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Samuga v Kay [2008] PGDC 165; DC5016 (21 October 2008)

DC5016
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC N0 1268 OF 2008

WALLY SAMUGA on her own behalf and on behalf of LISA MOSES

- Complainant-

-V-

PAUL KAY

- Defendant -

PORT MORESBY: Pupaka, PM

2008: 21^st October

Civil proceedings – Preliminary issue – Veracity of claim – Complainants directed to disclose sufficient information before case proceeds to hearing to show legitimacy of their suit – Initial indications are that the complainants seek refund of money paid out to the defendant to compel the defendant to enable them to be paid money they were not entitled to – Money paid to the defendant seems to have been ‘inducement’ money – Courts cannot sanction unlawful acts – Paying ‘inducement’ is an unlawful act – Abuse of Court process – Permitting this suit to progress is to sanction a previous unlawful act – Case summarily dismissed to protect integrity of the Court’s processes.

The Complainants in person
No appearance by the Defendant

21^st October 2008

PUPAKA, PM: This is a ruling on a preliminary issue that was identified by the Court, and for which the complainant’s were directed to address as a matter of pre condition to progressing their actual substantive suit.

COMPLAINANTS’ SUBSTANTIVE CAUSE OF ACTION

The complainants sued the defendant for refund of K4, 000.00. The K4, 000.00 is said to have been paid to the defendant last year, at the request of the defendant, for the defendant to cause the release of a sum of K14, 000.00 to the complainants, from out of the National Capital District Commission (NCDC) funds. The K14, 000.00 was not released so hence this suit for the refund of the original inducement money.

When this case was first listed for mention on 25^th August 2008 the complainants were advised to particularize their claim, by disclosing the purpose for the payment of K4, 000.00 to the defendant in the first place and their legitimate interest in the money, of K14, 000.00, that they sought to have released, i.e., as to whether they were owed that K14, 000.00 by the defendant or NCDC.

That specific direction to furnish particulars, before hearing proper happened on the substantive suit, was imperative because from the start this case appeared to me to be a suit for refund of inducement or bribery money. As it is clear law, the Court Processes cannot be used to give legitimacy to or sanction, albeit by default, prosecution of unlawful purposes.

If the payment to the defendant was indeed bribery or inducement money, and now, if there were to be an order directing the defendant to make refund after he has failed to cause release of K14, 000.00 to the complainants, who by the way were never entitled to that K14, 000.00 to start with, this Court would be, in effect saying that the K4, 000.00 was paid out lawfully. However the facts suggest that the K4, 000.00 was paid to the defendant for the defendant to secure an unlawful outcome, which was to perpetuate an act of theft. In the circumstances the Court cannot possibly sanction their deal. The K4, 000.00 was paid to perpetuate an unlawful act. It was a shady deal. To order refund would be not only to legitimatize a deal that was concocted to cause an unlawful outcome. It would also be effectively sanctioning abuse of the Court Process.

This matter was adjourned a few of times because the complainants failed, when directed to do so, to disclose why they paid the defendant K4, 000.00.

Now the complainants have still not filed anything of their own. However a couple of affidavits have been filed by one Mr. Luke Kari, who says the same things in both affidavits. I need to reprint in full his better affidavit, which is dated 21^st July 2008, just to demonstrate the fact that the K4, 000.00 was paid out to induce the defendant to unlawfully cause K14, 000.00 to be paid from out of NCDC funds. Mr. Luke Kari’s affidavit read:

“1. I am one of the persons who had witnessed the transaction that took place between the Complainants and the Defendant and as such I have capacity to the facts stated herein

2. Except where it is stated to be on information or belief, I have personal knowledge of the facts deposed to herein ands where it is stated to be on information of belief, I believe it to be true.
   
3. These proceedings eventuated as a result of non payment of monies amounting to the sum of K4, 000.00 the principal amount owed by Mr. Paul Kay (Defendant) to Mrs. Wally Samuga and Mrs. Lisa Moses (Complainants).
   
