DC5012

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

GRADE V CIVIL JURISDICTION

DC NO 2205 OF 2007

SOSOPE KEROWA MAMINTI
- Complainant -

-V-

VEGMARK LIMITED
- Defendant -

Port 	Moresby:	Pupaka, PM
2008:			9th July

Civil proceedings – Defendant rented complainant’s premises and used it for storage purposes – Cooler installed on it not removed when lease expired – Cooler not removed for six months – Damages for losses suffered plus costs incurred as a result.

Liability denied – Defence – Complainant or his agent prevented removal – Evidence shows complainant did not caused or authorized prevention – Defendant’s agent did not seek complainant’s help – Defendant’s manager either unaware of anything or did nothing or did not do enough to remove cooler – Liability proved – Damages claimed and quantum not disputed – Complainant entitled to damages – Costs.

Mr. Kop for the Complainant
Mr. Tilto for the Defendant

25th July 2008
PUPAKA: This has been a vigorously contested damages suit. The parties filed affidavit evidence and relied on them. They subjected each others witnesses to cross examination. Written submissions have been filed. I have perused the evidence and submissions carefully and the following is my considered judgment in the matter.

FACTS GENERALLY

Parties are agreed that they had a landlord /tenant relationship previous to the events in question. The defendant appears to have leased from the complainant space on the latter’s leasehold land, Portion 1618 Milinch Granville (Erima), Fourmil Moresby, Volume 117, Folio 199, N. C. D. How much exactly of the leasehold was rented is unclear. There is talk of a supermarket on the property. The cooler was permanently secured to a building structure and the cool room area was fenced in and secured with a lock. So I presume the area where the cooler was located is separate from other business activities within the property. It seems that the cooler site was an area which can be separately utilized or leased out for value.

The lease between these parties commenced initially at K1, 000.00 a month. An assertion in the pleadings that it was later increased to K2, 000.00 is disputed. It is not necessary to resolve this issue because, despite the pleadings, the complainant has now based his damages calculation at K1, 000.00 a month. The lease was terminated in October 2003. The cooler was removed six months after the lease ended and the defendant vacated the premises. As to why the cooler was not removed earlier is the pivotal issue.
THE COMPLAINANT’S CLAIM

The complainant wrote to the defendant first on 4th February 2004 requesting payment for effective and continued occupation after the lease had expired. By 4th February it was three months effective occupation outside the lease so the complainant asked for K6, 000.00, which was three months’ rent at K2, 000.00 per month. The letter was sent to the defendant by the complainant’s than lawyers but was not acknowledged. A second and follow up letter was written on 24th November 2004 which demanded six months’ rent at K12, 000.00. Again, as before, that demand drew no response. The defendant now does not deny that letters were written.

The defendant wrote to the complainant on 7th May 2007 saying it wanted to settle the complainant’s claim at 3 months’ rent for K3, 000.00. The reasons for the offer are disputed, but the complainant rejected the offer and commenced this suit claiming K10, 000.00.

DEFENDANT’S CONTENTION

The defendant’s defence is based on an assertion that removal was prevented by the complainant or a person acting on his behalf. It denies liability saying it made every effort to remove its cooler six times but five times the defendant’s agents were prevented and chased away by a knife welding man called Tom of Nipa. The defendant’s contention is that the cooler was unlawfully detained by the complainant. After five unsuccessful attempts the defendant’s Port Moresby agent Mr. Stuart Fancy removed the cooler, with police assistance, on the sixth and final attempt.

It is said that the complainant’s losses are self inflicted and the defendant owes him exactly nothing. Under cross-examination the defendant’s manager said an offer of settlement was only merely a goodwill gesture towards the complainant who hails from Western Highlands, because, though it is profit orientated the defendant’s holding company is owned by the Western Highlands people, and it tries to maintain good relationships with the Western Highlands people. The defendant’s manager also said he was prompted to settle by the Chairman of the defendant’s holding company by constantly asking what was being done about the complainant’s claim. It is said this Chairman is the complainant’s nephew.

FINDING OF FACTS

I need to state at the outset that if the defence raised here is not made out, the complainant’s assertions of losses will, in effect, stand unchallenged. Banking on the defence mounted upon a plea that the complainant prevented it from removing its cooler, the defendant never raised issue with the assertion that losses were suffered and it further did not dispute the amount claimed. By his affidavit dated 6th March 2008 the complainant deposed to the fact that he had suffered certain losses. He briefly noted and stated the extent of his probable losses. However during cross-examination the complainant was not asked any question in relation to his asserted losses, either to dispute the probable losses or dispute the approximate quantum of the loss. Therefore, in the event that the defence raised fails, there would be no need to assess damages or ascertain if damages were in fact suffered. Damages and quantum have not been properly thrashed out as contested issues and have not been litigated on the merits.

