Tepi v Kong [2004] PGDC 5; DC80 (12 July 2004)

DC80

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 57 OF 2002

BETWEEN

JACK TEPI

Complainant

AND

CHARLES KONG (MRS)
First Defendant

KK PARADISE (T/A) KORIANA ENTERPRISE
Second Defendant

Mt. Hagen

S W Seneka
11 November 2003
27 November 2003
12 July 2004

CIVIL LAW- gaming machine malfunction - game of chance- evidence by affidavit - more affidavit to support or confirm - implied contract to pay credits when won.

Cases Cited

Kimbe International Primary school v Narpal [1987] PNGLR 442
Ipa Saki v Collins and Leahy Ltd [1997] PNGLR 226.
Anderson Liniame v Inspector Jacob Yansuan [1996] UR N1416.
Wama Kints and others v SC Rivs Nokondi [2001] UR N2113
Counsels
Complainant, Mr. Yallen of Warner Shand Lawyers
Defendants, Mr. Kak of Paulus M. Dowa Lawyers

SENEKA: Complainant is claiming that he on the 26/02/02 went to play poker at KK Paradise section 50 Lot 1 of Mt. Hagen. He was with Paul Akel and they were playing pokies. Complainant was playing at Machine 16 while Paul Akel was on Machine 17. They played until about 11:00 pm. Complainant was able to win two sets of 200,000, credits totalling 400,000 credits.

The 400,000 credit was worth K20,000.00.

When he went to claim the money Mrs. Charles Kong did not pay immediately but was able to pay K1,000.00 after seven days. On that same night (11:00 pm) when Mrs. Kong was not able to pay up the matter was reported to police at Mt. Hagen Police Station.

Sergeant John Noki who attended to this complaint went to the scene. His on the scene investigation showed machine No. 16 showed the 400.000 credit. The operator advise him that there is nothing wrong with the machine. If at fault the machine would go off or will advise the customer of the fault. But this never happened so the credit were indeed correct and advised that complainant should have been paid.

Defence on the other hand rely on evidence from (2) Technicians, one from Mt. Hagen and the other from Port Moresby. The one from Mt. Hagen Luke Takoim said he was present when complainant won 400,000 credit. He observed that the machine giving the credit was wrong and had to ring Port Moresby to verify it and that same night he played the machine and found it to be malfunctioning. He advised the complainant of the malfunction.

The second Technician Alois Lavuur based in Port Moresby was asked to verify the technical malfunction at KK Paradise Gaming site at Mt. Hagen. He was able to verify one 200,000 credit but not the other 200,000 credit. So he accordingly advised the complainant of the malfunction.

What seemed to be the evidence is that complainant played with machine 16 while Paul Akel on machine 17. Complainant struck luck with (2) lots of 200,000 credit total of 400,000 worth K20,000.00. When complainant went to collect defendant refused to pay immediately for no apparent reason. Complainant went and report the matter to the police. Sergeant John Noki attended to the complaint. He did not see anything wrong.

Defendant called two (2) witnesses, who are Technician to give their evidence by affidavit. Luke Takoim based in Mt. Hagen said he was at the scene who checked the machine and found it to be malfunctioned and advised complainant. The malfunction was allegedly confirmed by Mr. Alois Lavuour based in Port Moresby.

Complainant claims that there never was a malfunction at Machine No. 16 which defendant said there was. The issue therefore is whether there was a malfunction or not.

The evidence before the court is not clear as to how the machine (machine 16) operates or is operated and the result after being operated. Evidence from both sides seems to show that they played the machine. In the case of complainant, Jack Tepi played the machine No. 16 it gave 400,000 credit while defendant Luke Takoim replayed the same machine soon after.

Complainant played the machine and received 400,000 credit when the police (Sgt. John Noki) came to investigate why the credit was not paid he was told nothing was wrong with it. He saw the machine had 400,000 credit on it.

Defence by Luke Takoim, said he was present and reported the matter immediately to Port Moresby. He said he was suspicious and replayed the machine and found it to be malfunctioning. This was confirm by Alois Lavuvu of Port Moresby.

