N11423

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 250 OF 2020

BETWEEN:
LINDA DANIEL trading as REO RENT A CAR
Plaintiff

AND
LINDA TAMINZA SALALA
First Defendant

AND
MILTON KERUA
Second Defendant

LAE: DOWA J
11 JULY, 23 AUGUST 2023; 14 AUGUST 2025

CIVIL CLAIM – contract for hire of motor vehicle- terms of contract-loss of vehicle via accident during hire– claim for breach of contract- whether there was a binding contract-who were the contracting parties-whether the plaintiff was owner of business name-whether certificate of registration required for proving ownership-whether the plaintiff proved on the balance of probabilities that the defendant breached terms of contract- plaintiff failed to prove liability-proceedings dismissed.  

Cases cited
Yooken Paklin v The State (2001) N2212
Kei v MVIT [1992] PNGLR 195
Paikel v Kaiwe Pty Ltd [1997] PNGLR 603
 Danga v MVIT (1997) N1665
 Nagari v Rural Development Bank (2007) N3295
 Molu v Pena (2009) N3817 
Paraka v Upaiga & Aother (2010) N4090
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343 
Samot v Yame (2020) N8266
Peter Wanis v The State (1995) N1250
Taru v Pacific MMI Insurance Limited (2016) N6305
NKW Holdings -v- Poladin Solutions PNG Ltd, (2020) N8339
Keam investments v Toyota Tsusho (PNG) Ltd (2019) N7859 
Titus Tumba v Samson (2020) N8721
Waranaka v Dusava (2009) SC940

Counsel
K Keindip for the plaintiff
E Tienare for the defendants 

DECISION

1.	DOWA J: This is a decision on both issues of liability and damages.

2.	The Plaintiff is claiming damages against the Defendant for breach of contract and for damage done to her motor vehicle, Nissan Navara Registration No REO 999 in a motor vehicle accident at 11th Street, Lae, Morobe Province. 

3.	The Plaintiff alleges that her vehicle was hired by the first Defendant on 4th April 2022 for five days. The first Defendant did not return the vehicle within the five days as agreed. The Plaintiff found out later that her vehicle got involved in a road accident due to negligence of the second Defendant.

4.	The Plaintiff alleges that the first Defendant breached the terms of the agreement by failing to return the vehicle in good condition. As a result of the breach of contract and negligent actions of the Defendants, the Plaintiff suffered loss and damage. 

5.	Aggrieved, the Plaintiff filed recovery proceedings seeking damages.

Trial

6	The trial was conducted on 11th July 2023. Both parties tendered evidence by consent without cross-examination and submissions were presented on 23rd August 2023.

Evidence-The Plaintiff

7	The Plaintiff relies on the following affidavits which were tendered into evidence and exhibited as follows.

1.	Affidavit of Linda Daniel filed 19th October 2022 exhibited P1
2.	Affidavit of Tovani Tovaninara filed 14th December 2022 exhibited P2
3.	Affidavit of Linda Daniel filed 14th December 2022 exhibited P3
4.	Affidavit in Response of Teckla Tovaninara filed 29th June 2023 exhibited P4

8.    This is the summary of the Plaintiff Linda Daniel’s evidence. She deposed she operates a vehicle hire business under trade name Reo Rent a Car. The Plaintiff deposed she is the owner of the motor vehicle, Nisan Navara Registration No. REO 999. On 4th April 2022 the Plaintiff entered an agreement with the first defendant to hire her vehicle for five days at K 700.00 per day. The first Defendant paid K3,500.00 and took delivery of the vehicle on 4th April 2022. The first Defendant did not return the vehicle in the same condition. Instead, the first Defendant allowed the second Defendant to drive the vehicle which eventually got involved in a road accident on the morning of 9th April 2022. 

9.    The Plaintiff deposed the accident was caused by the negligence of the second Defendant. The second defendant was charged for driving without due care and attention and was convicted by the Lae District Court. As a result of the accident, the Plaintiff’s vehicle was damaged and would cost more than K 97,492.75 for repairs and the Plaintiff claims damages accordingly.

10.    The Plaintiff rejected the first Defendant’s contention that there was no direct hire agreement between the Plaintiff and the first Defendant for the hire of her vehicle by the first Defendant. She deposed that Teckla Tovaninara who initiated the hire with the first Defendant, was her agent who was acting for her. 

11.    The Plaintiff’s evidence was supported by Teckla Tovaninara who deposed that she was acting for the Plaintiff as agent when she arranged to hire out the Plaintiff’s vehicle to the first Defendant.

