Siwi v PNG Power Ltd [2007] PGDC 19; DC524 (4 April 2007)

DC524

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 35 of 2006

BETWEEN

PAT SIWI
Complainant

AND

PNG POWER LIMITED
Defendant

Goroka: M Gauli
2007: February 19; March 22, 30; April 04

CIVIL - Damages – Disconnections of power supply – Illegal reconnection – Use of power supply under the former user – Back bill for usage of power – Transfer of bill to the current account of the customer.

Cases Cited
Nil

References
1. Electricity Code
2. Standard Customer Supply and Sale Contract

Counsel
Mr. D. Umba - For the Complainant
Mr. D. Wettao - For the Defendant

04 April 2007

DECISION OF THE COURT

M Gauli, PM: The Complainant Mr. Pat Siwi claims against the defendant the PNG Power Limited of Boroko in the National Capital District the damages in the sum of K10, 000.00 for disconnecting the electricity supply to his business premises. He claims damages under two headings: (a) Damages for loss of business, K8, 000.00 and (b) Damages for distress, frustrations and inconveniences, K2, 000.00 plus interest and costs. The defendant denied liability and claims that the Complainant illegally connected the electricity supply to his business premises. The Defendant filed a Cross-claim of K3, 030.00 as a back-billed for a non-payment of electricity supply used by the Complainant as a result of an illegal reconnection. Both the complaint and the Cross-claim are heard together.

2. Facts

The brief facts are as follows. The complainant was conducting businesses in two locations within the township of Goroka, Eastern Highlands Province. These are the Bane Club started in about March 2005 and the Fire House Disco club which was started in 2004. Both properties are located in Kama but the Sections and Allotment numbers are not been made known to the Court. They are only identified by their meter installation numbers. The Fire House Disco Club has the installation No. 42120313 – 10 while the Bane Club has the Installation No. 42118466 – 13.

3. The complainant leased the Fire House Disco Club from the landlord Mr. Efiso Segeyaro. The power supply was disconnected at the time. After the Complainant had paid K400.00 to the care-taker of the property Mr. Seveya Segeyaro, the power supply was re-connected to that property. Then in April 2005the electricity supply to that premises was disconnected by the Defendant when it discovered illegal connection. The Complainant vacated the property in June 2005 and settled all his bills issued under his name.

4. From June 2005 the Complainant was operating business only at Bane Club. When he was issued the electricity bill for the Bane Club for the July/ August dated 05th August 2005 he had the accumulated balance of K5, 105.20. This included some bills transferred from three other installations. These installations were 4211899210 for K283.89; 4212031310 for K3, 807.56 and 4211741208 for K273.33.

5. The Defendant denied every allegations of the Complainant. And the Defendant claims the unsettled back-bill against the Complainant arising from the illegal connection and usage of power supply on the Installation No. 42120313 – 10 and transferred to the Installation No. 42118466 – 13 for a sum of K3, 030.38.

6. Issues

There are number of issues been put to this Court for consideration. And these are as follows:

1. When did the Complainant move into the Fire House Disco Club and the Bane Club premises.
   
2. Was the electricity account of Negiso Bottle Shop being unlawfully transferred by the Defendant’s employees to Bane Club’s account resulting in electricity being disconnected to the club.
   
3. If so did the Complainant suffer any loss or damages.
   
4. Whether or not the reconnection of electricity supply to Fire House Disco Club after the landlord’s request for disconnection was lawful.
   
5. Whether or not the Complainant used the power supply to operate his business at Fire House Disco Club after being illegally reconnected.
   
6. If the answers to Issues 4 and 5 are in the affirmative then, whether or not the Defendant has the right tot back-bill and charge the bills for the usage of power supplied against the Complainant.
   
7. Whether or not the Defendant ahs the right to transfer any power bills unpaid by the Complainant to the other Installations operated by the Complainant.
   

7. Evidence

Before I discuss these issues I should first state the evidence of the parties presented before me. Their evidence are as follows here below.

