Demetrios F. Lordos v. Michael Paporis (1987) JSC 429

[*429] 1986 February 27

(KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Demetrios F. Lordos,

Plaintiff,

Michael Paporis,

Defendant.

(Action No. 4102/ 85).

Contract - Payment of money due by another - Voluntary payment - Whether recoverable - Unjust enrichment - Sections 69 and 70 of the Contract Law, Cap. 149.

D. Papachrysostomou, for the Plaintiff.

E. Kekkou (Miss), for the Defendant.

JUDGMENT

The following judgment was delivered by:

KALLIS. D.J.: The claim of the plaintiff in this action was for £280 - being an amount which he paid on the instructions and/ or for the benefit of the defendant and/ or an amount in respect of which defendant has been rendered richer.

According to the statement of claim at all material times plaintiff has been the secretary of the Cyprus Shooting Association ("S.K.O.K."); that on/ or about 8.6.1984 defendant requested him to pay the value of a return Larnaca - Sarakosa - Spain ticket to a travel agency and defendant undertook to pay to plaintiff the value thereof upon request by him; that plaintiff acting according to these instructions asked "Esperia" Travel Agency to issue the ticket in the name of defendant's son, as was the wish of defendant, and plaintiff delivered the ticket to defendant's son on/ or about 8.6.84 as per the instructions of the defendant; that the value of the ticket was £286 and was used by defendant's son in order to [*430] travel to Saracosa-Spain and participate at the European Shooting Competition there; that plaintiff asked defendant to pay him the aforesaid amount and the latter promised to have it paid and asked to do so by instalments; and that subsequently he failed to pay and hence this action.

The defendant in his defence denied that he had ever agreed with plaintiff to pay the said amount of any amount in connection with the participation of his son in the above competition but on the contrary he stated to plaintiff that his expenses would be born by S.K.O.K. once he would be going to Spain with the Cyprus team.

The plaintiff testified that he has been the General Secretary of "S.K.O.K." since 1983. In June 1984 he was approached by defendant who told him that his son has arrived from America and enquired whether he could participate in the Shooting Competition in Spain at his own expense. As defendant had made the same request beforehand plaintiff submitted that matter before the Committee of S.K.O.K. which decided to allow the participation of defendant's son provided he would bear the relevant expenses himself. The relevant minutes of the meeting of the S.K.O.K. Committee were put in as exhibit 1 and read as follows:

"It is, also, decided that the application of A. Paporis (and efforts be made) for his participation in the European Competition exclusively at his own expense ("me dika tou apoklistika exoda") be approved".

On 8.6.84 defendant informed him that as a result of efforts he himself has made the organisers accepted the participation of his son and as he (plaintiff) had secured a cheaper ticket for the remaining members of the team he requested him to give instructions to Esperia Travel Agency to reserve a ticket for his son and would pay the value thereof to the agency himself. Thereupon plaintiff gave instructions to the Travel Agency and issued the ticket which was given to him and he delivered it to defendant's son and he used it. Defendant failed to pay the value of the ticket when the team returned from Spain and plaintiff paid it [*431] himself. He paid the ticket himself because the Travel Agency was looking upon him personally as the person who would pay ("exere emena prosopika") and he was looking upon defendant ("ego exera ton enagomeno").

In cross-examination he said that he himself conveyed orally the decision - exh. 1 - to the defendant. He was, also, asked in cross-examination as to why, since S.K.O.K. by the letter - exh. 3 - was calling upon defendant's son to arrange payment of the value of the ticket, he did pay the £286 himself and he replied: "because S.K.O.K. remained exposed due to the attitude of defendant's son but it was under no obligation to pay. I was under the obligation because I was exposed towards the Agency". ("Imoun ektethimenos enanti tou praktoriou").

Pausing at this stage I would observe that by exhibit 3 S.K.O.K. is not asking defendant's son to pay to anybody the value of the ticket, they are merely asking him to "arrange payment of the ticket". He, also, said that the Travel Agency brought an action for the ticket against the defendant which was withdrawn because they have not come into contact with the defendant for the issue of the ticket. He, finally, said that he had given instructions to the Travel Agency that the four tickets would be paid by S.K.O.K. and in respect of the fifth one to debit Mr. Michael Paporis and that they follow regularly this procedure.

The defendant testified that plaintiff told him that his son could not participate in the Competition because he was out of time. Thereupon he told plaintiff that he would contact the organisers in Spain himself and if they accept his son his expenses to be paid by S.K.O.K. otherwise he would send him to participate as an independant member and he would pay for the ticket himself. After making certain efforts his son was accepted by the Organisers in [*432] Spain and when they handed the tickets to the other participants they handed one to his son as well; and he gave him money to meet his remaining expenses in Spain hoping that these expenses as well will be paid by S.K.O.K. He was never informed by S.K.O.K. that it took a decision for the participation of his son at his own expense.

In cross-examination he said that he paid to counsel for the plaintiff £50- towards the ticket with the intention of paying it in full by instalments but when the Travel Agency sued him for the whole amount there was refunded to him an amount of £46- by Counsel.

