DC6057

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
CIVIL JURISDICTION
GRVCV NO. 10 OF 2021

Between:

BRENDA PURAPIA 
Complainant

And:

NATHANIEL KUP
Defendant
 
Tari:	DCM, Mr. E. Komia
26th July 2021

CONTRACT LAW –  agreement between de facto partners – elements of contract – whether verbal agreement is binding on parties – terms of verbal agreement must be clear and precise, and there must be no uncertainty or ambiguity - verbal agreement binding where parties have expressly agreed and acted on those terms.

CIVIL JURISDICTION – Courts Jurisdiction on monetary claims – whether s.21(1)(a) and s.21(3) makes it mandatory for only Principal Magistrates to deal with civil claims of up to K 10, 000.00 – whether a Magistrates has jurisdiction to deal with civil claims of up to K 10, 000.00 apart from Principal Magistrates – Magistrates do have jurisdiction to deal with matters of up to K 10, 000.00 if and when the matter is brought before that magistrate.

CIVIL JURISDICTION – where the principal claim is at K 10, 000.00 - interest also claimed at K 10, 000.00 – where agreement is clear and terms are explicitly stated – courts jurisdictional amount at K 10, 000.00 – court cannot award interest component but only the principal amount claimed – awarding of interest component improper – lack of jurisdiction to award interest component  - claimant is not a properly registered banking and financial institution – no license to operate and cannot enforce a statutory right when complainant has no statutory basis to claim such – equity and justice demands fairness   - principal amount ordered to be repaid in the interest of justice and equity.

COSTS – cost is a discretionary matter – whether costs involve monies expanded during the course of the proceeding – where costs involved require calculations of monies expanded in following up on his claim – court has the discretion to weigh out the expanses and costs and award them accordingly.

Held:

1.	A verbal agreement is binding on parties insofar as the terms of the agreement is very unambiguous and there is consensus ad idem on the parties making that verbal agreement. 

2.	Where the monetary jurisdiction is set under s. 21 of the District Courts Act, the Court has powers to deal with the matter in so far as the Court does not exceed its jurisdiction in determining matters over K 10, 000.00.

3.	A claim for monies by a lender which is based upon clear and unambiguous terms made orally for a principal sum of K 10, 000.00 and an interest of K 10, 000.00 is a claim which exceeds the jurisdiction of the Court, the Court should refrain from awarding the complainant the interest component as it would be acting ultra vires, and should only order for the principal amount to be repaid without the interest component.

4.	In a proceeding that concerns money lent to another person without the lender having the proper statutory authority to lend monies, the most equitable remedy would be order for repayment of the principal loan and if justice so requires, an interest component which may do justice as the case requires and not on an interest that is compounded to the principal amount borrowed based on formulae CI = P x R/T as applied by banking and financial institutions that are licensed to operate money lending firms under Statute.

5.	 Cost is a discretionary matter, and the court has powers to award costs at the amount it thinks is justifiable in any given case as and when the matter comes before the Court, and as such, any costs associated with the subject matter pertaining to the proceeding during the tenure of the proceeding, the Court must award costs as it thinks is fit, proper and justifiable in the nature of the circumstance before it.

Papua New Guinea cases cited

Lyn v Yaku [2017] PGSC 6; SC1574 (10 March 2017)

Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (09 November 2001)

Papua Club Inc. v Nasaum Holdings Ltd [2002] PGNC 50; N2273 (16 August 2002) 

Pacific Foam Pty Ltd -v- Zuric Pacific Insurance Pty Ltd – N1745

Woodward v Woodward [1987] PNGLR 92

Mel v Brian Bell and Company Ltd [2005] PGDC 114; DC287 (16 October 2005)

Overseas cases cited

Loke Yew -v- Port Swettenham Rubber Co. Ltd (1913) AC 491

Legislations

District Courts Act

Banks and Financial Institutions Act 2000

Regulations

Banks and Financial Institutions Regulation 1982

Counsels:

Complainant:	in person

Defendant:	no appearance

INTRODUCTION

1.	This proceeding is instituted by the complainant over what she alleges is monies owed to her by the defendant. The complainant claims that the defendant allegedly obtained the money through fraud and false representation, and it was on the false representation she had given monies to the complainant. She also claims that, even if the representation were false, which would only be known to the defendant as his peculiar knowledge, there is a binding agreement made verbally between herself and the defendant, which she claims is the basis of her claim. 

