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Waine v Secretary Department of Works [2011] PGNC 154; N4453 (18 November 2011)

N4453

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 13 OF 2007

BETWEEN

JOE WAINE (STATE PROSECUTOR)
Plaintiff

AND

SECRETARY- DEPARTMENT OF WORKS
First Defendant

AND

SANDY KAI & PIUS TEMAI
Second Defendant

AND

THE STATE
Third Defendant

AND

JOE BURENG
Fourth Defendant

Mount Hagen: Makail, J
2011: 07th, 08th 09th & 18th November

CHEQUES - Drawee - Identity of - Proof of - Declaration sought - Declaration granted.

PLEADINGS - Claim of ownership - No claim pleaded - No specific reliefs sought - No legal basis to consider claim.

Facts

The plaintiff and the fourth defendant had a dispute over a Department of Works cheque no. 469754 in the amount of K79,200.00 written out to the plaintiff as the drawee. The fourth defendant did not deny the plaintiff was the person whose name appeared on the cheque but claimed he was entitled to it because he had another name called "Waineka" and the first and third defendants may have incorrectly or mistakenly mis-spelt his name on it.

Held:

1. Where there is a dispute in relation to the identity of a drawee of a cheque, a party asserting his or her claim as the drawee must establish his or her identity.

2. Where a party claims he or she is entitled to a cheque and the money because the name of the drawee on the cheque may have been incorrectly or mistakenly mis-spelt, that party must not only plead a claim for it but also seek specific reliefs for it, either in the same proceeding by way of a cross-claim or in a separate proceeding. A failure to do so gives the Court no legal basis to determine the party's claim.

3. As the fourth defendant had not denied the plaintiff being the person whose name appeared on the cheque and only claimed that he had another name called "Waineka" and the first and third defendants may have incorrectly or mistakenly mis-spelt his name on the cheque, the Court was satisfied the plaintiff was the same person as the drawee on the cheque.

4. Further, as the fourth defendant had not made a claim and sought specific reliefs for the cheque and money, either in this proceeding by way of a cross-claim or in a separate proceeding, there was no legal basis for the Court to determine his claim.

5. The plaintiff was declared the owner of the cheque and an order was issued for its release to him.

No cases cited:

Counsel:

Mr T Dalid, for Plaintiff
No appearance, for First, Second and Third Defendants
Mr D Umba, for Fourth Defendant

JUDGMENT

18th November, 2011

1. MAKAIL, J: The plaintiff seeks a declaration that the Department of Works cheque no. 469754 in the amount of K79,200.00 belongs to him and an order that the third defendant release it to him. The money is presently held in the National Court trust account pursuant to a Court order of 24th August 2007. He seeks these orders because there is a dispute with the fourth defendant in relation to the drawee of the cheque.

2. Much of the facts deposed in his two affidavits filed on 17th January 2007 (exhibit "P1") and 25th February 2010 (exhibit "P2") respectively and the affidavits of his two witnesses, one Gabriel Michael Lot filed on 26th June 2007 (exhibit "P3") and the other on 09th May 2011 (exhibit "P4") and John Wai Kaupa filed on 18th January 2007 (exhibit "P5") relate to the purpose of the cheque, that is, why the cheque of K79,200.00 was drawn in his name. Likewise, the same can be said of the fourth defendant's witnesses, one Alice Igu who filed an affidavit on 20th March 2007 (exhibit "D1") and Thomas Nanme who filed his affidavit on 19th March 2010 (exhibit "D2").

3. All the deponents of these affidavits including the plaintiff have gone to great length in explaining why the cheque was written out to the plaintiff. All agreed the State through the Department of Works carried out a rehabilitation exercise on sections of the Highlands highway. One of the sections was between the border of Eastern Highland/Chimbu provinces and border of Chimbu/Western Highlands provinces.

