N11752

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO.  33 OF 2023

BETWEEN:
KURUMBUKARI TRANSPORT LIMITED (also known as KBK Limited) 
Plaintiff/first Cross defendant

AND
SAMSON BAL MUA 
 Defendant/Cross claimant

AND
PUMA ENERGY LIMITED 
Second Cross-Defendant

LAE: DOWA J
10 & 24 OCTOBER 2024; 13 MARCH 2026
CIVIL ACTION-– plaintiff seeking damages for reimbursement of improvements made to Defendant’s property during occupation under a lease agreement-plaintiff failed to offer evidence-proceedings dismissed for lack of evidence.
CROSS-CLAIM-Cross claimant claims against the tenant for breach of the lease agreement for not paying up rental arrears-and for negligence against tenant and a fuel company for installation of fuel tank on demised premises without consent-whether there was breach of lease agreement-whether there was breach of care under the Inflammable Liquids Act and the Wrongs (Miscellaneous Provisions) Act-
Held:   a. There was no duty of care nor a breach of such duty, proceedings against second cross claimant dismissed. b. judgment against the Plaintiff/first cross-defendant for one-month unpaid rent.
Cases cited

Yooken Paklin v The State (2001) N2212
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
Eton Pakui v The State (2006) N2977
Titus Banga v Madang Port Services Ltd (2011) N4302 
 Allen Anis v Dobon Taksey (2011) N4468 
 Kay Pure v Tonnesi Ewebi (2021) N9013

Counsel

M Karu, for the plaintiff/first cross-defendant
S B Mua, defendant/cross-claimant in person  
M Makap for second cross defendant

JUDMENT

1.	DOWA J:	This is a decision on liability and damages.

Brief Facts

2.	The Plaintiff, Kurumbukari Transport Limited, is a trucking company. It entered a tenancy agreement with the Defendant/Cross claimant, Samson Bal Mua, to lease his premises on property described as Allotment 12 Section 163, East Taraka, Lae. While the terms of the lease are not clearly pleaded, what is clear though is the Plaintiff’s allegation that the Defendant unilaterally drafted an lease agreement containing terms not properly discussed and agreed to by the Plaintiff. The Plaintiff alleges that the terms were unfair and oppressive resulting in the termination after the initial term. 

3.	The Plaintiff alleges that the Defendant was responsible for the premature ending of the lease and is entitled to refund all improvements made to the demised premises in the total sum of K 56,000.00 and for the return of property including a Puma Fuel Tank installed on the demised premises.

Crossclaim

4.	The Defendant/Cross claimant denied the claim and filed a cross claim against Plaintiff and Puma Energy Limited. He alleges that the Plaintiff breached the terms of the agreement by failing to pay rents, and secondly for constructing permanent structures defacing and altering the demised premises, especially the installation of the second Cross-defendant’s Puma Tank which was a health hazard to the Defendant’s health and wellbeing. The Defendant is claiming damages for outstanding rent and for installation of inflammable fuel tanks and other unauthorized improvements on the demised premises. 

Trial

5.	The trial was conducted on 10th October 2024. During the hearing, counsel for the Plaintiff applied for adjournment as he was not prepared. The application was opposed. The Court refused the application as the Plaintiff did not file a formal application for adjournment as the matter was specifically fixed for trial. Even then the reasons provided for the adjournment were not satisfactory. The trial proceeded.

Evidence

6.	During the trial the Plaintiff offered no evidence.
 
7.	The Defendant/Cross claimant tendered the following Affidavits:

1.	Affidavit of Samson Bal Mua filed 7th December 2023-Exhibit 1D1
2.	Affidavit of Samson Bal Mua filed 11th December 2023-Exhibit 1D2
3.	Affidavit of Samson Bal Mua filed 21st March 2024-Exhibit 1D3
4.	Affidavit of Samson Bal Mua filed 4th April 2024-Exhibit 1D4
5.	Affidavit of Samson Bal Mua filed 1st August 2024-Exhibit 1D5

8.	The second Cross defendant tendered the following Affidavits:

1.	Affidavit of Charles Muvita filed 31st July 2024-Exhibit 2D1
2.	Affidavit of Markwell Makap filed 13th May 2024 -Exhibit 2D2 

Issues

9.	The issues for consideration are: 

1.	Whether the Defendant is liable. 
2.	Whether the Cross defendants are liable in the crossclaim

Burden of Proof

10.		The burden of proving the claim rests on the Plaintiff and the Cross claimant respectively and they must discharge the burden on the balance of probabilities. Refer: Yooken Paklin v The State (2001) N2212,  Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

Whether the Defendant is liable. 

11.	Although the Plaintiff, Kurumbukari Transport, pleaded a cause of action for breach of contract, it did not present evidence to prove the claim. The Plaintiff did not file any submissions too. It appears it abandoned the claim. In any case the onus is on the Plaintiff to prove its claim with credible evidence, and it failed to discharge that duty and thus the Plaintiff’s proceedings against the Defendant shall be dismissed. 