4. The defendant Mr. Paul Kay was a former employee of the National Capital District Commission (NCDC) in the capacity as the Social Services Manager.
   
5. On or about 7^th of July 2007 with Mr. Tom David, we met with Mr. Paul Kay at the Crown Plaza Hotel at Port Moresby at about 11: 00an.
6. Mr. Paul Kay had with him and NCDC Requisition for written out to the value of K14, 000.00 with him at the time of our meeting.
   
7. Mr. Paul Kay informed me and Tom that if we find some money to the value of K4, 000.00 in cash and bring it to him; he will give the K14, 000.00 NCDC Requisition Order to the person or persons who give the cash in exchange. The NCDC Requisition Order can than be made payable to the lenders through the NCDC payment processes.
   
8. Me and Tom then went and approached Mrs. Wally Samuga and Mrs. Lisa Moses (Complainants) to lend K4, 000.00 to Mr. Paul Kay in exchange for the K14, 000.00 NCDC Requisition Order.
   
9. The Complainants put together an amount of K4, 000.00 in cash and gave the money to the Defendant in front of me and Tom in exchange for the NCDC Requisition order on the 7^th of July 2007 at about 1.30pm in exchange for the K14, 000.00 NCDC Requisition Order.
   
10. The K14, 000.00 NCDC Requisition Order did not work out as anticipated so that the Complainants would be able to get their money back plus interest through this process.
    
11. Since the K14, 000.00 NCDC Requisition Order and the process of getting payments through this did not work out, the Complainants approached the Defendant and asked him to repay the K4, 000.00 monies he took from them.
    
12. To date the defendant is either reluctant or did not make any effort to repay the Complainants the monies he took from them.
    
13. The above are true and correct to the best of my knowledge and ability.”
    

I have reprinted the entire affidavit of this person, Luke Kari, who in fact seems to have pulled the shoddy deal together. He apparently caused these complainants to make this unlawful deal complete. His story is one about an attempt to defraud City Hall of K14, 000.00. This person’s affidavit puts the entire story of the reasons behind the initial payment into perspective. It is clear the K4, 000.00 was inducement money; in other words it was a bribe.

Neither Luke Kari nor these complainants were owed anything from City Hall and they knew it. Yet they risked their money, to get at money which was not theirs. They knew they were partaking in the perpetuation of an act of theft. By asking for a refund, from their partner in crime of course, these people are asking the Court to reward them for perpetuating a crime. Do they realize the illegality of what they are saying? Obviously it seems they do not. However all I can say is that rate payers of this city who become aware of corrupt deals like this would not be excited at all to learn that so much more than K14, 000.00 may have been ripped off in this way by people like Paul Kay and others who, like these two complainants, were prepared to pay out good money to make easy but nevertheless dirty money.

There is one other matter disclosed by these facts. The deal with the defendant may have been concluded between Luke Kari. All the information disclosed thus far, on oath that is, is by this Luke Kari. In fact the complainants have not said much at all. However not that it matters, as there really is nothing they can say in light of what Luke Kari has said for them.

More over these complainants should seriously consider taking Luke Kari and one Tom to task, or even to court, for their losses. It was these two men who seem to have got them into trouble and on the bases of the evidence disclosed thus far, they seem to owe the ladies. At least, to my mind, these men owe the complainants more than an apology for the latter’s losses.

CONCLUSION

However, in the end this claim cannot be allowed to be progressed in court. It is an abuse of the Court Processes as I have already alluded to above. I also need to say that hopefully people will learn from this and hopefully also the story of the fate of this claim will spread. Hopefully citizens will stay clear of scum and hoodlums at City Hall and elsewhere. There is a simple message being portrayed here: Recovery or refund of money paid out as inducement or consideration for money not owed or favors not earned or to secure an unlawful advantage of any sort or any other unlawful purposes is not possible by and through the use of the court processes. Court processes can only be utilized for regular and legitimate purposes.

That is why these two complainants are prevented from progressing this claim in its present shape and form. Ergo I summarily dismiss this complaint for being an abuse of the Court Processes.

The Complainants in person
No appearance by the Defendant