BRIEF FACTS 

2.	The facts of the matter are as follows:

a.	The complainant and the defendants are married and they have been living together for more than five years now, until 2020 when the defendant left her and their two daughters after he was given the K 5, 000.00 by the complainant.

b.	Initially on or around July 2018, the defendant asked his wife, the complainant to assist him with a K 5, 000.00 which he said he would repay with a hundred percent interest. He got the money after he mentioned to his wife that he was assisting some farmers and landowners in payment of their claims and other things. They agreed that the defendant would repay the complainant with hundred percent profit, as it was their family money and for their two daughters. The complainant gave the K 5, 000.00, but the defendant did not pay back any of that money.

c.	The complainant nevertheless did not take any issues with that, as the defendant was her husband and she had the understanding that the defendant would either reimburse her or repay her with some interest at any given time as they were living together.

d.	On 21st January 2021, the defendant sought assistance from his wife by stating that there was a need for another K 5, 000.00 to purchase and export vanilla overseas and begged her to send K 5, 000.00 to an account which the defendant gave particulars as Export TGEM account number 21697610, ANZ Bank. 

e.	The complainant then stated to the defendant that he (defendant) had not paid the initial K 5, 000.00 he had got from their family savings, and that this would make it an additional money. The defendant promised the complainant and vowed that he will remit K 20, 000.00 into the complainants account the next day as this K 5, 000.00 obtained is to ensure they export all the vanilla’s which the K 5, 000.00 will be used to finalize all transactions.

f.	After he obtained those monies, the defendant switched his phone off and has never communicated to with the complainant to date. He has also never returned to settle those debts as he promised to do the next day, as agreed to between the complainant and himself, or even explain how he intended to settle the debts, as it was the complainant and her daughters’ savings.

g.	To date the defendant has gone into hiding, despite numerous attempts by the complainant to talk to him, concerning this matter and also other pertaining family issues. 

EVIDENCE

3.	The complainant gave sworn evidence during trial and also referred to her affidavit filed, 09th March 2021 that the defendant was her partner, and they have twin daughters born out their relationship. The defendant is a Western Highlander and has gone into hiding after he was assisted by the defendant. 

4.	The complainant had given first K 5, 000.00 in 2018, and second K 5, 000.00 on 21 January 2021 based on the representations made by the defendant that he would settle the initial K 5, 000.00 and the other K 5, 000.00 the next day.

5.	The complainant relied on the defendant’s representation coupled with the fact that the defendant was her husband/partner, and father to their twin daughters, and had given that money upon trust.

6.	The defendant did not fulfill his promise and to date has now gone into hiding and has not paid any moneys back to the complainant. 

ISSUE

7.	Whether the defendant did obtain the monies through fraudulent misrepresentation and inducement? 

8.	If the above answer is to the affirmative, how much should be ordered against the defendant to be paid to the complainant?

DISCUSSION

9.	The complainant’s cause of action arises from what she claims in her summons, to be based on fraudulent misrepresentation, and or alternatively an agreement concluded verbally between parties. I note from the evidence that the parties to the proceeding were living together as couples when the complainant gave monies to the defendant.

10.	From my assessment of the evidence and submission put forward by the complainant, I note that Mr. Kup (defendant) was Ms. Purapia’s (complainant) partner, and that the complainant had utmost trust and confidence in her partner (defendant).

11.	It was based on that trust and love that the complainant relied wholly on the representations made by the defendant, and they had a binding agreement that was made verbally in a mutual and affectionate manner. Essentially, there was this meeting of the mind based upon mutual trust, respect, and love. 

12.	At the time of the hearing, I queried whether this claim was a debt claim, and if so, what were the particulars of the agreement, and whether there was any form of document signed between the complainant and the defendant.