Whether the first Cross-defendant is liable to the Defendant/Cross-claimant in the Crossclaim.

12.	The Defendant/Cross claimant claims against the Plaintiff/first Cross Defendant the following:

1.	Damages for unauthorized structural developments and installations 
2.	K 342,000.00 for outstanding rentals
3.	K 2,991.79 for outstanding unpaid water bill
4.	K 500.00 for outstanding power bill

13.	The Defendant entered a lease agreement with the Plaintiff to lease its property, Allotment 12 Section 163, Regel street, East Taraka, Lae, Morobe Province. The agreement was executed on 16th January 2021. The basic terms of the agreement were that the Plaintiff would pay K 8,000.00 per month. The rentals would be reviewed on three occasions every six months. The Plaintiff would be responsible for security, power and water. 

14.	It is undisputed that the Plaintiff entered the premises and put up improvements. Amongst the improvements it installed a Fuel Tank which was on lease from Puma Energy Limited, the second Cross-Defendant. 

15.	On 1st August 2022, the first Cross Defendant terminated the lease agreement on grounds of business downturn. The Defendant/Cross claimant acknowledged the termination on 8th August 2022.

Outstanding Rent

16.	The Cross claimant submitted he is entitled to K 342,000.00 in outstanding rental payments. This is for the period between June 2022 and December 2023 at the monthly rate of K 18,000.00 per month.

17.	I have carefully considered the pleadings and evidence and conclude that the Plaintiff is not entitled to K 342,000.00 but a sum less than that for the reasons provided below.

18.	The lease agreement did not have a term. That is, it does not state when the agreement will lapse. The only reference is for a review of the lease over a six-month period. Secondly, the lease agreement does not make provisions for termination of the lease and for the notice period in the event of a termination. It seems it is open and the parties are at liberty of terminating the lease by giving one month’s notice by either party as was done in this case. Thirdly, there is no evidence that the monthly rent was reviewed, and the increase was mutually agreed to by the parties.  The rental increase from K 8,000.00 to K 18,000.00 is a substantial increase and yet not reduced to writing. Mr. Mua’s letter of 8th August 2022 is silent about the increased rent. There are no invoices or statements of accounts produced showing periodical invoices on the rents, let alone at the at the new rate.

19.	Rather, in the Crossclaim, the Cross-claimant expressly pleaded a claim for K 8,000.00 being for outstanding rent for August 2022. In the circumstances, I am not convinced that the Plaintiff and Defendant mutually agreed to an increase in the monthly rental at K 18,000.00. I am prepared to allow for outstanding rent for the month of August 2022 at the rate of K 8,000.00 per month. An award shall be made for that sum.

Outstanding unpaid bills for Water and electricity
20.	The Defendant/Cross claims K 2,991,79 for outstanding water bill and K 500.00 for electricity. The Defendant did not provide any invoices or receipts for the utility expenses. However, I accept that they are reasonable expenses and would allow the claims.

Claim for unauthorized structural developments and installations

21.	There is no dispute that structural improvements were made to the property in the form of a small office building, gravelling road works, electrical works and installation of the Puma Tank for fuel. The Plaintiff’ pleaded that the aggregate value of the improvements amounts to K 56,000.00. According to the correspondence/evidence, the Plaintiff allowed the Cross-claimant to retain the improvements except for the Puma Tank, which remains the property of the second Cross Defendant, Puma Energy Limited. Despite this undertaking, the Plaintiff commenced the current proceedings which apparently triggered the crossclaim by the Cross claimant.

22.	I have considered the pleadings and evidence and am not satisfied that the Defendant/Cross claimant has made out a case for compensation for the reasons below.

23.	Firstly, the lease agreement does not provide for any prior consent to be given by the landlord before structural improvements and installations are put up.  The photos produced show structural improvements are minor in nature, in the form of an office block and an installation put up for the Puma Tank which can be easily removed. These structures are consistent with the trucking/cartage business the Plaintiff was conducting, which the Defendant was aware of. The Defendant invited the Plaintiff and leased its property to operate, and the improvements are part of the deal. The lease agreement did not provide for compensation for any structural damage to the demised premises on termination of the lease.

24.	Secondly, there is no evidence in respect of the Defendant’s allegation that the first Cross-defendant was negligent in installing a fuel tank containing inflammable fuel which was a health hazard to him and his family who live adjacent to the property. There is no evidence of the Defendant/Cross-claimant objecting to the fuel tank being installed. The photographs produced clearly show the tank was carefully installed with protective device, especially a movable container. I find no evidence of the installation being a health hazard.

