N11316

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 442 OF 2021

BETWEEN
BERNET WASONANG
First Plaintiff

AND
HAVILLAND TAIBU
Second Plaintiff

AND
KAREN HEWO
Third Plaintiff

AND:
JUSTINA MEAKA
First Defendant

AND:
JESSY MEAKA
Second Defendant

AND:
EFETA MEAKA
Third Defendant

AND:
DESINA MEAKA
Fourth Defendant

LAE: DOWA J
19 OCTOBER, 8 NOVEMBER 2022; 3 JUNE 2025

CIVIL CLAIM- tort of conversion -dispute as to ownership-whether ownership passed to the plaintiff-what constitutes a valid contract-whether the plaintiff proved on the balance of probabilities that the tort of tort of conversion-Damages- Plaintiff has burden to prove damages with credible evidence-quotation for repairs is insufficient-economic loss must be supported by documentary evidence of income -assessed and damages awarded

Cases cited
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot and The State (1995) N1350
 Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
NKW Holdings v Paladin Solutions PNG Ltd (2020) N8339
Keam investments v Toyota Tsusho (PNG) Ltd (2019) N7859
Titus Tumba v Samson (2020) N8721

Counsel
E Tienare and G Guri for the plaintiff
J.Meaka Defendant in person 

JUDGMENT

1.	DOWA J: This is a ruling on both issues of liability and damages. 

Brief Facts

2.   	The Plaintiff is seeking damages against the Defendants for breach of contract and or alternatively damages for conversion.  It is alleged in July 2018, the First Plaintiff entered an agreement with the First Defendant’s father, late Joseph Meaka to buy his motor vehicle, a Toyota Land Cruiser Reg. No. LBK 998 for K20,000.00.  The First Plaintiff paid K10,000.00 and took delivery of the vehicle.  The balance was paid off by instalments by October 2018.  After the death of late Joseph Meaka, the first Defendant removed the vehicle from the first Plaintiff, Bernet Wasonang.
	
4.  	The first Plaintiff seeks damages for unlawful removal of the said motor vehicle, refund of purchase price and for reimbursement of all repairs done to the vehicle.

 	Hearing -Plaintiff’s Evidence

5.	The hearing was conducted by tender of all Affidavits by consent of parties. The Plaintiffs rely on the following Affidavits:

a.	Affidavit of Bernard Wasonang filed 20th July 2021
b.	Affidavit In Support of Bernard Wasonang filed 20th July 2021
c.	Affidavit of In Support of Bernard Wasonang filed 22nd September 2021
d.	Affidavit of Bernard Wasonang filed 2nd December 2021 

6. 	This is the summary of the first Plaintiff’s evidence. The first Plaintiff comes from Finschhafen District, Morobe Province. On 19th July 2018, he entered a verbal agreement with Late Joseph Meaka, the defendant’s father for the purchase of his motor vehicle, Toyota Land Cruiser Registration No LBK 998. The vehicle which was initially put up for sale was then sold to the first Plaintiff for K 20, 000.00. The first Plaintiff paid K 10,000.00 on 20th July 2018. In exchange, the late Joseph Meaka gave the keys and the vehicle to Mr. Wasonang. Late Joseph Meaka passed away on 28th September 2018.  The first Plaintiff paid the balance of the purchase price in instalments between October and November 2018 to the children of late Joseph Meaka.

7.	The first Plaintiff deposed that the vehicle was in bad condition and un road-worthy at the time of purchase. Between March and April 2019, he expended K 67,154.42 in repairing the vehicle. 

8.	In November 2019, the officers from the Public Curator’s Office impounded the vehicle at the request of the Defendant, Justina Meaka, claiming that it was an estate property of late Joseph Meaka. Not very long, the Public Curator’s Office released the vehicle to the Defendant, Justina Meaka. The first Plaintiff deposed further that all attempts to settle this matter with the assistance of the office of the Public Curator and the Police have failed, resulting in the current proceedings.

9.	In respect of the contention by Justina Meaka that she is entitled to the vehicle under a Will left by the late Joseph Meaka, the first Plaintiff says the deceased was sick and, in his village, and was not in Lae and in a proper frame of mind to execute a Will.

