Warea v Nauri [2021] PGDC 224; DC7085 (7 December 2021)

DC7085

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCC NO: 192 /2020

IN THE MATTER BETWEEN:

WASINAU WAREA.
Complainant.
.
AND.
CHESTER NAURI
Defendant.

Popondetta: Michael W. Apie’e

2021: October 19^th, December 07^th.

CIVIL PROCEEDINGS. Action seeking outstanding boat fares for use of Dinghy.

Cases Cited:

References:
District Court Act.
Land Act
Land Registration Act
Summary Ejectment Act

Representation:
Complainant in Person.
Defendant in person.

JUDGMENT ON TRIAL.

Background.

The Complainant filed suit and claimed in his complaint that ‘On the 29^th of July 2019 at Kira LLG Area in Sohe Northern Province, the Defendant verbally agreed to hire the Complainants ‘Business Boat’ during the Council Election of 2019 but having benefited from that hire the Defendant had failed to pay the K1, 500.00 promised.

1. This matter came before me on the 13^th of May 2021 and after subsequent mentions 20/05/21, 27/05/21, 09/06/21 the matter came before on Wednesday the 23^rd of June 2021 for hearing.
   

Complainants case.

2. The Complainant called two witnesses namely Sipirian Eniga his Boat operator and Upara Warea his wife.
   
3. The essence of their Evidence was that;
   

1. The Defendant called Boat Operator Sipirian Eniga in Lae Morobe Province, and hired the Boat to load his relatives and supporters from Sowara to Kitigi in Popondetta at the hire rate of K1, 500.00.
   
2. After having ferried 13 x people to Kitigi in Popondetta and then travelling up by road to Popondetta, the Defendant told the Operator that he would pay when his final entitlement was cleared by Northern Provincial Administration.
   
3. Thereafter the Defendant kept delaying the payment for the boat hire and according to Upara Warea, she and her husband heard that the Defendant was ferrying Buai/ Beetle-nut by the bag-loads into Port Moresby via airfreight and so the Complainant was compelled to issue the summons against him, hence this case.
   
4. The Complainant and his witnesses claim that the 13 x people ferried in from Sowara to Kitigi were all relatives and supporters of the Defendant and so he was responsible for their fares or rather the hire of the Boat at K1,500.00.
   
5. The normal hire rate for the boat from Kitigi to Sowara or back is K1,500.00 one way all inclusive, whilst individual fares stand at K150.00 per adult and K75.00 per child or student.
   

Defense case.

4. Defendant Chester Nauri also gave evidence in his defense and also called one Mr. Kupama Sipo to give evidence in his behalf.
   
5. The essence of his defense is as follows;
   
   1. The Defendant arranged for and actually paid for only 6 of his relatives namely Joyce Nauri, Aruvire Nauri, Manari Nauri, Malai Nauri and students Gloria and Solin to travel to Sowara and then on to Kira for the voting in the Council Elections.

After the voting, these same six relative came to the Defendant at Kira and Kupama Sipo was directed to escort these same people to Sowara to be ferried to Kitigi and the Defendant then contacted the Operator Sipirian Eniga who was in Lae to stop by a Sowara on his way back if he had space on his boat to ferry the Six to Kitigi/Popondetta.

3. Since the Defendant had just lost his Council President seat in the Elections, he no longer had any Electoral Responsibilities to other people and so only made this arrangement for his immediate Six family members that is 4 x adults at K150.00 apiece and 2 x students at K75.00 each totally K750.00.
   
4. When the operator came to him, he was low on funds so told the Operator he would pay when his final entitlement was processed and paid to him by Northern Province Administrations.
   
5. He could have paid were it not for the Complainant coming and claiming the money after the Operator had told him not to pay the Complainant the K750.00 owing.
   
6. Therefore, the Defendant delayed in settling this amount because of the confusion and fear that if he paid one person, the other might come against him.
   
