Sek 15 Ltd v Kiunga Stevedoring Co Ltd [2006] PGNC 121; N3109 (15 December 2006)

N3109

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1612 OF 2003

BETWEEN:

SEK 15 LIMITED
Plaintiff

AND:

KIUNGA STEVEDORING CO. LIMITED
Defendant

Waigani: Gavara-Nanu, J
2006: 4, 10 August; 15 December

CONTRACT – Bailment – Bailor and bailee – Owner and person in possession –Equitable proprietary interest – A motor vehicle – Owner not paying repair costs – Repair costs paid by a director of the company owning the vehicle – Motor vehicle released to another director of the company – Paying director’s own company having interest in the vehicle – Paying director of the owner having proprietary and equitable interest and superior possessory right over the property.

Cases cited:

Papua New Guinea Cases:
Sembi Paikel v. Kawei Pty Ltd [1997] PNGLR 603

Overseas cases:
Biddle v. Bond [1861-73] ALL E.R 477
Ranson v. Platt [1911] UKLawRpKQB 97; [1911] 2 K.B 291

Other References:
Bailment by N.E Palmer 2nd ed., Law Book Company, 1991 at pages 164 – 177
Halsbury’s Laws of England Vol.2, 4th ed. Butterworths, London, 1973 at page 688
Halsbury’s Laws of England Vol.35, 4th ed. par 1123; 1127 and 1501 at pages 625; 627 and 688 - 689
Osborne’s Concise Law Dictionary, Sweet and Maxwell London, 1993

Counsel:
G. Tamade, for the plaintiff
W. Tekwie, for the defendant

15 December, 2006

1. GAVARA-NANU, J: The plaintiff is claiming K8, 926.48, which it says is the value of a vehicle it claims it bought from Tabubil Automotive Limited (‘TAL’) on or about 7 February, 2003. The vehicle in question was a short wheel base Kia Ceres Registration No. 393 (‘the vehicle’), which was owned by Spearhead Communications Ltd (‘SCL’).

2. The defendant in this case was a stevedoring company based in Kiunga, Western Province. The claim against the defendant is based on the plaintiff’s claim that the defendant to whom the vehicle was bailed by TAL, on behalf of the plaintiff, unlawfully released the vehicle to one Rex Dagi, thus acting in breach of the bailment. The plaintiff also claims for the loss of the economic use of the vehicle.

Background

3. In September, 2001, TAL, which has a workshop in Tabubil, did some repair work on the vehicle. The work was completed on 24 September, 2001, but the owner (SCL) failed to pay for the repair bill of K8, 926.48. This amount included the storage fee of K3, 660.00. On 25 November, 2002, TAL sent a reminder letter to SCL advising it that the amount was still owing. However, instead of sending the letter to SCL, the letter was sent to the plaintiff.

4. Thus, upon becoming aware of the vehicle with its outstanding repair bill, the plaintiff arranged with TAL to pay for the bill. The payment was made to TAL on 7 February, 2003. Following that payment, on 13 March, 2003, the plaintiff wrote and instructed TAL to arrange shipment of the vehicle to Port Moresby. On 3 March, 2003, TAL wrote to the plaintiff and provided details of transportation costs of the vehicle.

5. On 4 March, 2003, TAL delivered the vehicle to the defendant for it to be shipped to the plaintiff in Port Moresby. On 6 March, 2003, the vehicle was containerized for shipment. On 14 March, 2003, Laurabada Shipping Services Ltd, a subsidiary of Steamships Trading Company Ltd, wrote to the plaintiff through a facsimile transmission and provided quotes for its costs to ship the vehicle from Kiunga to Port Moresby. Sometime later, when the plaintiff’s staff attended at the office of Laurabada Shipping Services Ltd in Port Moresby to pay for the freight costs, they were told that the vehicle had not been shipped. Later, the plaintiff learnt that the vehicle was released to Rex Dagi at Kiunga wharf by the Port Manager a Peter Tatanu. Mr. Tatanu opened the container, in which the vehicle was containerized, and allowed Rex Dagi to drive the vehicle away. It was learnt that Peter Tatanu had released the vehicle to Rex Dagi after the latter queried the vehicle’s shipment and claimed that the vehicle had a problem, and should not be shipped. He did not explain what the problem was.

