Kale v Simanga [2004] PGDC 8; DC83 (7 December 2004)

DC83

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 298 OF 2004

BETWEEN

SIR KOBALE KALE
Complainant

AND

GAGUM SIMANG
Defendant

Mt Hagen

SW Seneka
2 November 2004
7 December 2004

COUNSEL
Complainant, In Person
Defendant, In Person

JUDGMENT

S W Seneka: Complainant is claiming K6, 000.00 being for outstanding rent owes by the complainant for the period of six (6) years.

Defendant has denied the claim raising the defence of agreement of sale and purchase for K1, 500.00. Before complainant left for campaign defendant paid K1, 000.00 and K500.00 still outstanding.

There were total of eight (8) witnesses four (4) each from both parties. Complainant said Defendant got Complainant's house to rent it for K1, 500.00 per year. She paid K1000.00 and K500.00 is still outstanding. Complainant has claim for the K500.00 for this but defendant has yet to pay up. The house is a big house with three (3) bedrooms and is not worth K1, 000.00. A Madang man had sold it for K9, 000.00 when complainant went to repossess it, defendant refused to move out.

Defendant had heard about rent of the house and she asks to rent it so I agreed and she paid K1000.00 in 1999.

In cross-examination he agrees entering into a rental agreement and that the agreement was made outside Works on the road.

His witnesses said they came with Sir. Kobale Kale from Kundiawa to Mt. Hagen. Whole morning they finished what they came to do. About lunch time before returning to Kundiawa they went to Defendant's house at PWD compound. He talked to a person and got into the car. Defendant ran to the car and gave some money. Complainant said rent was K1, 500.00 a year. He said outstanding is K500.00 and accepted the K1, 000.00 and they took off.

Robert Karl claimed to have seen the K1, 000.00 paid and heard that it was for rent. Ioba Gola said they came to collect rent and only received K1000.00 from the defendant and K500.00 outstanding. Jaes Bon said when they went to Works compound complainant went down to check the house. He returned and defendant followed and paid K1, 000.00 outstanding K500.00 yet to be paid.

On the other hand defendant said her name is Elizabeth Simeng of Koifu village Morobe Province. She does not know of Gagum.

Complainant was standing for election in Simbu in 1997. He came and sold the house to defendant for K1, 500.00. It was never for rent so defendant bought it for K1, 000.00 and outstanding K500.00 yet to be paid. Maria Simeng was with her. He never came with another person nor was anyone in the car. He got the K1, 000.00 near the house walked to his vehicle and left.

If the house was for rent she would not have paid K1000.00 as it was too much for her. The house was for sale and not rent.

In cross-examination defendant insisted the house was for sale for K1, 500.00 and she bought it. It was not for rent. There was no verbal or written agreement entered into and agreed that K500.00 was still outstanding.

Her other witnesses are Maria Simeng, her daughter, who said she was with her when complainant came to the house and received K1000.00. He was selling at K2, 000.00 but defendant only paid K1, 000.00. He came by himself no one was with him. When he left for eight (8) years, complainant never came for outstanding rent nor to remove them. Moses Ima agree with her. In cross-examination they insisted complainant came by himself and no one was in the car. That he was paid in front of the house not at the road.

Henry Wai wanted to buy the house but the money was in the bank when complainant came that weekend on Sunday. He was in the house asleep but knew defendant had the money. He knew the house was to be sold at K1, 500.00. In cross examination, he said defendant came by himself and no one was in the car. That the payment was the purchase of the house and not for rent.

Evidence seemed to be conflicting. Complainant said he came with some men and they were in the car. That defendant came to the car and paid the rent and they heard it was for rent and not for purchase of the house.

Defendant on the other hand said complainant went by himself and that he went down to the house in front of it and received the money. Her daughter supporting her evidence that the house was purchased in 1997 at K1,500.00. Only K1,000.00 was paid no one was in the car when complainant took off. Defendant walked with complainant to the car and he took off. No one was in the car and this was observed by her witnesses.

Whether there was anybody in the car or not will be made clear later on. But the issue now is whether there was an agreement to sale or rent.

Date is not in issue but its settlement will have some effect on the evidence Complainant said he received the K1000.00 in 1999 while defendant said 1997 when complainant was involved in the election I tend to agree with 1997 as complainant relate the payment to date when the election was on and also defendant may have been involved in the election.

Complainant offered (3) witnesses who said they came with him to Mt. Hagen on a Sunday in 1999. They went around Mt. Hagen town and at about 1:00 PM went to Works Compound. They stopped at the road and defendant came and paid K1, 000.00 though complainant demanded K1, 500.00. At this stage, it is not clear how defendant knew complainant was there to collect rent. There was no evidence to say defendant was walking at the roadside or she happened to be there or she was called out from the house. Defendant witnessed said they were in the car and observed defendant making the payment for rent. They heard complainant said the money was for rent.

On the question of whether, complainant went with these witnesses to Works Compound in 1999. Defendant and her witnesses said complainant came to the house and received the money for the house he was selling at K1, 500.00. Her witnesses said complainant was near the house and received K1, 000.00. He was asked to count the money but he didn't. Her other witnesses Henry Wain said he knew of the sale of the house but his money was in the Bank and it was weekend and banks are closed. He lost because defendant had the money and bought the house. He saw complainant's vehicle and no one was in the car.

Complainant said his witnesses were in the car when he stopped at Work's Compound roadside. While defendant said no one in the car. I'm unsure how defendant happened to be at the roadside at Works compound when complainant came and stopped his vehicle beside her and she paid K1, 000.00. I'm of the view that defendant stopped the car and walked to the house he was to sell or to defendant's house.

Complainant's witness did not clarify why they came to Mt. Hagen whether they were complainant escort or had some things to do in Mt. Hagen. There was no evidence to show what they came to do and tell the court who was with them in the car. I'm not convinced they accompany complainant to Mt. Hagen. But if they did I'm not convinced that they come with complainant at Works Compound.

I accept as fact that complainant went by himself and stopped at roadside of Works Compound and walked to defendant's house. They agree that the house was for sale for K2000.00 and reduced to K1, 500.00. That defendant has outstanding of K500.00 complainant's witnesses were never there to know the agreement was for sale of house.

I tend to agree that the house was for sale at K1,500.00 in 1997. Two reasons why I came to that conclusion.

Firstly, complainant took the K1, 000.00 and forgot about the house for eight (8) years. Suddenly 8 years later he remembered that he had a house and the occupants have not paid rent.

Secondly, complainant never made any attempts to remind defendant that she has to pay rent or face eviction. No such attempt were made. Indeed complainant raised this in his evidence but there was no evidence to support it.

I am convinced that the house was for sale and it was at K2, 000.00 reduced to K1, 500.00. K1000.00 was paid and outstanding is K500.00 after (8) eight years, the K500.00 is still outstanding and is still current. I will go back to the original sale at K2, 000.00 and make the outstanding at K1, 000.00.

The claim for outstanding rent of K6000.00 has not been proven that outstanding amount of K500.00 for sale of house remain and court increase it to K1, 000.00 as this has remained for (8) years.

In Person Complainant
In Person Defendant