DC222

PAPUA NEW GUINEA
[IN THE DISTRICT OF JUSTICE]

CASE NO 65 OF 2002

BETWEEN

Muta Apanaki
Complainant

V

Logo Salu
Defendant

Mt. Hagen: Appa, P.M.
2002: 9th December, 
2003: 10th January

Judgment

Civil Jurisdiction - Bailor/Bailee relationship – intention to create binding contract – unclaimed Goods Act applicable – no written agreement – terms and conditions of implied contract not known.

Held: No proper contract in place to create legal obligations. Cross claim proved in part – Award made on quantum merit basis only.

APPA- PM. This is a dispute on ownership and non payment of bills over a PMV 15 Seater bus, Reg. No. P883-P. There was no dispute that complainant was and is the legal owner of the said bus. The parties have given different version on the whole transaction. According to the complainant, he said he left the bus with the defendant following an oral agreement to operate PMV business in Hagen since February 2000. He alleged that since then the defendant used up the proceeds himself and did not share with him for 18 months of operation.

The defendant on the other hand claims to the contrary that the said bus was left with him for the purpose of repairs only and there was no agreement for PMV business. He further said that after he had completed the repairs work in May 2001 the complainant did not pay up the bills so he held onto the bus until he was paid. He thereby claims he has lien over the bus.

In the absence of any written agreement settling out terms and conditions of the contract, it is often difficult to find out if there was an enforceable and legally binding contract. We can only draw influence from the conduct of the parties. It is advisable that in commercial transaction at this time, it is important for parties to enter into written contract so that it is easy to know the exact terms and conditions of the contract or agreement to know whether parties intended to create legal relationship, what their respective obligations were and so on so that when one of the parties breached the contract, the other party could sue for damages.

In the present case, the parties did not have anything in writing. The transaction was done on a hadhoe or casual type. It appears the complainant’s intention to sue the defendant came about only after the defendant refused to return the bus. It was not as the result of breach of a condition.

Whether or not there was an implied contract or not, it was the word of the complainant against the word of the defendant. There was no independent witnesses or evidence to confirm or otherwise of the contentions. Court took note of the fact that complainant contributed about K1,690.00 towards the repair of the bus. He appeared to have kept accurate dates of when he gave the money for the repairs between July 2000 to March 2001. That implied that the bus was undergoing repairs. It was also noted that the PMV license expired in May 2001 so could not be operated as PMV until now.

It was further observed from the statement of claim that complainant had had three opportunities in which to take some actions to take back his bus but he allowed those opportunities to go by. Complainant became aware that the PMV route was charged but did nothing. Then he was aware that his son who was supposed to be a crew of the bus was sent away, no action taken if there was suspicion about misuse of PMV money. Then in April 2001 complainant visited Hagen to check on how the bus was doing and was told and the PMV collection was used to repair the bus and was shown a K60.00. No action was taken to repossess the bus. It was in paragraph 27 of the statement of claim that although he was angry over the use of the bus, he decided to let it go and injected in more money to fix the bus. No action was taken. Those actions got to show that complainant had pardoned the defendant for what he did no intention demonstrated to sue the defendant.

It was in evidence that at the very stage, after the bus was fixed, complainant did make attempts to get back the bus back with the assistant of Police but couldn’t succeed because the repair bill was not paid. The defendant did issued a summons on 12/10/2001, D/C No. 131/2001 against the complainant for his bills but was struck out for want of prosecution. On that, the defendant explained in his affidavit that he did not turn up for the case because complainant had agreed to settle out of court, to pay some money and get the bus back which didn’t workout. Complainant turned around and took the opportunity to sue the defendant in this proceeding.

Putting the whole evidence together, I am not satisfied that all the ingredients necessary to constitutes a legally binding contract were present. The transaction in question was more social in nature than commercial. There was no legal relationship created so there could be no reciprocal obligations on either parties.

Nevertheless, there is some evidence that while the bus was in running condition and in custody of the defendant, the bus was used to the advantages of the defendant. The complainant’s evidence on assessment of damage in that regard was based on assumption rather than facts or figures under the circumstances one cannot rule out the opportunity that defendant benefit something, i.e. the use of the bus.

The defendant also filed his cross claim, the claim which he lodged in D/C 131/2001 but struck out. This action is consistent with his claim that he did fix the bus, mostly at his own expenses but he complainant did not pay the bills so he held onto the bus.

In the rule of bailor/bailee relationship, (Bailment), once a chattel or property is repaired, the bailee is under the duty to redeliver to the owner or bailor and the owner or bailor pays the bill. If the bailor fails to pay the bills upon delivery notice the bailee can sell the goods and chattel and he keeps his charges and the balance is given to the owner or bailor. The unclaimed goods act says the same.

In the cross-claim, defendant claims it had took him about K17,051.00 to fully fix the bus and he annexed his Ela Motors Invoices to his affidavit. The claim was reduced to K10,000.00 to give jurisdiction to this court.

In defence to the cross claim, complainant vigorously challenged that defendant could not have spent such amount of money on repairs. He made references to the jumbled invoice numbers. I am not sure if those invoices represent the actual money spent on buying the spare parts or do we require separate receipts or are the invoices were quotations and not receipts. Cross-defendant did not attack on this. In any case, I have no doubt that defendant had done some considerable work on the bus which is now in good working condition.

In relation to the complainant’s claim, even though it was ruled that there was no proper and legally enforceable contract in place, there was no doubt in my mind that while the bus was with the defendant with its PMV license current, there was a possibility that some PMV money was made which proceed was not shared with the complainant. I make an allowance in that regard but the exact amount would have to be a guess work. There is no evidence for guidance. To go too high would be unsubstantiated so it has to be low.

In relation to defence cross claim, it was found by implication that defendant did some considerable work on the bus which the complainant had knowledge of since he contributed towards the repair cost, he had to be paid before redelivering the chattel to the owner according to the rules/principle outlined above.

I therefore make a global award of K3,000.00 in favor of the complainant. In relation to the cross claim, I make a global award of K5,500.00 in favor of the defendant/cross-complainant for the services rendered on the bus. The complainant/cross-defendant to pay the difference of K2,500.00 to the defendant/cross-complainant in order to get his bus back. No orders as to interest. Parties to bear their own cost.

Dated this 10th day of January, 2003 at Mt. Hagen.......................
RAPHAEL APPA

By the Court