That said I find it to be a fact that a Tom of Nipa stopped the defendant’s agent Mr. Stuart Fancy and his workmen from removing the cooler. It is not clear how many times Tom of Nipa blocked the defendant’s agents. However, in the circumstances, for reasons that will become clear later on, I deem it not overly necessary to say or determine the number of times the defendant’s agent was prevented. It suffices that Tom of Nipa is the reason why the cooler was not removed from the complainant’s premises for six (6) months.

Neither the defendant nor its Port Moresby agent made any effort to inform the complainant and ask him to assist in the removal, especially when removal was becoming a problem. They may have thought of it at least, yet none of them tried to find out from the complainant why a bush knife welding man was threatening and preventing people who were trying to remove the cooler. The evidence shows that the complainant may not have had a fair idea how much of a problem Tom of Nipa was to the defendant.

It is important to note that when the lease expired the parties parted on good terms. The defendant still had on site a containerised cooler and sundries like vehicle parts that it could not take out immediately. It is also to be noted that the complainant was owed nothing by the defendant upon expiration of the lease so he set no conditions for removal its things. In fact the complainant’s evidence that he asked the defendant to remove the cooler and things quickly because other clients were ready to rent the site is left unchallenged. 

It is not said or is clear if the defendant asked the complainant to get rid of Tom of Nipa but I cannot conclude on the evidence that Tom of Nipa was acting for the complainant. In fact the evidence is that Tom of Nipa was the defendant’s own employee and he did what he did to force the defendant to pay him his last wages.

The complainant’s evidence that Tom of Nipa was the defendant’s employee, previously employed to guard its cooler, is not rebutted. Mr. Tilto for the defendant seems to lay stress on the fact that the complainant has not proved that Tom of Nipa was an employee of the defendant. I would disagree with that. The complainant said enough. It is the defendant who has said nothing on the issue. Mr. Bapa Angie, the defendant’s manager made no mention of Tom of Nipa. If Tom of Nipa had never been an employee, Mr. Angie should have said so. Tom of Nipa was a real thorn in his or his company’s side, in a manner of speaking. Yet no one, including Mr. Tilto, thought it important to ask Mr. Angie to confirm or deny that Tom of Nipa had been the defendant’s employee. This pivotal question was, either by default or design, not asked of Mr. Bapa Angie.

The complainant later engaged one Yawa Muka and paid him K240.00 a fortnight to guard the cooler over the time the same remained at his premises. In fact Yawa Muka was engaged to do what Tom of Nipa usually did. This evidence too was unchallenged.

Just why the defendant thought Tom of Nipa was acting for or furthering the complainant’s interest is not unsaid. It seems the defendant’s Port Moresby agent had no idea who Tom of Nipa was. The agent (Stuart Fancy) was not asked if he knew the reasons why his people were prevented from effecting removal. Perhaps herein may lay an explanation. Mr. Stuart Fancy, having no idea why his people were being chased away, may have feed wrong information to the defendant’s people in Mt. Hagen. Therefore the defendant’s Mt. Hagen people, whoever Stuart Fancy talked with (other than Mr. Angie who says he was unaware of anything) may have thought that the complainant was blocking removal. If this is so the defendant’s people and Mr. Stuart Fancy and his employees may have unduly suspected the complainant of being responsible or of complicity.
Yet no one thought it important to contact the complainant and ask a simple question: Why are you doing this? Had the defendant’s people asked him, the complainant could have advised them he had nothing to do with the activities of their own employee. Moreover no one has said here that the complainant was obligated to interfere in a workplace issue between the defendant and its employee. Perhaps had the complainant been contacted and informed or his assistance sought, he may have felt obligated to do all he could to have the defendant’s vacation of his premises smooth and uneventful.

In any event, had the complainant refused to cooperate when asked; perhaps he would now have to contend with a perception of lack of sincerity and or of having ulterior motives. However, there is nothing in the evidence to show that the complainant was personally responsible for the late removal of the cooler. There is no evidence to show he had control over Tom of Nipa.

When asked in court to say why it took six months to dealt with just one man – Tom of Nipa – and remove the cooler and things from the complainant’s premises, the defendant’s Port Moresby man Stuart Fancy, summarized things by saying that he “was not under pressure from anyone as we were not being paid for the job but we were just assisting a business partner”. Perhaps the truth is a lot simpler. The defendant’s manager knew nothing of what was going on or did not try to find out and the defendant’s agent or his employees thought one unpaid, unhappy Nipa bloke was too much trouble and left it at that, without trying harder.

