BPT (PNG) Pty Ltd v Sam Torobon

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 26 October 1995
• Court: National Court
• Year: 1995
• Judgement Number: N1383

National Court: Sawong J

Judgment Delivered: 26 October 1995

N1383

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 383 OF 1994

BPT (PNG) PTY LTD

V

SAM TOROBON

Tabubil

Sawong J

24-26 October 1995

CIVIL LAW — Claim for reimbursement of money — Money alleged to have been stolen by employee during the course of his employment — Evidence — Comparison of Hand writing — No expert evidence — Dangers inherent — Need for tribunal of fact to be cautious.

Cases Cited

R v Hobart Magalu [1974] PNGLR 188

St v Baine [1991] PNGLR 1

Counsel

R Doko for the Plaintiff

D Lora for the Defendant

1 December 1995

SAWONG J: This was a claim brought by the Plaintiff against the defendant claiming that, the Defendant whilst being employed by the Plaintiff converted to his own use, money belonging to the Plaintiff. He is alleged to have done so, by removing from the cash register or other possession sums of money of the plaintiff at the plaintiff's premises at Tabubil and converted and used the said money. The amount the plaintiff claims that was so removed and used was Seventy Five Thousand Four Hundred & One Kina & Sixty one toea (K75,401.61). It is alleged that all these occurred between November 1991 — and March 1994.

Neither counsel has referred me to what the law is on this matter. I have not been referred to any authority nor any law, as to the issue of whether a servant who fraudulently obtains property, such as in the present case, would be liable to repay the property so obtained. I have not been able to find any local authorities directly or indirectly on this particular point. But I am of the view that, a defendant who has obtained money from the Plaintiff by fraudulent means, is liable to the Plaintiff for the money so obtained.

Three people were called to give evidence on behalf of the Plaintiff. I will shortly set out the nature of each of their sworn testimony.

The 1st witness was James Dom. He is employed by OK Tedi Mining Ltd (OTML) at Tabubil as a supervisor Contracts Accounting. He is responsible for checking and making payments to contractors who provides goods and services to OTML. His evidence was that the Plaintiff is one such Contractor. It supplies fuel, maintenance and other related services to OTML owned vehicles. He said that sometime in May 1994, either during or after an internal audit was carried by OTML auditors, on the books of accounts of OTML, it was discovered that someone had been applying correction fluid on the daily fuel supply forms. This document is issued by the Plaintiff. During the conduct of the internal audit it was discovered that a lot of correction fluid was applied over hundreds of entries in the daily fuel supply forms. The procedure was, it appeared that after the actual volume of fuel was supplied, and the actual volume and the amount is entered in the daily fuel supply form — someone would, apply correction fluid over te original volume and value, and then would write over it a new or adjusted volume and amount.

This procedure was used by someone and it was used over the period from November 1991 to about March 1994.

In all instances, during the period, some of the entries were tampered with and the alterations that were made, increasing both the volume of fuel supplied and the corresponding amount was also thereby increased.

For instance on 30th November 1991 about 24.81 litres of fuel was supplied by the Plaintiff to OTML Motor vehicle L 447 for a certain amount. Correction fluid was subsequently applied over the volume and amount entries and new volume of 44.81 litres was written for an amount of money.

On 1 June 1992 OTML vehicle L 390 was supplied with 34.34 litres of fuel for an amount . Subsequently correction fluid was applied over the original figures and someone wrote the new volume and the corresponding new value.

The system described above was consistently used over the period from November 91 to March 1994 when these discrepancies or alterations were discovered. And so during the entire period this system was used consistently.

As a result of this, OTML paid to the Plaintiff a sum of money over and above the actual fuel supplied. In the process it paid over K75,000 to the Plaintiff. After the alterations were discovered, it was brought to the attention of the Plaintiff, and the Plaintiff has now entered arrangements with OTML, for the Plaintiff to reimburse the money to OTML.

I observed his demeanor carefully. He was consistent in his testimony and although there were minor discrepancies, these did not affect his testimony at all. He was an independent witness. I accept his testimony as truthful.

The next witness for the plaintiff was one Keith Geoffrey Reick. He is the Branch Manager of the plaintiff branch operation at Wewak. He was previously employed by the plaintiff at its Tabubil branch as its branch manager. He was so employed from March 1992 to the end of June 1992. His evidence was that the defendant was employed by the plaintiff as a service station attendant. He said that the defendants duties included serving customers, receipting money in the cash register & compiling or entering daily fuel sales forms. There were three forms, which was required to be done, one was for fuel sold to OTML, the other for other credit customers and third one was cash sales to customers. He took became aware of the alterations in the daily fuel forms credit to OTML, when the internal auditors of OTML came in & informed him.

At the relevant time, ie for November 1991 to March 1994, he said 2 people were employed as fuel attendants. These were the defendant and another person called Russell. These two were the fuel pump attendants and either of these two would serve the customers and enter the entries in the daily fuel supply form. In addition to these, there were according to this witness two other employers who were admin. staff and but there were no accounts person or clerks. He further stated that from the daily fuel supply form for OTML, daily cash & daily credit sales to open customers would be compiled into a one document called the daily Sales Summary form. In regard to the daily credit sales to OTML vehicles, the original of that document would be sent direct to OTML and Copies of it would be sent to the plaintiff's headquarters in Port Moresby together with daily Sale Summary form. The statements & invoice etc. would then be raised by Port Moresby.

He said that the daily Sales Summary form would be compiled by the Defendant, the next day from the previous days entries in the daily fuel issue forms. Once the daily summary form is completed it was then brought to him for cross checking. After that the original of this particular form was send to the plaintiff's, Port Moresby office.

He went on and said that after the discrepancies were discovered and made known to him, he initially asked the defendant if they were his hand writing and the defendant denied that it was his handwriting.

He also gave evidence regarding the system that was used by the Plaintiffs employee to record fuel and other sales. In so far as cash sales were concerned, he said that the two fuel pump attendants were given waist pouches to hold cash so that they could attend to several customers at any one time. After receiving the cash, the fuel attendants, were required to enter cash into the cash register and deposit cash into it. In the cash register was a cash register roll on which the cash that was deposited would be recorded. At the end of the days transactions, the actual cash that had been deposited in the cash register together with the cash register roll, would be collected by the admin. staff, and either reconciled or put away for reconciling next day for banking.

The last witness for the Plaintiff was Wendy Nuka. During the relevant period she was employed by the Plaintiff as an accounts clerk and she was so employed for two and a half years. She said her responsibilities were to enter entries in the books of accounts detailing the cash received from the service station, reconcile the...