Poning v Barton [2002] PGDC 23; DC428 (21 January 2002)

DC428

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 53 OF 2002

BETWEEN

Sam Poning
Plaintiff

V

Ron Barton
First Defendant

Securimax Security
Second Defendant

Mt. Hagen: Appa, P.M.
2002: 23rd October, 21st January

JUDGMENT

The nature of complaint was that on 9th August 2001 the first defendant took charge of the Mt. Hagen Securimax office and verbally asked the complainant to use his security dog on hire basis at the rate of K6.00 per hour to which complainant agreed. It is claimed that following the verbal agreement, the dog was used as of September 2001 at the rate of K6.00 per hour for 12 hours per day and it built up to K2,160.00 for the month of September 2001.

As of October 2001 and thereafter the hourly rate was reduced to K4.50 for 12 hours up to April 2002 was calculated at K11,340.00. Then the dispute arose as to ownership of the dog in November 2001. Complainant claims that the dog was claimed to be property of Securimax by the first defendant. The defendants therefore did not pay the complainant for the use of the dog and instituted this proceeding.

Defence denied that the dog belonged to the complainant. It was an offspring of the securimax own dogs.

On 23rd October, 2002 Ms. Judy of Tamutai Lawyers informed court that White and Young Williams Lawyers consented to the admission of affidavits on file and they were to file written submission. Defence was filed but no defence affidavit or written submission were filed since court proceeded to ex parte hearing.

Complainant relied on his own affidavit sworn on 23/08/2002 and other supportive documents. There were six people; all employees of second defendant signed a document to say that the dog in issue was owned by the complainant. They said the dog was given to him by a Mr. Ian Stride, then General Manager in appreciation of job done for the second defendant. There was also a statutory declaration signed by Cletus Negints, Operation Manager who declared to the same effect. Although what these people have said may not be proper admissible evidence in the absence of any defence evidence in rebuttal, they go to support complainant’s case on issue of ownership of the dog.

Given the above circumstance of the case, I find that liability is established.

On the issue of quantum, complainant claims that since the use of the dog by the second defendant from September 2001 to April 2002 he had not been paid. He waived the excess and claims K10,000.00.

I am unable to allow for the fuel K10,000.00 claim because complainant did not provide any formal documents of the company to verify the period, dates and hourly rates. Since I have ruled on the liability aspect, complainant was entitled to some amount of money due to him for the use of the dog. I consider a figure of K6000.00 to be reasonable.

I enter judgement for the complainant for a sum of K6000.00 plus 8% interest to run from date of summons to settlement date and cost of the proceeding. The judgment debt is to be settled by the second defendant

In Person: Complainant
Young & Williams: Defendant