DC617

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

GFCi 08 of 2007

BETWEEN

SIMAHE A. BAINA &
ISABELLA BAINA
Complainants

AND

JEB EKO BAINA
Defendant

Goroka: M Gauli, PM
2007: August 09, 17

CIVIL - Claims civil debts – Monies expended on the defendants legal fees and repairs and maintenance costs of the defendant’s vehicle – Complainants in possession of the defendant’s vehicle and have use of it for five months without defendants consent – Expenses incurred while complainants were in use of the vehicle. 

Held:	A person who goes out in his own ways to recover his debts from another and in so doing further incurs costs and expenses without using the established Court systems for litigation would not be entitled to his claims.

Cases Cited
Nil

References
Nil

Counsel
For the Complainant	- Mr. Brian Koningi of Koningi Lawyers
For the Defendants	- In Person 

17 August 2007

DECISION OF THE COURT

M Gauli, PM: The Complainants Simahe and Isabella Baina are husband and wife. The defendant Jeb Eko Baina is a brother to the complainant Mr. Simahe Baina. The Complainants sue and claim against the defendant a sum of K10, 000.00 for the monies owing to them in terms of legal fees and the costs on the repairs and maintenance of the defendant’s motor vehicle.

2. The undisputed facts are these. The defendant Jeb Eko Baina is the registered owner of a motor vehicle towit a Mitsubishi Canter truck registered number H. 2705. In the year 2004 the defendant owed monies to one Peter Oka. In June 2004 Peter Oka took possession of the vehicle from the defendant Jeb Eko Baina for failing to reimburse the monies to Peter Oka. In July 2005 the complainants assisted the defendant financially in legal fees totalling more than K1, 000.00 to commence proceedings against Peter Oka to recover the said vehicle. By the order of the District Court on the 26 June 2006 in the Case No. 50 of 2005, the Court ordered Peter Oka to return the said vehicle to Mr. Jeb E. Baina, the defendant in the current proceedings.

3. Following that Court order the complainants took possession of the vehicle for repairs and maintenance since the defendant did not have the money available. The complainants had the vehicle put to repairs and maintenance. They also paid for renewing registration and insurance to the value of K1, 173.70 on the 13 August, 2006. The vehicle was in the possession of the complainants on or about 26 of June 2006 until November 2006 when the defendant repossessed the vehicle from the complainant through the assistance of the police. During the said period the complainants were in possession of the vehicle and they were operating the vehicle as a PMV. The complainants now seek orders from this Court to recover their expenses.

4. The facts indispute are the manner in which the complainant took possession of the vehicle and the amount of their expenses. Based on these disputed facts, there are three issues that I need to consider. These issues are:

i.	Whether or not the Complainants have the consent of the defendant to take custody of the vehicle from 26 June 2006.
ii.	What was the exact amount of the complainant’s expenses on the defendants. 
iii.	Are the Complainants entitled to their claims.

5. At the trial, the complainants only had Mrs. Isabella Baina gave evidence for and on behalf of the Complainants. And the defendant Jeb E. Baina had only himself who gave evidence for the defendant. Both parties have no witnesses. Mrs. I. Baina relied on her own affidavit sworn and filed in Court on the 14 June 2007, which is marked EXHIBIT ‘A’ together with all its attachment. The defendant gave oral evidence on oath. I will discuss their evidence as I discuss the issues.

6. Issue No 1: Whether or not the Complainants have the consent of the defendant to take custody of the vehicle from 26 June 2006.

The Complainant Mrs. I. Baina in her sworn affidavit marked EXHIBIT ‘A’ did not state in what manner she and her husband Simahe Baina took possession of the defendant’s vehicle. The defendant during cross-examination asked Mrs. I. Baina if they obtained his permission when they took custody of the vehicle or did they took it by force. Her reply was that they got the defendant’s permission first. The defendant’s evidence is that on the 26 of June 2006 when the District Court ordered Peter Oka to release the vehicle to Jeb E. Baina, and when he tried to take the vehicle away from Goroka Police Station, the Complainants refused him from taking the vehicle. They even told him not to go any where near to the vehicle. And from that day onwards the vehicle was in the complainant’s possession for some five months.

7. Neither of the parties explained why the complainants took possession of the vehicle from the 26 June 2006. Was this possession to allow the complainants to recover their expenses on the defendant’s legal fees or was it for the purposes to have the vehicle put to good repair and maintenance. The counsel, Mr. B. Koningi during the cross-examination put to the defendant in Question No. 11, that the defendant only wanted the Complainant’s to have the defects on the vehicle repaired then he would take it back from the. The defendant’s answer to that proposition was that that was never his intention.

8. The complainants in paragraph 5 and 6 of their statement of Claim have alleged that the defendant had asked them to attend to the necessary repairs and maintenance of the vehicle. And so the Complainants faithfully expanded money on repairs and maintenance. These claims were never included in the evidence of Mrs. Isabella Baina in her affidavit marked EXHIBIT ‘A’. The statement of claim does not form part of the evidence for the complainant. Any pleadings made in the statement of claim are matters that need to be proved by evidence. The complainants have failed to provide evidence to prove this claims. The burden is on the complainants to prove their pleadings contained in the statement of claim. Niether of the parties have provided witnesses to corroborate their own evidences. In the absence of any supportive or corroborative evidence, there is a benefit of doubt. And I find that benefit of doubt must favour the defendant. I am satisfied therefore that the complainants did not get the permission of the defendant instead they forcefully took possession of the vehicle from him.

