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Oceanic Communications (PNG) Ltd v Ilikis [2022] PGNC 315; N9817 (22 July 2022)

N9817

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1495 OF 2015(CC3)

BETWEEN
OCEANIC COMMUNICATIONS (PNG) LIMITED
Plaintiff

AND
NORMAN ILIKIS
First Defendant

AND
GLENDA NUGAI
Second Defendant

Waigani: Linge A J
2022: 18^th July

CONTRACT – agreement between plaintiff and first defendant to purchase EVD credits from the plaintiff for re-selling– plaintiff alleges first and second defendant for colluding with each other to defraud plaintiff – plaintiff claims judgment should be entered against the first defendant as sought in the sum of K232,000.00 as damages or debt owed and unpaid with costs - plaintiff’s evidence contains merely documentation that can easily be fabricated, and that its conclusiveness is questionable - independent sources had confirmed first defendant has been in Kokopo at all material times - allegations in these proceeding were tested in criminal proceedings with higher burden of proof in the National Court, and the first defendant was acquitted in that proceeding – plaintiff has not tendered the purported sales agreement it entered with first defendant - a fundamental flaw – Court not able to make independent inquiry as to its terms – plaintiff has not proven his case on the balance of probability – defendants not liable – plaintiff’s claim dismissed

Counsel:

Mr. Soa Gor, for the Plaintiff.
Mr. Thomas Cook, for the First Defendant.

22 July 2022

1. LINGE A J: This is a ruling on trial of this cause of action held on the 18 July 2022. Trial was conducted by tendering of affidavits. Both parties were represented by counsels.
   

Facts

2. The Plaintiff is involved in the business of issuing Digicel telephone credits which give the ultimate user of those credits the ability to make telephone calls, and text messages and/or to apply for other services offered by Digicel PNG Limited, (EVD Credits).
   
3. The Plaintiff issues these EVD credits to resellers who characteristically sell to and users (customers) for profit. The first defendant was one such reseller.
   
4. The plaintiff alleges that on numerous occasions between 21^stNovember 2014, and January 2015, the first defendant defrauded the plaintiff of EVD phone credits totalling the aggregate of K232,000.00.
   

Evidence

5. Plaintiff tendered four (4) affidavits all by the Mr. Raymond Nugent filed 19^th December 2016, 4^th October 2016, 2^nd May 2016, and 27^th January 2016.
   
6. First defendant relies on the various affidavits of Norman Ilikis filed on different dates namely: 5^th April 2016, 7^th November 2016, and 16 January 2017.
   

Plaintiff’s Submissions

7. Mr Gor for plaintiff submits that the first defendant has admitted that he had an Agreement with the plaintiff that was entered on 10 July 2014. He has also admitted that pursuant to the Agreement he was able to purchase EVD credits from the plaintiff for re-selling to their parties. He has also admitted the procedure for paying for and getting EVD credits from the plaintiff.
   
8. Counsel contends that the parties agreed on the procedure as follows:
   
   1. Cash payment made at sales counter; and
   2. Once payment is confirmed by the plaintiff’s Finance section then the order processing team issues EVD credits to the customer through the customer’s mobile phone.
9. Counsel submits that the first defendant does not dispute the Digicel mobile phone number +675 7215 0008 which the plaintiff alleges to be his mobile phone number.
   
10. He further submits that the first defendant does not dispute the fact that invoices were issued after the fraud was discovered and that he merely takes issues with the invoices by stating that they were unsigned.
    
11. Mr. Gor also submits that the first defendant states that he made cash payments to the plaintiff. However, in none of his affidavits has he produced any evidence such as receipts or invoices that the plaintiff issued to him for those cash payments that he allegedly made.
    
12. Thus, he submits on the balance of probability that the plaintiff has proven that EVD credits were issued to the plaintiff’s mobile phone number for which he used for his own benefit without making any payments to the plaintiff. Therefore, judgment should be entered against the first defendant as sought by the plaintiff in the sum of K232,000.00 as damages or debt owed and unpaid with costs.
    

Defendant’s Submission

13. Mr. Cook submits that the plaintiff’s evidence contains merely documentation that can easily be fabricated, and that its conclusiveness is questionable.
    
14. He submits that in as far as the first defendant is concern, independent source had confirmed that he was in Kokopo at all material times. Counsel submits that the allegations in these proceeding were tested in criminal proceedings with higher burden of proof in the National Court, and the first defendant was acquitted in that proceeding.
    

Consideration of Evidence

15. The plaintiff in its affidavit evidence filed 19 December 2016, Exhibit P1 deposes that it entered into a Sales Agreement with the first defendant for the latter to act as its re- seller or wholesale customer. That under the Sales Agreement the first defendant was entitled to get EVD credits from the plaintiff by paying in cash beforehand.
    
