DC608

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

GFCi 13 of 2007

BETWEEN

STEVEN MICHAEL
Complainant

AND

EDMOND TEPI
TEPI YA’ATO
Defendants

Goroka: M Gauli, PM
2007: June 25, July 24, 31

CIVIL - Claims K10, 000.00 for the use of a chainsaw – Where no agreement entered at the earlier stage the agreement at a later stage becomes binding on the parties – Interests on debts. 

Cases Cited
1. Brown –v- Dunn [1894] 6R 67 HL
2. Cheongs Supermarket –v- Perry Muro & Ors [1987] PNGLR 44

References
Nil

Counsel
For the Complainant	- In Person
For the Defendant	- In Person

31 July 2007

JUDGMENT

M Gauli, PM: The Complainant Steven Michael claims against the defendants Edmond Tepi and Tepi Ya’ato the sum of K10, 000.00 being for the use of the Complainants chainsaw since August 2005 for a period of eight (8) months.

2. The undisputed facts are that on or about the 01 of August 2005 the first defendant Edmond Tepi borrowed the Complainant’s chain saw to cut timbers for sale. Defendant Edmond had a contract with the Highlands Gold Limited or HKL in Kainantu to supply them the timbers. The defendant Edmond wanted to use the chainsaw for two or three weeks only but he kept the machine for seven to eight months. At the time Edmond took the machine there was no agreement regarding the hire of the machine or to buy off the machine from the Complainant.

3. After the first two weeks of the use of the machine, Edmond paid K500.00 to the Complainant. And the defendant told him that he will return the machine with some money when defendant received his second payment from the HKL Company for timbers. Since then Edmond failed to return the machine with the money and he kept the machine until the Complainant repossessed it in about 19 April 2006.

4. The defendant Edmond Tepi was paid K22, 800.00 by the HKL Company for the first supply of timbers. Out of that payment he only gave the Complainant K500.00. The defendant Edmond’s second supply of timbers to the HKL Company was worth K48, 000.00. The Company has yet to pay him this payment and that claim is pending before the National Court to date.

5. On or about April 2006, after several approaches to defendant Edmond by the Complainant about his chainsaw, Edmond referred the Complainant to the second defendant Mr. Tepi Ya’ato. And Mr. T. Ya’ato requested the complainant to put his demand in writing so they (defendants) could pay him. At that time the Complainant put his demand in writing and claimed K12, 558.00 for the use of his chainsaw. The defendants agreed to pay that amount but failed to pay and the complainant repossessed the machine.

6. There are three issues for this Court to consider and these issues are:

i.	Whether or not the Second Defendant Mr. Tepi Ya’ato is the proper party in this proceedings been sued.
ii.	Whether or not the Defendants have agreed to pay the Complainant the sum of K12, 558.00.
iii.	Whether the K12, 558.00 is the amount for the use or for the purchase value of the chainsaw.

7. Issue No 1: Whether or not the second defendant Mr. Tepi Ya’ato is the proper party in this proceedings been sued.

Mr. Tepi Ya’ato had no knowledge of the arrangement of the chainsaw between defendant Edmond on the Complainant. Defendant Edmond is the son of Mr. Tepi Ya’ato’s younger brother. Mr. T. Ya’ato’s only involvement in relation to this proceedings before this Court are of two folds. Firstly he was involved in writing out and issuing of the Invoices on behalf of defendant Edmond for the sale of timbers to the HKL Company. Secondly Mr. T. Ya’ato told the Complainant to put his demand in writing so they could pay him. Under these circumstances it would be proper to say that Mr. T. Ya’ato was in-charge of the financial administration of the defendant Edmond Tepi. Mr. Edmond Tepi appeared to me to be in his early twentys while Mr. Ya’ato is an elderly man. It would be most unlikely for 
the HKL Company to deal business with a young person of the age of Edmond Tepi. The evidence however does not point to prove that Mr. T. Ya’ato is involved in that business of sale of timber to the HKL Company. However, I am satisfied that Mr. T. Ya’ato is the financial administrator for Edmond Tepi. On that basis I find that Mr. T. Ya’ato is properly sued as a party in this proceedings.