Defendant submitted that these two affidavits support each other but they are inclusive. For eg where was Luke Takoim when Sgt. John Noki came to the scene to attend to the above complaint. No reference was made to first defendant or police enquires. Was complainant called to be present when the machine 16 was replayed. In relation to Alois Laruvu's affidavit he was asked to verify a technical malfunction that occurred at KK Paradise Gaming site in Mt. Hagen sometimes in February 2002. Affidavit did not show when and where he carried out and discovered the malfunction.

Luke Takoim mentions in his affidavit that on the night complainant had a lot of credit, he immediately rang Port Moresby advising them to stop the machine. Yet in Alois Laruvu's affidavit no reference was made to the call.

The two (2) affidavits also depend on the affidavit of one or both defendants. What action they took soon after they received the 400,000 credit. Their explanation as to the malfunction and the delay in paying the K10, 000 and not the other K10,000.00. There are no such affidavit and so the evidence of defendant does not bear much weight.

Her Honour Davani J, in the case of Wama Kints and others v Sc Pius Nokondi 2001 N2113 said that there need to be other affidavit to support or confirm the others affidavits. Her Honour went on to say Defendant's claim that plaintiff claim was bogus but defendant had no evidence to prove bogus claim was false.

It goes to show that a party need to file other affidavits to support and confirm the first or earlier affidavits or vice versa. Defendant claim machine 16 was malfunctioning. Why didn't he advise complainant on the spot? Why did she wait for a week and pay half (½) and not the other without explanation. Injia J. (as he then said was) in a criminal case of Anderson Limanua v. Inspector Jacob Yansuan UR N1416 was discussion the effect of affidavit and said at p4.

"This court is given the ultimate discretion under sec 35 (2) to allow or disallow the use of an affidavit or any part of the affidavit or to attach such weight as it sees fit on the matter disposed to in the affidavit".

The case before this court is a civil case and the standard of evidence is on the balance of probability. I said earlier that defendant's affidavit do not bear much weight without defendant herself or themselves giving their evidence by affidavits.

I believe that Machine 16 was perfectly operational when 400,000 credit was giving. There being no malfunction.

I accept complainant submitted that this is a simple contract of game of chance as explained in the case of Kimbe International Primary School v Narpal [1987] PNGLR 442 and followed by Ipa Sake v Collins and Leahy Ltd [1997] PNGLR 226.

The agreement being that complainant made an offer paying to use or play a machine. Defendant agreed in giving machine 16 in consider of either to win or loose by the number of credits he received or not. A game of chance.

In the usual contract there are terms which make up the body of the contract. It is on these terms that the parties agree upon. In these terms implied term can be read into it.

But the case before this court is not a business contract but a contract of chance allowed by Gaming Machine Act No. 24 of 1993. There are no terms but there can be implied in to consider the contract. In Kimbe International Primary School King AJ at p 444 said:

"a term may be implied if the express terms of the agreement are silent or to an obvious essential matter is, if it is a fair term which a reasonable person should think must be implied so as to make the contract work. In deciding whether the term is to be implied the court looks at the alleged term and asks. Would a reasonable person, if called upon to consider whether this term should be implied, say of course it should."

The obvious term in the case before this court is that once the money is paid for the machine Patron will play the machine. In the process if he looses no credit for him. If he wins credit money will be paid to the person who won the credit. So if a reasonable person is called upon to consider whether credit of 400 or 400,000 is win should he be paid and obviously the answer would be of course he should be paid.

I have earlier mentioned that complainant before during or after winning 400,000 credit he was not aware nor advised that machine 16 is malfunctioned. He played machine 16 and won 400,000 credit without the knowledge of its malfunction. Defendants have not successfully convinced the court that machine 16 was malfunctioned and complainant was notified or was aware of the malfunction. Court believe that machine 16 was perfectly operational and complainant without any belief to the contrary won 400,000 credit. These implied term is that whether 400 or 400,000 credit patron must be paid.

For these reason complaint is proved and complainant must be paid K10,000.00 with cost from the date of summons.

Mr Yallen of Warner Shand Lawyers Complainant
Mr Kak of Paulus M Dowa Lawyers Defendants