Kean v Toukes [2005] PGDC 84; DC466 (1 June 2005)

DC466

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 32 OF 2005

Thelma Kean
Complainant

V

Usaiah Toukes & Gillean Toukes
Defendant

Buka: David Maliku
Date: 1st June 2005

JUDGEMENT

BRIEF FACTS

The complainant alleges that the defendants owed her K2000.00 borrowed by the defendant - Gillean Toukes on or about September 1999. The matter was laid at the District Court on the 28th of September 2004, five (5) years later.

The complainant says that on numerous occasions she has requested for repayment but nothing has eventuated. This then resulted in her taking summons against the two defendants.

EVIDENCE

The evidence before me shows that the money was borrowed by Mrs. Gillean Toukes from the complainant for payment of her trip to Samoa, on or about September 1999. The complainant and defendant - Mrs. Gillean Toukes were selected to travel to Samoa amongst other women throughout Papua New Guinea. The defendant - Mrs. Gillean Toukes was required to pay to the United Church Assembly, an amount of K2500.00, which she did not or was not able to pay prior to the trip. The 2nd defendant was reluctant to travel and according to her was approached by the complainant to travel with her, hence the discussion on the money in issue took place.

The complainant and the 2nd defendant confirmed in court that an initial amount of K2500.00 was borrowed or given to the 2nd defendant by the complainant, which the 2nd defendant paid the United Church Assembly office in preparation for the trip to Samoa. It appears the complainant did the same to the United Church Assembly office in Port Moresby. Some weeks or months later after their return from Samoa, the complainant wrote to the defendant telling her to repay the amount of K2000.00 only. It is obvious that K2000.00 has not been paid to the complainant until the date of this trial.

EVIDENCE AGAINST MR TOUKES - 1ST DEFENDANT

There is no evidence that the 1st defendant was a party to this matter, but has been brought into the action since he is the husband of the 2nd defendant - Mrs. Gillean Toukes. There is nothing before me showing that at the time Mrs. Gillean Toukes borrowed the money, the 1st defendant was made the guarantor to repayment of the money. This leads me to conclude that the 1st defendant, Mr. Usaiah Toukes was or is not a party to this action and should not be liable.

THE TERM OR CONDITION OF BORROWING THE K2000.00

It is clear from what was presented in court by the complainant and 2nd defendant that the money, K2000.00, was borrowed on the agreement and understanding between the parties that: it was to be repaid to the complainant after their return from Samoa when the U-Vistract (now defunct money scheme) was to make payments to its clients. The complainant and the 2nd defendant were clients to the U-Vistract Money Scheme, hence deposited K1000.00 each prior to their departure for Samoa.

In other words the borrowing of K2500.00 which was later reduced to K2000.00 was subject to repayment when U-Vistract Money Scheme was to pay its clients, including the complainant and 2nd defendant after they returned from Samoa.

To put it in the other words, the borrowed money was to be repaid by the 2nd defendant with monies invested by 2nd defendant to U-Vistract's Money Scheme and not from outside sources.

This was the agreement between the complainant and 2nd defendant at the time the issue of borrowing and the repayment of K2000.00 was discussed. However, when the complainant and the 2nd defendant returned from Samoa, the Money Scheme, U-Vistract was no longer making any payments to its clients, as it was not functioning any more.

CONCLUSION

Having set out the terms agreed upon by both complainant and 2nd defendant, ie the time of the payment and the source of repaying the money, I am satisfied that the 2nd defendant is not liable to repay the money as the source for the complainant to repay has now gone into defunct The money could not be repaid from other sources, except from payment made by U-Vistract Money Scheme.

I Order Accordingly.

In Person: Complainant
In Person: Defendant