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Kaisava v Assidao [2005] PGDC 46; DC231 (16 June 2005)

DC231

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1576 OF 2005

BETWEEN

Lucian Kaisava
Complainant

V

George Assidao
Defendant

Port Moresby: Gauli, Magistrate
2005: 16th June.

DECISION OF THE COURT

Nature of the Complaint

The complainant sued the defendant to return his PMV vehicle namely a Toyota Dyna Reg. No. P028Y.

Brief Fact

The defendant carried out repairs on the complainant said vehicle. The repair costs was for K2,057.00. The complainant was not able to pay so a prior arrangement was made between the parties for the defendant to take the vehicle and use it to recover his costs. On 27th April 2004 the defendant took possession of the vehicle and transporting passengers until it broke down sometimes in April 2005.

The vehicle was operating between Port Moresby and Kwikila on Route 200 where the PMV fare was K7.00 per head. Later the defendant changed the Route to 400 (Port Moresby to Kairuku) where the fare was K8.00 per head. The vehicle has a carrying capacity of 30 passengers.

On 5th July 2004 the defendant obtained a Warrant of Execution from the Port Moresby District Court. The defendant refused to return the vehicle when requested by the complainant on numerous occasions. His reasons been that he wasn’t making much out of the use of the vehicle.

The vehicle is now off the road and it is sitting at the defendant’s residence at Hohola. The vehicle has a clutch problem.

Evidence

The evidence for an on behalf were given by the complainant himself and his only witness James Kaisava. Their evidence is basically as per the brief facts above.

From the evidence as it is before this Court, I find that the defendant carried out repairs on the vehicle at the cost of K2,057.00. The complainant could not pay the costs so an arrangement was made that the defendant to use the vehicle to recover his costs. Between April 2004 to April 2005 the defendant was in possession of the vehicle and operating revenue from passengers. He was making between K420.00 to K480.00 per day. In a week if he was operating the PMV for 6 days, he would be making between K2,520.00 to K2,880.00 a week. He was in possession and control of the vehicle for about 12 months. He would have made over K100,000.00 during that period compared to his cost of only K2,057.00.

In July 2004 the defendant obtained a warrant of Execution. At that time the vehicle was already in his possessing and actually using it since April 2004. It would appear that by the time the Warrant of Execution was obtained the defendant would have already recovered his costs. I see no reason why the Warrant of Execution was issued when the defendant was already benefiting from the use of the vehicle and would have recovered his costs. When the vehicle was with the defendant, the driver was Daroa Naime and the defendant was the off-sider himself collecting the passenger fares. I find that the defendant had already recovered his costs before the Warrant of Execution was issued. I see no basis for the issuance of the Warrant o Execution.

The vehicle was on a good running condition when the defendant took possession of the vehicle. And the vehicle had broken down whilst under his use and care.

For the reasons given above this Court Orders that:-

1. The Warrant of Execution dated 5th July 2004 be revoked or stayed.

2. The PMV truck described as Toyota Dyna Reg. No. P028Y be returned to the complainant within 30 days from the date of this Order.

3. That the vehicle be returned on a road worthy condition.

4. That in breach of this Orders the members of the Police Force be authorized to take possession of the said vehicle and deliver it to the complainant.

Ordered accordingly.