6. It should be noted that one Robert William Bolling, who is the principle witness for the plaintiff, is also a director of SCL together with the said Rex Dagi and a Malcolm Ian James.

7. The plaintiff does not dispute that the vehicle was registered under SCL’s name. However, the plaintiff argued that it had bought the vehicle from TAL. This claim is denied by TAL through one of its employees, one Rawah Gutuma, who said that the plaintiff only settled their outstanding repair and storage costs on behalf of the owner, SCL. For this, TAL placed reliance on the letter it sent to SCL, which is Annexure ‘A’ to Mr. Bolling’s affidavit. This is the letter I adverted to earlier. In the letter, apart from reminding SCL of the outstanding repair and storage costs of K8, 926.48, TAL also advised SCL that the vehicle was governed by the Unclaimed Goods Act, and if the amount was not paid within 14 days from the date of the letter, it (TAL) would sell the vehicle. The bill was not settled by SCL, so the plaintiff paid it 14 months after it became due for payment.

8. The plaintiff claims that the vehicle was delivered to the defendant for reward to take care and control of the vehicle, and for the shipment of the vehicle from Kiunga to Port Moresby through Laurabada Shipping Services Ltd. The plaintiff claims that the vehicle was released to Rex Dagi on 7 March 2003, without its authority. The plaintiff says it demanded the defendant to recover the vehicle from Rex Dagi and have it delivered to it in Port Moresby, as previously agreed between them, but the defendant failed to heed to this demand.

9. Mr. Bolling is also the owner of the plaintiff company. His evidence is that the plaintiff agreed to buy the vehicle from TAL because the vehicle was being sold by TAL to recover its unpaid repair and storage costs from its owner, SCL. Mr Bolling also says in his affidavit that on 5 February 2003, TAL faxed a letter to the plaintiff, albeit wrongly addressed to SCL, for the plaintiff to organize payment for the vehicle. As a result of which, on 7 February 2003, the plaintiff made a direct payment of K8, 926.48 to TAL’s bank account in Tabubil through telegraphic transfer. TAL, then acting on instruction from the plaintiff, delivered the vehicle to the defendant.

10. It was conceded by Rawa Gutuma that TAL was instructed by the plaintiff to deliver the vehicle to the defendant.

Submissions.

1. Plaintiff’s submissions.

11. The plaintiff referred to and relied upon the principles of bailment given in Halsbury’s Laws of England, Volume 2, 4th ed, Butterworths, London, (1973), at page 688, where it states:

"A bailment, properly so called, is a delivery, of personal chattels on trust, usually on a contract, express or implied, that the trust shall be duly executed, and the chattels redelivered in either their original form or an altered form, as soon as the time or use for, or condition on, which they were bailed shall have elapsed or been performed.

The element common to all types of bailment is the imposition of an obligation, because the taking of possession in the circumstances involves an assumption of responsibilities for the safe keeping of the goods.

To constitute a bailment.., the actual or constructive possession of a specific chattel must be transferred by it’s owner or possessor (the bailor) or his agent duly authorized for that purpose, to another person (the bailee) in order that the latter may keep the same or perform some act in connection therewith, for which such actual or constructive possession of the chattel is necessary, thereafter returning the identical subject matter in it’s original or altered form".

