DC633

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 40 of 2007

BETWEEN

ISEPO GOPIE EREKAWE
Complainant

AND

FARMSET LIMITED
Defendant

Goroka: M Gauli, PM
2007: 	November 14, 27

CIVIL - Negligence in selling a coffee pulper – Loss of value of coffee for not been pulped – Harvested coffee a day before the cheque payment for the coffee pulper machine was cleared by the bank – Damages for stress and frustration – No medical evidence supporting stress been suffered – Defendant no liable for damages.

Cases Cited
1.	Pama Anio –v- Aho Baliki (2004) N2719
2.	Paddy Fagon –v- Negiso Distributors Pty Ltd (1999) N1900

References
Nil

Counsels
For the Complainant	- Mr. Mukwesipu of Steven Lawyers
For the Defendant	- Ms. R. Kot of Warner Shand Lawyers

27 November 2007

DECISION OF THE COURT

M Gauli, PM: The complainant Mr. Isepo Gopie Erekawe sued and claimed against the defendant the Farmset Limited the sum of K9, 463.00 being for negligence in selling a coffee pulping machine, hereafter the machine, to the complainant in that the complainant was not able to have the machine readily available to him on the day he picked the coffee cherries for pulping. As a result, he lost the value of his coffee weighing 835 kg (19 bag x 55 kg per bag).

2. Facts 

It is not disputed that the complainant Mr. Erekawe purchased the machine on the 23 of February 2006 from the defendant by presenting a cheque No. 827581 for K2, 762.18 drawn by his employer the Coffee Industry Corporation (CIC). The cheque payment was received by one of the defendant’s salesman namely Mr. Martin. The complainant was told that the cheque needs a seven days clearance and when the cheque is cleared he will pick up the machine. The defendant deposited the cheque in the ANZ Bank account No. 632360 on the 24 February 2006. That cheque was cleared on the 01 of March 2006.

3. On 28 February 2006 the complainant sent his workers and picked the coffee cherries from his coffee plantation. The same day he went to the defendants shop to pick up the machine. He realised that the machine was not ready for collection as one part of the machine was missing. He was told to come back the next day if the defendant could get the missing part from one of their branches around the country. The missing part was located at their branch in Mt. Hagen. The defendant received the part late on the afternoon that day and the machine was delivered to the complainant on the 02 March 2006. The defendant then gave a discount of K450.87. The complainant was allowed by the defendant to collect other items from the Farmset Ltd to the value of K450.87 which he did.

4. Issues

There are three issues that I need to consider and these issues are:

i.	Whether the defendant told the complainant to pick up the machine on the 28 of February 2006 or to pick it up after seven (7) days consistent with the defendant’s policy.
ii.	Whether the defendant is liable in damages for negligence.
iii.	Whether the defendant is liable in damages for stress and frustrations allegedly suffered by the complainant.

5. The complainant and his two witnesses Saki Ipata and Bevi Lobbie gave evidence in support of the complaint. The defendant had the only witness Mrs. Ambo Kuandecks who is the branch manageress of the Farmset Ltd in Goroka. I will touch on their evidence as I discuss the issues.

6. Issue No. 1: “Whether the defendant told the complainant to pick up the machine on the 28 of February 2006 or to pick it up after seven (7) days consistent with the defendant’s policy.”

On 23 February when the complainant went to buy the machine at the defendant’s shop in Goroka, he was on his own. Mr. Martin the salesman at defendants shop attended to him. When the complainant made cheque payment to Martin for the machine, he was told by Martin to wait for the cheque to be cleared and he gave him the date as 28 February 2006 to pick up the machine. And on that day the machine was not in a deliverable state.

7. During cross examination the complainant was asked the following questions and his responses as follows: 

Q15:	Do you agree that your cheque payment to the defendant would have to require seven days clearance?
Ans:	I do not have that knowledge but when I presented the cheque to the defendant I was told that I will pick up the machine the next day.

Q16:	You were verbally advised that the cheque you presented to the defendant would be clear after seven days?
Ans:	No.

Q17:	Refer to EXHIBIT ‘A’ paragraph 5, you said that defendant advised you that the cheque need to be cleared before the good is delivered?
Ans:	Yes and defendant told me to collect the machine on 28 February.

8. The complainant confirmed that he did not have anyone with him at the time of the discussions with the defendant’s salesman Martin. He was alone.

9. The defendant’s only witness Mrs. Ambo Kuandecks was not aware of what transpired between the complainant and the salesman Martin of the purchase of the Machine on the 23 February. However she gave evidence that it is a usual practice that it takes seven days to clear a cheque.