The Defendants’ Evidence

12.    The Defendants rely on the following affidavits which were tendered into evidence and exhibited as follows.

a.	Affidavit in Support of Linda Taminza Salala filed 9th February 2023 exhibited D1 
b.	Affidavit of Margaret Salala filed 31st March 2023 exhibited D2
c.	Affidavit of Clair Augwi filed 31st March 2023 exhibited D3
d.	Affidavit of Milton Kerua filed 11th April 2023 exhibited D4

13.     This is the summary of the Defendants’ evidence. The first Defendant denied entering any hire agreement with the Plaintiff. She entered  an agreement with one Teckla Tovaninara on 18th March 2022 to hire her vehicle, a Nissan Navara Utility, for five (5) days at K 700 per day. She paid K3,500.00 to Teckla Tovaninara’s bank account on 23rd March 2022.  She picked up the vehicle from Teckla Tovaninara on 4th April 2022. She did not sign any hire agreement on that day. She was not told by Teckla Tovaninara that the vehicle was owned by the Plaintiff and that she was only acting as agent for the Plaintiff. On the morning of 10th April 2022, the first Defendant was asked to sign a hire agreement by Teckla Tovaninara. She refused to sign. She was then confronted by Teckla and the Plaintiff in the company of a Police Officer to sign the hire agreement which she signed under duress. The first Defendant deposed she was surprised when she was told the Plaintiff was the owner of the motor vehicle.  

	Issues

14.     The issues for consideration are:

a.	Whether the Defendants are liable.
b.	Whether the Plaintiff is entitled to the reliefs sought.

Burden of Proof

15.     The burden of proving the claim rests on the Plaintiff and she must discharge the burden on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and hope to be awarded damages claimed. Refer: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

a. Whether the Defendants are liable 

16.     The Plaintiff submitted that she entered a valid contract with the first Defendant to hire her motor vehicle, Nissan Navara at the rate of K 700 per day for five days. The hire period was for five days commencing 4th April 2022, and the vehicle was to be returned on 9th April 2022. She failed to return the vehicle in good condition and caused an accident. As a result, she suffered loss and damage which she now seeks redress.

17.     The first Defendant submitted that she did not enter any agreement with the Plaintiff to hire her vehicle and is not liable.

Who are the contracting Parties

18.     The Plaintiff’s claim is for breach of hire contract. It is a trite law of contract that the following elements be present for a contract to be valid and enforceable:

a)	Offer
b)	Acceptance
c)	Intention to create legal relation.
d)	Passing of consideration
e)	Capacity of parties

Refer to NKW Holdings -v- Poladin Solutions PNG Ltd, (2020) 8339, Keam investments v Toyota Tsusho (PNG) Ltd (2019) N7859, Titus Tumba v Samson (2020) N8721.

19. The terms of the hire agreement are:

a. The hire rate for the vehicle was K 700.00 per day
b. Hire period was five (5) days
c. Hire period was from 4th to 9th April 2022.
d. All payment to be made before delivery of the Vehicle.
e. Vehicle to be returned by 9th April 2022.
20.  The first Defendant paid K 3,500.00 to the account of one Teckla Tovaninara on 23rd March 2022 and took delivery of the vehicle on 4th April 2022. 
21. 	Although the basic elements of the contract appear to be present, the first Defendant disputes that it did not enter a legally binding contract with the Plaintiff on 4th April 2022. At this juncture, it is important to note the disputed facts. The first Defendant maintains that she did not sign any hire agreement with the Plaintiff on 4th April 2022 and had no knowledge that Teckla Tovaninara was acting as agent for the Plaintiff.

22.	There are two versions of the facts. The deponents were not cross-examined to test the demeanour and credibility of their evidence. The Supreme Court in Waranaka v Dusava (2009) SC940 held that where there are two versions in evidence, it is important to assess and analyse the credibility of the witnesses and their evidence and point out any aspect of the performance of each witness before accepting the evidence. In the absence of cross-examination to assess the demeanour and credibility of the deponents, the Court will apply common sense and logic based on proven facts.

23.	The evidence shows the first Defendant sent a text message to one Teckla Tovaninara on 18th March 2022 that she wanted to hire Teckla’s vehicle, a Nissan Navara on 4th April 2022 for five days. On 23 March 2022, the first Defendant paid K 3,500.00, being the hire rental for five days at the rate of K 700.00 per day. The amount was paid to Teckla Tovaninara’s BSP Account No.1000766176. On 4th April 2022, Teckla Tovaninara delivered the vehicle, Nissan Navara, Registration No REO 999. Up to this point, the Plaintiff was not involved. I reject the Plaintiff’s evidence that the first Defendant contracted with her for the hire of her vehicle through Teckla Tovaninara. 

24. 	The Plaintiff’s evidence lacks credibility. Apart from the testimonies of Teckla Tovaninara and the Plaintiff, there is no other evidence that Teckla Tovaninara was acting as agent for the Plaintiff. There is no evidence of any form of communication to the first Defendant by Tovaninara that she was acting for the Plaintiff. On the contrary, the evidence clearly indicates the first Defendant was transacting with Teckla Tovaninara only.