12. The plaintiff also relied on the case of, Sembi Paikel v Kaiwe Pty Ltd (1997) PNGLR 603. In that case, the plaintiff claimed damages for loss of a 25 seater Nissan PMV bus which was deposited with the defendant for repair but was released by the defendant to a third party. The Court held that for the plaintiff to succeed in his claim, he had to prove either, that he was the registered owner or that he was in exclusive possession and control of the vehicle directly or indirectly. On this point, the court cited with approval a passage from; Bailment by N.E. Palmer 2nd ed, Law Book Company, London (1991) at page 112, where the learned author alludes to the relevant common law principles:

"The position is relatively straight forward when the non-owner makes a direct delivery to the alleged bailee. The fact that the possessor has both accepted the goods from him and undertaken to return the goods to him will normally constitute the deliverer a bailor, irrespective of the existence of some ulterior party enjoying a full proprietary interest in the goods. At common law, as we have seen, the bailee is stopped from denying the bailor’s title; there seems no reason to deny the estoppel in a case of this kind, especially since there is authority treating it as an implied term of the possessory relationship, and the relationship under consideration will be consensual if not contractual in origin."

13. Thus having regard to these principles, it was submitted that in this case, the ownership of the vehicle is not the determinative factor and therefore the plaintiff does not have to be the owner of the vehicle to succeed in its claim. It was argued that it is sufficient for the plaintiff to show that it was either in lawful and exclusive possession of the vehicle or had the right to have exclusive and immediate possession of the vehicle and that TAL, acting on its instruction, had delivered the vehicle to the defendant for reward to take care and control of the vehicle and to ship the vehicle to the plaintiff in Port Moresby. It was argued that when the plaintiff paid for the repair costs of the vehicle, it acquired immediate possessory and equitable rights over the vehicle, thus constituting the plaintiff as bailor and the defendant upon receiving the vehicle from TAL assumed care and control over the vehicle as the bailee.

14. The plaintiff also submitted that the vehicle was consigned by the defendant for shipment to the plaintiff with Laurabada Shipping Services Ltd. The plaintiff adopted the definition of, ‘consignment’ as given in Osborne’s Concise Law Dictionary, Sweet and Maxwell, London, (1993), viz. "goods delivered by a carrier to a consignee at the instance of a consignor".

15. The plaintiff submitted that these circumstances did create bailment between it, as the bailor, and the defendant as the bailee had an obligation to take care of the vehicle and to deliver it to the plaintiff. The defendant for that reason also had the duty to protect the plaintiff’s rights and interests in the vehicle. Therefore, when the defendant through its Port Manager released the vehicle to Rex Dagi, the defendant acted in breach of the bailment.

2. Defendant’s submissions.

16. The defendant’s principal argument is that the ownership over the vehicle never changed from SCL to the plaintiff. Thus, the money that was paid for the repair costs of the vehicle by the plaintiff was paid for and on behalf of SCL. The defendant argued that the plaintiff can only succeed in its claim if it was the owner of the vehicle. It was therefore submitted that with the ownership of the vehicle being still with the defendant, the plaintiff’s claim must fail. The defendant also argued that because SCL was the rightful owner of the vehicle, there was nothing wrong or unlawful in it releasing the vehicle to Rex Dagi, who was a director of SCL. For that same reason, it was also argued that Rex Dagi had the right to repossess the vehicle from the defendant. It was argued that bailment ended when the vehicle was released to Rex Dagi. It was therefore contended that there was no breach of bailment by the defendant when it released the vehicle to Rex Dagi.

Reasons for decision

17. The letter of 25 November, 2002 by TAL (which was addressed to SCL) in which TAL advised SCL that the vehicle was subject to the Unclaimed Goods Act and that after 14 days from the date of that letter it would sell the vehicle, was according to the plaintiff, wrongly addressed to SCL. Mr Bolling told the Court that it was correctly sent by fax to the plaintiff. It was after receiving that letter, that plaintiff through Mr Bolling, arranged payment of the outstanding repair and storage costs of the vehicle for K8, 926.48 to TAL.

18. It is to be noted that the amount paid by the plaintiff was for the outstanding repair and storage costs of the vehicle. Upon receiving that payment, TAL acting upon instructions from the plaintiff, then delivered the vehicle to the defendant. The plaintiff maintained that it had purchased the vehicle from TAL. This has been disputed by TAL, which maintained that the payment was to settle the outstanding repair costs of the vehicle for and on behalf of SCL, since both Mr Bolling and the plaintiff also had interest in SCL, Mr Bolling being a director of SCL and the plaintiff as an agent of SCL.