13.	The complainant in her submission responded that, this was a claim which had two distinct legal grounds that formed the basis of her pleadings. The first legal basis is one founded on tort of fraud, specifically fraudulent misrepresentation, and second legal ground is based on breach of an agreement, which she claims is verbal in nature, but had specific unambiguous terms.

14.	She claims that the cause of action based on fraudulent misrepresentation is based on the fact that the defendant promised to pay him the very next day all of the monies that he had obtained from the complainant. She also claims that, they had also agreed that the complainant would assist the defendant with K 5, 000.00 and the defendant would repay her two fold and pay her K 20, 000.00 for the K 5, 000.00 he obtained in February 2021, and also for the other K 5, 000.00 obtained in July 2018. That she said was agreed and formed the basis of the agreement, and that term has always been the basis of making that payment. 

15.	I uphold her argument that this is a claim based on fraudulent misrepresentation and breach of agreement. In order for the court to be satisfied that there has been fraudulent misrepresentation and breach of agreement, the court must firstly establish whether it has the jurisdiction to deal with this matter, as the monetary value of the claim is K 10, 000.00 which a Principal Magistrate is often said to have jurisdiction over whilst a Magistrate (which I am) can only deal with claims valued at K 8, 000.00 and below in this Courts civil jurisdiction. I will therefore firstly deal with that issue, and if I find that I have the jurisdiction below K 8, 000.00, I will decline to deal with this matter and have it transferred to another magistrate to deal with.

JURISDICTION

16.	The jurisdiction of a District Court is established by virtue of s.21 of the District Courts Act which states:

21.	Civil jurisdiction.
(1)	Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed—

(a)	where the Court consists of one or more Principal Magistrates—K10,000.00; and

(b)	where the Court consists of one or more Magistrates—K8,000.00.

(c)	. . .

(d)	. . .

(2)	(Repealed.)

(3)	Subsections (1) shall not be taken to limit the jurisdiction of Courts in cases where, by any law, money, irrespective of amount, may be recovered before a Court.

(4)	A Court has no jurisdiction in the following cases:—

(a)	where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute; or

(b)	the infringement of trade names; or

(c)	an action for or in the nature of slander of title; or

(d)	an action for illegal arrest, false imprisonment or malicious prosecution; or

(e)	for seduction or breach of promise to marry; or
(f)	when the title to land is bona fide in dispute.

(5)	Subject to this section, a Court has jurisdiction when—

(a)	the defendant, or one of two or more defendants, as the case may be, is usually resident, or carries on business; or

(b)	the cause of action wholly or partly arose; or

(c)	the defendant has given an engagement or written promise to pay a debt or sum at a specified place,
in the area for which the Court is constituted.

(6)	A Court has jurisdiction under this section notwithstanding that the defendant is not within the country, if the defendant is within a State or a Territory of or under the authority of Australia.

(7)	Subsection (6) applies whether the defendant has or has not ever been resident in or carried on business in the country.

(8)	For the purposes of Subsections (6) and (7), "defendant" means, where there are more defendants than one, a defendant not within the country.

17.	S.21 (1) sets the limit for the monetary value in which a District Court such as this Court. This court therefore, has jurisdiction to determine and adjudicate on complaints of this nature, as is before me now. This provision basically depicts that, in any given Court, if there is one or more Principal Magistrates in that court, then the court will have the jurisdiction to deal with matters which have a claim between K 8, 000.00 and K 10, 000.00.

18.	However, s.21(3) of the District Courts Act states that, in an instance where there are only Magistrates presiding over matters, and there is no Principal Magistrates, then the Magistrates in that jurisdiction must deal with matters involving values of up to K 8, 000.00 and not more than that. There is no discretion involved if it’s K 8, 000.01 as there is no Principal Magistrate present in that jurisdiction.

19.	Whilst it is statutorily prescribed, there is often a Principal Magistrate posted in every jurisdiction, except in very few instances. In this case, there is a Principal Magistrate sitting in the jurisdiction where I am presiding, and therefore a Magistrate can preside on matters over K 8, 000.00 but not beyond K 10, 000.00.

