DC901

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DC NO. 32 of 2009

BETWEEN

LOUISA SIRONGO
Complainant

AND

ELIZ RAWA
Defendant

AITAPE: M. Samala
2009: 19 May, 10 June

CIVIL - Action to recover borrowed money, General denial of liability, Defence, Can’t remember the actual money figure borrowed, Trial, Admission on borrowing, Defendant found liable.

Cases Cited:
NIL

Reference:
Section 27 of the Criminal Code.

Counsel:
In person, the Complainant
In person, the Defendant

10 June 2009

M Samala: The complainant sues defendant for personal money sum of K1 500.00 she borrowed from her with promise to repay on fortnightly instalment with K400.00 interest, total sum K1 900.00. On 26 October 2005 defendant made first borrowing a sum of K1 000.00 and on 02 March 2006 she made second borrowing an amount of K500.00 totals to K1 500.00 and since had failed to make instalment repayment as promised for over four years. In 2008 after resigning from her employment defendant repaid K1 000.00 and the remaining balance of K500 with K400 interest is the matter arising from the claim now before court.

2. FACTS

Both parties are work mates with Best Buy Group Ltd in Aitape at the time money was borrowed before Complainant left employment in 2006 and transferred to Kimbe, West New Britain with husband.

3. The defendant admits borrowing the money but generally denied liability raising the defence she can’t recall and remember the actual amount borrowed as she was told and reminded by complainant only of K1 000.00 and had relied on that information repaid debt in 2008 with belief she has no further outstanding debt with the complainant. The matter came before court on 19 May 2009 and set for trial today to assess by evidence whether there is a case or not from parties own evidence.

4. EVIDENCE

All parties gave evidence on oath as defendant also elected to give sworn statement. The complainant calls one witness only. Complainant’s evidence is straight forward, she testifies defendant was having problem with her eldest son’s marriage and approached her asking to borrow K2 000.00 cash to settle the son’s problem and to make repayment by instalment every fortnight with interest. She at that time didn’t have enough money but considering defendant’s problem, she feels oblige to assist trusting she will repay being work mates and gave the money. Her first borrowing was on 26 October 2005, a sum of K1 000.00. Without repaying the first money she asked for second in March 2006 and trusting she will repay all the money, on 02 March 2006 she again lent K500.00. The total money lent was K1 500.00 plus K400.00 being promised interest before she left for Kimbe in 2006.

5. She then made arrangement with a co-worker namely Cecilia Nekiau at Best Buy Company and reminded Defendant to make instalment payment thru her to be deposited into her personal bank account. Defendant never made any repayment till 2008 (over four years) till after resigning from the company with resignation pay made payment of K1 000.00 that year while K900.00 still to settle. However, on her return in May this year prior to the proceedings, she reminded the defendant so on 05 May defendant paid K100.00 with balance now remaining at K800.00.

6. In cross examination, defendant avoids all issues relating to K1 000.00 and K500.00 in physical cash borrowed. She admits borrowing the money but denied knowledge of the total money figure she took making repeated statement she could not recall the exact amount she borrowed and confined her blaming cross examination questions on complainant and her witness not telling her the truth and not getting their records straight that she has K1 900.00 when she was told of K1 000.00 only and had repaid. 

7. The cross examination evidence has not weaken complainant’s case, there was no dispute and no contest over actual amounts borrowed, K1 000.00 on 26 October 2005 and K500 on 02 March 2006 totalling K1 500.00 and no contest or dispute to initial agreement binding for instalment payment which she failed to do with K400.00 promised as interest.

8. The witness statement of Cecilia Nekiau corroborates complainant’s evidence, in that she was tasked by complainant to collect instalment repayments before complainant left for Kimbe in 2006. From her records defendant had not made any repayment of K1 500.00 borrowed money she owed till she learnt of her resignation in 2008 and reminded her of the debt that defendant boldly replied, “Yu stap wei na mi stretim olgeta dinau bilong mi”, English translation‘Where were you and I settled all my debts.’ When she learnt of that she called complainant in Kimbe for confirmation and was told defendant paid K1 000.00 and K500.00 is still outstanding with K400.00 interest money which totals to K900.00 in monies still owed. So it was for K900.00 that they are in court as defendant alleges they are lying and prefers court challenge for proof.

9. At the close of complainant’s case, I am satisfied there was strong evidence against defendant on the basis of facts adduced both in cross examinations and evidence in-chief of parties with evidence clearly reveals defendant is lying of facts she knew in two separate borrowings, K1 000.00 and K500.00 with promise to repay. Logically, presumption of liability is on her a full age person, an adult person with no history of illness or mental incapacity in loss of memory and can not deny the figure and at the same time admits, “Yes, I did borrow money” which instantly shifts burden as mere denial is no defence, but a common excuse seen in cases for persons with guilty conscience looking for refuge to get out from liabilities.

10. Obviously, the undoubted facts defendant knows very well of is, she made two separate borrowings, one for K1 000.00 in 2005 and one for K500.00 in 2006 and it is very unreasonable of her stating she can not remember the amount she borrowed dated to those years.

11. Defendant’s general denial has no basis of defence at law when she made admissions she did borrowed the money and the presumption of liability is on her more similar to that in criminal presumption of sanity pursuant to section 27 of the Criminal Code I feel relevant and applicable to the case for the benefit of parties as defendant insisted denial of liability for reasons she can’t remember the exact money she borrowed that time. 

12. The criminal law on presumption of sanity is well settled in our jurisdiction with a lot of reported and unreported judgments where criminals who committed the offences later pleaded insanity as the defence and so, the presumption of sanity holds them to be of sound mind and to have been of sound mind at any time that comes in question when wrongs committed knowing well their actions. I am satisfied defendant’s state of sanity is non issue but is lying and pretending not remembering total of money she took simply to excuse herself to void repayment in monies she owes since 2005 something she very well recalls and remember at the time.

13. Equally, in Contract Law on principle of offer and acceptance, I am further satisfied defendant herself desperately in need of K2 000.00 to settle son’s marriage made offer to borrow with promise to make fortnightly instalment repayment plus paying K400.00 interest where consideration was given on those terms. She terribly failed her part not making any instalment payment promised for four years being major breach on her part of contract binding and this constitutes contractual breach and liability being facts dominant in evidence and consideration given in this case. 

14. Having said that, with reasons stated above, I find complaint proven on balance of probability and ordered that the said sum of K800.00 owing to the complainant be paid within six weeks from today’s date in default Execution of Warrant be issued.

____________________
In person, Complainant
In person, Defendant