Aro v Kajari [2021] PGDC 208; DC7067 (11 November 2021)

DC7067

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 47 / 2020
IN THE MATTER BETWEEN:

RODNEY ARO
Complainant.
.
AND.
LEONARD KAJARI
Defendant.

Popondetta: Michael W. Apie’e

2021: November 11^th.

CIVIL PROCEEDINGS. Claim of Civil Debt.

Cases Cited:

References:
District Court Act.

Representation:
Complainant in person.
Defendant in person.

JUDGMENT ON TRIAL.

Background:

1. The Defendant Rodney Aro is a self- employed private citizen who makes his living carrying on assorted small business activities including ‘market moni’ or informal small loans of cash for interest.
   
2. The Defendant is a private citizen who is also chairman of the Land Owner Company called Kumusi/Saiho TRP and is alleged by the Complainant to have failed to repay monies borrowed at various times from the Complainant.
3. The Complainant Rodney Aro filed suit and claimed in his Complaint of 22^nd of June 2020 that the Defendant was indebted to him for K9,800.00 which were monies borrowed at various times and not repaid as promised with the applicable interests.
   

Complainants case:

4. The Complainant commenced his case on the 27/07/21 with his sworn oral testimony as well as his second Witness one Siri Ware.
   
5. The Complainant further called one Simon Steven as his third witness on the 09/08/21.
   
6. The Essence of the Complainants case is as follows that;
   
   1. The Complainant generally claimed that at various times from 19/04/2019 onwards the Defendant had come to him and obtained various amounts in cash as personal loans, over which he has not attempted settlement up until current.
      
   2. The Complainants witness one Siri Ware testified on oath to witnessing the Defendant coming to the Complainant firstly on the 07/04/2019 and getting K500.00 from the complainant, and again on the 20/04/2019 a further K1500.00 at the Complainants house/area.
      
   100. The Second Witness called by the Complainant Simon Steven testified on oath also that on Tuesday the 28/03/2019, the complainant was called to YC Supermarket and got K500.00 from the Complainant and later he was with the Complainant when they met the Defendant at Huvivi Junction and in the middle of the road the Defendant obtained a further K2000.00 in cash from the Complainant.
        
   4. All in all the Defendant is alleged to have borrowed the total claimed of K9,800.00 for which he is now sued for recovery.
      

Defendant case:

7. The Defendant gave his oral testimony immediately after the Complainant and then called his witness Michael Taimbari on the 09/08/21, and the essence of the Defense case is that;
   
   1. The Complainant was introduced to the Complainant by an in-law and that is how he got to know the Complainant, and borrowed money from him from time to time.
      
   2. One time, He was running a meeting and so requested for K1000.00 from the Complainant but he only gave K500.00 initially, but a week later the Defendant called the Complainant and got a further K500.00 totaling K1000.00
      
   100. Apart from that he did not get anything else, and does not recall ever getting K2000.00 or anything else from the Complainant after that.
        
   4. However, he admitted getting various small amounts like K50.00 or K100.00 from the Complainant at various times following his coming to know the Complainant.
      
   5. He also further admitted during cross examination of getting such amounts as K50.00 or K100.00 to go to clubs or other such activities from the Complainant on what he termed as friendship basis.
      
   6. The Defendant further claimed in his evidence that he has repaid K1500.00 total for the K1000.00 he got and therefore owes the Complainant nothing further.
      
   7. Regarding the Evidence of Siri Ware and Simon Steven of seeing the Complainant give money to him, when asked during his evidence, he said that during those times, he only got small amounts of money, not more than K100.00 or so as a friend and never got the K2000.00 or so claimed by the Complainant and his witnesses.
      
   8. Defendants Witness Michael Taimbari in his evidence confirmed that he witnesses the Complainant giving K500.00 to the Defendant in front of YC Supermarket after a meeting of their Timber Company.
      
   9. He further said that sometime after that the Defendant is believed to have obtained some more money, at least the balance of K500.00 from the Complainant.
      