Then there is the unexplained conflict of evidence between Stuart Fancy and Mr. Angie: Whereas Stuart Fancy said there was dialogue and consultation with the defendant’s manager every time there was a failed attempt to move the cooler, yet the defendant’s manager himself, Mr. Angie, said he was unaware of anything until long after the cooler had been removed. So who is to be believed then?

Mr. Angie also said he was not even aware of letters the complainant wrote to him. He thinks the complainant was dealing with the defendant’s holding company’s Board Chairman direct. This may be true. However it does not explain a simple but vital conflict in the evidence. Either Stuart Fancy lied in that he never communicated or sought further instructions with Bapa Angie after each failed attempt to remove or Mr. Angie is not a truthful witness. If it is any indication of things, the latter did not admit or deny that Tom of Nipa was a former employee, when he clearly needed to do that.

Then there is also the disputed reason for the offer of settlement. The defendant’s manager said the offer of settlement was only a goodwill gesture towards the complainant who hails from Western Highlands because the defendant’s holding company is owned by the Western Highlands people and it tries to maintain good relationships with people from the Western Highlands. It is said the offer was prompted by the complainant’s nephew, the Chairman of the defendant’s holding company, who pressured for settlement. However it is also a fact that the settlement offer was necessitated by the impeding suit. The complainant had given notice through his lawyers. He was negotiating settlement to prevent litigation.

The defendant or its holding company is a large corporation. It would have access to lawyers. No doubt it consulted them before offering settlement. The letter bears no “without prejudice” caption. The offer can only be accepted as a genuine offer for settlement of an impending, viable claim. If it had been accepted it would have turned out to be a wise business decision on the part of the defendant. If it was accepted the offer would have cut out more that half the claim plus costs. As it turns out the complainant was better advised. He elected to sue. Needless to say I do not think the settlement offer was a goodwill offer. It seems it was an offer that had to be made.

The complainant’s evidence that he was prevented from utilizing part of his property because of the defendant’s containerised cooler which was fixed to the building structure, is undisputed. His evidence that he consequently lost out on six months’ business is also undisputed.

In the circumstances therefore I must find that the defendant is liable to the complainant for the latter’s apparent loss of business.
ON QUANTUM

As I already alluded to above, the defence raised is not made out, so the complainant’s asserted losses in effect stand unchallenged. The defendant never raised issue with the assertion that losses were suffered by the complainant and it did not dispute the amount claimed. The issue of damages and quantum were not in issue and were not litigated on the merits. I have also ruled that liability lies in the defendant. Therefore there is no need to separately assess damages or ascertain if damages were suffered.

The complainant initially claimed K2, 000.00 for the six months’ loss of business. However he abandoned that and in evidence, by his affidavit of 6th March 2008, he claimed K1, 000.00 per month instead. In the circumstances the complainant is entitled to damages for loss of business, commensurate to six months’ rent at K1, 000.00 a month, which works out to K6, 000.00.

There were other heads of claims. Even though these were not specifically pleaded in the complaint, they are nevertheless sustained due to the generic nature of the complainant’s damages claim. These claims, even though not specifically stated, are apparently meant to be special damages, and are otherwise recoverable if proved.

One claim is the security guard’s (Yawa Muka’s) wages. Evidence of the complainant and the security guard himself that the complainant was compelled to engage Yawa Muka to guard the cooler and other assorted sundries of the defendant, particularly to perform the duties previously done by the defendant’s employee, Tom of Nipa, are not disputed. Ergo I accept that the complainant incurred this cost. Yawa Muka said he received K240.00 a fortnight for six months, totalling K1, 320.00. The complainant is entitled to be reimbursed that money.

The complainant claimed K280.00 in legal costs, evidently incurred when he engaged Yagi Lawyers to write the two letters now in evidence. These letters are under that law firm’s letterhead, which is adequate proof of engagement of counsel. The amount claimed is reasonable on the face of it and the complainant is entitled to be reimbursed this amount as well. There really is no need for further proof of its expenditure.

The complainant also asked for refund of costs of a trip to Mt. Hagen and associated costs in the sum of K1400.00. This claim is neither supported by evidence of expenditure nor is it proved as necessary expenditure, if ever it was incurred at all. The complainant is not entitled to this amount. 

The complainant further claimed K1, 000.00 in so called “fuel and miscellaneous costs for 6 months” but this head of claim is also one that is not supported by evidence of expenditure and so the complainant is not entitled to it.

CONCLUSION

For all of the forgoing there shall be judgment in favour of the complainant in the sum of K7, 600.00.

Interest shall be paid on this adjudged sum, at the statutory 8 %, from the date of summons to the date of settlement.

The complainant shall have his costs of this proceeding, the same to be taxed if not agreed to between the parties.

_______________________________________________

Daniel Kop Lawyers for the Complainant
Kari Bune Lawyers for the Defendant