8. Issue No. 2: Whether or not the Defendants have agreed to pay the Complainant the sum of K12, 558.00.

The Complainant’s evidence is that this agreement was made between the parties in April 2006. Defendant Edmond denied such agreement been made either orally or in writing. Defendant Tepi Ya’ato gave evidence that he instructed the complainant in April 2006 to put his demand in writing. And the Complainant did that and demanded or claimed K12, 558.00 which defendant Edmond Tepi had agreed to. However they were not able to pay that amount because of the reasons that the HKL company had not paid them their second payments for their supply of timbers valued K48, 000.00.

9. Clearly there was no agreement made by the parties in the first instant when defendant Edmond took possession of the machine. No fixed amount nor any rate of the hire of the equipment was ever discussed or agreed upon. However there is evidence that a sum of K12, 558.00 was later agreed upon by the defendant to pay the Complainant. This agreement was reached at the time the defendants were still in possession of the particular equipment. In a situation such as in the present case, commonsense must prevail. That is to say that where there was no agreement entered into by the parties at the earlier stage, the agreement entered into at the alter stage to be treated as the binding agreement of the parties. And so when the defendant specifically requested the complainant to put his demand in writing in which the complainant complied to and the defendants accepts that demand without any conditions or with no further negotiations, it is deemed that the defendants have accepted and agreed to that demand. And I am satisfied on the balance of probabilities that the defendants have agreed to pay the complainant the sum of K12, 558.00. The complainant only claims K10, 000.00 which falls within the jurisdiction of this Court pursuant to Section 21 of the District Courts Act. He is not claiming the excess amount.

10. Issue No. 3: Whether the K12, 558.00 is the amount for the use of or for the purchase Value of the chainsaw.

The complainant’s evidence is that his claim is for the use of the chainsaw. Defendant Edmond’s evidence is that when he gets his second lot of payment from the HKL Company he intended to return the chainsaw with some undisclosed sum of money. This clearly indicates that the complainant was not selling the machine to Edmond Tepi. Defendant Tepi Ya’ato’s evidence is that he gave the Complainant two options. The first option was for the Complainant to leave the chainsaw with defendant Edmond but if he takes it back the defendants will not pay him the sum of K12, 558.00 in full. Mr. T. Ya’ato did not state what the second option was. I find that there is no evidence to support this option given by Mr. Tepi Ya’ato. Even if it may have been the truth of the negotiation of this option, I find that there was no agreement to that negotiation. And secondly this fact was never put to the Complainant at the time the Complainant’s case was open – case of Brown –v- Dunn [1894] 6R 67 HL applied. This is a well established rule that the defendant must put his side of the case to the prosecution’s witnesses during the cross-examination rather than to surprise him. I could not accept Mr. Tepi Ya’ato’s evidence regarding the option stated above.

11. Having considered the evidence as given before this Court. I find that the amount of K12, 558.00 was agreed to pay the Complainant for the use or the hire of the chainsaw and not for the purchase value of it. The complainant only claims K10, 000.00 instead of K12, 558.00 in this proceedings. I find the Defendants are liable to the Complainant in the sum of K10, 000.00 with interest and cost. The interest is calculated at 8% per annum from the date this proceedings were instituted to the date of this order, i.e. 15 May to 31 July 2007, pursuant to Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, chapter 52. The case of Cheongs Supermarket –v- Perry Muro & Or [1987] PNGLR 44 followed. And I calculated the interest to be in the sum of K170.96. I enter a judgment in favour of the Complainant in the amount of K10, 000.00 plus K170.96 interest and costs.

For the Complainant – In Person
For the Defendant – In Person