20.	Leaving the above restrictions, I also find that, even if the above provision limits my jurisdiction to deal with the matter, because I am a Magistrate, I find comfort in dealing with this matter because of the flexibility provided under s.21 (3) of the District Courts Act which explicitly states that, Subsections (1) shall not be taken to limit the jurisdiction of Courts in cases where, by any law, money, irrespective of amount, may be recovered before a Court. If that is what the District Courts Act states, then I am confident and fortified in my opinion that, as long as the amount does not exceed the jurisdictional ceiling of K 10, 000.00, Magistrates do have the jurisdiction to deal with this matter, and as such, I will now proceed to deal with this matter.

FRAUDULENT MISREPRESENTATION

21.	I have perused through the complainant’s summons and heard the complainant’s submission and considered the evidence that she has put forward, and I find that the defendant did in fact seek the assistance of the complainant. 

22.	The defendant did device a scheme or plot to lure or induce the complainant in believing his representation, and that was the reasons why the complainant fell into the defendants lies to assist him with the K 5, 000.00.

23.	In a case concerning fraudulent misrepresentation, or deceit, the following elements must be there to prove such case. These elements are;

i.	A person must make statement or representation which may be partially true and partially false, knowing that it is unreal; and,

ii.	The other party must rely on that fact to enter into an agreement or contract basing on that particular representation; and,

iii.	In doing so, the other party has suffered measurable harm as a result of the fraudulent information or statement.

24.	In this case, the defendant did make the representation to the defendant, which he knew was false, and the complainant did rely on the agreement and had given him K 10, 000.00 in total, out of trust and love. I am of the view that the defendant lied to extort money from the complainant because he knew that his wife would trust him even if he was telling lies.

25.	The statement was that he would repay all the monies expanded to him by the complainant, the next day, to my mind was deceiving, and the defendant became an opportunist preying on the love and confidence his wife (the complainant) had in him. Whether the defendant knew if it was true or false is something that is in his peculiar knowledge and can never be extracted by the court given his absence in defending himself in court. This court can only infer from his conduct basing on the evidence given by the complainant in court, and it is safe to do so, as he has not made it his business to defend the claim.

26.	In the case of Papua Club Inc. v Nasaum Holdings Ltd [2002] PGNC 50; N2273 (16 August 2002) Gavara Nanu J stated that;
“The typical situation where an inducement by false and fraudulent misrepresentation would arise is neatly illustrated by Loke Yew -v- Port Swettenham Rubber Co. Ltd (1913) AC 491. In that case, one Haji Mohamed Eusope agreed to sell 322 acres of land to the respondents. There was common understanding between the parties that 58 acres of that land were held in trust by Haji Mohamed Eusope for the appellant. Haji Mohamed Eusope signed the instrument of transfer for all 322 acres upon the expressed assurance by the respondents that they would negotiate separately with the appellant regarding the 58 acres. But the respondents, after obtaining registration, reneged on their promise to Haji Mohamed Eusope and took out a court action to eject the appellant from the 58 acres he was occupying. The respondents argued that as registered proprietors they had indefeasible title to the land, free from all unregistered claims. The Federate Malay States Court of Appeal held in favour of the respondents. On Appeal to the Privy Council, that decision was reversed on the grounds that the respondents obtained registration through  fraudulent misrepresentation .

Lord Moulton delivered the judgment of the Privy Council and at 505 his Lordship said: -

"It may be laid down as a principle of general application that where the rights of third parties do not intervene no person can better his position by doing that which is not honest to do, and in as much as the registration of this absolute transfer of the whole of the original grants was not an honest act under the circumstances it cannot better the position of the plaintiffs as against the defendant and they cannot rely on it as against him when seeking to enforce rights which formally belong to them only by reason of their own fraud."

In that case, the Privy Council found that the respondents induced Haji Mohamed Eusope to sign the instrument of transfer through false and fraudulent misrepresentation. Their conduct was deceitful and dishonest, thus they could not claim indefeasibility of title over the 58 acres of land.