4. People living within 20 meters from each side of the highway whose properties were affected by the rehabilitation exercise were considered for compensation by the State. The officers from Department of Works and Department of Lands and Physical Planning were engaged to assess losses and process payments. The properties were assessed based on their descriptions and payments were made based on the value of the properties.

5. The plaintiff is from Ganigle village and the fourth defendant is from Waigar village. Both villages are in the Kerowagi District of the Chimbu province and are located west of Kundiawa town. All claims for claimants from Ganigle village were grouped and paid under section 10 list and claimants from Waigar village were grouped and paid under section 11 list. The plaintiff claimed the cheque was for him because he owned a house that was within the 20 metres zone and the fourth defendant also claimed that it belonged to him because he also owned a house that was also covered under the landslip area.

6. There is no dispute a cheque written in the name of the plaintiff was put with the cheques for claimants in the section 11 list. The plaintiff's name was called. He was not present to collect it. The fourth defendant was present and collected it. He collected it because he believed he was the intended recipient. He claimed he had another name called "Waineka" and the first and third defendants may have incorrectly or mistakenly mis-spelt his name on the cheque. The plaintiff made a complaint to the first and second defendants and the complaint was investigated. To cut the long story short, the cheque was not given to the plaintiff. It was given to the fourth defendant. That is how the parties ended up in Court.

7. The plaintiff's case as submitted by Mr Dalid is that, since the plaintiff's name is written on the cheque and that the defendants do not dispute that, the plaintiff is the owner of the cheque and ultimately the money. The fifth defendant's case as submitted by Mr Umba is that, there is more to that and that is, the Court must be satisfied that the cheque was payment for the plaintiff's house. In order to determine that, the plaintiff must prove, and the Court must be satisfied that the plaintiff owned a house that fitted the description of the claim submitted to the first defendant for payment.

8. I accept Mr Dalid's submissions. I consider the real issue for the Court is whether the plaintiff is the person whose name appears on the cheque. I say this because if the fourth defendant claims that he is entitled to the cheque and the money, he does not make a claim for it either in this proceeding by way of a cross-claim or in a separate proceeding. To elaborate further, the fourth defendant does not deny that the plaintiff is the person whose name appears on the cheque. If the fourth defendant claims that he is entitled to the cheque and the money, he must not only plead a claim but also seek specific reliefs in relation to the entitlement to the cheque. He may do so either in this proceeding by way of a cross-claim or in a separate proceeding.

9. I consider making a claim for the cheque and the money would give the Court the legal basis to consider whether or not the fourth defendant is entitled to the money. For example, as the fourth defendant claims that the cheque was mistakenly or wrongly written out by the first and third defendants to the plaintiff, he must make a claim against them and the plaintiff for negligence, or fraud, or conversion, or detinue.

10. As he has not done so, I am of the view this Court is not obliged to consider his claim and must confine its deliberations to the issue raised by the plaintiff. In that regard, I consider in a case where there is a dispute in relation to the identity of a drawee of a cheque, the party asserting his or her claim as the drawee must establish his or her identity. Hence, I am of the view that this is a case about the correct identity of the drawee of the cheque. Is it the plaintiff or the fourth defendant?

11. As the fourth defendant did not deny the plaintiff being the person whose name appears on the cheque, and only claims that he is the drawee of the cheque because he has another name called "Waineka", and the first and third defendants may have incorrectly or mistakenly mis-spelt his name on the cheque, I am satisfied the plaintiff is the same person as the drawee on the cheque. It follows he is the owner of the cheque.

12. I declare the Department of Works cheque no. 469754 in the amount of K79,200.00 belongs to the plaintiff and further order that the third defendant release it to him. As the money is presently held in the National Court trust account, I order that the Registrar release it to him forthwith. Finally, I order the defendants to pay his costs on a party/party basis to be taxed if not agreed.

Judgment and orders accordingly.
____________________________________

Simon Norum Lawyers: Lawyers for Plaintiff
Umba Lawyers: Lawyers for Fourth Defendant