Jacob Sarapel v Fred Kulumbu (2003) N2405

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 16 June 2003
• Citation: (2003) N2405
• Court: National Court
• Year: 2003
• Judgement Number: N2405

Full Title: Jacob Sarapel v Fred Kulumbu (2003) N2405

National Court: Gavara–Nanu J

Judgment Delivered: 16 June 2003

N2405

PAPUA NEW GUINEA

[In the National Court of Justice]

BETWEEN:

JACOB SARAPEL

- Appellant -

AND:

FRED KULUMBU

- Respondent -

WAIGANI: GAVARA – NANU, J

2003: 13th & 16th June

PRACTICE AND PROCEDURE – Appeal from the District Court – Complaint laid in the District Court having no cause of action – Deliberate abuse of process – Proceedings not brought in good faith – Costs incurred or wasted in pursuance of such proceedings – Negligence by the lawyers acting for a party.

Cases cited :

Niugini Lloyds International Banks Ltd -v- Sakora [1997] PNGLR 275

The State -v- Gene [1991] PNGLR 33

Gulf Provincial Government -v- Baimuru Trading Pty Ltd – N.1794

Don Pomb Pullie Polye -v- Jimson Sauk Papaki & Or S.C. 637

Counsel :

T. Gene for the appellant

D. Keta for the respondent

GAVARA-NANU J : The appellant and the respondent were small business partners doing various businesses which required the use of the appellant’s Ford bus with registration number - CAB.159, from time to time.

The appellant says on 06th September, 2001, the respondent approached him to borrow the Ford bus so that he could register it for their use. The appellant further says that, after registering the Ford bus, the respondent did not return it to the appellant. The appellant becoming suspicious of the respondent then demanded the return of the bus. The appellant says, the respondent refused to return the bus and claimed ownership over it and demanded that the appellant pay him K 1,500.00 which the respondent said was borrowed by the appellant from him sometime back, to maintain the bus.

Following that, the appellant approached the respondent at his work place in Holiday Inn and discussed the matter with him with the view of settling the matter. But they could not settle the matter so they both went to Gordons Police Station on 20th October, 2001, where they in the presence of the police, went through mediation process to try and settle the matter. It appears that they could not come to an agreement so the respondent was ordered by the Police to pay the appellant the cost of the bus, and keep the bus.

The appellant not being satisfied with the outcome of their discussion at the Gordons Police Station filed a Complaint at the Port Moresby District Court against the respondent claiming the return of the bus and damages for loss of business.

The respondent in defence of that Complaint argued that there were two different vehicles that the appellant had complained about, one was the Ford bus, which belonged to the appellant and the other is a Mazda bus, which belonged to him. The two vehicles had the same registration number - CAB.159, because the appellant removed the registration number of the Ford bus and put it on the Mazda bus.

The Port Moresby District Court dismissed the appellant’s Complaint for the reason that the appellant had transferred the registration number - CAB.159, from Ford bus, which the appellant owned to the Mazda bus. The presiding magistrate held that, such transfer contravened the provisions of the Motor Traffic Regulations, and it was an offence under s. 20 (a) (1) of those Regulations.

The Court also held that the conduct of the appellant was contrary to s. 21 of the Motor Traffic Regulations, which prohibits alterations of the particulars of the registration certificates of vehicles without the notice and the approval of the Motor Traffic Superintendent. The Court held that, under those circumstances, the appellant had done things which were contrary to law and the Court would not sanction such illegal conducts.

The appellant appealed against that decision of the Port Moresby District Court, which was given on 04th June, 2002.

The appellant raised seven grounds of appeal: -

1. The learned magistrate erred in law and in fact in dismissing his Complaint in which he claimed the return of the Mazda bus.

2. The learned magistrate erred in law and in fact when he relied upon the respondent’s affidavit after an objection was taken against the admissibility of the affidavit on the basis that, the affidavit was sworn by a person other than the respondent.

3. The learned magistrate fell into error when he decided to accept and rely on the respondent’s affidavit without any supportive or corroborative evidence.