16. I note the plaintiff’s affidavit evidence filed 19 December 2016 stating the procedure for issuing EVD credits which is proceeded by payment from the wholesale customer, then the processing team issues EVD credits to the wholesale customer. That at the time, the person responsible for issuing the EVD credits was the second defendant, and first defendant was the wholesale customer or reseller.
    
17. The Plaintiff also state that the EVD credits are electronic and can be sent to the phone number wherever the reseller (wholesale customer) may be.
    
18. Plaintiff alleges that the second defendant by passed the process and sent EVD credits to the first defendant without following due process and without notifying the plaintiff. The deponent Mr. Nugent claims Digicel number +675-7215-0008 belonging to the first defendant was the recipient of the EVD credits and enclosed copy of printout of transaction of the EVD credits.
    
19. It was only after audit conducted by plaintiff on the 5 September 2015 that it was claimed that the second defendant issued EVD credits to the first defendant between 21 November 2015 and 27 January 2016. During that period the second defendant did not issue any invoices to the first defendant for those EVD credits.
    
20. After the audit the Plaintiff concluded that the first defendant colluded with the second defendant to steal EVD credits.
    
21. Plaintiff tendered Exhibit P1 wherein at paragraph 9 it sets out a summary of the EVD credits transactions which it purports was between the second defendant and the first defendant, invoices, dates, and description of the recipient of the EVD credits. Annexure “A” to Exhibit P1 is the purported Statement of Account of the first defendant.
    
22. In relation to allegation of collusion the plaintiff tenders Annexures “B1”- “B25” in Exhibit P4 copies of Tax Invoices issued to the first defendant for periods from 21 November 2014 to 27 January 2015. These Invoices supposedly uncovered the fraudulent activity between the first defendant and the second defendant.
    

Findings

23. The plaintiff has not tendered a copy of the Sales Agreement it says it entered into with the first defendant. This fundamental flaw inhibits the Courts ability to make independent inquiry as to its terms.
    
24. I have not been able to identify the first defendant’s Digicel number +675-7215-0008 as the recipient of the EVD credits in the tendered Annexure “A” to Exhibit P4, even though paragraphs 9 of Exhibit P1 (Affidavit of Raymond Nugent filed 19 December 2016), states “Credits were sent by the Second Defendant to the First Defendant’s account/phone number which was Digicel mobile number +675-7215-0008”.
    
25. In Exhibit P4, (Affidavit of Raymond Nugent filed 27 January 2016) Annexures “B1”- “B25” are the Tax Invoices for periods from 21 November 2014 to 27 January 2015. These Invoices are made out to “DIRECT FLEX POM, Malaoro Market, Manu Auto Port, Morobe”. The Salesperson is named as “Keruma Vele” and “Glenda” is identified as person applying the credits. Unless by a special reference or code which has not been made known in evidence, the first defendant is not named nor any reference to his Digicel number +675-7215-0008 in the Tax Invoices.
    
26. The Plaintiff has failed to prove by direct evidence that Digicel number +675-7215-0008, on the Debtors Statement Account, the Tax Invoices, the transaction report, the Company Information. Even so, the Plaintiff has not provided any such direct reference in any such other documentation.
    
27. I accept the process involved in the EVD credits as being proceeded by payment from the reseller (wholesale customer). It is in evidence that Annexure “A”, Exhibit P1 shows cash receipts and other details but no identification of the recipient of the EVD credits. This is against the claim of non-payment of cash by the plaintiff. The enclosed copies of printout of transaction of the EVD credits is unreliable, confusing and does not add up.
28. Collusion is an arrangement between persons designed to achieve improper purpose. The plaintiff has the onus of proof in establishing his case on the balance of probability. A mere statement that the EVD credits were sent by the second defendant to the first defendant and stating the receiving phone number is what it is, unless supported by clear, direct and credible evidence of invoice, receipts and phone numbers, names etc.
    
29. I find that the claim of illegal transfer of credits by the second defendant or whoever, cannot be sustained as the best evidence provided by the plaintiff being the actual transaction printout alluded to above [Annexures “A” and “B1” to “B25” to Exhibit P4], does not connect the first defendant and the second defendant to the alleged stealing of EVD credits.
    
30. In the end I am not satisfied that the plaintiff has proven its case on the balance of probability, and I will rule accordingly.

Order

31. The order of the Court:

1 The first defendant is not liable to the plaintiff.
2. Cost follows the cause and is to be paid by the plaintiff.
3 Time is abridged.

Ordered Accordingly

___________________________________________________________
Fiocco & Nutley: Lawyers for the Plaintiff
Cook & Co. Lawyers: Lawyers for the First Defendant