8. The Complainant has only himself who gave evidence. His evidence is that he operated entertainment business in Goroka for eight to nine years. From November 2004 he leased the Fire House Disco Club for disco dances from Mr. Efiso Segeyaro the landlord. Before that, the premises was used by Negiso Bottle Shop. And before the Complainant moved in to that property its electricity supply was disconnected. After reaching an agreement with the landlord, the Complainant paid K400.00 to the landlord’s care-taker Mr. Seveye Segeyaro and the electricity supply was reconnected and the Complainant began operating business as of November 2004. From November to April 2005 he never received electricity bills for this property until the electricity supply was disconnected in April. A couple of days later he had the PNG Power reconnected the power supply under his own name. Then in June 2005 he closed operating business in there and settled all his electricity accounts to the Fire House Disco Club to the amount of K200.00 for May/ June period.

9. In about March 2005 he commenced operating business at Bane Club which is a drinking club. He was renting this property from a person only known to him as Ago from March to August 2005. His monthly earnings from that business was just over K1, 000.00 compared to his monthly average electricity bill was between K200.00 to K300.00. He had a two years lease over that property but when the electricity supply was disconnected in August 2005 he then ceased business operations at that premises. As a result he lost his business and suffers distress and frustration thus he claims damages.

10. The evidence for Defendant came from four witnesses. The witnesses Mr. Bustin Joseph and Mrs. Maureen Ken testified in Court while the affidavits of witnesses Mr. Junias Aminio and Mr. John Negiegu were tendered to Court by consent. These Affidavits are marked EXHIBITS ‘D’ & ‘E’ respectively.

11. The witness Mr. B. Joseph relied on his Affidavit (EXHIBIT ‘B’). He is the center Manager of PNG Power Limited in Goroka. His evidence is that on 16th July 2004 the electricity supply on the Installation No. 42120313-10 at Fire House Disco Club was disconnected by the Defendant upon the request of the landlord Mr. Segeyaro Nicholas. After the disconnection was effected one of the Defendant’s employees namely Mr. Junias Aminio, A Meter Reader, discovered that the power supply was illegally reconnected and the usage of power has gone up and the incident was reported to the Defendant’s office in Goroka. The Defendant’s investigation into the illegal reconnection on that Installation

found out that the Complainant was operating that property and was operating a liquor shop. The Defendant was immediately advised that what he did was unlawful and he should report to the PNG Power Limited’s Goroka office to fill in the proper application form to reconnect the power supply under his name. However he either refused or neglected to comply as a result the power supply to that premises was disconnected on 23rd April 2005.

12. The usage of power as a result of the illegal reconnection went up to K4, 080.37. The Complainant turned up at Defendant’s Goroka office on the same day the supply was disconnected. The Defendant’s employees insisted that the supply will be reconnected if he agrees to pay for the illegal usage of power. The agreement was reached that the Complainant would pay for the illegal usage of power supply, the sum of K4, 080.37 by instalment payment and so the supply was reconnected the same day. However the Complainant failed to honour that arrangement. His unsettled bill on the Installation No. 42120313 – 10 in the sum of K3, 807.56 was then transferred to his other electricity account on the Installation No. 42118466 – 13 at Bane Club. On 5th October 2005 the Complainant had a verbal discussion with one of the Defendant’s employee Mrs. Maureen Ken and they came up with a special arrangement for the account on Installation 42118466 – 13. Again the Complainant failed to comply and his unsettled bill on that account was K3, 030.38 and the Defendant disconnected the supply.

13. The witness Mrs. Maureen Ken, the employee of the PNG Power Ltd in Goroka, as an acting Customer Services Coordination, relied on her Affidavit marked EXHIBIT ‘C’. Her evidence is that on 16th July 2004 the landlord Mr. Segeyaro Nicholas requested to disconnect the power supply to the Installation No. 42120313 – 10 and so the disconnection was done the same day. And the account was finalized on 16th July 2004. After couple of visits by the Meter Reader Mr. Junias Aminio discovered that the power supply to that Installation was illegally reconnected and the Complainant was conducting normal business there. Mr. J. Aminio told the Complainant on three occasions to report to the PNG Power Ltd office in Goroka to properly apply for power supply under his own name. The Complainant ignored or neglected that instruction. So on 23rd April 2005 the illegal power supply was disconnected.