Having had the occasion to follow both the witnesses in the course of their testimony I have no hesitation at all to accept the testimony of the plaintiff for he has given his testimony in a most thorough, natural and convincing manner and has impressed me much more favourably as a witness than the defendant. Further the version of the defendant is consonant with the decision - exh. 1 - which was taken by S.K.O.K. at the material time; - a time that proceedings were not contemplated - and in view of this decision I cannot see how plaintiff could accept the suggestion from defendant that the expenses of his son would be born by S.K.O.K.; and I cannot accept that plaintiff failed to brief him of the decision.

Now on the evidence of the plaintiff I find that defendant asked the plaintiff to give instructions to the Travel Agency to reserve a ticket for his son and to debit (chreosoun) the defendant for the value thereof. The Travel Agency issued the ticket and was used by defendant's son. When defendant failed to pay for the ticket the Travel Agency brought an action against him which they eventually withdrew.

Now the plaintiff in his statement of claim (para. 1) alleges that he was requested by defendant to pay the value of a ticket but this assertion is not at all born out by the evidence. Therefore in this respect plaintiff has failed to prove his pleaded case in face of which his action is liable to be dismissed as unproven (see Savvides v. Mesari- [*433] tis (1985) 1 C.L.R. 261 at p. 268).

Now according to para. 7A of the statement of claim the amount claimed is based on three legs namely:

(a) by way of money paid on the instructions of plaintiff;

(b) and/ or for his benefit;

I have already held that there was no evidence of request by the defendant for the payment of the money; and, also, there was no evidence of any instructions express or implied Therefore, the claim in so far as it rests on leg (a) above has not been substantiated by any evidence.

Now regarding leg (b) of the claim the situation is akin to the one envisaged by s. 69 of our Contract Law, Cap 149 which provides that "a person who is interested in the payment of money which another is bound by Law to pay, and who therefore pays it, is entitled to be reimbursed by the other". This section reproduces verbatim the provisions of s.69 of the Indian Contract Act, 1872 which has been interpreted in a number of Indian cases. According to the learned editors of Pollock and Mulla's "Indian Contract and Specific Relief Acts" 9th ed. at p. 487 et seq., "where the plaintiff has been compelled by Law to pay, or, being compelled by law, has paid money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability under such circumstances the defendant is held indebted to the plaintiff in the amount This section (69) only applies to payments made bona fide for the protection of one's own interest. A person may be interested in the payment; but if in making the payment he is not actuated by the motive of protecting his own interest, he cannot recover under this section It is not in every case in which a man has benefited by the money of another that an obligation to repay that money [*434] arises. The question is not to be concluded by nice considerations of what may be fair and proper according to the highest morality. It is well settled that therte is no such obligation in the case of a voluntary payment by A of B' s debt".

In the instant case the plaintiff said that he asked the Travel Agents to debit the defendant thereby indicating to them that he was acting as agent for a disclosed principal; and he, also, said that he paid the money because he felt exposed ("ektethimenos") to the Travel Agents. But once he had disclosed his principals he was not "compelled by law to pay" and the payment was not made "for the protection of his own interest". He was not at all legally bound to pay but he merely thought that he was in honour bound to pay because he had been exposed.

Further it may be added that in the circumstances the payment was a purely voluntary one but "a purely voluntary payment cannot be recovered back" (see, in addition to the above passage from Pollock and Mulla Leigh and Another v. Dickeson (1885) 15 Q.B.D. 60 at p. 64).

For all the above reasons the claim cannot be sustained under leg (b) of the claim either.

Regarding leg (c) of the claim - "enrichment" - it is governed by section 70* of our Contract Law, Cap. 149 and in Pollock and Mulla (supra) page 497 et seq., the following are stated regarding section 70 of the Indian Contract Act, from which our own section 70 is reproduced verbatim: "Section 70 was frames in the present form with a view to a void niceties of English Law on the subject of quasi contract the [*435] section is not founded on contract but embodies the equitable principle of restitution and unjust enrichment What section 70 prevents is unjust enrichment The word lawfully in this section is not mere surplusage. On the contrary it is submitted that it is of the essence of the section. It must be considered in each individual case whether the person who made the payment had any lawful interest in making it; if not, the payment cannot be said to have been made lawfully Between a person claiming compensation and person against whom it is claimed there must subsist some lawful relationship for that is the implication of the word lawfully' 1n section 70 but that relationship must arise not because the party claiming something has done something for the party against whom compensation is claimed but because what has been done by the former has been accepted and enjoys by the latter. It is only when the latter accepts and enjoys what is done by the former that a lawful relationship arises between the two The expression does in section 70 includes payment of money. It must not be supposed that because s. 69 provides for the case of payment of money, therefore the present section excludes that case". (See also. Hji Loizi v. Iona (1963) 2 C.L.R. 11).

In this case the plaintiff had "no lawful interest in making the payment" and so the section does not apply; and leg (c) of the claim is, also, bound to be dismissed.

All in all the plaintiff has acted as a Good Samaritan but let me observe that the notion of the Good Samaritan is unknown to our Law. In the result the action must fail but in the circumstances of this case there will be no order as to costs.

Action dismissed with no order as to costs

* Section 70 provides as follows:

"Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing done or delivered".