Sirue v Wake [2008] PGDC 166; DC5017 (25 April 2008)

DC5017
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC. N0. 2127 OF 2007

BOBY SIRUE

Complainant
-v-

STEVEN WAKE

Defendant

Port Moresby: Pupaka, PM

2008: 25^th April

The complainant in person
The defendant in person

25^th April 2008

PUPAKA, PM: This matter is today’s hearing fixture. Previously the parties were directed to file and serve affidavit evidence, which they did. When the hearing was fixed the parties were directed to indicate to each other in advance as to whether they wished to cross-examine any of the opposite side’s deponents (witnesses).

Today however the parties just indicated that they wished to rely on their respective affidavits. They advised the Court that they would each not cross-examine any opposing deponents. They elected to close their respective cases instead. They then invited the Court to consider their respective affidavit evidence and decide on the issues. I took time to do just that and therefore the following is this Court’s considered decision in the matter.

Complainant’s Case

The complainant’s case, commenced as a default summons, is that he is owed K6400.00 by the defendant. It is the complainant’s claim that the defendant rented his (complainant’s) house at Morata No. 2, N.C.D, from 1996 to 2004. During that time the defendant lived in and at the same time operated a private dental clinic at the premises. It is said that this K6400.00 is total electricity costs incurred by the defendant that he did not settle when he vacated the place.

The complainant filed six (6) affidavits from witnesses; including his own and one from the person who later bought the property.

The complainant’s contention is that he sold the house to a 3^rd party, one Ellis Pongy, after the defendant vacated the house. Ellis Pongy has filed an affidavit. He seems to have settled the power bill arrears and has, by agreement between him and the complainant deducted and retained money equal to the arrears, off the purchase price. The complainant sold the house to Ellis Pongy for K30,000.00 so the sale price was reduced by the margin of the outstanding electricity bill.
The complainant’s case is otherwise clear. By the time the defendant vacated the house he left an unsettled power bill of K6400.00. He therefore has paid for, in a manner of speaking, the arrears. The complainant now wants the defendant to reimburse this money.

Defendant’s Case

The defendant for his part has filed five (5) affidavits, which are by himself and other members of his family.

Initially, by a document titled “Affidavit in Defence” filed 25^th January 2008, the defendant said the power bill arrears are the complainant’s responsibility. He said he was only obligated to pay the rent which he did. That seemed to be his main defence at the time.

I should say here that at the time the defendant raised this ‘defence', I advised him that if his only defence was this position, obviously based on a view that power usage bills were the landlord’s responsibility, then he needed to rethink his stance again because his view, unless it was part of the lease agreement, was contrary to law and industry practice and it appeared to be completely misconceived.

The defendant’s other affidavits, filed mostly by him and his own family members, seem to again echo that same sentiment, i.e., that the complainant was obligated to pay for the power bills. However, as I said, that argument is misconceived and is neither based on any agreement nor the law, including equitable principles.

Findings on the Evidence

If there is no such thing as a free lunch, then it must be also equally true that there is no such thing as free power! Tenants pay for their own power, water and telephone. Landlords pay for land rates and other municipal charges that are a natural consequence of title and property ownership. Power consumption is personal, so is food and water consumption. It is that simple.

Of course if there is prior agreement that the landlord will pay for water or power or other personal expenses of the tenant then that is a different matter. In this case there is no evidence from anyone that prior arrangements were made for the complainant to pay for the defendant’s power usage and that simply is that.

There were some other references or assertions made by the defendant that he did things for the complainant and he also paid some bills, as well as an assertion that the defendant vacated the house in 2003 and that during his tenancy the house had an old type electricity meter, and not an easy-pay meter.

However I find all these arguments to be neither here nor there. The main contention that the defendant left a power bill of K6400.00 when he vacated the premises stands unrebutted and unchallenged in any way. I must therefore find that the defendant otherwise left an unpaid power bill of K6400.00 when he vacated the complainant’s house in 2004. Even if the defendant left in 2003 as he contends, the main finding of leaving an unpaid power bill still remains the same, because there is no dispute that the power bill arrears were incurred and accumulated during the defendant’s tenancy.

Before I leave off on this aspect of the discussion, there are a couple of points I need to state here: Firstly, as the court file endorsement shows, I intimated during the course of the various mention of this matter that some of the debt maybe statute barred. However, I am now convinced that there is no statutory limitation here. This claim relates to a debt left unsettled in 2004, or 2003 as the case maybe. The arrears, as they accumulated from 1996, always belonged to the defendant and not the complainant. The complainant’s cause of action commences from the day he paid off the defendant’s debt.

Secondly I need to record that the defendant, during the course of the various mention of this matter, said that the power bill arrears were jointly incurred by himself and the complainant. For instance, as the court file endorsements clearly shows, that point was advocated strongly by the defendant on 15^th February 2008.
However it now seems that that argument has been abandoned. The defendant failed to adduce evidence in support of that contention. The point is that the defendant could not have been mistaken about something like that. It is either that there was joint usage of power or there wasn’t. Sometimes careless alternative arguments or defences can adversely impinge upon the defendant’s credibility.

Conclusion

In the end I find that the defendant left an unsettle power bill of K6400.00, incurred during the period of his tenancy over the complainant’s house. I further find that the arrears bill has been settled, as a result of which the complainant has incurred losses to the tune of K6400.00. In law the defendant is obligated to reimburse the complainant his losses.

Ergo I order the defendant, Steven Waike, to pay the complainant, Bobby Sirue, the sum of K6400.00. I further order that the defendant pay interests on the adjudged sum at the statutory rate of 8% from the date of Summons to the date of settlement. The complainant shall have his nominal costs of this proceeding.

_________________________________________
Parties appeared in person