14. On that same day the Complainant showed up at the Defendant’s Goroka office requesting for the power supply to be reconnected. The Defendant insisted not to reconnect the supply until he pays the illegal usage of power. An agreement was then reached between the parties that the Complainant would pay of the illegal usage of power supply which went up to a sum of K4, 080.37 by instalment and so the Defendant reconnected the power supply to that installation the same day after the Complainant had paid the reconnection fees.

15. On 16th May 2005 the Defendant issued a back-bill of K4, 080.37 for the illegal usage of power supply. A final bill of K195.00 was issued to the Complainant and was off-setted from the Bond Fee. On 14th June 2005, the Complainant paid K267.00 leaving a total balance of K3, 807.56 unsettled. Mrs. M. Ken had a discussion with the Complainant and reached a special arrangement on 5th October 2005in respect to the Complainant’s new Installation or Account No. 42118466 – 13 at Bane Club. That arrangement was for the Complainant to pay K500.00 fortnightly instalment in order to settle the back-bill. The Complainant failed to honour that arrangement so the Defendant disconnected the power supply to the Bane Club on the 5th December 2005. The Complainant has unsettled total bill of K3, 030.38.

16. The Affidavit evidence of Junias Aminio, a Meter Reader with PNG Power Ltd in Goroka is that on or about January 2005 he discovered that the power supply to the Installation No. 42120313 – 10 was illegally reconnected and the Complainant Mr. Pat Siwi was operating normal business on the property. He checked on his Bill Book and confirmed that Installation reading has no customer which means that the Installation was disconnected and bill finalized. He then reported the matter to his Supervisor for investigation and further actions. Between January and March 2005 Mr. J. Aminio and his co-employee Mr. Wesly Johnson advised the Complainant on three occasions to come up to Goroka PNG Power Ltd office to fill in the application for electricity reconnection but he failed to turn up.

17. The witness Mr. John Heziegu, a disconnection and reconnection technician with the PNG Power Ltd in Goroka, in his affidavit EXHIBIT ‘E’ confirmed that he disconnected the power supply to the Installation No. 42120313 – 10 on a property known as Fire House upon the request by the landlord Mr. Nicholas Segeyaro on 16th July 2004. At the time of disconnection the meter reading was 41082. On 23rd April 2005 on instruction by his Supervisor Mr. Pulman Tirang and Mrs. Maureen Ken, he went and disconnected the illegal reconnection of the power supply to that Installation. The reading was 46832. On that same day he reconnected the power supply on that property after the Complainant reached an agreement with the Defendant and paid the reconnection fee.

18. Issues:

I now discuss the Issues the parties have put before this Court for consideration. I will consider both the evidence and the submissions by the parties as I discuss the Issues.

19. Issue No. 1: When did the Complainant move into the Fire House Disco Club and the Bane Club?

20. There is no dispute that the Complainant operated businesses in both the Fire House Disco Club and the Bane Club. Earlier on the Negiso Bottle Shop had operated business on the same premises before the Fire House Disco Club operations were commenced by the Complainant. This premises is owned by Mr. Efiso Segeyaro and the Complainant was leasing it. He spoke to Mr. Seveya Segeyaro, the care-taker of the property, to lease it and an agreement was reached. It is not known the date the discussion and the agreement was made. There is no documentary evidence provided to Court of that agreement. At the time of that agreement the electricity supply to that premises was already disconnected. The Complainant was the unsettled bill so he gave Mr. S. Segeyaro a sum of K400.00 to settle the bill and to reconnect power supply to the premises. Couple of days later the Complainant checked the premises and noticed the power was reconnected. The Complainant did not specify the date he gave the money to settle the outstanding bill plus the reconnection. However he said that he began his operations at the Fire House Disco Club in November 2004. From there on he did not receive any electricity bills so he inquired at the PNG Power office in March 2005, but the employees were not helpful. Eventually the power to that premises was disconnected in April 2005. The Complainant was renting the property at a rate of K400.00 monthly. He has not produced to this Court the copy of the lease agreement he entered into with the landlord or the care-taker nor did he produce the copies of the receipts of the monthly payment he made to the landlord. Such documentary evidence would be of a great assistance to this Court as a proof of the exact or approximate date the Complainant had commenced operating his business on that property. The Complainant did not even call the landlord or the care-taker Mr. S. Segeyaro to confirm the date the Complainant had moved into that premises.