The Privy Council also said that the respondents were trustees for the appellant in respect of the 58 acres of land. Lord Moulton expressed it in this way at 505 to 506:

"The plaintiff company (respondents), therefore are trustees for the defendant (appellant) for all the rights of which they thus had notice. These rights amounted to the rights of a freeholder subject to an annual payment to the owner of the head grant. Now, it is clear that a cestui que trust has the right to require a trustee who is a bare trustee for him of land to register that land in his name, seeing that he is the sole beneficial owner and that the trustee has no interest therein. The present action from this point of view is an action by a bare trustee of land to eject the beneficial owner who is and has for years been in possession of the land and is cultivating it."

It is plain that, there was fraudulent misrepresentation by the respondents, which induced Haji Mohamed Eusope to agree to transfer the 58 acres of land belonging to the appellant to them. It is also plain that, Haji Mohamed Eusope acted upon the fraudulent misrepresentation by the respondents to transfer the 58 acres of land to them.

In Pacific Foam Pty Ltd -v- Zuric Pacific Insurance Pty Ltd – N1745, the previous owner of the property promised the tenant, who was an employee of the defendant that, repairs would be done on the property before occupation. Upon that representation, the defendant signed a lease agreement with the previous owner and rented the property for its employee. The repairs were never done, despite requests by the defendant. Kapi DCJ, (as he then was), held that there was false and fraudulent misrepresentation by the owner, which induced the defendant to sign the lease agreement and rent the property. Again, in that case, there was deceit and dishonesty on the part of the owner.

27.	Having considered the above discussions by Gavara Nanu J in the Papua Club Inc v Nasaum (supra) case. I am of the view that the complainant has made out a case for fraudulent misrepresentation, because the complainant gave the monies to the defendant upon the defendant’s representation, and that representation was known to the defendant’s mind to be false, as he had gone into hiding after obtaining those monies. That in essence establishes fraudulent misrepresentation. 

28.	I have found that the defendant obtained the monies through fraudulent misrepresentation and alternatively, the complainant also argues that there is also an agreement that is binding and enforceable, and as such, the question of liability is therefore answered to affirmative. What then, would be the appropriate compensation ordered against the defendant in this instance? 

29.	Whilst the complainant can plead verbal agreement for any type of agreement the plaintiff or complainant may have reached with the defendant, she cannot plead verbal agreement with respect to an agreement for the Sale of a Property. This is discussed in Lyn v Yaku [2017] PGSC 6; SC1574 (10 March 2017). In the case of Mel v Brian Bell and Company Ltd [2005] PGDC 114; DC287 (16 October 2005), the District Court presided by Gauli M, enforced a verbal agreement in which parties agreed to use Mel’s vehicle to assist in recovering a stolen vehicle belonging to Brian Bell. The court found in favor of the plaintiff stating that there was an agreement and it was binding and enforceable for all intent and purpose, despite lack of documentation as there were evidence to show that parties did agree verbally to use Mel’s vehicle and later be paid by Brian Bell for the use of his car.

30.	The proposition that a verbal agreement may be binding on parties if there is certainty and unambiguity surrounding the term of the agreement has also been upheld in my recent decision in the case of Hondole v Palai [2021] PGDC 84; DC6041 in which I held that a verbal agreement must be certain and unambiguous to establish a binding agreement for the Courts to uphold the terms of such agreement and to enforce that agreement.

31.	 The Supreme Court in Woodward v Woodward [1987] PNGLR 92 also stated per curiam that;

“where as a general rule, the court will not enforce an agreement the terms of which are so vague or indefinite that the intention of the parties cannot be ascertained with reasonable certainty, nevertheless, if the court can resolve the uncertainty by reference to other acceptable evidence or the subsequent conduct of the parties, it may enforce the agreement where parties have acted upon and intended the agreement to have legal effect.

32.	In this case, the complainant’s pleading together with her evidence, precisely establish that there was an agreement. Whilst it was based on fraud and undue influence as a result of the fraudulent misrepresentation of the defendant toward the complainant, there is to this Court, elements of a valid agreement that is present. The Court is of the view that there is an enforceable agreement in place. I am therefore of the view that there was an agreement for the monies to be used to assist the defendant which would be repaid with a hundred percent interest, hence the defendant is found to be laible.