19. I am of the firm view that the plaintiff did not purchase the vehicle. This is borne out, first, by the fact that the amount paid was clearly for the repair and storage costs, secondly, there is no evidence that TAL had sold the vehicle, and thirdly, SCL remains the registered owner of the vehicle. There is also nothing before the Court to show that the vehicle was sold to the plaintiff by TAL as an unclaimed good under the Unclaimed Goods Act.

20. However, notwithstanding the fact that SCL is still the registered owner of the vehicle, it is also my firm view that upon payment of the outstanding repair and storage costs of the vehicle, the plaintiff had acquired equitable interest in the vehicle sufficient to entitle it to immediate possessory right over the vehicle. Thus, when TAL received payment of its outstanding costs from the plaintiff, TAL became the agent of the plaintiff (the bailor) for the purposes of delivering the vehicle to the defendant for safe custody, and subsequently for shipment to the plaintiff in Port Moresby. Upon receiving the vehicle from TAL, the defendant had the care and control over the vehicle, which included containerizing the vehicle for shipment, thus clearly constituting it as the bailee. Bailment was complete when the defendant received the vehicle from TAL for reward when it took care and control of the vehicle for and on behalf of the bailor. This view is fortified further by the fact that the vehicle was consigned for shipment, and the plaintiff was given freight costs and shipping details through the agent of the defendant, Laurabada Shipping Services Ltd. The plaintiff was ready and willing to pay for the shipping and freight costs and to receive the vehicle, when it was told by the staff of Laurabada Shipping Services Ltd that the vehicle had been released to Rex Dagi in Tabubil.

21. I find that in those circumstances, it is clear that the defendant had acted in breach of the bailment when it released the vehicle to Rex Dagi. The defendant as the bailee had the duty to protect the rights and interests of the plaintiff as the bailor.

22. The law in this regard was stated succinctly in the case of Ranson v. Platt [1911] UKLawRpKQB 97; [1911] 2 K.B 291. In that case, the wife, living apart from her husband, deposited her goods with the defendant, a warehouseman, for storage. A charge for storage was to be agreed upon between the plaintiff and the defendant. The husband subsequently went to the defendant, claiming that he owned the goods and asked that the goods be delivered to him. The defendant refused to deliver the goods to him except under an order from a magistrate. The husband then went to a magistrate with a representative of the defendant. Before the magistrate, the defendant’s representative told the magistrate that the defendant, for his protection, could only deliver the goods to the husband if an order was issued to that effect. The husband swore before the magistrate that he was the owner of the goods. Consequently, the magistrate issued an order that the goods should be delivered to the husband. The defendant then delivered the goods to the husband.

23. The defendant however, failed to give notice to the plaintiff about the husband’s hostile claim to the goods and of the summons that was issued by the magistrate. The defendant informed the plaintiff only after the goods were delivered to the husband. The plaintiff brought an action against the defendant in the county court claiming either the return of goods, or their value and damages for their detention.

24. The county court judge hearing the matter with a jury directed the jury that the defendant would be responsible for the loss of goods if, by his negligence, he had allowed the magistrate’s order to be made without giving notice to the plaintiff, whose address he knew, of the husband’s hostile claim, or had failed to ask the magistrate to summon the plaintiff before him so that she might be heard. The jury found that there was negligence on the part of the defendant.