21. The evidence presented by the witnesses for and on behalf of the Defendant is that the electricity supply to that premises was disconnected on 16th July 2004 upon the request by the landlord Mr. S. Segeyaro. And upon disconnection the landlord had settled all his electricity bills to that property.

22. The Complainant has not satisfied this Court that he moved into that premises in November 2004. The Complainant’s failure to produce a copy of the lease agreement copies of the monthly rental payments and or his failure to call the landlord to give evidence in Court would only suggest one thing. And that in my view is that the Complainant is not truthful in his evidence. I find on the balance of probabilities that the Complainant may have moved into that premises much earlier than November 2004.

23. In respect of the Bane Club premises I find no dispute that the Complainant moved into that premises as of March 2005 and operated businesses there on.

24. Issue No. 2: Was the electricity account of Negiso Bottle Shop being unlawfully transferred by the Defendant’s employees to Bane Club’s account resulting in electricity being disconnected to the club.

25. Issue No. 7: Whether or not the Defendant has the right to transfer any power bills unpaid by the Complainant to the other Installations operated by the Complainant.

26. I decided to consider these two Issues No. 2 and 7 together as they are inter-related to each other. The evidence for the Complainant is that when he entered into a lease agreement with the landlord of the property where Negiso Bottle Shop was previously, the power supply was already disconnected. The Complainant was shown the outstanding bill so he gave K400.00 to the care-taker to settle the bill and pay for the reconnection. It would appear from his evidence that the outstanding bill may have been less than K400.00 so that money was enough to cover both the unpaid bill and the costs of the reconnection. Clearly this means that at the time the unpaid bill and the reconnection fees were paid for by the care-taker Mr. S. Segeyaro for the Negiso Bottle Shop there were no outstanding electricity bill for that account.

27. A few days after the lease agreement was entered into between the landlord and the Complainant and the money given to the care-taker to pay for the unpaid bill and the reconnection fee, the Complainant noticed the power supply to the premises was reconnected. So he moved in and used the premises and the power. At that time it does appear to me that the reconnection would have been made under the name of Negiso Bottle Shop and not under Fire House Disco Club. And the Complainant continued the usage of the power supply under the name of Negiso Bottle Shop. If the Complainant’s evidence stands to the truth as it is, then I have no doubt to hold that the Complainant would be liable for the usage of the power supplied to the Installation No. 42120313 – 10 under the name of Negiso Bottle Shop.

28. The Defendant’s evidence is that the power supply to that Installation 42120313 – 10 was disconnected in July 2004 with all power bills settled by the landlord. There was no application made either by the landlord or the Complainant for reconnection of power supply. The Defendant was surprised to note in January 2005 the usage of power supply in that premises by the Complainant. The Defendant had asked the Complainant to visit the PNG Power Ltd office in Goroka to fill in the application under his name but he failed to do so.

That then lead to the disconnection of the power supply on 23rd April 2005. Then the Complainant fronted at the Defendant’s office and the arrangement was reached for him to pay the back-bill and the reconnection made under his name or the Fire House Disco Club. The Complainant closed down business operation on Fire House Disco in June 2005. By then he opened business operations at Bane Club on Installation No. 42118466 – 13 as of May 2005. When the Defendant issued the power bill to the Complainant’s Bane Club premises for the month of July/ August 2005, the back-bill for Negiso Bottle Shop were transferred to the Bane Club account.

