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Gamuta v Eastern Highlands Savings and Loans Society Ltd [1997] PGNC 105; N1606 (29 August 1997)

Unreported National Court Decisions

N1606

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 331 OF 1996
WILLIAM GAMUTA - PLAINTIFF/CROSS DEFENDANT
V
EASTERN HIGHLANDS SAVINGS & LOANS SOCIETY LIMITED - DEFENDANT/CROSS CLAIMANT

Goroka

Sawong J
30 June 1997
29 July 1997
29 August 1997

Counsel

D Umba for the Defendant/Cross Claimant

No appearance for the Plaintiff/Cross Defendant

29 August 1997

SAWONG J: This was a trial over a dispute between the Plaintiff/Cross Defendant and the Defendant/Cross Claimant over certain monies.

The history of the proceedings is as follows. The Plaintiff/Cross Defendant was formerly employed by the Cross Claimant as its General Manager. He was dismissed from that employment. He then alleged that he was entitled to certain monies totaling K61,954.20. This was not paid to him. Consequently, he filed these proceedings claiming that amount.

The Defendant then made a cross claim against the Plaintiff. The proceedings was some what protracted, but eventually the matter was set down for trial. Subsequently events occurred including the Plaintiff being charged for contempt for not complying with a previous court order. That order said that he was to move out of the cross claimant’s house by a certain date. This he didn’t do and he was eventually arrested and detained. After that, he moved out of the said premises and the substantive matter was set down for trial on 30 June 1997.

On that day, neither the Plaintiff nor his counsel appeared to prosecute his case. Consequently, Mr Umba applied to have the substantive proceedings by the Plaintiff be dismissed for want of prosecution. I granted the order and proceeded to hear evidence on the cross claim by the Defendant. This decision is in relation to that cross claim.

After hearing the evidence, I allowed Mr Umba to file written submissions. This he has done. I have read and considered carefully both the evidence and the submissions.

The cross claim against the Cross Defendant is for the sum of K31,371.66 being alleged outstanding rent that the cross claimant would have received had it rented the property out, if the Cross Defendant had vacated the premises.

The premises is known as Section 22 Allotment 44, Goroka. There is no dispute that the Plaintiff occupied the premises from 9 August 1991 up to and including 24 April 1997.

The issue is whether the cross claimant is entitled to claim this money, that is the sum of K31,371.66 from the cross defendant. The Cross Claimant’s evidence consisted of both oral and documentary evidence. In so far on documentary evidence is concerned, the relevant evidence is a copy of the Title Deed to the premises. That document shows conclusively that the cross claimant is indeed the proprietor of the said premises.

Mr Norman Yaga gave oral evidence. He was appointed caretaker Manager of the affairs of the cross claimant. Included in his responsibilities was to care for the properties of the cross claimant and to rent out and collect rents from tenants renting the cross claimant’s properties and banking them. He further stated that upon taking up the job, he requested the cross defendant on several occasions over a lengthy period, since his termination, to vacate the premises. However, the cross defendant did not do that. Because of that, Mr Yaga said that he was unable to let the property out to be rented and thus the cross claimant lost financial benefits. His evidence was that if Mr Gamuta had moved out soon after his services was terminated, the Society would have rented out the property at approximately K450.00 per month. The uncontested evidence was that the property could have been rented out a rental of K450.00 per month. Thus he said the Society had lost potential rental income from 9 August 1991 to date when Gamuta left the premises (24 April 1997), a total loss of K31,371.66.

Mr Umba has submitted that in those circumstances, and in view of the undisputed and uncontested evidence, the cross claimant is entitled to the sum of K31,371.66.

It is quite clear that Mr Gamuta had no legal nor equitable right or interest to remain in the cross claimant’s premises after his services were terminated. His only remedy at law was to move out of the premises, and sue for wrongful dismissal, if at all. It is also equally clear that because of his unlawful occupation of the cross claimant’s premises, the cross claimant was deprived of the income from the rental of its premises. In these circumstances, I accept Mr Umba’s submission.

However, I consider that some allowance must be made for contingencies such as the property remaining unrented or not being rented out at all, or being rented at a lower sum. I would allow 20% for such contingencies. There will therefore be judgement for the cross claimant in the sum of K25,097.33.

I allow interest on K20,000.00 at the rate of 8% from the date of the Writ to date of trial which is K2,251.32.

I make the following orders:

Finally, I note that the cross claimant owes the cross defendant the sum of K10,185.31. I order that that amount be deducted from the sum of K27,348.65, which will leave the cross defendant owing the cross claimant a sum of K17,163.28.

Costs shall follow the event.

Lawyers for the Defendant/Cross Claimant: Acanufa & Associates

Plaintiff/Cross Defendant: In Person