25. The defendant appealed the county court decision to the Divisional Court. The Divisional Court allowed the appeal. The plaintiff then appealed the Divisional Court decision to the Court of Appeal. The ratio of the decision was stated by Vaughan Williams L. J. at 300 – 301:

"Before dealing with the effect of the order, I think it is desirable to consider what was the duty of the defendant, as bailee of the goods in question. The action here is not merely for negligence; it is an action either for detinue or conversion of the goods, and, before dealing with the question whether it will lie under the circumstances, it is, I think, important in the first instance to ascertain what the duty of the bailee is towards his bailor, while the goods are in his possession under a bailment such as was made in the present case by the bailor, and accepted by the bailee for reward to himself. I think that, upon a hostile claim being made to the goods, it was undoubtedly prima facie the duty of the bailee to take reasonable steps to protect the title of the person who had deposited the goods with him under such circumstances as existed in this case. Without going into details, I can only say that in my opinion it is perfectly clear that the defendant in this case did not take such steps to communicate to the plaintiff that an adverse claim was being made to the goods as a reasonable man ought to have taken. In the Divisional Court Phillimore J. said: "I do not find that there was any duty on the part of the defendant to do more than bring to the notice of the tribunal before which the matter came that there was a claimant other than the husband to these goods. That was effectually done by the defendant, but, unfortunately, the magistrate allowed himself to be deceived by the false statements which were made by the plaintiff’s husband. So far, however, as the warehouseman or bailee was concerned I do not think that he was under any duty to do more than he did." With all respect to the learned judge, I cannot agree with him that the only duty of the bailee was to make the statement which be made to the magistrate when the case came on for hearing. I think that, there being a rival claim to the goods, he had under the circumstances a plain duty to communicate to the bailee the fact that this claim was being made to the goods, the custody of which had for reward been accepted by him. That being so, in my judgment, upon the assumption that there was such a duty as I have stated, that judgment of the country court judge can be supported on the ground of breach of that duty."

26. Then Fletcher Moulton L.J. at 305 said:

"It is the duty of a bailee to take care of the goods bailed to him, and, if a hostile claim is made to them, to see that the bailor’s property is properly defended, or at any rate to give notice to him, if possible, of proceedings hostile to his title."

27. Then Farewell L.J. at 308 said:

"Here the magistrate made an order, which had no immediate effect on the property in the furniture (goods), but merely affected the possession of the goods deposited by the bailor with the bailee. That order directed the bailee to deliver up the possession of the goods to the person claiming them, and was made in the absence of the bailor. I think that the bailor was not bound by that order, and the bailee, who knew of that objection to it, cannot under the circumstances rely upon an order so obtained behind the back of his bailor. Another way of putting the case is that the bailee was guilty of negligence. He knew through his servants the address of the bailor, as is shown by the fact that he wrote the letter to which reference has been made after the goods had been delivered to the husband under the order, but he took no steps to inform the bailor of the summons having been taken out, nor does he seem to have made any effort to prevent the magistrate from making the order in the absence of the bailor. He had a duty to take all reasonable steps to protect his bailor’s right to the goods."

28. The facts in the case before me present a similar situation. The defendant should have at least notified TAL who had acted as an agent of the plaintiff of the adverse claim by Rex Dagi to the vehicle. The defendant through Mr. Tatanu only advised TAL after the vehicle was released to Rex Dagi.

29. The defendant has as noted, argued that there was bailment, but it ended after the vehicle was released to Rex Dagi. In other words, the defendant has conceded that there was indeed bailment but only up to the time prior to the release of the vehicle to Rex Dagi by Peter Tatanu. I cannot accept this argument. The first point to note is that Rex Dagi was not the owner of the vehicle. The vehicle was owned by SCL. In that regard, Mr. Bolling was no different to Rex Dagi, because they were both directors of SCL. Both Rex Dagi and Mr. Bolling may have had equal interest in the vehicle in that regard as directors of SCL and so was the plaintiff company as an agent of SCL. However, the difference between Rex Dagi on one hand, and Mr. Bolling and the plaintiff company on the other hand, is that the latter two, having paid for the outstanding repair and storage costs of the vehicle, had the immediate and superior possessory right over the vehicle than Rex Dagi. The release of the vehicle to Rex Dagi was therefore unlawful. This is borne out clearly by the letter of Peter Tatanu to TAL on 21 March, 2003. The letter is annexed as Annexure ‘H’ to Mr Bolling’s Affidavit. The letter is critical, it is therefore reproduced in full hereunder:

Kiunga Stevedoring Co. Ltd.