Defendant’s Evidence

10.	The Defendant relies on the Affidavit of Justina Meaka filed 10th September 2021, Exhibit D1. She is the first Defendant and the daughter of late Joseph Meaka.  She says, the First Plaintiff and her late father agreed for the sale of the vehicle at a price of K45,000.00.  The Plaintiff paid K10,000.00 only and the balance remained outstanding when her late father died.  As part of the settlement agreement the Plaintiff was to use the vehicle for two months only and return the vehicle, but he used it for 509 days. Her late father signed a WILL, appointing her as co-administrator of the WILL.  They have filed a Probate Application which is pending hearing.  It is part of her job as Administrator of her late father’s WILL, that she has collected the subject motor vehicle for proper administration of the Estate pending the grant of probate.  She says, the Plaintiff should wait for the outcome of the probate proceedings.  The proceedings filed by the Plaintiffs are therefore frivolous and discloses no reasonable cause of action against the Defendants.

	Issues

11.	The issues for consideration are:

a. Whether there is binding contract for the sale of Motor vehicle LBK 998
b. Whether the Defendants are liable for the tort of conversion
c. Whether the Plaintiff is entitled to the reliefs sought. 

Burden of Proof

12. 	The burden of proving the claim rests on the Plaintiff and he must discharge the burden on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and hope to be awarded damages claimed. Refer: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

a. Whether there is binding contract for the sale of Motor vehicle LBK 998

13.	The Plaintiff submits that he entered a valid contract to purchase the late Joseph Meaka’s motor vehicle, Toyota Land Cruiser, LBK 998 at the contract price of K 20,000.00. He fulfilled his end of the bargain. The first Defendant unlawfully impounded his vehicle and thus he is entitled to claim damages for tort of conversion or return of the purchase price as well as reimbursement of all repair costs.

14.	The first Defendant submits that the pleadings and the terms of the verbal contract for sale are vague. Secondly there is no clear evidence that payments for the purchase price were made and thus the Plaintiff is not entitled to the reliefs sought.

Consideration 

15.	The Plaintiff’s claim is for breach of contract and for tort of conversion. The law of contract is settled. It is a trite law of contract that the following elements be present for a contract to be valid and enforceable:

a)	Offer
b)	Acceptance
c)	Intention to create legal relation.
d)	Passing of consideration
e)	Capacity of parties

Refer to NKW Holdings -v- Poladin Solutions PNG Ltd, (2020) 8339, Keam investments v Toyota Tsusho (PNG) Ltd (2019) N7859, Titus Tumba v Samson (2020) N8721.
16.	The evidence shows late Joseph Meaka is the registered owner of the Motor vehicle, Toyota Land Cruiser, Registration LBK 998 at the time of the contract. He offered to sell his vehicle to the first Plaintiff, Bernet Wasonang, for the purchase price of K 20,000.00. The verbal agreement was made on 19th July 2018. The Plaintiff Wasonang paid K 10, 000.00 the next day, 20th July 2018. K 8,000.00 was directly deposited to late Joseph Meaka’s BSP Account at BSP Bank and K 2,000.00 in cash was handed over to late Joseph Meaka in a yellow envelop. On receiving the payment, late Joseph Meaka handed over the keys and the motor vehicle to the first Plaintiff. As the vehicle was not road-worthy, it was towed to a workshop for repairs. The whole transaction took place in the presence Haviland Taibu and Karen Hewo. Karen Hewo is the wife of late Joseph Meaka. Karen Hewo confirms the transaction in a statement she made to the Police. The first Plaintiff paid the balance of the purchase price of K 10,000.00 to the children of the deceased between 11th October and 23rd November 2018.
17. 	Clearly, the basic elements of the contract are present. The parties had capacity to contract. The parties intended to create a legal relationship. There was an offer and acceptance and passing of consideration, that is the contract was fully performed, although part of the contract price was passed on to the children rather than the deceased estate.

