DC 815

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING]
[IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCr 453 OF 06

BETWEEN

MICHAEL YALA
Complainant

AND

NETE KAEN
Defendant

Wabag: J Wia

2007: March 27

CIVIL – Claims that the defendant has failed to make payments for hiring his vehicle.

Cases Cited

No case cited

References

No Reference Cited

Counsel:

Michael Yala: Complainant in person
Noete Kaen: Defendant in person

March 17 2007

REASON FOR DECISION

J. Wia, Principal Magistrate: The Complainant in this matter claims that the defendant has failed to make any payments for hiring his vehicle.

02. It is alleged that on the 08th of September, 2004, the defendant who is the Manager of Town Water Supply in Wabag approached the complainant who is one of the Local Level Government Councillors in Wabag and requested in person to hire the complainant's vehicle, a Toyota Land Cruiser open back. The vehicle was to be engaged and used on various official activities concerning or relating to Town Water Supply. It was verbally agreed then that the vehicle would be hired on the rate of Two Hundred Kina (K200.00) per day for twenty two (22) days, commencing the next day (09th September, 2004).It was further agreed then that the costs for fuel, mechanical repair and general weekly servicing of the vehicle would be the responsibility of the complainant. The vehicle was to report or called in at the defendant's residence in Wagab town early next morning around 7:30 o'clock to assign for the day's duties.

03. The Complainant alleges that the vehicle was hired and used by the defendant on behalf of the National Water Board for the purposes intended for the period of twenty two (22) days

04. The Complainant further alleges that apart from regular trips to Rakamanda (which is about 30 minutes drive from Wabag) the vehicle under direction of the defendant, made several trips to Wapenamanda and Mt Hagen. Starting time and knocking off time for each day were recorded in a log book was endorsed by the driver each day.

05. The complainant alleges that while he was in Port Moresby, he sent about Two Thousand Kina (K2, 000.00) to the driver for fuel and general service of the vehicle whilst being hired by the defendant.

06. When the period of the hire was completed and when the complainant returned from Port Moresby, he (complainant) had obtained the log-book from his driver and had raised invoices for claim. He then approached the defendant umber of times for payment but each time the complainant was advised by the defendant to forward his claim to the National Water Board head office in Port Moresby as the Wabag town Water Supply Project was not a Provincial Government Project but a National Project.

07. Apparently, the complainant accepted the defendant's advise and forwarded his claim down to the National Water Board head – office in Port Moresby but without success. The National Water Board head – office refused the complainant's claim and denied of having approved the vehicle hire.

08. Consequently, the complainant decided to sue the defendant as an individual person and claim against him as the complainant believed that he was being deceived into hiring his vehicle for personal purposes.

09. The defendant on the other hand contends that there was an oral agreement between him and the complainant to h ire the complainant's vehicle but one of the conditions of the agreement was not complied with when the driver with the vehicle was called in at the work place. The defendant has argued that according to their agreement, the driver with the vehicle was to call in at the work place at 7:30 in the morning the next day but the complainant's driver with the vehicle turned up at about 9:30 am when the defendant was at a work site at the Wabag main market where there was a water main blockage.

10. Further, according to the defendant, he hired another vehicle, a Nissan Double Cab Reg No. CAH 043 at about 8:00am when the complainant's vehicle did not turn up on time at the work place as initially agreed, and when the complainant's vehicle turned up later at 9:00am, the defendant told the complainant's vehicle to go back as he just hired another vehicle for the job.

11. The defendant further contends that he normally hires a vehicle for two to five (2-5) days only with written approvals from his superiors and not more than two to five days. Hence, the defendant hired the Nissan Double Cab for only three (3) days.

12. The defendant has in his sworn affidavit stated that the complainant had approached him on two (2) different occasions and had requested his (complainant's) assistance to effect payment for the claim but the defendant stood his grounds and denied having hired the complainant's vehicle.

13. Furthermore, according to the defendant, he had never signed any daily log-books nor invoices because the engagement of the complainant's vehicle was from day one refused and never used in any official water supply or water board duties.

14. The complainant, however, alleges that he as the claimant had to sign ten invoices and forwarded to the PNG Water Board head-office with the log-book with his claim. Complainant says he can not produce those documents in Court because they are in Port Moresby PNG Water Board head-office.

15. There is no evidence either oral or documentary to support the defendant's contention that he had instead hired another vehicle, a Nisan Double Cap Reg No CAH 043 and that payments have been effected for the hire of that other vehicle.

16. If the payment was made for the hire of that Nissan Double Cabe, then where was the payment process? Was the payment processed and effected by the Provincial Government or was it processed and effected by the PNG Water Board head –office. Was the payment in the form of a cheque or was it in a cash form, and how much was paid.

17. These I consider among others are vital evidence which the defendant should have adduced to support his case.

The issues are:

1)	Whether there was any agreement between the complainant and the defendant to hire the complainant's vehicle to be used in Wabag Town Water Supply Project?

2)	If there was an agreement, whether such agreement binding, and 

3)	If the agreement was binding, then whether there a breach of that agreement

4)	If there was a binding agreement and if that agreement was breached, then whether the defendant is liable.

18. Regarding the first issue, the defendant had offered to hire the complainant's vehicle for twenty two (22) days at the rate of K200.00 per day for the purpose of using the vehicle on town water supply project. It was a simple oral contract which in my view positively resolves the second and the third issue respectively.

I find the defendant liable in the sum of Two Thousand Two Hundred Kina (K2, 200.00) and one Hundred and Seventy six Kina (K176.00) being 8% interest and to be taxed.

Defendant is granted until end of July 2007.

Lawyer for the Complainant: Complainant in person
Lawyer for the Defendant: Defendant in person.