Kirobe v Kapin [2021] PGDC 203; DC7059 (21 September 2021)

DC7059

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 159/2019

IN THE MATTER BETWEEN:

KETRA KIROBE.
Complainant.
.
AND.
POPEU KAPIN
Defendant.

Popondetta: Michael W. Apie’e

2021: September 21^st.

CIVIL PROCEEDINGS. Claim Compensation for destruction of property namely market table with quantity of tobacco/’Brus’.

Cases Cited:

References:
District Court Act.

Representation:
Complainant in person.
Defendant in person.

JUDGMENT ON TRIAL.

Background.

1. The Complainant filed suit and claimed in Her complaint of 16/10/19 that ‘On the morning of 23/08/19 9.00am, at the temporary market at the front of Wing Hay Supermarket in Popondetta, the Defendant without any good reason and knowledge of the Complainant destroyed her Table Market causing her to suffer Loss of daily income for her family.’
   
2. Being aggrieved by the Defendants action in destroying her market the Complainant filed this complainant and summons and seeks an Order for appropriate compensation in the sum of K2000.00 from this court.
   
3. The Defendant denied liability and so this matter progressed to trial on the 09/04/21 for the Complainants case and then on to the 13/04/21 for her witness one Mr. Saki Lucas.
   

Trial.

Complainants case.

4. The essence of the Complainants case as supported by her witness is that;
   
   1. On the morning of 23/08/2019, the Complainant was standing with her witness and Salesman Mr. Saki Lucas at the temporary Market approved for SME vendors at the front of and leading through the Alleyway/Corridor from the front of Wing Hay Company and through to the new HQH Supermarket complex between New Wing Hay building and Comfort Inn hotel/Lodge.
      
   2. At the time they were seated at an approved location just meters away from the corridor, toward the front gate of the New Wing Hay Company Building.
      
   3. They said that at the time the Defendant arrived in a Wing Hay Company vehicle and the Complainants Brother In-Law and salesman at the time picked up the Table and tried to escape into the corridor but was called back by the Defendant.
      
   4. The Defendant removed the table from him and taking the table with the Brus/Tobacco further down to the Wing Hay Company’s new Constructions site front and there he proceeded to burn the table and tobacco.
      
   5. The Complainant said that she went to the Defendant and told him that ‘It was her Tobacco that was being Burnt!’ but he is said to have told her ‘Shut up and go!’
      
   6. The Complainant was not sure why her Table was picked on, given that a lot of other people were selling Tobacco that day and so why did the defendant left them alone and pick on her table?
      
   7. She also claimed that she had gone all the way to Mendi in the SHP to buy and bring back these items for sale in Popondetta only to have them destroyed by the Defendant. She claimed that her tobacco was worth K2000.00 and so the Defendant should be ordered to refund that amount in Compensation.
      
   8. She and her witness claimed that their tobacco was in a bag weighing close to 45 kg and also that when set alit, the Defendant had to get more fuel from Wing Hay Company yard delivered to him by company workmen in order to completely burn off the tobacco as it was of substantial quantity.
      
   9. She claimed that the Defendant was not justified in burning her tobacco as she and her salesman did not do anything wrong and also that permission was granted for SME Activities at the location they were at by the Town Authority (Letter from Acting Town Mayor Hon Jerry Guni dated 15/04/21 clarifying the permission given in 2019 filed in Court) and so their presence was not unlawful and so the Defendant ought to compensate the Complainant for the destroyed /burnt Tobacco allegedly worth K2000.00.
      

Defense case.

5. The Defendant gave his Sworn Oral testimony on the 20/05/21, and matter was further adjourned to 03/06/21 for his witness one Mr. Lucas Haijo a security officer with Wing Hay Company, then on the 14/07/21 one Edward Loki was called by the Defendant and the essence of his defense is as follows;
   1. The Complainant and her salesman where operating in contravention of the prohibition imposed by Wing Hay by operating their table in front of the Wing Hay Company premises.
      
   2. Further that the Complainant was not present that day at the front of Wing Hay Company premises and therefore was never seen by the witnesses and so somehow they tried to hint that she was making this claim up in order to capitalized on the burnt tobacco belonging to Lucas Saki to obtain money from the Defendant.
      
   100. However, they do not deny the contention that a Quantity of Brus/Tobacco belonging to someone was taken with a table from a vender and burnt by the Defendant.
        
   4. They also do not deny the contention that at the time of this action the Defendant was not in official Police vehicle responding to a report of a crime being committed and neither was he carrying out official Police duties.
      
   5. The main thrust of the Defense case apart from the Complainant not being present at the scene of this incident on the On the morning of 23/08/2019, is that the Wing Hay Company had prohibited people from doing their vending in the walkway in front of their stores and new construction site due to potential crimes or riots and also as a safety measure for people against industrial related accidents that might happen.
      
   6. Therefore, the Defendant was somehow justified in making an example of burning up some random persons Table and Tobacco, at least that is the impression the court gets from this line of Defense.
      
   7. The Defendant raised issue also about the quantity of the Brus/Tobacco he burnt saying and demonstrating that the quantity was less than the 45 kg claimed and as the so could not be valued at the K2000.00 claimed.
      
6. The Trial concluded thus, submissions were called and the parties returned on the 03/08/21 and made verbal submissions and the matter was set for ruling on the 17/08/21, but returns now for Ruling.
   