18.	 The submission by Defendant Justina Meaka that the Plaintiff’s pleadings on a verbal contract are vague and unenforceable lacks merit. Contrary to the Defendant’s contention, the pleadings in the statement of claim are in detail and clear. A contract whether written or verbal which meets the basic elements of a contract is valid and enforceable. In the present case, I am satisfied that the verbal agreement met the basic requirements of contract and is therefore valid and enforceable. By reason of this finding, the first Plaintiff is the owner of the motor vehicle Toyota Land Cruiser, LBK 998.

b.	Whether the Defendants are liable for tort of conversion

19.	In November 2019, the subject motor vehicle was forcefully removed from the Plaintiff by the Public Curators Office, Lae.  The first Plaintiff submits that the first Defendant unlawfully instructed the Public Curators Office to impound the vehicle. The Public Curator’s office subsequently released the vehicle to the first Defendant on or about February 2020. As a result, the Plaintiff says he was deprived from possession of the vehicle since and seeks damages.

20.	In response, the first Defendant submits that her late father left a Will dated 6th August 2018 and appointed her as Coexecutrix of the estate of late Joseph Meaka, deceased. She arranged for the Public Curator’s Office to impound the vehicle and released it to her as executrix of the Will. The vehicle was subsequently registered in her name on 27th November 2020.

	Consideration
21.	There is no dispute that the vehicle was forcefully removed from the Plaintiff by the Public Curators office in November 2019 and released same to the first Defendant in February 2020. The title to the motor vehicle has passed onto the Plaintiff who had immediate ownership and possession. It is arguable that upon his death and before the final payment of the purchase price, the estate of the late Joseph Meaka was owed K 10,000.00 by the first Plaintiff being the balance of the purchase price. However, the money was eventually paid in full just few months later to the children of the deceased though not to the estate account.  

22.	By November 2019, the Plaintiff was the rightful owner of the vehicle. The Public Curators Office acted improperly to impound the vehicle, only to release it three months later to the first defendant despite the first Plaintiffs protests. The first Defendant was not yet granted the Probate and not officially sanctioned as executrix of the purported Will of the late Joseph Meaka, yet she proceeded to register ownership of the vehicle in her name on 27th November 2020. The registration of subject motor vehicle in her name, without being granted Probate or letters of administration is unlawful and is   contrary to sections 35E and 39 of the Wills Probate and Administration Act.

23. 	In the circumstances, I find the impounding of the motor vehicle by the Public Curators office at the request of the first Defendant and the subsequent registration of the vehicle in the name of the first defendant unlawful. It amounts to tort of conversion. 

24.	A tort of conversion is committed when a person who intentionally takes or uses another person’s personal property, depriving the owner from its use and possession. It is an act of denial or interference with someone’s right to ownership and possession. 

25.	I am satisfied that the first Defendant is liable for committing tort of conversion and is liable to pay damages to the first Plaintiff.

c.	Whether the Plaintiff is entitled to the reliefs sought. 

26.	Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

27. 	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:
“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:
•	    The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

•	    Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

•	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National 
•	Court, Kandakasi J.)”

Consideration

28. 	How much in terms of damages is the Plaintiff entitled to? The Plaintiff claims the following heads of damages in the statement of claim:

      a) 	Loss of vehicle/repair costs-K 67,154.42
      b) 	Reimbursement of Purchase Price- K 20,000.00.
      c)  	General Damages
      d)  	Special Damages
      e) 	Interest.
      f) 	Costs

    	Reimbursement of Purchase price.    
 
29.	The Plaintiff claims reimbursement of the purchase price of K 20,000.00. The Plaintiff paid K20,000.00 for the purchase of the subject motor vehicle from late Joseph Meaka. Although part of the purchase price was received by the children of the deceased, the contract was performed by the late Joseph Meaka by delivering the said motor vehicle to the Plaintiff. Consideration has passed between the contracting parties. The Plaintiff is the owner of the vehicle now. There is no breach nor repudiation of the contract by the late Joseph Meaka. I note the submissions by the first Defendant contesting performance of the contract by the Plaintiff. However, the first Defendant has no legal standing as she is not an executrix nor administrator of the deceased estate and for that matter, the Court notes, the deceased estate is not a party to the proceedings to raise the issue of performance under the contract.     For the forgoing reasons, the first Plaintiff is not entitled to the refund of the purchase price. Ownership of the motor vehicle has passed from the deceased, late Joseph Meaka, to him and thus he is the legitimate owner the vehicle and shall be entitled to possession only. No award shall be made for the refund of the purchase price.  

