Wario v Wainewa [2019] PGDC 1; DC3082 (28 February 2019)

DC3082

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE AT GOROKA.

COMPDC NO 196of 2018.
BETWEEN :

AmonWario.
Complainant.

AND,

Kiwi Wainewa.
Defendant.
CORAM: P KAUMBA LLB(PNG).

2019, February 19^th and 28^th.

Counsels:
Complainants: In person.
Defendant: In person.

DECISION ON LIABILTY AND DAMAGES.

INTRODUCTION.

1. The complainant filed his default summons on the 5^th of September 2018 claiming that the Defendant owed him K6000.00 in damages being reimbursement of K2200, borrowed plus interest, damages and repayment of loan from Teachers Savings and Loan Society and BSP K3,790 since 16^th of October 2017 plus interest and costs .

ISSUES

2. (i).Is there an enforceable agreement between the parties?.

(ii). If so was the agreement breached by the Defendant?

RELEVANT LAW.

3. Simple Contracts- There must be an agreement between the parties that is there is offer and acceptance and consideration passing from one party to another and vice versa if necessary and the agreement is enforceable.
   

BRIEF FACTS.

4. The complainant and defendant are relatives in that the Defendant is the complainants in law that is the Defendant is married to the complainant’s daughter.
5. In or around 16^th of October 2017 the defendant dissuaded the complainant to assist him with money to have his Motor Vehicle a 15 seat bus Registrationno PLT 7011 fixed or repaired on the condition that if the bus returns to running condition, it was to bemanaged bythe complainants son andthe daily takings to be split on 50 50 basis between the parties until the complainant recoups the money he spent on spare parts.
6. Based on that agreement the complainant borrowed K1700.00 from the Teachers Savings and Loan Society and K5000.00 from BSP and used K2210 to pay for spare parts for the Defendants bus and had the same fixed and it was able to do its runs.
7. The complainant’s son managed the bus for some time but the Defendant was taking all the daily takings away and he gave up and left the vehicle to the complainant to manage.
8. Later the Defendant took the vehicle away from the complainant so the complainant told the defendant to repay his money with 50% interest which amounts to K2550.00.
9. Thecomplainant says he recouped K310.00 only and K2240.00 is still outstanding but the Defendant says the complainant recouped K330.00 and K2220.00 is still outstanding.
   

FINDINGS ON FACTS, LAW AND ISSUES.

10. My findings are:
    • (1) The complainant and the defendant entered into an agreement thatthe complainant will use his money to fix or repair the defendants buson the following conditions:
      • (i) The complainant’s son will manage the PMV business.
      • (ii) The daily takingsfrom the business will be split on 50 50 basis until the complainants recoups his money.
      • (iii) The complainant will provide a boss crew and the defendant will provide the driver during the time the complainants is to trying to recoup his money.

(2). The agreement was somewhat very vague in its finer details but there was an agreement on the main points referred to above as evidenced in the supporting affidavits of the complainant and responses from the Defendant in his affidavit.

(3).The Defendantdoes not dispute the complainant’s claim’s that he breached the agreement they entered into and he admits owing K2220.00 to the complainant towards the end of his affidavit and he further addsthat he intends to repay the same when he sells his bus off.

(4).The complainant says he recouped K310.00 only and K2240.00 is outstanding and the Defendant says the complainant recouped K330 and k2220. 00 is outstanding.

(5).However I take the complainants word because the Defendant has failed to appear in court on the date of hearing to be cross-examined on the discrepancy in the figures given. The defendant did not dispute the complainants claim of 50% interest and in our adversarial system of justice we have in PNG I don’t have to bring in my own views and throw the same out. Furthermore the courts role is to resolve disputes and if the parties do not dispute an arrangement or event which may be wrong in law or unacceptable to others then the court cannot bring in its own interpretation to create a dispute. The Court can only come in and intervene on its own volition in situations where arrangement or event is going to impose a heavy burden on one of the parties considering his or her circumstances. In this case I don’t think the circumstances of the parties are such to call for the court to intervene to relief the disadvantaged party.

(6). The complainant has claimed K6000.00 in his complaint and summons but he has not proved to the court that the loans he got from BSP and Teachers Savings and Loan Society was solely for the purpose of assisting the Defendant andfurthermore it was part of the agreement that the complainant will borrow and the defendant will meet the interest charged by lenders on the loans so this court cannot accede to additional claims made by the complainant. Furthermore this court cannot allow persons to make money through court processes because to do so will be against public policy and it will open the flood gates for people to come to court unnecessarily to make money.

(6).Hence the Defendant liable to the crux of the complainants claim only andthat is the amount the parties agreed that the complainant will recoup whichis K2240.00 referred herein-above.

ANSWER TO ISSUES.

11. My answers to issuesbefore the court are:

1. Yes.

2. Yes.

COSTS.

12. Cost is a discretionary matter for Judge. Costs to follow the event.

ORDER.

13.The Courts formal orders are:

1. Judgement is entered in favour of the complainant in the sum of K2240.00plus interest at the rate of 8% per annum from the date of issue of summons to the date of judgement being 207 days equals K101.60.Total K2341.60.
2. The Defendant shall pay K2341.60 to the complainant within 30 days of this order. In default warrant of execution to be issued.
3. The Defendant shall pay the Defendant’s costs to be taxed if not agreed.

Lawyer:

Complainants : Nil.
Defendant : Nil.