Gireway v Wallum [2006] PGDC 4; DC400 (24 January 2006)

DC400

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 3738 OF 2005

BETWEEN

Anna Gireway
Complainant

V

David Wallum
First Defendant

Fredah Wallum
Second Defendants

Port Moresby: Bidar, Pm
2005, 2006: 23rd January

Damages –
Damages to property
Severance/vandalism to electrical wiring to property-
Duty to prove liability and loss

Damages –
Damages to property
Severance/vandalism to electrical wiring to property
Evidence-
Circumstantial
Complainant’s word against Defendant’s
Inferences to draw

Cases cited
There are no cases cited in the Judgment.

Counsel
C. Raurela For Complainant
Mrs. Painap For Defendants

DECISION

24th January 2006

BIDAR, PM: This is a claim for damages filed by complainant against the defendants.

The defendants are husband and wife who were former tenants at Section 120 allotment 24, Air Niugini compound 6 Mile National Capital District.

The defendants moved into the property owned by complainant on 11th July 2005 and vacated the same on 21st December 2005. Complainant claims that since the defendant’s were the last tenants to occupy the property they were responsible for causing damage to electrical wiring, by cutting or severing the main consumer cable from sub board from the top to the bottom unit thus isolating electricity supply, as they left the premises. Complainant claims that defendants were the last tenants and were responsible for the damage caused.

The defendants admit that they were the tenants from July to 21st December 2005 but deny vigorously that they were responsible for cutting the cable and isolating the supply of electricity to the bottom unit.

The evidence is circumstantial only. There is no direct eyewitness account of what actually happened and who was actually responsible for cutting the cable. Complainant’s case is that because defendants were the last tenants, it must be them who severed the cable.

The defendants say on the other hand, that they are not stupid or crazy people to do such a thing let alone, cut a live electrical wiring, which is common knowledge that, it is dangerous and fatal. Defendants, say that, they are not electricians but they know just like anybody else that little knowledge of electricity is dangerous.

Complainant’s case consists of the following witnesses' evidence.

1. Veronica Meme is complainant’s sister. On the morning of 21st December 2005, between 5:30am and 6:00am, she came to the property in question and noticed that the security light was not on and also TV in the room was not on. How she was able to look through and see that the TV was not on, it is not clear. She cleaned around the house outside as she usually does and left. When put to her in cross-examination that the TV was off, and security light off, could mean that people were still asleep she agreed.

2. Romney Gaburi’s evidence is that, he lives at 5 mile, Garia Street. On 21st December 2005, between 5:30 – 6:00pm, complainant went to him and asked him to go to her house, to check as it seemed that there was some electrical fault and lights at downstairs were not on. He went and place was dark. He traced the wiring from upstairs and found that the cables at both rooms was cut and insulation tape tied around severed ends of the cable. He said he had no electrical knowledge.

3. Henzel Kumada gave substantially same sort of evidence as that of Romney. In fact he came at he same time as Romney.

4. Nathan Laiam is resident at 15 mile and employed by Maline Refrigeration Air-condition and Electrical Ltd as an electrician. On 26th December 2005, when complainant approached their office for help, he went to the complainant’s premises. Upon inspection he found the main supply cable was chopped off. He maintained and fixed it up. He then called PNG Power to do inspection, which they did and activated and restored power supply. When questioned whether it was possible to cut off live wire, he agreed provided that to do so, by cutting one wire at a time - tools such as side cutters or 16mm. He argued that those who are not electricians or have no electrical knowledge and who temper with live wires is putting their lives to risk.

5. Anna Gireway – complainant was cross-examined on her affidavit. Basically she maintained that, defendants were the last tenants of her property and it was them who were responsible for cutting the cable, thus putting the property at risk of burning down. She says the defendants motive for doing so was that she asked them on Tuesday night to move out the next day despite their pleas to remain until Friday. Complainant insisted they vacate the property on Wednesday 21st December. Complainant says this was the reason; they cut the cable to show their frustrations.

On the other had, defence case consist of defendant’s oral sworn evidence which complainant cross-examined them on their evidence. Basically, their evidence is that, they deny cutting the cable and there was no reason to do such a thing. They say, they are not stupid or crazy people to do such a thing, and in any case, it is highly dangerous to temper with live wires or cable, which is common knowledge.

So what we have is the complainant’s word against the defendants. The evidence as I alluded to is all-circumstantial. Basically, the court’s task is to weigh all the evidence, and decides what evidence to accept or give more weight to than the other.

I have considered and assessed whole of the evidence as well as the submissions made on behalf of both parties. I am placed in a situation where I am unable to make a definite finding of facts as to who was responsible for cutting the cable or electrical wiring. I am prepared to find that severance or cutting of wiring or cable did occur, perhaps sometimes between 5:00am and 1:00pm that day (21st December 2005). As I alluded to, I am unable to make a definite finding of fact as to the person or persons responsible. Secondly, since this case hinges on circumstantial evidence, whether it is safe to draw an inference, which is none other than the liability of the defendants. In all the circumstances of the case, the court is unable to be satisfied on the balance of probabilities as to the liability of the defendants. In these circumstances, I find in favour of the defendants and find them not liable. I order these proceedings dismissed. I order that parties pay their own costs.

Rageau Elemi & Kikira Lawyers: Complainant
Public Solicitors Office: Defendant