   10. This witness further admitted to receiving K100.00 from the Complainant for which he repaid K150.00 sometime later.
       
   11. Witness Michael Taimbari can only vouch for the one time he was present at YC Supermarket when the Complainant gave money to the Defendant but he cannot vouch for the other times claimed by the Complainant and more or less conceded by the Defendant wherein the Complainant gave money to the Defendant whether it was the amounts claimed by the Complainant of K1500.00 or K2000.00 or those conceded by the Defendant as K50.00 or K100.00.
       
8. On the basis of these stories it is apparent to the Court that the Complainant and the Defendant are well acquainted with each other and have being dealing with each other from time to time since their initial introduction to each other.
   

Submissions:

9. Submissions were called for and filed by both sides and on the 12/08/21 their various written submissions were noted and the parties allowed until 17/08/21 for rebuttals if any.
   
10. On the 17/08/21 rebuttals and final submissions were received from the Parties and the matter hereby returns for Ruling /Judgment.
    

Observations:

11. Having received evidence from the Parties in respect of this matters the court makes the following Observations;
    
    1. Though the Defendant hinted at Issues relating to the Complainants Investment Promotion Authority (IPA) Registration of his money Lending Business, this were small personal Loans covered by ‘Gentlemen Agreement’ type arrangements and for all intents and purposes is binding on the both parties.
       
    2. Besides, the Contract Maxim of ‘Caveat Emptor- Let the Buyer Beware’ would apply here in that if the Complainant is inclined to fuss now after the fact of borrowing and using the monies about the IPA Credentials of the Complainant, it is a little bit too late for that and he is estopped from wriggling out of his legal obligations to honor his commitment to the Complainant.
       
    100. The Complainant denied receiving the amounts of money as outlined by the Complainant and his two witnesses Siri Ware and Simon Steven, but apart from the K1000.00 (2 x K500.00) he does not deny receiving K50.00 or K100.00 at various times as he admitted.
         
    4. In fact, when I questioned him about the Witnesses statements by Siri Ware and Simon Steven he denied receiving Large amounts of money at those times and instead said he got maybe K100.00 or so at those times at the Complainants house and also at Huvivi Junction instead of the K2000.00 claimed by the Complainant.
       
    5. The Defendant claims to have already paid off the K1000.00 Loan with payment of K1500.00 already made to the Complainant
       
    6. So if the Complainant claimed that he got a loan of only K1000.00, K500.00 at Siroga or at YC Supermarket and the other K500.00 at YC or Siroga and vice versa, the question then is how much other monies in K50.00 or K100.00 did he get from the Complainant?
       
    7. To that issue, the Complainant insisted that the Defendant regularly frequents his premise and asks for and receives the money claimed against him for various purposes and the Defendant does admit getting various ‘small amounts’ on ‘Friendship basis’ from the Complainant.
       
    8. The Complainants witnesses Siri Ware and Simon Steven account for K4500.00 as follows; K500.00 on 07/04/2019 and K1500.00 on 30/04/2019 by Siri Ware and Simon Steven testifying on K500.00 at YC Supermarket on the 28/03/2019 and later K2000.00 at Huvivi Junction.
       
    9. The Defendant claimed he received only total of K1000.00 for which he paid K1500.00 later to the Complainant but he admitted to receiving other monies in various small amounts from time to time on ‘friendship basis’.
       
    10. How much in total he got from the Complainant on ‘friendship basis’ is not verified nor disclosed by the Complainant but the Defendant submitted it could not be more than a K1000.00 in his evidence in answer to question by myself. However, the Defendant is not even sure about how much he admittedly got from the Complainant during these various times.
        
    11. The Complainants witnesses testified on oath in court to seeing the various amounts of money being given to the Defendant by the Complainant, and then availed themselves to Cross examination by the Defendant, and indeed they were subjected to cross examination by the Defendant and they still remain adamant on what they claimed they saw. So they were serious in their recitations and that is noted by this court.
        