29. In the submissions by the council for the Complainant, he never argued or submitted that such transfer of unpaid back-bill was unlawful. The council for the Defendant submitted that the Complainant was aware of the illegal reconnection of the power supply to Negiso Bottle Shop and he was using that electricity supply and conducting his business without paying the bills. It is therefore fair and lawful to transfer the unpaid back bills to the Complainant’s new electricity installation account.

30. The Council for the Defendant referred me to one “Electricity Code” and the other “Supply and Standard Customer Sale Contract” as the laws applicable. I am unable to get any assistance from these laws that gives the Defendant right to transfer the bill from one installation under one customer to another installation under a different customer. However common sense must apply where the law is silent. In the present case the Complainant was using electricity supply illegally reconnected to Negiso Bottle Shop without paying its usage. The Complainant did pay the bills under Fire House Disco Club but not the back-bills under the name of Negiso Bottle Shop which power was actually used by the Complainant. Under those circumstances both logic and common sense need to be applied. And my answer to the Issues 2 & 7 is that transfer of the electricity bill of Negiso Bottle Shop to the Complainant’s Bane Club account was lawful and that the Defendant had a right to transfer any unpaid bills of the Complainant to the other installations operated by him.

31. Issue No. 3: If so did the Complainant suffer loss or damages.

This issue relates to and it depends on the outcome of the Issue No. 2 above. There is no dispute that the Complainant had suffered loss and or damages as a result of the power supply to his Bane Club been disconnected by the Defendant. He did close down his business operations there. However the Complainant was well aware that he was using the power that was illegally reconnected to Negiso Bottle Shop sometimes between July 2004 to 23rd April 2005 after the power supply was disconnected in July 2004. The Defendant had been very generous on him by agreeing on two occasions on a special arrangement for the Complainant to settle back-billed on instalment payment. However he failed to comply to those special arrangements which eventually resulted in the disconnections. And so the question to be asked is whether the Complainant came with clean hands. I find on the balance of probabilities that he has come to this Court with unclean hands. Court will not allow a person for damages suffered where the damages arise as a consequence of his own unlawful acts.

32. Issue No. 4: Whether or not the reconnection of electricity supply to Fire House Disco Club after the landlord’s re-question for disconnection was illegal.

33. The evidence stands out clearly that the power supply to that premises was disconnected in July 2004 at the request of the landlord. And at the time the Complainant was negotiating to lease that property he knew the power supply was disconnected. When the agreement was reached for him to lease the property he gave money to the care-taker of that property to pay off the outstanding bill and pay for the reconnection. Few days after that power supply was reconnected and the Complainant moved in and started operating his business. According to the evidence for the Defendant there was no application for reconnection made at the Defendant’s office either by the landlord or the Complainant after the disconnection in July 2004. The Defendant only realised the power usage in January 2005. The Defendant’s Bill Book showed No. 42120313 – 10 at Negiso Bottle Shop after the disconnection in July 2004. On the evidence as it stand I find the reconnection thereafter, be it in November 2004 or before that, was done illegally and therefore unlawful. And the Complainant used and benefited from that illegal reconnection. The least but also the best that is expected of the Complainant is for him to go to the PNG Power Ltd office and pay in the reconnection fee under his own name or his business as the normal practice. But he gave the money to somebody else and he did not even ask from that person the copy of the reconnection receipt to show to him that the reconnection was done legally. There is no evidence from the Complainant to prove that the reconnection was done in a lawful and usual way. My answer to Issue No. 4 is: No the reconnection was unlawful.

34. Issues No. 5: Whether or not the Complainant used the power supply to operate his business at Fire House Disco Club after being illegally reconnected.