7. He further said that he also now fears that a person by the name of Aaron is hanging in the wings hoping to gain excess to this money as well because he claims that the Operator used his fuel from his hire to Lae to ferry these people from Sowara to Kitigi, and might also come against him if he pays to the Complainant or the Operator.
   

6. The Trial concluded thus, submissions were called and the Complainant made no submission while the Defendant reiterated that he indeed owes K750.00 and will pay except for the lingering fear that the person named Aaron might sue him should he pay the Boat Fares to the Complainant.
   
7. Observations /Assessments. Having heard the evidence in this trial I make the following observations and assessments;
   
   1. The Defendant unwittingly was responsible according to Kupama Sipo in hiring 2x Boat rides to Sowara/Kira on the 28^th and 29^th of July 2019 when former councilors and other people from Kira sought to got to Kira for the elections and since the Defendant was sitting Council President for Kira LLG, Kupama Sipo was compelled to utilize the K1000.00 given him by the Defendant to make the arrangement.
      
   2. After the Elections, the Defendant lost his seat and so was no longer Electorally Responsible for peoples travel fares and so it is more reasonable to accept that he would most probably concentrate on those closest to himself and their travelling concerns and that would most probably be the six name travelers above.
      
   3. After all, if the Defendant had lost his seat, why would he bother with the travelling concerns of everyone else except for those closest to him.
      
   4. Even his Brother Guy who had travelled to Kira did not vote for him but went a voted for someone else in a different ward, so the Defendant did not have any responsibility for Guy and his family coming back to Popondetta.
      
   5. The complainant had a responsibility to lead evidence to convincingly establish the terms of the Hire agreement if any and as accurately as possible establish the existence of such agreement between himself and the Defendant and or between the Operator and the Defendant.
      
   6. The Complainant has not done that, instead relies on that which was relayed to him by the Operator to asperse or conclude that a hire agreement was entered into with the Defendant for ‘hire’ his boat.
      
   7. The Defendants account of what transpire makes more sense as after his Electoral failure in the council Elections of 2019, he no longer had any Electoral Responsibility for Kira peoples travels and so he could not have agreed to outright hire but rather for his immediate relatives of six to be ferried back from Sowara if there was space on the Complainants boat by the Operator.
      
   8. For those 4x Adults at K150.00 per head and 2 x Students/Children at K75.00 per head the Defendant owes K750.00 on this deal to the Boat, be it the owner or the Operator.
      
   9. Regarding the others not specifically covered by the Defendant, it is up to the Operator and the Complainant to pursue the outstanding fares with them.
      
   10. Also, Regarding Aaron and his claim over the outstanding Fares owing to the Boat by the Defendant of K750.00, he has no case against the Defendant but he has the right to pursue this matter lawfully in Court against the Complainant and his operator.
       
   11. The Operator after all should have being a bit more cautious if he was operating on hire fuel paid for by someone and should have being more careful in accounting for whose fuel he was using when and how to offset such when shifting into another arrangement. He did not do so here, hence Aaron pursuing him for his fuel!
       
8. 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 only arranged for the ferrying of his Six named relatives from Sowara to Kitigi as passengers, and not for the outright hire of the Complainants boat at K1,500.00.
      
   2. The Defendant is accordingly found to owe boat fares of 4 adults x K150.00 and 2x Students at K75.00 totaling K750.00.
      
   3. The Defendant owes the K750.00 to the Complainant and his operator and no other persons including the person known as Aaron.
      
   4. Whatever Hire Fuel issues Aaron has with the Complainant or his Operator has nothing to do with the Defendant.
      
9. Accordingly, the Court will order as follows;
   
   1. The Defendant is ordered to settle the outstanding boat fares of K750.00 total within the next 7 days to the Complainant Wasinau Warea.
      
   2. Eight percent interest adjudged at K39 from the date of filing to today.
      
   3. Cost of K3.00
      
   4. The Defendant is to settle a total of K792.00 before 4.06pm on Thursday the 01/07/21.
      
   5. In Default, Enforcement Proceedings to ensue against the Defendant.

Complainant in Person.
Defendant in person.