    50. The Defendants witness Michael Taimbari on the other hand could only testify on seeing the K500.00 being given to the Defendant at YC Supermarket, he never witnessed the other K500.00 given later to the Defendant, or for that matter any of the other monies given by the Complainant to the Defendant whether it be the K1500.00 or K2000.00 claimed by the Complainant or the K50.00 or K100.00 from time to time as admitted by the Defendant.
        
    13. The Evidence before the Court before this court is at best sketchy requiring inferences to be drawn and on the basis of Inferences that can be drawn the following become clear;
        
        1. The Defendant was borrowing money regularly from the Complainant and not only on the two occasions of K500.00 each at Siroga and YC supermarket as he seems to infer.
        2. The Defendant was not keeping track of what he was borrowing from the Complainant but insisted he borrowed only K1000.00 total for which he paid K1500.00.
           
        3. The Complainant on the basis of Evidence from Witnesses loaned K4500.00 or more over which he established his total claim of K9,800.00.
           
    9. In the final Analysis, the Court finds and Rules as follows that;
       
    1. On the basis of the Evidence before this court it is clear that Defendant was not picky or fussy about where he was borrowing money from and obtained these personal loans from the Complainant without a second thought about whether the Complainant had a Duly Registered Money Lending Business or not.
       
    2. Also, it is apparent that the Defendant Borrowed money at Different times from the Complainant for various reasons like paying allowance for his Timber Company board members and also for fuel or to go to clubs, as he seems to admit when questioned by the Complainant.
       
    3. Of all that, it is revealed that he repaid K1500.00 upon Police intervention to the Complainant.
       
    4. However, the Issue is how much was actually borrowed? The Answer to that inferred from the Evidence elicited by the Parties as follows;
       
       1. The Complainants witness on oath, account for a total of K4500.00 in borrowings by the Defendant.
          
       2. Apart from the K1000.00 the Defendant admitted to borrowing, he conceded to obtaining various amounts from the Complainant from time to time, suggesting it could amount to not more than a K1000.00, however he is not even sure of that.
          
       100. The Defendants witness does not really challenge nor negate the Complainants claims.
            
       4. Therefore, it is the finding of this Court that the Defendant did borrow the K4500.00 as established from the Complainants evidence.
          
       5. It is also the finding of this court that the Defendant admitted that he did from time to time borrowed various amounts from the Complainant and that in essence gives further support to the Complainants claims against the Defendant of the K4500.00 he is found to have obtained from the Complainant.
          
       6. Therefore, it is the adjudication of this court that the Defendant did indeed borrow K4500.00 from the Complainant and having paid K1500.00 upon Police intervention, he still owes the Complainant the principal of K3000.00.
          
       7. The Totality of the Claim rising up to K9,800 was basically because of the Applications of 50% interest adjudged from fortnight to fortnight by the Complainant.
          
       8. The Interest Applicable according to the arrangement is 50% per fortnight according to Defendants Witness Michael Taimbari who borrow K100.00 and repaid K150.00.
          
       9. Fixing the Date of Filing of the Complaint on the 22/06 /21 over 3 months have elapsed and despite the Interest rate set at 50% by the terms of their Agreement, without a fixed starting point given the different dates for these debts, this Court will opt to only assess Statutory Interest of 08% instead.
          
       10. The 08% interest for the K3000.00 remaining comes up to K64.00.
           
    10. Accordingly, the Court will order as follows;
        
    1. The Defendant is found liable and ordered to settle the outstanding total damages of K3000.00 within 40 days from the date of this Order.
       
    2. Eight percent interest adjudged at K68.00 from the date of filing on 22/06/21 to today.
       
    3. Cost of K3.00
       
    4. The Defendant is to settle a total of K3071.00 within 31 days no later than Wednesday the 27/10/21
       
    5. In Default, Enforcement Proceedings to ensue against the Defendant.

Complainant in person.
Defendant in person.