25.	I also reject the Plaintiff’s evidence that the first Defendant freely signed the hire agreement on 4th April 2022. I accept the first Defendant’s evidence that she did not sign a hire agreement on 4th April 2022. Rather, she was forced to sign the agreement under duress on 10th April 2022.

26.	 It is trite law that where a contract is secured by duress, it is a nullity and invalid. Refer: Taru v Pacific MMI Insurance Limited (2016) N 6305. I find the purported hire agreement between the parties dated 4th April 2022 is a nullity and invalid.

27.	In the circumstances, I am not satisfied that there was a binding contract between the Plaintiff and the first Defendant for the hire of the Plaintiff’s vehicle.

	Who is the owner of the business name REO RENT A CAR 

28.	Although the Plaintiff says she is the owner of the vehicle under the trade name Reo Rent A Car, she has not produced a Certificate of Registration as a business name. Although it is pleaded that Reo Rent A Car is a registered business name, no evidence produced to prove that fact. There is no evidence produced to show the owner of the business name, Reo Rent A Car. The Plaintiff has not proved she is the owner of the business name, Reo Rent A Car and thus has no legal nexus between the Plaintiff Linda Daniel and Reo Rent A Car.

Who is the owner of motor vehicle Nissan Navara Reg. No. REO 999

29.	The next question is who is the owner of Nissan Navara Reg. No. REO 999. The Plaintiff has not produced a Certificate of Registration of the motor vehicle, Nissan Navara REO 999, to show the registered owner. Without the registration certificate it is difficult to ascertain the registered owner whether it be in the name of Linda Daniel or Reo Rent A Car. 

30.	There is a plethora of judicial authorities that a Certificate of Registration is relevant to proving ownership of a motor vehicle. Refer: Kei v MVIT (1992) PNGLR 195, Paikel v Kaiwe Pty Ltd (1997) PNGLR 603, Danga v MVIT (1997) N1665, Nagari v Rural Development Bank (2007) N3295, Molu v Pena (2009) N3817 and Paraka v Upaiga & Another (2010) N4090.

31.	In Paraka v Upaiga (Supra) the Court stated this at paragraph 19 of the judgment:

“19. But I am not satisfied that he is the owner of the motor vehicles because he has not produced any certificate of registration to prove ownership and I do not recall him giving any oral evidence as to when he purchased these motor vehicles or why he was unable to produce the certificate of registration for each motor vehicle. Evidence of ownership is relevant and crucial to a claim for damages for it is trite that he who alleges must prove it and in this case, if the plaintiff claimed that he suffered loss because his motor vehicles were damaged by the first defendant and his policemen, he must first prove that he owned them. In the absence of any evidence proving his ownership of these motor vehicles, I am not satisfied that he has established this claim and dismiss it.”

32. 	Although a Certificate of Registration may not be conclusive evidence of ownership and there may be other ways of proving ownership, the absence of it does not help where proof of ownership is required. The Plaintiff has not provided the Certificate of Registration and other credible evidence to prove ownership.  I am not satisfied that the Plaintiff is the owner of the subject vehicle, Nissan Navara, Reg. No. REO 999.

33.	For the foregoing reasons, I find the Plaintiff has not proved liability against the Defendants.

b.	Whether the Plaintiff is entitled to the reliefs sought. 

34. 	Even if liability was established, the Plaintiff still has the onus to prove damages with credible evidence. The Plaintiff pleaded that the vehicle was badly damaged and would require more than K 97,000.00 to repair. The Plaintiff produced three different repair quotes from motor dealers operating in Lae. The lowest quotation is from Boroko Motors, Lae dated 20th April 2022. However, the Plaintiff did not provide any evidence or description of the extent of damage, including photographs depicting the damage.  The Plaintiff has not provided evidence of the age and the condition of the vehicle. The Plaintiff has not produced any evidence of repairs being done, like invoices and payment receipts. If vehicle has not been repaired, no explanation has been provided why the repairs couldn’t be done. 

35.	In the absence of actual invoices and receipts for payment for repairs, the quotes remain speculative, and no assessment and award can be safely made from evidence lacking credibility. Where repairs to the vehicle is not economically viable, the onus is on the Plaintiff to provide evidence of pre accident value. It is trite law that the plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. (Yooken Paklin v The State (2001) N2212 and  Samot v Yame (2020) N8266.

Conclusion
36. 	In the end and for reasons given, I find the Plaintiff failed to prove her claim on the balance of probabilities and therefore shall dismiss the proceedings.

  Costs

37.	The Defendants have succeeded in defending the claim. They are entitled to the costs of the proceedings.

	Orders

38.      The Court orders that:

1.	The Plaintiff’s proceeding is dismissed.
2.	The Plaintiff shall pay the costs of the proceedings to be taxed, if not agreed.
3.	 Time be abridged.
_____________________________________________________________________
Lawyers for the plaintiff: Gamoga & Co lawyers
Lawyer for the defendants: Public Solicitor