Head Office: C/O PO Box 770,

Port Moresby, Papua New Guinea

Phone: [phone] Fax: [phone]

FACSIMILE TRANSMISSION

_______________________________________________________

To: Tabubil Automotive

Attn: Rawah Gutuma

Fax: [phone]

From: Peter Tatanu

Date: 21/03/03

RE: 1 X KIA VEHICLE SUPPOSE TO BE SHIPPED HIRI CHIEF VOYAGE 226.

_______________________________________________________

The vehicle which was delivered from Tabubil to our storage yard 04/03/03 was booked to ship on that voyage.

On 06/03/03 the vehicle was driven into a 20ft container and loaded on ship, the loading continued on 07/03/03.

Then on 07/03/03 am Mr. Rex Dagi one of the Directors used to be Spearhead Communication Limited came in and queried the vehicle shipment.

The vehicle was owned by Spearhead at that time of company existence. Rex Dagi requested the vehicle not to ship out because it has got a problem. He did not specify what was the problem, so I gave the vehicle key and he drove away from the wharf.

At that time I informed you by telephone of what happened. I apologise for not letting you know in writing right away, it is a mistake at my end.

Rex is using the vehicle around town I shall ask him to talk over the matter with you by phone or make himself available to see you.

Regards

(Signed)

...................

Peter Tatanu

Manager

30. Having regard to the principles stated in Ranson v Platt, (supra) and as shown clearly by this letter, the defendant in this case by failing to give notice to the plaintiff either directly or indirectly through its agent, TAL, of the hostile claim to the goods by Rex Dagi, was in clear breach of its duty to defend and protect the interest of the plaintiff in the vehicle.

31. One thing that is made very clear by Ranson v Platt is that the bailee always has the duty to defend and protect the rights and interest of the bailor in the goods that are deposited under his care and control.

32. The defendant’s breach of the bailment is put beyond doubt by the admission and apology made in the letter by Peter Tatanu that it was a "mistake" on his end to release the vehicle to Rex Dagi.

33. The defendant has placed reliance on the extracts from Bailment by Palmer, (1979) at pages 164 to 177. The extracts discuss rights of owners over goods and chattels and the owners having prevailing rights over others over such goods and chattels; and the duty of bailees to protect the rights of the owners. The case of Biddle v. Bond [1865] EngR 269; (1865) 122 E.R 1179, which is discussed in these extracts has been relied upon by the defendant as being the authority on this point.

34. In Biddle v. Bond (supra), the plaintiff got goods belonging to the owner, one Robbins and gave them to the defendant, (an auctioneer) to sell to cover rental arrears. Before the defendant could sell the goods, Robbins gave notice to the defendant instructing him not to sell the goods as there were no rental arrears and that the relationship between him and the plaintiff was not one of landlord and tenant, it was rather of a vendor and a vendee. Robbins also instructed the defendant that if the goods had already been sold, the proceeds from such sale should not be given to the plaintiff. The defendant having received Robbin’s notice late proceeded and sold the goods but withheld the proceeds. The plaintiff sued the defendant to recover the proceeds. The defendant successfully defended the plaintiff’s claim on the basis that the plaintiff was not entitled to the proceeds as Robbins had paramount title in the goods.

35. These extracts clearly relate to instances or situations where the owner has continuous and uninterrupted ownership or possession over goods.

36. The extracts however do not cover situations as in the instant case, where the registered owner, SCL had by its conduct abandoned its rights over the vehicle when it failed to pay for the repair costs of the vehicle. It should be borne in mind that repair costs were paid after those costs had remained outstanding for over 1 year and 4 months.

37. In this regard, I accept the plaintiff’s contention that it had acquired superior possessory rights over the vehicle when it paid the repair costs of the vehicle. In this case, possession is of the essence. Therefore, when TAL delivered the vehicle to the defendant upon the plaintiff’s instructions, the vehicle was bailed to the defendant by TAL, who was acting as the agent of the plaintiff.

