Kiakas v Kebil [2008] PGDC 13; DC660 (21 March 2008)

DC660

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 357 of 2007

BETWEEN

JOHNSON KIAKAS
Complainant

AND

ALOIS KEBIL
Defendant

Goroka: F MANUE
2008: March 21

CIVIL - Claim for fraud and unlawful claim of entitlements due to complainant – whether there was fraud, whether the action of the defendant was unlawful and if so whether the monies were received and subsequently converted by the defendant for his own use.

Cases Cited
Nil

References
Nil

Counsel
Complainant: In Person
Defendants: In Person

21 March 2008

REASONS FOR DECISION

F Manue: The complainant alleges that on the 20 August 2001 the defendant by false pretence obtained K2, 495.20, monies belonging to the complainant as final entitlement from the Department of Works at Goroka, for services he provided.

2. The issues are whether there was fraud involved and whether the actions of the defendant were unlawful. If so whether .the defendant received the monies and converted them to his own use.

3. Summary of Facts

The complainant was employed as a casual security personal by the Department of Works at Goroka from 20 January 1993 to around 2001, when he was charged for willful murder, which subsequently landed him in jail. Due to the given circumstances, he was terminated in June 2001 and his final entitlement for the nine (9) years of services was calculated. According to documents presented to Court the final figure calculated was as claimed by the complainant which is K2, 495.20.

4. He claims that this money was obtained unlawfully and by fraud by the defendant. It was alleged that he had conspired with a Peter Wu to obtain the moneys.

5. The defendant denied the claim. He in his evidence, stated that he is a Senior Industrial Officer with the Department of Works in Goroka. He says that the defendant was employed as a causal security officer for the period as stated by the complainant.

6. He stated that at the time the complainant was taken into Police Custody, a Peter Wu who was also a casual labour with the Works Department had approached him as an agent of the Department and asked whether the Department would assist the complainant in any way. Evidence suggests that the defendant then advised Peter that the Department could not assist as there were no such funds. He suggested to Peter that the only possible option was for the complainants entitlements to be used. On that understanding, he as the Senior Industrial Officer, instructed the salary clerks of the Department to calculate the final entitlements.

7. He stated that he was not involved directly in the pay out of the final entitlements. The payments were done by the Salary Clerks of the accounts division.

8. I have considered all the evidence by both parties.

9. Was there any fraud on the part of the defendant?

10. When fraud is involved, there must be an element of criminality and intend or deception to benefit from someone else.

11. One who intends to defraud must have an intend of imposture or pretend to be someone for the purpose of obtaining benefits for himself. This would mean imposture to be someone in the pretext of another to obtain for his own benefit or someone else.

12. Evidence shows that the defendant did not initiate on his own notion to have the complainants entitlements prepared and paid to himself. Neither, is there evidence that he pretended to obtain the monies to bail out the complainant from his problems by way of bailing him from custody or pay as compensation for the wrongs of the complainant.

13. The whole process was the initiation of one Peter Wu.

14. There is no evidence that the monies were received by the defendant.

15. Documentary evidence suggests that the monies were signed out by the paymaster and collected by Peter Wu.

16. Whilst the defendant had no intend of deception and fraud, there is an element of the Works Department through its employees, ie the defendant and the paymaster to have been negligent in their duties.

17. Evidence suggests that there was no written or oral authority by the complainant to have his final entitlements calculated and paid to him through Peter Wu or anyone else for that matter, while he was in custody.

18. And since the defendant is an employee of Works Department, an instrumentality of the State, the State and the Department are liable to be named as co-defendants in any other possible proceedings.

19. I find on the balance of probability that the complainant of fraud and unlawfully obtaining money by the defendant must fail as there is no evidence supporting the claim.

20. The case is therefore dismissed with costs.

Complainant: In Person
Defendants: In Person