Bre v Koral [2017] PGDC 31; DC3019 (13 January 2017)

DC3019
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS GRADE FIVE CIVIL COURT JURISDICTION]

GFCi: 34 of 2016

BETWEEN

DAVID BRE

Complainant

AND

THOMAS KORAL

Defendant

Goroka: R. APPA, PM

2016: - October 11, 18
-December 21

2017: - January 13

CIVIL –

Cases Cited:
Nil

References:
Nil

Counsels:
Nil

13^thJanuary, 2017

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REASONS FOR DECISION

R. APPA, PM: The complainant claims for damages caused to his property described as Section 90, Lot 39, PX street at Seigu, Goroka town.

2. The nature of claim was that during rainy season rain water used to form up at the fence near his premises and people living at the back street used to make small drain and let water which flooded his resident, especially at night causing damages and inconveniences so one night on 13^th January 2016 between 8 – 9 pm there was heavy rain so the complainant himself was out watching when the defendant who lives at the back street was seen digging small drainage and let rain water onto the premises and he (complainant) called out to defendant and saw face to face and told defendant what he was doing was wrong.

3. The complainant further claimed that the rain water which was let onto his premises caused damaged to his stone wall he built to separate the school and his property, broke into half and also flooded his areas as well as his tenant’s resident ground level.

4. On hearing, the defendant and his lawyer used to turn up in court but they failed to file notice of intention to defend or defence until case proceeded exparte on 11. 10.16. Defence filed two affidavits by witness John Posagu and Harold Abori who gave evidence that they visited scene but saw no signs of drainage at the scene. However, these witnesses went to the scene some five months after the wet season so the place was dried up, no trace of it could be made. Therefore their evidence had no relevance. Also these defence witnesses gave wrong or different description of the property. John Posagu said its Section 07, Lot 39, while Harold Abori/ Hamilton Tubavai said its Section 07, Lot 39, so they could be talking about different properties. The correct description given by the complainant was Section 90, Lot 39, PX street. There was no affidavit evidence presented by the defendant himself then until the case was due for decision when he filed his submission by way of defence statement which he agreed as his defence evidence.

4. The complainant tendered his affidavit with his support document such as coloured photographs of his damaged properties during the exparte hearing and were admitted. Copies were served on the defendant.

5. As one can see from the above evaluation of total evidence, the complainant’s case stood out so liability was established on the balance of probabilities.

6. On assessment of damage, complainant claims K10, 000.00. However, there had to be evidence or proof on damage. It’s not automatic. To do that, complainant annexed certain documents such as Invoices and receipts for building materials dated back to 2014 and 2015.

7. The complaint on damage was on 13.01.16. He may have used some of those materials like cement bags and stones to build the stone wall but what we looked for was evidence on extend of damage caused and repairs done as the result of rain water allowed onto the residents so its difficult to be accurate in assessment of the damage. Court can only allow for general damage basing on its findings.

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8. Court assessed general damage at K3, 000.00 to cover the damage as reasonable to put the defendant back to his original position as near as possible.

9. Orders:

Defendant is ordered to pay the complainant K3, 000.00 in general damage, payable within 21 days from today 13.01.17.

Costs followed event.

Counsels:
Nil