33.	The complainant has sought orders to this court that, pursuant to the agreement, the defendant is liable to pay her a total sum of K 20, 000.00 as he had promised to pay her K 5, 000.00 as interest for each of the K 5, 000.00 he got from the defendant.

34.	Now that I have established the finding of liability, the question is now, whether this court has the powers to grant orders for interest with the principal amount to K 20, 000.00. This claim of K 20, 000.00 is clearly beyond the jurisdiction of this court. Furthermore, during the course of the hearing, the complainant had failed to establish the nature of damages and losses she had endured as a result of lending the monies to the defendant. This I believe is because of the fact that she had already made a claim of K 10, 000.00 for her principal sum and the other K 10, 000.00 for the interest component she had claimed separately in this one summons and complaint.

35.	It is also important for this Court not to detour into that realm of calculating damages and loss, and also the interest, as the amount of K 10, 000 claimed has attained the monetary limitations set the by the Act. If the court is to ten deal with the damages and loss, and the interest, it would tantamount to this court detouring from the statutory monetary limitations, and acting without jurisdiction, consequently making an assessment and finding that would not have judicial foundation to bind parties to such orders, as it would be ultra vires, thus; not make any foundation for the complainant to have any right to enforce the orders. Essentially, it would become an order that would be voidable, and have nor life or vigor so as to give rise to the complainant, the right to enforce.

36.	Therefore, in conclusion, the complainant’s pleadings seeking the sum of K 10, 000.00 as the principal amount, and K 10, 000.00 as the promised or agreed interest by the defendant cannot be awarded by this court in its totality by this Court for the reasons I alluded to above. It would rather be proper to award the K 10, 000.00 which is the principal component she had lent to the defendant, and order for the defendant to repay those monies within a reasonable time to the exclusion of the interest.

37.	It is also a growing concern in the District Courts with respect other similar claims such as this, often termed as “dinau moni” claim, which in Pidgin language means, money borrowed from a lender with an understanding to repay the lender the principal money borrowed with the interest agreed to by parties mutually at an agreed time. I find that, whilst this claim may be a claim based on contract law, it does fall under “dinau moni” claim.

38.	In claims concerning ‘dinau moni’ I note that, most lenders such as the complainant are ordinary citizens. There are many other individuals who are also coming to court every day to seek redress in court for their monies loaned to other persons, seeking similar claims as in this case, the principal amount that was lent to the defendant with interests and costs. 

39.	The Banks and Financial Institutions Regulation 1982, and the Banks and Financial Institutions Act 2000 are the legislative and regulatory framework that guides the businesses issue loan to customer, and as such, their licensing and regulatory regime fall under the Act and Regulation. Hence, if I am to award this claim to the complainant with the interesting component (exclusively and hypothetically if the claim was not made at the jurisdictional ceiling of K 10, 000.00) on this claim concerning the default of the moneys borrowed on mutual understanding with consideration of the compounded interest, I will be allowing an individual to act like a banking and financial institution, when he or she does not have the regulatory and statutory right which is conferred by a Statute and Regulation of this country to do so.

40.	It is therefore safe for me to say that this can only do equity by allowing the claim for principal amounts to be repaid, with interest at a reasonable rate, which should be lesser than an accepted commercial borrowing and repayment rate. In saying that I can only do equity, I am fortified that s. 22(b) of the District Courts Act gives me the jurisdictional basis to invoke the principles of equity and apply in circumstance where justice demands it to be so.

41.	In this instance, whilst the complainant has brought the claim under what she claims is an agreement.

42.	I am therefore minded not to grant the interest component, but only the principal amount which was lent on a mutual understanding, which forms an agreement, and by saying this, it is strictly on equitable grounds I say so.  