Summary of claim against the Plaintiff/first Cross-Defendant

25.	In summary, I find the Defendant/Cross claimant is only entitled to judgment for K 10,791.79 with interest at 8 %. Interest from date of Writ to date of judgment amounts to K 2,318.02. The total judgment shall be K 13,109.81. The Plaintiff/first cross-defendant is liable to settle the judgment.

Whether Puma Energy Limited, the second Cross-claimant is liable

26.	The Cross-claimant submitted that the second Cross-defendant is equally liable to him in negligence. He alleged that Puma, without his consent, brought onto his property the fuel tank capable of holding fuel more than the maximum litters to be held in an unregistered property for the purpose under the Inflammable Liquids Act. He pleaded that the installation was too close to his residential home and was a health hazard to him and his family. He therefore alleged that Puma breached a statutory breach of duty under the Inflammable Liquids Act and the Wrongs (Miscellaneous Provisions) Act for bringing into and installing a fuel tank which was a health hazard, exposing the Cross-claimant to harm and loss. 

27.	In response, the second Cross defendant denied the allegations submitting that Puma owed no duty of care to the Cross-claimant. Neither was there any breach of such duty of care.
28.	I have considered the pleadings, evidence and submissions of parties and find the second Cross defendant is not liable. My reasons for decision are set out in the following paragraphs.

29.	The Cross-claimant’s claim is based on the tort of negligence. The burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it. Refer: Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468 and Kay Pure -v- Tonnesi Ewebi (2021) N9013.

30.	The elements of the tort of negligence particularly set out in the case Anis -v- Taksey (Supra) are:

(1)	Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.
(2)	The tortfeasor breached that duty, i.e. by act or omission, the tortfeasor's conduct was negligent.
(3)	Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim.
(4)	Plaintiff and/or victim’s injuries were not too remotely connected to the tortfeasor's conduct; and
(5)	Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

31.	 The Cross claimant and Plaintiff signed a lease agreement which allowed the Plaintiff to conduct its trucking business on the subject property. The second Cross-defendant was not privy to the lease agreement. The Plaintiff/first Cross defendant who had a legitimate right on the subject property invited the second cross-defendant to bring in and install its fuel tank on the demised premises. There is no obligation on the part of Puma to seek consent from the Cross claimant before installing the fuel tank.  

32.	The tank was in custody of the Plaintiff/first Cross-defendant who was leasing the property and Puma was not occupying the subject land. As soon as the lease agreement with the Plaintiff was terminated, the second Cross defendant sought to remove the fuel tank, which was refused by the Cross claimant. The evidence shows the fuel tank was a portable tank which could be easily removed. I find the second cross-defendant owed no duty of care to the Cross-claimant either under the Inflammable Liquids Act or the Wrongs (Miscellaneous Provisions) Act.

33.	Apart from that there is no pleading or evidence that the Cross-claimant suffered from any harm or loss as a direct result of the installation of the fuel tank.

34.	The result the Defendant’s crossclaim against the second Cross-defendant shall be dismissed.

What orders should the Court make.

35.	Based on the findings and reasons given in my ruling, the following orders shall be made: 
1.	Plaintiff’s proceedings shall be dismissed with costs.
2.	Cross-claimant’s proceedings against the second Cross Defendant shall be dismissed with costs.
3.	Judgment shall be entered for the Cross-claimant against the Plaintiff/First Cross-defendant in the sum of K 13,109.81 

Costs

36.	Costs will follow the event. Cross-claimant succeeded in his claim against the Plaintiff, so the Plaintiff shall pay his costs. Since the Second Cross-Defendant succeeded in defending the Crossclaim, the Cross-claimant shall pay the second Cross-defendant’s costs.

Fuel Tank

37.	There is no dispute that the fuel tank remains the property of Puma Energy, the Second Cross-Defendant. Puma had faced resistance from the Cross-claimant in removing its tank. There is overwhelming evidence that the parties could not resolve this matter amicably amongst themselves. It is necessary for the Court to order that Puma enter the subject property and remove its fuel tank without any resistance from the Cross-claimant, Samson Bal Mua.

Orders

38.	The Court orders that:

1.	The Plaintiff’s proceedings are dismissed.
2.	The Cross-claimants’ proceeding against the second Cross-Defendant is dismissed.
3.	Judgment is entered for the Cross-claimant against the Plaintiff/First Cross-defendant in the sum of K 13,109.81 inclusive of interest. 
4.	The Plaintiff/first Cross Defendant shall pay the Cross-claimant’s costs to be taxed if not agreed.
5.	The Cross claimant shall pay the second Cross-Defendant’s costs to be taxed if not agreed.
6.	The second Cross Defendant, Puma Energy Limited, shall enter the subject property and remove its fuel tank without any resistance from the Cross claimant within 30 days from date hereof.
7.	Time is abridged

Lawyers for the plaintiff/first cross defendant: Daniel & Associates Lawyers	
Lawyers for the second cross-defendant: Allens lawyers		
.