10. The seven days requirement to clear a cheque is not the policy of the Farmset Limited. This is the general policy of the commercial banks. And so when the defendant’s salesman told the complainant to wait until the cheque is cleared, he was referring to the period of seven (7) days as the policy of the banks. I am not convinced by the complainant’s evidence that he was told the cheque would be cleared on or before 28 February. The cheque payment made to the defendant on the 23 February was deposited in the bank the next day 24 February. The seven (7) days clearance runs from the date of deposit in the bank but not the date the cheque was given to the company. For the month of February in 2006 has only 28 days, the seven days needed for the clearance of the cheque commences from 24 February to the 02 of March and the 28 of February.

11. Neither the complainant nor the defendant called the salesman Martin to give evidence. His where about is not known since he has left his employment with the defendant company. He would have been the only credible witness to either confirm or deny the complainant’s evidence. The bank statement tendered by the defendant attached as Annexure ‘A’ to EXHIBIT ‘G’ showed that the subject cheque was deposited on 24 February and was cleared on 01 March 2006. The cheque did not get a clearance on the 24 February as the complainant witness Saki Ipata claimed to be. Under these circumstances I could not be satisfied by the complainant’s evidence that he was told to pick up the machine on the 28 of February. I am satisfied that he was told to wait for seven days for the cheque to be cleared before he can pick up the machine. And that seven days falls on the 02 of March and not on the 28 of February.

12. Issue No. 2: “Whether the defendant is liable in damages for negligence.”

The evidence before this Court clearly established that the machine would be ready for pick up after seven days to allow the cheque to be cleared. During the week complainant told his harvesters to harvest the coffee cherries on 28 February 2006. And so they did. This was some five (5) days after the cheque payment was given to the defendant. This was two (2) clear days short of the seven days require to clear the cheque. And on that day (28 February) it was realized that the part of the machine was missing therefore not deliverable to the complainant. That same day the defendant checked around with their other branches in the country and the needed part was identified at the Mt. Hagen branch. The part was made available on the 01 of March later in the day. And the machine was delivered to the complainant on the 02 of March.

13. On the 01 of March, despite the complainant knowing that the machine was not in its deliverable state, he continued to allow his harvesters to harvest coffee cherries. The machine was expected to be collected when the cheque was cleared by the bank. The cheque appeared to get the bank’s clearance on the 01 of March 2006. Under these circumstances, when the complainant engaged the harvesters to harvest the coffee cherries some five to six days after the cheque was deposited in the bank account but before the cheque got cleared, the good, in the machine had not yet been sold to the complainant. On that basis I find that the defendant could not be held to be negligent.

14. The second part of this issue is damages for negligence. The complainant is claiming damages for the loss of the value of his coffee in the sum of K1, 463.00 for his 19 bags of coffee. He said if the coffee cherries were pulped with the machine had he picked up the machine from the defendant on the 28 February he would have fetched K5, 852.00. However since the machine was not delivered to him on time he sold his coffee for K4, 852.00. He said his own price was K4.20 per kilo however he did not give evidence on the buyers price for parchment coffee for the period between 28 February to 01 of March 2006. And so I could not accept the complainant’s price of K4.20 per kilo as the standard market price at the relevant time.

15. There is no doubt that the complainant may have sold his coffee at a lesser price since he could not sell his coffee as a parchment as a result of the machine not been made available to him on the material date, 28 February. However, since the machine could not be delivered to him until after seven days when the cheque payment is cleared by the bank, and that the complainant went out harvesting the coffee cherries before the cheque was cleared, the defendant cannot be liable for the damages suffered by the complainant for his coffee beans. The defendant was not aware that the complainant was going to harvest his coffee a day or two before the required seven days clearance of the cheque. I find that even if the complainant had suffered damages the defendant could not be liable for damages.

16. Issue No. 3: “Whether the defendant is liable in damages for stress and frustration allegedly suffered by the complainant.”

The complainant claims K8, 000.00 in general damages for stress and frustration. He gave no evidence in respect of this claim that he actually suffered stress and frustration. There is no medical evidence of him suffering from stress or frustration. In the absence of any proof of evidence of suffering stress and frustration the claim is merely speculative unless there is a proof by medical evidence: Pama Anio –v- Aho Baliki (2004) N 2719, and Paddy Fagon –v- Negiso Distributors Pty Ltd (1999) N 1900 referred. This claim must therefore fail and the defendant could not be liable for damages.

17. Conclusion

Having satisfied that the complainant made a cheque deposit for the purchase of the coffee pulping machine on the 23 February 2006 and that he was told to collect the machine after seven days after the cheque gets clearance from the bank and that the complainant went out harvesting his coffee a day before the cheque got cleared, I find that there is no negligence in the part of the defendant. And that being the finding of this Court the defendant is not liable for damages the complainant claims. And I order that the case be dismissed with costs for the defendant.

For the Complainant	- Mr. Mukwesipu of Steven Lawyers
For the Defendant	- Ms. R. Kot of Warner Shand Lawyers