Kewa (trading as Kopiam Hire Cars) v Kouza, Minister for Community Development [2022] PGNC 27; N9421 (4 February 2022)

N9421

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 136 OF 2014

BETWEEN
SEKEN KEWA TRADING AS KOPIAM HIRE CARS
Plaintiff

AND
MINISTER FOR COMMUNITY DEVELOPMENT, HONOURABLE LOUJAYA KOUZA, MP
First Defendant

AND
ANNA SOLOMON AS THE ACTING SECRETARY FOR DEPARTMENT FOR COMMUNITY DEVELOPMENT
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2021: 19^th November
2022: 4^th February

DAMAGES – Breach of contract of services – Hire car services – Contract held to be unlawful and unenforceable – Contract performed – Services rendered – Unpaid services – Damages assessed on principle of unjust enrichment – Dispute over duplication of dates of hire of motor vehicles in invoices – No evidence in rebuttal – Damages awarded for the sum claimed in unpaid invoices

Cases Cited:

Seken Kewa v. Minister for Community Development & Ors (2019) N7753

Counsel:
Mr. C. Nidue, for Plaintiff
Mr. R. Uware, for Defendants

JUDGMENT

4^th February, 2022

1. MAKAIL, J: The plaintiff sued the defendants for breach of contract of service in the nature of provision of hire car services. Services were rendered, invoices rendered but unpaid.

2. Judgment on liability was entered with damages to be assessed on the principle of unjust enrichment after a trial on 7^th March 2019; see Seken Kewa v. Minister for Community Development & Ors (2019) N7753.

Parties’ Evidence

3. At the trial on assessment of damages, parties tendered affidavits which were marked exhibits ‘P1” to “P7” and “D” and elected not to cross-examine witnesses. Parties made oral submissions and presented written submissions with decision to follow suit.

4. The affidavits which are relevant to assessment of damages are those sworn by Mr Seken Kewa (exhibits “P1”, “P2” and “P6”), Mr Bruno Saiho (exhibit “P3”), Mr Sam Koity (exhibit “P5”) and counsel (exhibit “P7”).

5. These affidavits averted to the plaintiff claiming a total sum of K749,000.00 for 61 invoices for use of its motor vehicles from 28^th September 2012 to 14^th May 2013. The invoices indicated the use of the following motor vehicles:

(a) White Toyota Landcruiser 5-Door bearing registration no: BDL-973,
(b) White Toyota Landcruiser 10-Seater bearing registration no: BDK-015,
(c) White Toyota Landcruiser 10-Seater bearing registration no: BDK-772,
(d) White Toyota Landcruiser 10-Seater bearing registration no: BDK-773,
(e) White Toyota Landcruiser 10-Seater bearing registration no: BCX-647, and
(f) White Toyota Landcruiser 5 Door bearing registration no: LAX-672.

6. Out of 61 invoices, the parties agreed that 24 are not disputed. This is to be taken as the defendants are agreeing to pay the sum claimed in each invoice in the total sum of K705,600.00.

7. The balance of 37 invoices in the total sum of K43,400.00 are disputed. The defendants submitted that these invoices show that the preceding invoice overlap the first and other day or days of the subsequent invoice and constitute duplication of the sum claimed and should be deducted from the final sum claimed in the invoice.

8. On the face of it, the defendants’ submission is correct, but it is not supported by evidence. The reason is this, the plaintiff charged the defendants for 14 days use of its motor vehicles. As the motor vehicles were used beyond 14 days, the total sum claimed in each invoice included the extra days of use. Thus, the inference open to find is that the defendants used the motor vehicles for the extra days.

9. If the defendants deny the claim for extra days, evidence must come from the user of each motor vehicle stating that the motor vehicle was returned on the due date or by the 14^th day. No such evidence was forthcoming from the defendants. Even the affidavit of Anna Solomon (exhibit “D”) made no such assertion.

Findings

10. It is the finding of the Court that the defendants used the motor vehicles beyond 14 days and the total sum claimed in each invoice included the extra days of use by the defendants.

11. For the foregoing reasons, it is the further finding of the Court that the sum of K43,400.00 is proven and upheld. The plaintiff is awarded the total sum of K749,000.00 for the hire car services.

Interest

12. The plaintiff claimed interest in the total sum of K128,828.00 at the rate of 2% under the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

13. It is observed that the plaintiff filed this proceeding on 26^th February 2014. Apart from allowing the time for pleadings to close and the long list of cases in Civil Court Track 1, the plaintiff does not explain why it took that long for the claim to be tried.

14. Trial took place four years later and after the decision on liability on 7^th March 2019, it took another two and a half years to have the claim tried on 19^th November 2021 after negotiations failed. The plaintiff is duty bound to prosecute its claim with due despatch and diligence.

15. While the purpose of awarding interest is to compensate an injured party for being kept out of money, in this case, the plaintiff’s conduct does not support a case where it was diligent in prosecuting the claim in Court and should be awarded interest in full.

16. For these reasons, interest will be awarded in part. It is the order of the Court that interest is awarded at rate of 2% on the sum of K749,000.00 from the date of decision on liability of 7^th March 2019 to date of judgment and from date of judgment to date of final settlement under Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

Costs

17. The plaintiff is awarded costs of the proceeding, to be taxed, if not agreed.
Order

18. The orders of the Court are:

1. Judgment is entered in the sum of K749,000.00.
   
2. Interest is awarded at rate of 2% on the sum of K749,000.00 from the date of decision on liability of 7^th March 2019 to date of judgment and from date of judgment to date of final settlement under Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
3. The plaintiff is awarded costs of the proceeding, to be taxed, if not agreed.

4. Time shall be abridged.
________________________________________________________________
Nidue & Associates Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants