DC478

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 236 OF 1997

BETWEEN

Vejona Apo
Complainant

v

Solomon Savo
Defendant

JUDGEMENT

The facts of the Case are such that on about March 1996, the Complainant made an agreement with the respondent to purchase the respondent's motor vehicle, a Toyota Land Cruiser for the total amount of K3,000.00. The Complainant then deposited K2,000.000 and they agreed that the balance of K1,000.00 would be paid at a later date. About four (4) weeks since the K2,000.00 was paid the Complainant went to pick up the vehicle from the Seller (respondent): He got into the vehicle and the seller told him that everything was in good condition and he drove away. After driving for about 150 metres the vehicle broke down by having problem with the foot brake. That caused the vehicle to reverse and hit a 15 seater bus. Then the complainant returned the vehicle to the seller's brother. The respondent claimed that since he 'handed over the vehicle to the buyer (complainant) he has never had anything to do with the vehicle, since he had gone to live in another village up on the mountains. .

When the vehicle was idle the brother of the complainant got it and fixed it and sold it to somebody in Lae.

The complainant claimed that the respondent had concealed the defectiveness of the vehicle to him when he expressed his desire to buy it and also at the time when the vehicle was handed over to the complainant. The complainant failed to test-drive the vehicle before he gave the deposit of K2000.00 to the respondent.

The deposit of K2,000.00 amounted to the complainant accepting to buy the vehicle. The complainant also had the duty by common sense to test-drive the vehicle before deciding to buy it from the respondent.

On what basis did the brother of the complainant get the vehicle from where the complainant had left it? It can only be logically inferred that the brother of the complainant got and fixed the vehicle because he thought it was bought by his brother and owned by his brother. '

This Court does not know who used the cash proceeds from the sale of the vehicle. The complainant and his brother could have shared the proceeds or may be not. This remains a question in my mind. On what basis should the respondent pay for the damage cost of the 15 seater bus which was hit by the complainant when the brake of the vehicle in issue failed? This Court can not see any basis on which a liability should hold on the part of the respondent.

The transaction between the parties took place prior to the damaging of the 15 seater bus by the complainant. Whatever happened to the vehicle after the transaction is the responsibility of the complainant. The complainant returned the vehicle not to the hands of the respondent, but to the hands of the respondent's brother.

The vehicle became owned by the complainant at the moment of giving the K2,000.00 cash, half payment by virtue of the fact that the vehicle was fixed and sold in Lae by the brother of the complainant on the understanding that it was owned by his brother, the complainant. The brother of the complainant should not have taken the vehicle away for sale in Lae. He is liable for his action. He was not entitled to fix and sell the vehicle in Lae to somebody else. Who authorised him to fix and sell the vehicle is not clear. It can be logically inferred that he must have been dealing with his brother, the complainant now. The fact that the vehicle was fixed and sold by the complainant's brother makes this Court much more quizzical, especially when the complainant had concealed the evidence about the fixing and selling of the vehicle by his brother while he was giving evidence in the witness box. It was the respondent who gave this evidence to the Court. The complainant's evidence gave the impression to the Court that the vehicle is still with the respondent since the day the complainant had returned it.

The fact that the brother of the complainant had fixed and sold the car to somebody else in Lae makes all the difference. He sold it as having been owned by his brother, the complainant and definitely he cannot be entitled to absolutely own the proceeds from the sale of the vehicle. The complainant and his brother must have dealt together with the sale of the vehicle. This Court can not be satisfied with the conclusion that the proceeds from the sale of the vehicle was consumed only by the brother, of the complainant. Both must have consumed the proceeds from the sale. If the brother of the complainant consumed the proceeds himself then the complainant should sue him for the proceeds. This Court can not see any principle under the circumstances of the vehicle on which the respondent could have a liability to reimburse the K2,000.00 deposit and also pay for the damage done to the 15 seater bus.

The respondent is not liable to pay for the claim. Case Dismissed. Respondent discharged.