7. Observations /Assessments. Having heard the evidence in this trial I make the following observations and assessments;
   
   1. The Court notes the letter of Mr. Jerry Guni explaining that during the month of August 2019, his Office as Mayor of Popondetta Town had approved the area in the front of Wing Hay Company Premises and Comfort Inn and the Alley/Corridor leading to New HQH Supermarket as a temporary SME Market area for people to sell their wares mostly Bettlenut and Tobacco.
      
   2. The Complainant and her witness recount the events of the morning of 23/08/2019 and that account is by and large similar to the account admitted by the Defendant as to the general facts relating to how the Table and tobacco was taken off the Complainants Sales-person and set on fire.
      
   3. Also details of how extra fuel had to be obtained from Wing Hay Company Premises to add onto the burning Tobacco is mutual from both sides.
      
   4. The Complainant roughly indicated the value of the Tobacco at K2000.00 in value remaining after the morning sales return of on K300.00. She estimated approximately 45 kg of tobacco left when the whole lot was burnt.
      
   5. The Defendant and his witnesses admitted to burning the Table with the tobacco after telling the salesman to remove the monies from the proceeds of sales and taking the Table down to the front of Wing hay Company New Building.
      
   6. However, the Defendant denies the claim of 45kg as he singlehandedly carried the table and remaining Tobacco away without much effort before setting it alight some distance away. 45kg would have being heavy for even the defendant to carry with the table without difficulty to where he burnt it.
      
   7. Regarding the issue of needing more fuel to burn the tobacco he insisted that more fuel was needed not because of the quantity of the tobacco but because the tobacco was itself in coils and the coils were moist or damp/wet, hence requiring more fuel to completely burn off.
      
   8. Upon assessment of the claims made and the counter claims by the Defendant, this Court is left unsure of the 45kg claim made, and would agree with the Defendant that a lesser quantity is more likely than the 45kg claimed. Accordingly, the benefit of this doubt goes to the Defendant.
      
   9. The explanation coming through is that Wing Hay Company did not want people to hang around or market in front of their premises on the walkway and so the Defendant acting on that decided to burn this table and Tobacco, either as punishment to a particular vendor or as an example to others.
      
   10. This court is alarmed at the possibility of a Foreign owned company dictating Policing Priorities or Civilian control measures overriding Duly elected Councils or Authorities on the conduct of SME Activities within our towns in Papua New Guinea.
       
   11. The Claim from the Defendant and his witnesses that the Complainant was not present on the morning of 23/08/2019 at the scene of the incident is not substantiated by independent evidence and also further nullified by the Complainants similar account as to what happened that morning as that of the Defendant and his witnesses.
       
   12. If the Defendant burnt someone’s Vending Table the On the morning of 23/08/2019 more-or-less at the whim of Wing Hay Company as he arrived in their car, then Wing Hay is directly responsible for this and should seriously consider helping in settlement of whatever orders are to emanate from this trial.
       

ISSUE.

8. There is no doubt that the Defendant did burn the Complainants Vending Table and some quantity of Brus/Tobacco. The Issue is whether he is justified in Law in doing this?
   
   1. He was obviously not conducting a Police Department Sanctioned Operation when he did this.
      
   2. He was not responding to a crime report lodged with the Police but rather at the whim of a Foreign Company that did not want Papua New Guineans Nationals congregating at the Public walkway and spaces in front of its Business premises.
      
   3. In all the circumstances of this case, the Defendant was not justified in burning the complainants vending table and the remaining Brus/Tobacco on the morning of 23/08/2019.
      
9. In the final Analysis, the Court finds and Rules as follows that;
   
   1. On the basis of the Evidence presented the Defendant is found to have burnt the marketing /vending table being operated by a person fitting the description of the Complainants witness Saki Lucas On the morning of 23/08/2019, with all its contents or wares that he confiscated.
      
   2. The Defendant has not offered any justifiable reasons for burning the table and the tobacco other than ‘That Wing Hay Company’ did not want vendors and people utilizing the public walkway In-front of its premises.
      
   3. The Defendants contentions that the Complainant was not present at the scene of the incident on the morning of 23/08/2019 is refused as the details given by the complainant in her evidence is by and large similar to the Defendants account to be based on hearsay evidence recited by the Complainant.
      
   4. The Quantity of the Tobacco burnt by the Defendant though is assessed to have being much less and not 45kg as claimed as the Defendant was able to easily carry the table and the remaining tobacco some distance away and burn without much effort or difficulty.
      
   5. The Extra fuel need to burn the Tobacco is assessed to have being required because the tobacco being tightly wounded in coils and probably sweaty / moist and damp would have been slow in burning hence requiring more fuel and not necessarily because it was of a larger quantity.
      
   6. The Defendants Actions in singling the Complainants table out of the many vendors at the scene of the incident on the morning of 23/08/2019, confiscating it and setting it on fire is found to be unjustified according to Law.
      
   7. However, the Claim of K2000.00 is not fully established by the Complainant and so in the conservative assessment of the Court, K1000.00 is deemed as an appropriate amount to award in Compensation Orders
      
10. Accordingly, the Court will order as follows;
    
    1. The Defendant found liable and ordered to settle the Complainants claim with compensation of K1000.00 for the unjustified destruction of her tobacco On the morning of 23/08/2019.
    2. Interest of 8% is assessed at K130.00 from date of filing on the 30/10/19.
    3. Cost of K3.00.
    4. The Defendant is allowed 40 days to settle a total of K1133.00 before 4.06pm on Thursday the 21/10 /21.
    5. In Default, Enforcement Proceedings to ensue against the Defendant.

Complainant in person.
Defendant in person.