The plaintiff on payment of
VT697,000, to him was that h complied with the agreemeneement for him to
have the vehicle.
The question : Was
there an agreement between the plaintiff andf and the A.G.C.? May's
responsibility was by interviewing customers and making recommendation to
the manager, as the manager approves loans.
For these reasons she was not
capable to enter any agreement between the plaintiff and on behalf of the
defendant. In
her evidence she was maintaining the present lease agreement
between the defendant and Malites and for the 3rd person to
continue to make repayment on behalf of Malites. The letter by the plaintiff
(D. 5) will confirm that. With
the view of this arrangement the plaintiff
was to pay off the loan completely and the vehicle will be transferred to
him on completion of the loan repayment in accordance with their own
agreement. I accept that the practices that occurred between
Malites and Don
Ken was accepted practice by the defendant done in the past to other
customers with similar arrangements,
with the view that the lease agreement
still remain between the lessor and the lessee with a third person
fulfilling
the lease agreement. This also happened in the case of Malites
and Don Ken as accepted by the defendant and I find to be a
proper practice
so long as the third person fully complied with the lease agreement.
I find there were no
contract entered between the plaintiff and the defendant apart from the
the
existing lease agreement
with Malites. The role of the plaintiff was purely
as a third person and nothing to do with the lease agreement between the
defendant and Malites.
Kilu submitted that if there
were no agreement en the plaintiff and the dehe defendant then his money
will have to be
refunded. On his submission Nigel submitted that there were
no agreement between A.G.C., Don Ken and Malites. He advances that
in this
case is whether Malites can assign his liabilities to Don Ken without
getting the consent from A.G.C. and advance
that this is not possible. If it
has to be possible then A.G.C. must be a party to their assignment of
liabilities.
lass="MsoNoMsoNormal" style="margin-right: 43.2pt; margin-top: 1; margin-bottom: 1">
I accept the submission of
Nigel as representing the right position of assignment aent and liabilities in
law which is
the case A.G.C. was not a party to that contract between
Malites and Don Ken and continue to maintain the lease agreement with
the
loan repayment was to be paid by Don Ken and this was proper.
May referred to was that
such arrangement are not unusual as she has experience in thin the past of such
arrangement with
other lessees.
If this is so then what
occurred, then was a matter puretween Don Ken and Malites ites and A.G.C.
was only maintaining
the lease obligation between A.G.C. and Malites with
the performance by Don Ken on his agreement with Malites. And if he
completes paying off the loan the vehicle will be his in accordance with
their own understanding.
I find that it was a perfect
arrangement. But if failure of repayment then only Malites ites will be
responsible and not Don
Ken. The letter of 23rd September 1998
written to Barak Sope and Malites that the lessor incurred losses on the
sale of the said vehicle will
confirm that the lease agreement was still
between Malites and A.G.C. and did not involve Don Ken. Therefore, in this
case I will treat Don Ken repayment was repayment on behalf of Malites and
cannot be refunded by A.G.C.
p class="MsoNoMsoNormal" style="margin-right: 43.2pt; margin-top: 1; margin-bottom: 1">
Kilu advance that at least the
plaintiff should be advised of the disadvantage. On this advancement May
maintain in her
evidence that the agreement was between A.G.C. and Malites
and no information can be passed on to a 3rd person. This I agree
as proper and to protect the lessee of what occur between the lessor and the
lessee as the plaintiff
was not a party to the lease agreement between
Malites and A.G.C. and I can refer to the plaintiff as a stranger. By this
relationship A.G.C. had no obligation to advise Don Ken as A.G.C. was not a
party to their arrangement and Don Ken should
at that time should take
independent advise.
By Malites' letter of 4th
October 1997 he still maintain tain that the loan was his and he made arrangement
with someone to keep paying off loan
repayment which in my view the
plaintiff was the person and the receipt will confirm my view to be Don Ken.
This confirms
the fact that even though Don Ken was paying of the loan,
Malites still remain the lessee. I can not find that such arrangement
was a
mistake but well agreed upon to be done that way and A.G.C. has correctly
collected the loan repayment as belonging
to Malites from Don Ken. What is
left now is a matter between Don and Malites.
I find that Don Ken has been
dragged into thelem of Malites to save Mali Malites from the loan repayment.
The vehicle
has been repossessed and sold with a cost of VT1,133,544 lost to
A.G.C. He has lost money in this process at the same time
he has used the
vehicle too. The loss suffered should remain between him and Malites in
accordance with their own agreement
as evidence in Malites letter (D. 5) of
the 15th September 1998 and not with A.G.C.
I thereford that the
plaintiff has failed to prove his case on e on the balance of probabilities and
case is dismissed
with costs to the defendant to be taxed if not agreed.
R. MARUM MBE
JUDGE
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