DC564

PAPUA NEW GUINEA
[District Court of Justice]

CASE NO. 105 OF 2005

SHARON SWOKIN
Complainant

v

ANDERSONS FOODLAND SUPERMARKET
Defendant

Tabubil: P. Monouluk
2005: 02nd, 23rd, August, 13th September

Practice and procedure – Non suit motion – Is there sufficient and relevant evidence necessary to invite the defendant company to give evidence – Flimsy evidence – Complaint dismissed.

Complainant in person.
Defendant by Gavera Lahui. 

13th September, 2005.

1. P. MONOULUK: The complainant Sharon Swokin is claiming damages against the defendant company Andersons Foodland Supermarket, Tabubil, Western Province. Swokin is claiming a sum of K650.00 as the replacement value of her mobile phone she says that went missing from her bilum that was placed at the supermarket’s bags security counter during one of her visits to the shop.

2. Swokin claims that on Friday 03rd June 2005, she went shopping at the Tabubil Andersons Supermarket at about ten o’clock in the morning. In compliance with the shop’s policy she left her bilum containing a mobile phone and some other stuff with the duty security officer at the shop’s bilum counter for safe keeping. Immediately after shopping, she retrieved her bilum from the guard and placed her shopping inside before heading back to her donga (room). At about 5:30 in the afternoon Swokin says that she emptied her bilum of the shopping and realized her phone was no longer inside. She says that she quickly returned to the supermarket and placed a complaint with the shop manager who advised her to return later. Few days later Swokin was advised by the shop management that their own investigation revealed nothing wrong with its officers therefore the shop will not be responsible for the missing mobile phone. Naturally unsatisfied, Swokin decided to come to court.

3. This matter came before me for trial on the 13th September, 2005 and following the complainant’s case I had to rule that there was non suit motion against the defendant company. The evidence adduced by Swokin are flimsy in the sense that the last time she actually saw her phone was at her own donga where the phone was still inside her bilum just before she left for shopping. This story was corroborated by her own witness Shirley Bill. However none of them can safely say that the phone was still inside the bilum immediately before Swokin passed it onto the security officer for temporary custody. Thereafter Swokin failed once more to show that the mobile phone went missing immediately after she got the bilum back from security guard after completing her shopping. 

4. What is apparent though is that Swokin became aware of the missing phone at about 5:30 in the afternoon – more than seven hours have passed since she left the shop. Not even her witness Lorna Utok can offer any real help to Swokin in her evidence. Utok’s evidence merely goes to say that Swokin hardly gets any visitor to her room and also there is not a chance a stranger could have gone inside and steal the phone. Apart from that there is nothing else.

5. From these evidence it is fairy obvious that there is nothing concrete offered by Swokin and her witnesses that may help her narrow the path of the missing mobile phone into the hands of the supermarket. It is apparent that Swokin hope to rely on the court to make an assumption that the defendant company may have been responsible for the missing phone. While that may be the approach Swokin hope the court will take, it is a matter of law that a party prosecuting a case must call relevant evidence to enable the adjudicator of facts to safely form an opinion that is based on facts and must be reasonable in the circumstances of the case.

6. In civil cases as this one the onus of prove is on the balance of probabilities. The complainant must be sure to adduce all relevant and appropriate evidence that will enable the court to make a ruling in its favour without doubt or hesitation on this balance of probabilities. In this case the fact that there is no evidence that the shop had any knowledge of the existence of the phone inside swokin’s bilum and the fact that Swokin reported the missing phone about seven hours later raises doubt in my mind. She may have lost the phone prior to her shopping between the donga and the shop or after the shopping between the shop and the donga. These possibilities are there and not effectively isolated by Swokin’s evidence. When these possibilities are still alive it is quite unsafe for me to invite the defendant to call evidence in rebuttal because it may give an opportunity to Swokin to fish for evidence.

7. May I say in passing that no law that I know of gives the right to any shop to demand from customers that they leave their bags/bilums with security guards when they enter shops. Shops have come up with rules, regulations and policies that we see today that has forced many of our people to leave behind their bags/bilums often to their own detriment. This particular case highlights the need for shops to provide adequate and safe security measures for those customers who seeks to comply with shop policies in respect to bags/bilums. The fact that shops insist in such practices then by law they have assumed responsibility to provide adequate care to their customers property from destruction or from being stolen. In the event that it happens and the shop is found to be negligent or responsible, not only will the shop be called upon to replace the value of the destroyed or missing property but it can be ordered to pay additional damages we call punitive/exemplary damages as a means of deterrent.

8. Finally based on the earlier findings I have discussed in respect to the evidence by Swokin I now dismiss the complaint.

Orders accordingly.