9. Issue No 2: What was the exact amount of the complainant’s expenses on the defendant.

In claims for civil debts, damages or costs the person making such claims must provide the Court the exact amounts of the debts and or the costs owing or damages suffered by him or her. The complainant Mrs. Isabella Baina in her affidavit evidence (EXHIBIT ‘A’) has attached ANNEXURES ‘A’ – ‘E’ which contains their expenses. The Annexure ‘D’ is the copy of the Certificate No. 6106067 for the registration of the vehicle, to the sum of K1, 173.70. It is not in dispute that the complainants paid this on 31 August, 2006.

10. The Annexures ‘A1’ – ‘A3’ contains the complainants other expenses. These includes the legal expenses and the repairs, maintenance and parts for the vehicle. Firstly the expenses on the legal fees. The complainants claim K1, 000.00 in assisting the defendant to pay Mike Goheno on 03 of June 2004. The complainant did not elaborate what this particular payment was for. The complainant’s claim is in respect of their expenses on the defendants vehicle in the year 2006 as well as the related District Court proceedings to recover the same truck from a third party. The related Court proceedings refers to the Case No. 50 of 2006 between Jeb Eko Baina –v- Peter Oka. The assistance given to the defendant Jeb E. Baina to pay Mike Goheno is unexplained. In any event this particular expense seem to fall outside of the claims made by the complainants. There is no evidence linking this claim to the current claims. On that basis I will disallow this particular claim.

11. The Complainants claim that on the 05 of July 2005, they paid legal fees to Koningi Lawyers totaling K1, 050.00. This is not disputed and so I allow this claim. I assume that this expenses was incurred for the District Court proceedings on the Case No. 50 of 2006 as mentioned above.

12. The Complainants have borrowed monies from three others to a total sum of K2, 352.80 between August and October of 2006. He only claims interests for the monies he borrowed but not the principle amounts. The complainants seems to claim that all these monies borrowed were spent on the maintenance and the repairs of the defendants vehicle. During this period his total expenses was mostly on the purchase of the parts and the registration which totaled to K1, 335.00. There is no indication of paying for the mechanics for the services done on the vehicle during that same period. However if all that borrowed money was spent on the expenses of the repairs, maintenance and the parts for the vehicle then that amount would have to be subtracted from his total expenses of the item descriptions provided in Annexures A2 and A3 which is K5, 519.33.

13. The complainants took possession of the vehicle as of the 26 June 2006 following the District Court order against Peter Oka. Before that date the vehicle was in the possession of Peter Oka and at the time the proceedings on the Case No. 50 of 2006 commenced, the vehicle was in the custody of police. That being the case the complainants could not have possibly incurred expenses on the vehicle between 04 to 12 June 2004. On that basis I would disallow his claim of K661.00 for that period, which is for the Items 1 – 9.

14. As for the Items No. 10 – 39 in the Annexures A2 – A3, I disallow the K30.00 for the traffic infringement notice (Item No. 33). This wasn’t the defendants making since the vehicle was not in his possession at the time. The total expenses to be disallowed is K691.00 and K2, 352.80 the money the complainants borrowed. That money was used to purchase parts and to maintain the vehicle. This would be double deeping. I take this course because the complainants failed to explain on what items of expenses that money was spent on the vehicle. Having taken all that into account, the complainants total expenses inclusive of the K2, 352.80 borrowed money is calculated to be K4, 828.33. This amount includes the registration of the vehicle (K1, 173.70 Annexure ‘D’). Regarding the Annexures ‘B’ and ‘C’ those monies may have been included in the expenses in the Annexures A2 and A3 for the same reason that the defendant did not provide evidence on what particular expenses they spent those monies. I find that the Complainants total actual expenditure was K4, 828.33 which included the borrowed monies.

15. Issue No 3: Are the complainants entitled to their claims.

The evidence as presented before this Court is very clear that the complainants took possession of the defendants vehicle without his consent, as per my findings in Issue No. 1 above. And while so taking possession of the vehicle in that manner, they incurred expenses on the vehicle to a sum of K4, 828.33. They incurred these costs on their own accord without any agreement been made with the defendant. The complainants therefore could not make a claim against the defendant for their expenses and costs of K4, 828.33.

16. The vehicle was in the complainant’s possession and use from 26 June to November 2006 for some five months. And they were using it in transporting passengers from which they were making an income. Mrs. Isabella Baina gave evidence that they only operated the vehicle on three occasions carrying passengers. That is too general. She did not even indicate how much income they generated through the use of the vehicle on daily, weekly or monthly bases, nor did she indicate how much money they raised during those three occasions. I am satisfied that the complainants were in possession of the vehicle for five months and they have used and benefited from it regardless of whether or not they were making any income out of its use. During that five months they have denied the defendant of his quiet use and the enjoyment of the vehicle. Some of the expenses on the parts of the vehicle would have been paid for from the monies generated by the use of the vehicle.

17. Regarding their legal expenses of K1, 050.00 to the Koningi Lawyers in July 2005, I am of the view that it would have been taken care of and the amount recovered when the complainants were in custody of and using the vehicle. A person intending to claim his debts from another must not take the law into their own hands to recover debts. We have the Court systems been put in place for people to bring their claims to. Where a person has done certain acts outside of the existing Court systems to recover debts and in so doing incurred further costs and expenses he would be denied of his claims. The complainants have benefited already from their use of the vehicle over the period of five months. Accordingly I find that they are not entitled to their claims. And I order that this case be dismissed.

Lawyer for the Complainant – Mr. Brian Koningi of Koningi Lawyers
Lawyer for the Defendants – In Person