Samson v Murliu [2016] PGDC 32; DC4057 (26 September 2016)

DC4057

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

GFC. 22 of 2016
BETWEEN

Ben Wak Samson
Complainant

AND

Mesmin Murliu
Defendant

Kokopo: SLavutul

2016: 22^nd, 29^th August, 07^th, 12^th September

CIVIL PRACTICE AND PROCEDURE: Complaint- Defendant failed to fulfil his part of the Agreement between himself and the Complainant- Offer and Sale of the Complainant’s Bus/Vehicle.

Cases Cited
Nil

References
District Courts Act

Appearance
Complainant Appeared In Person
Defendant and Counsel Non- Appearance

Exparte Judgement
26^th September 2016

Samuel Lavutul; It was alleged by the complainant that the defendant Mesmin Murliu of Gunanba village, Kokopo/Vunamami LLG, ENBP did on the 23^rd of May 2014 entered into a verbal or oral agreement with the complainant in order for him to purchase the complainant’s bus. The bus at the time of the alleged agreement was registered as a PMV bus bearing the Registration No. # P.0859E, silver in colour. The complainant claims the agreed price for sale was K7000.00 and was for the defendant to settle by instalments at K1000.00 per month and was to be settled fully by the 14^th of April 2016. However the complainant claims the defendant failed to fully honour their agreement and only paid K500.00 on the 31^st of October 2015.

Facts

2. The complainant’s driver namely Libor drove the said bus to Baliora but it encountered some mechanical problem so the driver left the bus at Peter Murliu’s place at Giregire. Peter Murliu was an uncle of the complainant’s driver. The complainant’s driver was a cousin to the defendant Mesmin Murliu. The bus’s designated route was Route 8 bearing the Registration Number P0859E.

3. In about May or June 2014, the Complainant personally approach Peter Murliu at his home at Giregire and they came to an agreement that he leaves the bus at Peter’s residence whilst look for spare parts for his bus. Whilst the bus was parked at his place, Peter Murliu and a relative also by the name of Peter removed parts from the complainant’s bus without his permission.

4. Thus this issue was settled out of court and after Peter and the complainant came to an understanding and they agreed to pay to the complainant the sum of K13, 000.00 for the parts to the complainant’s bus.

5. And in about September 2015 Mesmin Murliu took the complainant’s bus to his workshop without the complainant’s permission.

Issue

6. There are only two issues which I am required to deal with below;

i). whether the complainant was the lawful owner of the vehicle

ii). whether there was any agreement between the complainant and defendant in relation to the complainant’s bus.

Findings

7. It is established by the complainant’s evidence the vehicle described as a Toyota Hiace 15 Seater bus, mid roof bearing the plate Registration # P0895E belongs to the complainant as confirmed by the letter from FinCorp dated 08^th of August 2012 signed by Mr. Andrew Field the Head of Credit at FinCorp now marked and labelled as Exhibit B.

8. The content of the letter read in part, “This letter serves to confirm that the subject vehicle as detailed below was previously owned by Alois Cletus at Kwarumbe Trading Ltd, PO.Box 679, Rabaul, East New Britain Province and now sold to the new owner Ben Wak Samson, C/- B.W.K Recycling, PO Box 290, Rabaul, ENBP through tender process by FinCorp Finance Limited on 08^th August 2012”.

9. For further clarity the vehicle was tendered and advertised by FinCorp Finance Limited on the Thursday 02nd of August 2012 Edition of the National Newspaper in its classified column presumably after it was reposed by FinCorp Limited as evident by Exhibit A which is a copy of the Tender Notice. The sale by tender to the complainant was also confirmed by Exhibit C which a copy of the Statutory Declaration signed on oath by one Mr. Andrew Field, the Head of Credit before a Commissioner for Oaths dated 08^th August at Waigani, National Capital District.

10. Based on the above evidence I therefore find the complainant was the lawful owner of the vehicle a Toyota Hiace 15 Seater Bus, Registration # P0859E, Silver in colour.

11. In relation to the second issue on whether there was any agreement in relation to the sale and purchase of complainant’s PMV bus between the complainant and defendant; it shows from the evidence of the complainant and his only witness namely Mr. Steven Wafiwa that they actually met with the Defendant on the 14^th day of September 2015 at the complainant’s house at Raniolo settlement, Kokopo Town at 9.00 am. This meeting was in response to the complainant’s request to meet Steven Wafiwa and the defendant regarding his PMV bus.

12. Evidence shows the defendant offered to purchase the complainant’s PMV bus and upon agreement by the both parties on the sale and purchase; the complainant made an offer of K7, 000.00 to the defendant and he accepted the complainant’s offer. Upon accepting the offer of K7, 000.00 the defendant offered to the complainant if he could pay by instalments at K1, 000.00 per month and was accepted by the complainant. It was also understood from their agreement that the defendant would have fulfilled his commitment to pay K1, 000.00 per monthly by the 14^th of April 2016. It is also confirmed from the evidence that the only people that were present at the meeting were the complainant, witness Steven Wafiwa and the defendant.

13. However the defendant failed to keep his undertaking to pay K1, 000.00 per monthly, he only paid one instalment of K500.00 less the actual amount of K1, 000.00 on the 31^st of October 2015 with a remainder of K6, 500.00. Evidence by the complainant shows he had tried on numerous occasions to asked the defendant to pay but gave him a lot of excuses.

14. I therefore find that there was an agreement between the defendant and complainant and witnessed by one Steven Wafiwa on the sale and purchase of the complainant’s bus by the defendant. I confirmed the agreed price was K7, 000.00 and was to be settled by the defendant through monthly instalments at K1, 000.00 by the 14^th of April 2016. The defendant failed miserably to perform part of his obligation to pay the sum of K7, 000.00 to the complainant.

Orders will be entered accordingly.