4. The learned magistrate erred in law when he decided not to accept the appellant’s affidavit and went onto dismiss the appellant’s Complaint, when there was evidence in the appellant’s affidavit on which the learned magistrate could have found in favour of the appellant.

5. The learned magistrate erred in law when he applied s. 14 of the Motor Traffic Regulations, which the appellant says is not relevant to his Complaint.

6. The learned magistrate fell into error when he did not address two issues before him.

7. There was miscarriage of justice as the decision was against the evidence and the weight of the evidence.

The appellant and the respondent both filed affidavits in support of their claims. The appellant in his affidavit says he is the rightful owner of the Ford bus which, he also referred to as the Mazda bus and having the same registration number as the Ford bus. He says the Ford bus was in fact a Mazda but it was registered as Ford with the same registration number.

The appellant says he first bought the Ford bus from ACB Air Conditioning for K 800.00. The appellant has produced a letter from ACB Building Services Ltd, confirming that ACP Air Conditioning Services Ltd did sell a Ford bus having registration number CAB. 159, which was a wreck and written off to the appellant for the sum of K800.00. The appellant says on 19th May, 2000, he went to the Port Moresby Wreckers and bought a body of a Mazda bus for K 800.00. Again he has produced a copy of the invoice which shows that a body of a Mazda E2000 was sold to Mr Jacobs on 19th May, 2000, for K 800.00.

The appellant says he then removed the engine from the Ford bus and fitted it into the body of the Mazda bus. He also removed some parts from the Ford bus and put them into the Mazda bus. He says one of the items he removed from the Ford bus was the number plate CAB. 159, and put it on the Mazda bus.

The appellant says he then went and registered the bus as Mazda not as a Ford, bearing the same registration number. The vehicle was registered at the Central Provincial Traffic Registry. He has produced a certificate of transfer for the Ford bus from ACP Air Conditioning Ltd to his own name.

The appellant in his affidavit says that, because parts of the Mazda bus were taken from the Ford bus, including engine and the registration number, he inquired at the Central Traffic Registry as to whether it was alright for him to register the vehicle as Ford using the previous registration certificate, but under this own name. He says he was advised by the Central Traffic Registry officials that, he could register the Mazda bus as Ford under the same registration number - CAB.159.

He says, that is how the Mazda bus happens to have the same registration number as the Ford bus. He says, he has thus proved that he is the rightful owner of the Mazda bus which is now in the possession of the respondent.

The respondent in his affidavit agreed that the appellant is the rightful owner of the Ford bus and says that, he does not dispute the appellant’s ownership over the vehicle.

But, as to the Mazda bus, he says he is the owner. He says the Mazda bus was previously owned by a person by the name of Mr Terry Asigau who was previously employed by Air Niugini. Mr Asigau sold the Mazda bus to a person by the name of Henao Pasi who then sold it to him for K800.00. He says the Mazda bus is also white in colour like the Ford bus but the chassis and the engine numbers are different to those for the Ford bus.

The respondent gave the chassis number for the Mazda bus as SRYOE2 and the engine number as FR66-66331990. The chassis and engine numbers for the Ford bus are SGNEHK686 and FE463D2. The respondent says, it is thus very clear that there are two totally different vehicles.

The respondent says the appellant has contradicted himself because, paragraph 2 of the Complaint and paragraph 5 of the Statement of Claim to the Complaint as well as paragraph 4 of Mr Thedore Gene’s affidavit, all state that, on 06th September, 2001, the respondent approached him and borrowed the bus so that he could registered it.

But the appellant in paragraph 8 of his own affidavit says, he was the one who registered the Ford bus. That is also confirmed by Annexure ‘E’ to the appellant’s own affidavit, which is the registration certificate for the Ford bus. This certificate also shows the chassis and engine numbers for the Ford bus as FE463D2 and SQNEHK686 respectively, but I think the correct engine number is SGNEHK686, which is consistent and corresponds with Annexure ‘A’ to the appellant’s affidavit. These numbers also correspond...