Loss of vehicle/Repair Costs
          
30.  The Plaintiff claims the sum of K 67,154.42 in the statement of claim for the cost of the repairs. The Plaintiff did not produce any evidence like invoices and receipts except for list of parts. From the evidence, it is clear the Plaintiff did repair the vehicle to have it roadworthy, but the cost is not supported by evidence. In any case and since he remains owner of the vehicle, he is not entitled to an award for the costs of the repairs done to the motor vehicle he now owns.  

Special damages

31.	The first Plaintiff pleads a claim for special damages.  Apart from the repair costs, he has not given any evidence supporting a claim under this head of damages. There shall be no award.

         General Damages

32.   The first Plaintiff submits that he is entitled to general damages for pain and suffering. The Court has found the Plaintiff is entitled to damages for the tort of conversion. Since November 2019, the first Plaintiff has been deprived of possession and ownership. The vehicle was impounded by the Public Curator on instructions by the first Defendant. In February 2020, the vehicle was then returned to the first Defendant who proceeded to register it in her name. As a result, the first Plaintiff could not use the vehicle in his daily activities, especially in his building and construction business known as BHR Building & Maintenance Contractor.  His business suffered because of loss of possession and use of the vehicle. Apart from the purchase price, he spent a lot of money on the repairs. The vehicle would not be in the same condition by the time the Plaintiff is given possession by reason of these orders. Taking all these factors into account, the Court shall make an award that is fair and equitable to do justice in the circumstances. In my view the sum of K 20,000.00 is reasonable, and I shall make an award for that sum. 

Interest

33.	The Plaintiff is claiming interest.  I will allow interest at the rate of 8% on the amount assessed.  Interest is to commence from date of writ of summons, (20/07/2021) to date of judgment (03/06/ 2025) for a period of 2010 days.  Interest is calculated as follows:

	K 20,000 x 8/100					=	K 1,600.00
	K 1,600/365 days				           =          K    4.38   per day
	K4.38 x 2010 days					=	K 8,810.99

34.	The total award inclusive of interest is		=	K 28,810.99

	Costs

35.	The Plaintiff is claiming cost.  I will allow cost in his favour.

Who shall pay the judgement

36.	There are three Plaintiffs named in the proceedings. Except for the first Plaintiff, I find the second and third Plaintiffs have no cause of action against the Defendants. Judgement shall therefore be entered for the first Plaintiff only. There are four Defendants named in the proceedings. The findings of the Court are that only the first Defendant is liable. No liability is established against the other defendants. Therefore, only the first Defendant shall be liable to settle the judgment.

	Discharge of the interim Orders

37.	On 14th October 2021, the Court issued an interim order placing the custody of the subject motor vehicle in the custody of the Police pending final determination of the proceedings. These orders are now discharged, and the vehicle can be released to the Plaintiff by the Police.

Transfer of Registration of Motor vehicle

38.	The Court notes the subject vehicle is last registered in the name of the first Defendant, Justina Meaka. It is now necessary to transfer the name of the owner to the first Plaintiff, Bernet Wasonang. For clarity, the Court shall direct the offices of Motor Vehicles Insurance Ltd (MVIL) and Road Transport Authority to facilitate registration of transfer of ownership to the first Plaintiff.

Orders

39.     The Court orders that:

1.	Judgment is entered for the first Plaintiff in the sum of K28,810.99 inclusive of interest.

2.	The First Defendant, Justina Meaka, shall pay the judgement debt.

3.	Post Judgment interest shall accrue at the rate of 8% until settlement.

4.	The first Plaintiff is declared owner of the motor vehicle, Toyota Land Cruiser, Open Back, Registration No LBK 998, for clarity. 

5.	The interim orders of 14th October 2021 placing subject motor vehicle in the custody of the Police pending final determination of the proceedings are hereby discharged, and the motor vehicle Toyota Land Cruiser, Open Back, Registration No. LBK 998 be released to the first Plaintiff forthwith.

6.	To give effect to Order 5, the offices of Motor Vehicle Insurance Limited and Road Transport Authority shall assist the first Plaintiff to register or transfer the registration of ownership to the first Plaintiff. 

7.	The first Defendant shall pay the cost of the proceedings to be taxed, if not agreed.

8.	Time be abridged.
_______________________________________________________________
Lawyer for the plaintiff: Public Solicitor