Gaia v Gombus [2005] PGDC 18; DC143 (6 June 2005)

DC143

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 5063 OF 2005

BETWEEN

BING GAIA
Complainant

AND

KEPUTONG GOMBUS

First Defendant

MITI SENG

Second Defendant

KIPAS WILLIK

Third Defendant

MARTHA BRIAN

Fourth Defendant

Port Moresby: M Gauli

8, 20 December 2004
19 January, 3, 8, 15 February
1, 15, 31 March, 21 April
16 May, 6 June 2005

DECISION OF THE COURT

Nature of the Complaint

The complainant let Mr. Allan Rengke to rent a tucker shop at a property namely Section 271 Allotment 07, (Gerehu) Hohola, NCD at a monthly rental payment of K200.00 from January 2001 to the year 2004. The defendants collaborated and gave false information that the complainant is not the legitimate owner of the property had compelled Mr. A. Rengke and ceased paying monthly rentals for the same period. The unpaid rentals amount to K6, 240.00. As a result of the defendants unreasonable conduct the complainant suffered loss and damages and he claims K4, 000.00 against the defendants in damages.

Brief Facts

The complainant is the tenant of the premises namely Section 271 Allotment 07 (Gerehu) Hohola, NCD. He owned a tucker shop on the extension to the property since 1986.

The complainant and the defendants are the members of the A&G Taxi Truck business group established in 1973 but the business had defunct. One of the assets owned by the Group was the Section 271 Allotment 07 Gerehu. The complainant was the caretaker of the said residential property from 1973 to 1985. In 1985 the complainant transferred the property under his name when the business group broke down as he was paying the rental through his salary deduction while employed by the Works Department.

On or about January 2001 the complainant entered into an agreement with Mr. Allan Rengke for Mr. Rengke to own and operate the tucker shop on the said property with monthly rental payment of K200.00. Mr. Rengke rented and operated the tucker shop from 2001 to 2004. And he only paid a rent totalling of K1, 260.00 with remaining balance of K6, 240.00.

The defendants collaborated and gave false information to Mr. Allan Rengke that the complainant is not the legitimate owner of the premises thereby compelled Mr. Rengke and ceased rental payments. And the complainant has suffered loss and damages.

The Evidence

The parties have filed affidavit evidence. The complainant has only himself who filed an affidavit. The defendants have filed a joint affidavit and the affidavits of witness Gara Terry and Umbi Kiwilk.

The complainant's evidence is as per the facts stated above. I need not to repeat them.

The defendants' evidence is as follows:

The defendants admit that the complainant was appointed as a caretaker of the said premises since 1973. The complainant was not a member of the A&G Taxi Truck business group nor was he a director. The business group had defunct but the directors are still alive. The complainant is not the owner of the premises but he illegally transferred the property under his name.

The defendants have no knowledge of the complainant's agreement with Mr. Allan Rengke to operate a tucker shop on monthly rent on the said property. The defendants are not a party to that agreement.

The defendant's deny collaborated with Mr. Allan Rengke to stop rental payment. The defendants have no knowledge of Mr. A. Rengke.

The witnesses Gara Terry and Umbi Kiwilk deposed in their affidavits that they are directors of the defunct A.G. Taxi Truck business group that owns the premises Section 271 Allotment 07 Gerehu. The complainant is never a member of the said defunct business group. That he transferred the property under his own name without notifying the members of the group.

The complainant produced a letter from the National Housing Corporation dated 22nd March 2005. The letter shows that the complainant is the legal tenant of the said property and that the house is purchased to the complainant at a price of K4, 734.93. He made a payment of K1, 108.40 with a balance outstanding of K3, 623.53. And that the National Housing Corporation is still holding on to the title until full settlement is made.

The Issues

The title of the property is not an issue in the present cause of action. The only issue for this Court to determine is:

1. Whether or not the defendants collaborated with Mr. Allan Rengke to cease rental payments to the complainant for operating a tucker shop on the premises Section 271 Allotment 07, Gerehu.
   

The complainant alleged that the defendants collaborated with Mr. A. Rengke and gave false information that the complainant is not a legitimate tenant or owner of the premises. And as a result of that collaboration Mr. A. Rengke ceased paying the monthly rent. The complainant did not provide affidavit from any witnesses including one from Mr. A. Rengke. He did not even indicate the time and place the alleged collaboration was made. The law is that he who alleges must prove that he alleges.

The defendants denied collaborating with Mr. Allan Rengke. They said they did not even know who Mr. A. Rengke is nor do they know how he looks like. The defendants denied holding any meeting with the Mr. A. Rengke.

I find that the complainant failed to prove his case against the defendants. The complaint made were mere allegations without proof. The defendants could not be held liable for Mr. A. Rengke's defaults or ceasing to pay the monthly rent for using the premises to operate his tucker shop. I shall dismiss the case against the defendants.

On the 8th February 2005 the complainant obtained a Restraining Orders against the defendants, which restrained them from interfering in the management and the operations of the tucker shop. That restraining order was obtained based on the allegations that the defendants have collaborated with Mr. A. Rengke to cease rental payment.

The Court now having satisfied that the complainant has failed to prove such collaborations against the defendants, it is just and fair that the restraining order be revoked.

And this Court orders that:-

1. The substantive complaint against the defendants is dismissed.
   
2. The Restraining Order dated 8th February 2005 made against the defendants is revoked.
   

In Person: Complainant
In Person: Defendant