38. I accept the plaintiff’s contention that bailment is defined by common law principles as broadly given in Halsbury’s Laws of England Vol.2 4th Ed. Butterworths, London, 1973, London, at page 688. I have already adverted to the relevant passage found there, but for my part, I find the following part of the passage more in point:

To constitute a bailment.., the actual or constructive possession of a specific chattel must be transferred by it’s owner or possessor (the bailor) or his agent duly authorized for that purpose, to another person (the bailee) in order that the latter may keep the same or perform some act in connection therewith, for which such actual or constructive possession of the chattel is necessary, thereafter returning the identical subject matter in it’s original or altered form". (my emphasis )

39. The essence of this case therefore, is possessory rights over the vehicle, and that is the issue on which this case is being fought, not on the issue of who owns the vehicle. The issue therefore is, who has the superior possessory right over the vehicle between the plaintiff and Rex Dagi. The answer clearly is that the plaintiff has the superior possessory right over the vehicle.

40. N.E Palmer on Bailment 2nd Ed. at page 112 discusses this very point:

"In most cases the bailor of goods will be their owner, and no question will arise as to his participation in the bailment relation. On other occasions, however, a party who asserts some interest in the goods falling short of ownership may seek to enforce the obligations of the bailment. Complex issues may then arise as to which categories of interest entitle the holder to be characterised as a bailor, and which are insufficient for this purpose.

The position is relatively straightforward when the non-owner makes a direct delivery to the alleged bailee. The fact that the possessor has both accepted the goods from him and undertaken to return the goods to him will normally constitute the deliveror a bailor, irrespective of the existence of some ulterior party enjoying a full proprietary interest in the goods. At common law, as we have seen, the bailee is estopped from denying the bailor’s title, there seems no reason to deny the estoppel in a case of this kind, especially since there is authority treating it as an implied term of the possessory relationship, and the relationship under consideration will be consensual if not contractual in origin."

41. Thus having regard to these principles, I find that whether the plaintiff owned the vehicle or not is irrelevant. What is relevant is that the plaintiff had the superior possessory right over the vehicle and had equitable interest in the vehicle above Rex Dagi. These factors constituted the plaintiff as the bailor and the defendant as the bailee.

42. The defendant is therefore liable to the plaintiff’s claim.

43. The plaintiff claims for the value of the vehicle. There being no other figures provided, I will determine this claim on the actual amount paid by the plaintiff, which is K8, 926.48. I award this amount to the plaintiff.

44. The plaintiff has also claimed relief for the loss of the economic use of the vehicle, to be assessed by the Court. But the plaintiff has not provided any figures or evidence to guide me in determining this claim nor has the plaintiff pleaded the type of business in which the vehicle would have been used. The plaintiff also has not pleaded any facts in the Statement of Claim let alone adduced evidence in support of this relief and upon which this relief should be determined. What is before me is just the relief sought with no factual basis. Any relief sought has to have factual basis. A relief sought without any factual basis and not having been pleaded cannot be determined let alone granted.

45. In this case, the plaintiff has claimed a relief without pleading it in the body of the Statement of Claim. To that extent, this relief stands in contrast with the relief sought for the value of the vehicle, for which relevant facts have been pleaded and evidence adduced. It follows that this relief cannot be considered let alone granted. The plaintiff’s claim for this relief is therefore dismissed.

46. For the amount awarded viz. K8,926.48, I award interest at 8 percent. The period for interest is from the date the writ was filed, which is 12 November, 2003 to today (15 December, 2006). That is a period of 3 years 1 month and 3 days. For this period, I calculate the amount of interest at K2, 208.26.

47. I therefore award total amount of K11,134.74 in damages and interest.

48. The defendant will pay the plaintiff’s costs.

_______________________________________________

G. Tamade: Lawyers for the appellant
W. Telwie: Lawyers for the respondent