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Aliki Business Group v Kuliye [2001] PGDC 14; DC249 (18 July 2001)

DC249

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO. 66 OF 2001

BETWEEN

ALIKI BUSINESS GROUP
Complainants

AND

JOHN KULIYE
First Defendant

AND

GILA AIPE
Second Defendant

AND

JPM WHOLE SALE BUSINESS
Third Defendant

MT. HAGEN: APPA, P.M.
16TH JUNE, 2001: 18th JULY

JUDGMENT

The notice of this case was that in 1996 the complainant company had made an application in request for a financial assistance to the member for North Waghi Electorate for Aliki Business Group. A copy of such application is annexed to a Kiap Burun’s affidavit. In response to that application a "Not negotiable" cheque for K4,200.00 was made payable to Aliki Business Group. The cheque was forwarded through Mt. Hagen BMS to Banz District Office to be picked up by the complainant company. The cheque was however, picked up by the second defendant from the first defendant and cashed it at the third Defendant’s store.

It was later revealed that Aliki Business Group collected only K1,000.00 from that cheque so its now claiming for the balance of K3,200.00. Since this case had dragged on since 1997, Court had granted request by complainant’s Lawyer for ex parte hearing. Defence lawyer had made default in attending trial dates on many occasions. However, since the affidavits were already filed by both parties Court has considered same to make its finding.

It was noted in defence affidavit of the second defendant (Gila Aipe) that the cheque referred to above was to be shared by 15 other applicants as approved by North Waghi District Planning committee and not only for Aliki Group. He listed 15 groups and individuals who were to share the money on a later dated 01st December 1997. I also noted that the cheque was drawn on 11.12.96 and cashed for goods at JPM Store on 19.12.96. It appears to me that the list made by the second defendant was well after the cheque was cashed. It was possible that the list was made up as a cover up.

It was further noted that defence did not provide copies of applications of those 15 other people or groups. Who were also entitled to receive a share of the cheque in question.

In law, the cheque clearly belonged to Aliki Business Group alone as it was a "not negotiable" cheque. The Bills of Exchange Act clearly stipulates this. The complainant did apply for financial assistance in its own name and as the result the cheque was drawn in its own name. No other names were included either in the application or the cheque. The words "not negotiable" gave further protection to the complainant company as against all others. The manner in which the three defendants went about dealing with the cheque was all wrong and deprived the complainant company from the benefit of the K4,200.00 in whole. The 3rd defendant through owner Mr. John Manual had file an affidavit to explain its situation and provided copies of delivery invoices for goods supplied to various groups and individuals upon cashing of the cheque. I would say the same that the cheque had not been endorsed by the trustee Aliki Business Group so the whole transaction was wrong in Law. I therefore find that each of the defendants were liable to compensate the complainant.

I enter judgment for the complainant company for a sum of K3,200.00 to be shared jointly as follows;

It is further ordered that each defendant contributes equally to 8% interest to start from date of summons to date of judgment and cost of the proceeding.

The complainant company is entitled to the refund of the security deposit of its K1000.00 into the Court.

Lawyer for the complainant: Tamutai Lawyers
Lawyer for the defendant: Kopunye Lawyers