35. There is no dispute that the Complainant used the power supplied to Negiso Bottle Shop to operate his Fire House Disco Club business after the supply been illegally reconnected. I have made my findings in the Issue No. 4 above that the reconnection of the power supply was done unlawfully. The Complainant in his evidence said that he only became aware of the illegal reconnection when the Defendant disconnected the power supply in April 2005. My answer to the Issue No. 5 is: Yes the Complainant used the power supply and operated his business after the illegal reconnection.

36. Issue No. 6: If the answers to the Issues 4 and 5 are in the affirmative then, whether or not the Defendant has a right to back-bill and charge the bills for the usage of power supplied against the Complainant.

37. My answers to the Issue No. 4 above is that the reconnection of power supply to Fire House Disco Club, which was formerly Negiso Bottle Shop, was unlawful. And my answer to the Issue No. 5 above is that the Complainant had used the power supplied to the said premises for his business operations while illegally reconnected. The Issue No. 6 is very much centres around the Defendant’s Cross-Claim in which he claims K3, 030.38 for the unpaid back-bill for the usage of power illegally reconnected to the Negiso Bottle Shop on Installation No. 42120313 – 10.

38. The evidence as presented established that the Complainant used and benefited from that illegal reconnection of the power supply. From his own evidence the Complainant moved into that premises and operated business therein, a couple of days after the reconnection took place. It wasn’t some couple of months but only a couple of days thereafter. And he knew that the K400.00 he gave to the care-taker of the property was just sufficient to settle the unpaid bills of the landlord and also for the reconnection fee. It appears that the money was not been used for the purposes he intended. And it would appear from this that any unpaid bill by the landlord would have been just less then K400.00. It is obvious that much of the K3, 030.38 of the back-bill would have been incurred by the Complainant himself while using the power supply under the name of Negiso Bottle Shop which was illegally reconnected. I find that the Complainant is liable to settle this back-bill.

39. There are two other foreign bills transferred to the Complainant’s Bane Club on the Installation No. 42118466. These bills are from the Installation No. 4211899210 for a sum of K283.89 and the Installation No. 4211741208 for a sum of K273.33. The Defendant did not explain how these foreign accounts happened to be billed to the Complainant’s account. I find that the Complainant is not liable to be charged for these two bills. The Defendant in his Cross-Claim is not claiming for these two bills except for the Negiso Bottle Shop bills.

40. From my findings above my answer to the Issue No. 6 is: Yes, the Defendant has the right to back-bill and charge the bills for the usage of power supplied against the Complainant.

41. The Council for the Complainant submitted that the evidence of the Defendant’s witness Mr. Bustin Joseph is mostly hearsay and therefore should not be accepted. I do agree that his evidence is hearsay. However Mr. B. Joseph’s evidence is based on the information given to him by the witnesses Mrs. Maureen Ken, Mr. Junias Aminio and Mr. John Negiegu. Had the Defendant relied on the evidence of the witness Mr. B. Joseph alone and none other, I would accept and apply the hearsay rule. I therefore find that the council’s submission must fail.

42. Having heard and considered the evidence as presented before this Court, I find that the Complainant had used the electricity supplied to the Negiso Bottle Shop that was illegally reconnected after it was disconnected in July 2004. The Defendant therefore had the right to back-bill him for the usage of the electricity and claim for the charges. Special arrangements were made for the Complainant to settle the back-billed by instalment but he failed to settle and that leads to his power supply to Bane Club disconnected on 05th December 2005. I find that the Defendant is not liable for any loss or damages suffered by the Complainant as a result of that disconnection.

43. I therefore dismiss the Complainant’s complaint against the Defendant.

44. As to the Defendant’s Cross-claim against the Complainant, I find that the Complainant is liable for the back-bill of K3, 030.38 for the use of the power supply on Negiso Bottle Shop that was illegally reconnected. I enter judgement for the Defendant/ Cross-Claimant in the sum of K3, 030.38 with costs and interest at 8% per year from the date the Cross-Claim was filed to the date of this judgement.

Lawyer for the Complainant Mr. D. Umba of Umba Lawyers
Lawyer for the Defendant Mr. D. Wettao, Legal Officer of PNG Power Limited