURT COSTS K 1.60

4. TOTAL K5, 736.10

5. DEFENDANT IS ORDERED TO PAY TO THE COMPLAINANT A TOTAL SUM OF K5, 736.10 TOEA BY OR BEFORE 30TH JULY, 2005.

6. PARTIES HAVE 30 DAYS FROM 31ST MAY, 2005, IN WHICH TO APPEAL AGAINST THIS DECISION TO THE NATIONAL COURT IF THEY'RE AGGRIEVED BY IT.

In Person : Complainant
C. Karo : Defendant