DC223

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 30 OF 2001

BETWEEN

Las Komp Trading As
Eagle Sound Studio
Complainant

V

Charlie Kong
Mrs. Junghi Kong
First Defendant

Koreana Enterprise
Second Defendant

Mt. Hagen: Appa, P.M.
2001: 15th November, 13th December
2002: 2nd January

Judgment

The complainant claims that in August 1998 he and the first defendant have made an agreement (oral) that complainant was to provide music entertainment at Cocobango Club to attract and entertain customers. The proceeds from the gate taking was to be kept by the complainant. Following the agreement or arrangement a room space within the club was allocated to the complainant to keep his musical instruments. 

The Security guards at the club were employed by the defendants. Since the agreement was oral, it is difficult to know the exact terms and conditions.

According to the evidence complainant had provided music at the club as agreed until on 19th June 2000 when there was a break and enter at the club into the room the music instruments were kept and the thieves have made off with all the musical equipment at the early hours of 28th June 2000 while the security guards were asleep. The matter was reported to police and police attended the scene and took finger prints. To date no arrests have been made. Total value of the stolen music instruments was assessed at K14,624.00. This was based on quotation provided by Brian Bell.

Defence denied the claim that they were responsible for the safety of the musical instruments. There was no dispute that there was arrangement for complainant to provide music at the club and to keep the instruments in a room at the club.

I have considered the evidence presented by both parties and have made the following observation.

(a) I am satisfied that there was an implied agreement by which complainant was to provide music at the club and it was executed from 1998 to June 2000 without any problem.

(b) I am satisfied that the club was leased by the defendants.

(c) I have no doubt that on 19th June 2000 there was break and enter and stealing at the club and the musical instruments were stolen from the room allocated to the complainant.

(d) I am satisfied that the incident was reported to police the next day and police attended.

(e) I am satisfied that defendants have employed security guards at the club to protect properties within the club.

(f) I am satisfied that defendant were in effective control of the club premises.

While it was true that there was no specific written agreement, the past conduct of the parties from 1998 to June 2001 have implied that there was an oral contract as already discussed and through the negligence of the defendants employed security guards, thieves have gained entry to the club and broke into the room where instruments were kept and were stolen.

I am therefore, satisfied on balance of probabilities that liability is established.

On the issue of quantum, complainant claims for K10,000.00 based on quotation provided by Brian Bell for the whole set of the instrument band. No mitigating factors were provided in defence. I have to take into depreciation of the instruments, I assessed at K8,000.00 to be reasonable.

I enter judgment for the complainant for a sum of K8,000.00 in general damage plus 8% interest and cost of the proceeding. Should the police succeeded in recovering the stolen musical instrument, this order would be ineffective. No orders as to economic and business losses due to lack of evidence or particulars. 

The judgment debt is to be settled by the second defendant within 21 days from service of the orders.

Dated this 2nd day of January, 2002 at Mt. Hagen.
........................
RAPHAEL APPA
By the Court