Kainda v Pyaso [2001] PGDC 44; DC372 (23 November 2001)

DC372

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 32 OF 2001

BETWEEN

George Kainda
Complainant

V

Sam Pyaso
First Defendant

SP Welding & Plumbing
Second Defendant

MT. HAGEN: APPA, P.M
2001: 11th OCTOBER
23rd NOVEMBER

JUDGMENT

The complainant claims in this proceeding that sometime in 1997 him and the first defendant started a partnership business in welding and plumbing. He provided land at section 100, Lot 47 at Warakum and defendant provided capital and equipments. The business was operated under the registered name of the second defendant. They had joint signatures to the account (BSP).

It is claimed that after operating the business for almost three years, without the knowledge of the complainant, first defendant had closed down the workshop in September 2000 and went to Port Moresby. He claims that defendant sold a Toyota Hilux which belonged to the workshop and shipped another vehicle to Moresby. Complainant was not given any share from the proceeds as his share in the business so he now claims his share of the business.

The first defendant claims in defence that it was not a partnership business. He said it was his own business because he had already paid complainant for the workshop building and land so complainant could not claim anything from the business. The first defendant relied on a Statutory Declaration illegally signed by the complainant on 24.5.94 as proof that a payment of K3, 000.00 was made to complainant in payment for the land and workshop. Defendant makes a cross claim on his improvement to the workshop at K21, 000.00 which is beyond the jurisdiction of this court.

The complainant provided evidence to rebut defendant’s claim on purchase of the land and workshop denying any knowledge of the statutory declaration. One of the persons named on the Statutory Declaration as a witness to the signing of the Statutory Declaration also denied that he witnessed the occasion.

It is noted that the first defendant did not call Ben William, the commissioner for Oaths who signed the Statutory Declaration to give evidence to explain the circumstance under which he had witnessed and signed and also to tell the court if he had the power to do so. It is also to be noted that a use of a statutory declaration is not a substitute for affidavit evidence. It is also not an enforceable agreement. There are other documents provided by the Housing Corporation Lands Department showing that complainant has got permanent houses and other properties valued over K30, 000.00 in values on this land (S.100 L. 47) so how could he simply sell off the land for more K3, 000.00 to the defendant as suggested on the Statutory Declaration. I do not quite belief the stories or evidence advanced in defence.

On that note it is inferred that defendants were making business on complainant’s land and workshop without paying any rents, they failed to comply with partnership rules to give pay off debts or bills and sharing of profits and proceeds from the business before winding down. I find that liability is established on balance of probabilities.

On the issue of quantum, complainant claims a global figure of K10, 000.00 for his share from the business. However, it is too general and lacks particulars as to how he arrived at K10, 000.00.

It appears from his evidence that he charged K300.00 per month in rental for 36 months not paid which turned to be at K10, 800.00. He waived the K8000.00 and claims K10, 000.00.

Following the above ruling on liability, complainant is entitled to something but as to the exact amount it is not certain because the figure of K300.00 per month in rental is not based on any agreement. To be fair to the defendant, I reduce the rental rate down to K150.00 a month. I set this rate on the basis that on 14th July, 2001 both parties had a meeting at Warakum with some leaders to discuss settlement during which time defendant intended to restart the workshop business and negotiated rental rate. It was suggested that defendant agreed to pay K200.00 per month which complainant rejected. On that rate, I arrived at a total figure of K5, 400.00 to be a reasonable amount to be paid by the defendant in settlement of the claim. I allow 8% interest on K5, 400.00 to run from date of summons to date of settlement and nominal cost of the proceeding (yet to be assessed). Defendant’s cross claim far exceeds this court’s jurisdiction so its not considered.

MR. RAPHAEL APPA, MAGISTRATE