43.	I must warn myself that, whilst this court is a court of justice, this court is also a court of law, and is subject to its enabling legislation (District Courts Act) and other Statutes, and as such, it must be vigilant when making orders and awarding claims relating to such (dinau moni) claims. In this kind of claims and other ‘dinau moni’ claims, I am fortified in my opinion that the Courts must not award compounded interests to principal money borrowed if the claimant coming to court is not a legally authorized banking and financial institution to lend money to customers with the agreement to pay interests, and default fee’s. 

44.	As I alluded to above, unless the claimant is a licensed individual under the laws of this country such as those financial institutions as Bank South Pacific Limited, Heduru Moni Plus Limited, Kina Bank, Tisa Finance Limited and other well know banking and financial institutions, courts must be strictly reluctant to award any interest component as claimed by a claimant of ‘dinau moni’. 

COSTS

45.	Cost is a discretionary matter, and is for the court to award as and where it seems justice will be done. I note that the complainant has gone out of her way to continuously follow up with the defendant to refund her money of K 10, 000.00, if he wouldn’t pay the K 20, 000.00 which includes the interest component. In doing so, the complainant submits that she has flown between Tari and Port Moresby, and even travelled up to Mt. Hagen via PMV to pursue the defendant for her monies to be repaid, but this has been to no avail. All this I understand as the complainant submits were during course of this proceeding.

46.	The issue of whether disbursements and lawyer fees are covered in the cost was well discussed and settled by Kandakasi J (as he was then) in the case of Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (09 November 2001), in which His Honor extensively discussed in detail the issue of cost, and the types of costs that are awarded to litigants who are awarded costs. His Honor, discusses towards the last part of his judgement and in answering the issues stated that;

“Then taking the taxing guides under the English Civil Procedure Rules 1998, as a framework to work from, I rule that a litigant in person should be allowed to recover the following kinds of costs unless the court of course rules otherwise:

1.	Out of pocket expenses (such as court fee’s, fares travelling to Court, witness fee’s, etc.) if they relate to work; or disbursements which would have been done by or made by a solicitor acting for the litigant in person.

2.	Payments made to a legal adviser or any other professional for helping the litigant in person with advise, relevant to the case.

3.	Costs for work done by a litigant in person which caused him or her pecuniary loss (for example a litigant in person who is employed losing a days pay through attending a court hearing or through going on a long journey to interview an essential witness). 

4.	Costs for work done by a litigant in person which did not cause him or her pecuniary loss but his leisure (such as holiday or weekend) time.

Based on all these, costs in my view means all expenses incurred on account of an action be it out of pocket expenses and or the time taken to prepare for and bring a case to its final conclusion either through a legal representative or in person.”

47.	There has been a lot of cost incurred in the course of this proceeding by the complainant in her quest to recoup the monies she had given to the defendant with good heart, and it seems the defendant is very evasive, and has not acted prudently toward the complainant. As such, I would allow the expenses used in following up with her monies and travel abck and forth between Port Moresby and Mt. Hagen to serve documents and follow up with the monies to be added to the cost component of the proceeding and make the calculations as follows;

2 ways ticket between Tari and POM at K1, 200.00 one way – K 2, 400.00
Accommodation in POM for three nights at K200/ night – K600
Bus fare to Mt Hagen and back at K100 one way – K200
Accommodation in Mt. Hagen at K200/ night – K600
Filing of documents, flex and other documents for this proceeding – K400.00
Flex and other miscellaneous in following up with the money – K200.00

48.	Ultimately, I would award the cost component of this proceeding to be at K4, 400.00 to be paid by the defendant to the complainant apart from the judgement sum of K10, 000.00.

49.	I will there order the following:

COURT ORDER:

1.	The complainant is awarded the principal amount of K 10, 000.00 as claimed in her Summons and Complainant, and it shall be paid within thirty (30) days from the date of this order.

2.	The complainants claim for the interest of K 10, 000.00 as claimed in her summons and complaint is declined.

3.	The complainant’s is awarded the cost of this proceeding, which this court awards at K 4, 400.00 which shall be paid by the defendant to the complainant within thirty (30) days from the date of this order

4.	The time for the entry of this order is abridged which shall take place forthwith upon the signing of this order by the Clerk of Court, which shall occur forthwith.

By the Court.
Magistrate E. Komia