Kene v Kople [2017] PGDC 52; DC3086 (7 December 2017)

DC3086

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

JOSEPH KENE

Complainant

AND

JACOB KOPLE

Defendant

Goroka: Philip Kaumba, LLB(PNG)

2017: November 15
December 07

CIVIL:

Cases Cited
Nil

References
Nil

Counsels

Lawyer for the Complainant,In person.

Lawyer for the Complainant, In person.

07^th December, 2017

REASONS FOR DECISION

PKaumba, Magistrate:This is a complaint and summons filed by the complainant on the 2^nd of October 2017 claiming K1200.00 plus costs against the Defendant. The partiesappeared in court on the 11^th of October 2017 and the defendant denied owing money to the complainantand the court directed him to file his statement of defence within 7 days and adjourned the case to the 24^th of October 2017. The case was mentioned on the 24^th of October 2017 and I noted that parties have filed their affidavits and I set the case for hearing on the 15^th of November 2017. I heard the case on the 15^th of November 2017 and adjourned to the 7^th of December 2017 for decision.

RELEVANT LAW

2. Contract:A legally enforceable agreement between two or more persons. Where there is a breach of the agreement, the innocent party can sue for damages and he must prove that there was an agreement and the parties intended to enter into legal relations and the innocent party incurred loss or damage as a result of breach of agreement. An agreement is also subject to other laws of our country like Stamp duties Act, Judicial Proceedings(Debts & Damages)Act, Investment Promotion Authority Act,Fairness of transactions Act, Criminal law etc.

2. ISSUES

Is there a legally enforceable agreement between the parties, If so does the defendant owe K1200.00 to the complainant?.

4. FACTS AND FINDINGS:

1. The complainant and defendant agreed on the 2^nd of July 2017 that the defendant will borrow some money from the complainant and will repay the same with 40% interest. It was also agreed that the defendant will surrender his card to the complainant to get the loan and the complainant will withdraw monies from the defendants account to recoup his money plus interest.
2. The Defendant borrowed K400.00 from the complainant on the 10^th of July 2017.
3. He borrowed another K660.00 on the 17^th of July 2017.
4. The complainant says that the defendant borrowed another K200.00 from the defendant but that is disputed by the defendant and says I went to the complainant’s house and asked for money but hedid not give me the money saying he has no money and it was dark and I returned to my home.
5. The complainant withdrew monies from the Defendants account three times and he took some and gave the left over to the defendant to take home. He says out of the three withdrawal he got K500.00 only and he gave the rest to the defendant but that evidence is not corroborated by independent witnesses.
6. The defendant rebutted the complainants claim that he wasnot involved in business of giving loansby saying that the complainant was involved in the business of lending money in his oral evidence in court and the complainant tried to destroy the same in cross-examination and re-examination of the defendant but the defendant has maintained his stand that the complainant was involved in the business of lending money.
7. I find that the complainant’s statement in paragraph 1 of his affidavit dated 23^rd of October 2017 where he stated that he executed the services of lending money, has sold himself out. Furthermore the complainant’s acts of getting the defendant to surrender his savecard shows that he is a professional business lender and not one time lender or helper. Lastly his act of giving K400.00 to the Defendant and later another K660.00 to the defendant shows that he is in the business of lending money.
8. The Defendant says he borrowed K1060.00 only and the complainant has recouped the loan and the complainant owes him K318.00.
9. The complainant is saying that the defendant owes him K1200.00 that seems to include interest of 40%.
10. I find that there is an agreement between the parties for the Defendant to obtain moneys from the Defendant to be repaid with 40% interest and furthermore the complainant was to surrender his savecard to the complainantand that shows clearly, that the complainant is involved in the business of lending moneyand that he is doing it, without an Investment Promotion Authority Certificate and that is wrong and illegal.
11. I also find that the complainant charging 40% interest on the loans advance to the defendant is very harsh and unfair considering the fact that interest rates given by commercial banks and by statute under theJudicial Proceedings( Debts and Damages) Act is far less that the 40% interest he charges. Hence the transaction as whole may also be in violation of the Fairness of Transactions Act.
12. I further find that the complainants complaint is defective in that he says that the defendant borrowed K1300.00 from him on the 2^nd of February 2017 and repaid K500.00 only and K1200.00 is still outstanding but evidence shows that the agreement was made on the 2^nd of July 2017 and the complainant gave K400.00 to the defendant on the 10^th of July 2017 and another K660.00 on the 17^th of July 2017.Altogether K1060.00 only and the K1300 .00 claim is not substantiated.
13. The complainant also stated that he is from Kabiufa village Goroka EHP in his complaint and summon but later it came to light in evidence produced in court that he is from Komiufa Village and not Kabiufa village Eastern Highlands Province. He also stated in his affidavit that he is from Tamatama village. Hence the complainant’s complaint is also defective.
14. In conclusion I find that the complaint is defective and the business the parties were involved in is illegal and against public policy and it cannot be enforced by this court.

5. ANSWER TO ISSUES

1. There is no legally enforceable agreement between the parties.

6. COSTS

Cost is a discretionary matter for a judge. I am of the view that the parties were either ignorant or knowingly involved in illegal money lending business and they took the risk so both parties should bear their own costs.

7. ORDER

The formal orders of the court are:

1. The Complaint is dismissed.
2. Parties to bear their own costs.
   

Counsels:

Lawyer for the Complainant, In Person

Lawyer for the Defendant, In Person