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Mell v Christer [2005] PGDC 64; DC395 (3 February 2005)

DC395

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 5135 OF 2004

BETWEEN

Anis Mcqullan Mell
Complainant

V

Mr Christer
First Defendant

Brandy Well Limited
Second Defendants

Port Moresby: Mr Gauli M. (Magistrate)
2004: December, 20th
2005: January, 20th – February, 3rd

Counsel
Complainant: In person
Defendant: No appearance

DECISION OF THE COURT

Nature of the Complaint

Gauli – This matter was heard Ex parte. The Complainant claim a sum of K7,452.00 in compensation for his properties that went missing whilst in the custody of the Defendants.

Brief Facts.

The Complainant is employed by Mell Research and Consultant. His employer accommodated him in a premises owned by the Defendant Brandy Well Limited at Six (6) Mile in the National Capital District. The First Defendant is the property Manager of the Second Defendant. The Complainant and his family were been accommodated in that premises since early 2004. The rents were paid by the Complainant’s employer, Brandy Well Limited.

They were behind two months rental payment. On 12th November, 2004, the Defendants locked the Complainant out of the premises with all his properties locked inside. The Complainant took legal actions against the Defendants on 19th November, 2004 and was granted the orders for the Defendants to allow the Complainant to enter the premises and remove his belongings. In enforcing that order with the assistance of Police and the Securities, the Complainant found the following items missing or stolen:-

The Complainant claims in damages for the loss of these personal properties.

Evidence

Basically the Complainant’s evidence is as per the brief facts above. In addition to the facts as deposed above, the Complainant in his "Affidavit In Support" dated 7th December, 2004 and in particular the "Paragraph "3" stated that his personal belongings were moved out of the house and were store in a container outside. When he removed his properties from the container he found the items mentioned above more missing, most probably stolen.

The Reserve Constable Steven Aua of Boroko Police Station deposed in his Affidavit dated 19th January, 2004 and the witness Joseph Pali deposed in his Affidavit dated 17th January, 2005 confirmed that the Complainants personal belongings were retrieved from a container and those mentioned items were missing. Witness Joseph Pali was in fact residing with the Complainant up to the time they were locked out of the house by the Defendants. This witness knew exactly the Complainant’s properties that were stolen or missing since they were locked out by the Defendants. On the balance of probabilities I am satisfied that the Complainant has suffered in the lost of those properties whiles they were in the custody of the Defendants. The Complainants belongings were moved out of the house and stored in a container since the house was going through renovation and or repairs.

When the house was going to be repaired the Defendants knew that the Complainant’s belongings were still in that house. He did not have the cutesy of inviting the Complainant to personally witness his belongings from being moved out of the house to a container. I find the Defendants liable for the loss of the Complainants belongings.

The First Defendant Mr Christer is the property Manager of the properties of the Third Defendant. The first Defendant is the one who locked out the Complainant and his family. And he was responsible for the maintenance done in the house rented to the Complainant. The first and the 3rd Defendants have a master and servant relationship. As such the 3rd Defendant is vicariously liable for the actions of his servants or agents the first Defendant that resulted in the loss of properties of the Complainant.

I have no evidence of the Second Defendant James Collins of his relationship with the third Defendant, nor is there any evidence of the part played by the second Defendant. I would discharge the second Defendant of any liabilities incurred by the first Defendant.

The Court hereby enters judgement in favour of the Complainant in the sum of K7,452.00 against the First and the Third Defendants plus 8% interest per year and costs.