Gamuta v Eastern Highlands Savings and Loans Society Ltd [1997] PGNC 105; N1606 (29 August 1997)

Unreported National Court Decisions

N1606

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 331 OF 1996
WILLIAM GAMUTA - PLAINTIFF/CROSS DEFENDANT
V
EASTERN HIGHLANDS SAVINGS & LOANS SOCIETY LIMITED - DEFENDANT/CROSS CLAIMANT

Goroka

Sawong J
30 June 1997
29 July 1997
29 August 1997

Counsel

D Umba for the Defendant/Cross Claimant

No appearance for the Plaintiff/Cross Defendant

29 August 1997

SAWONG J: Thi a trial over a disputespute between the Plaintiff/Cross Defendant and the Defendant/Cross Claimant over certain monies.

The history of the proceedings ifollows. The Plaintiff/Cross Dent want was formerly erly employed by the Cross Claimant as its General Manager. He was dismissom that empl employment. He theeged that he was ents entitled to certain monies totaling K61,954.20. This was not pa him.&#160s Consequently, he filed these proceedings claiming that amount.

The DefenDefendant then made a cross claim against the Piff. The proceedings was some what protracted, but eventually the matter was set down down for trial. Subsequently events&#160uroccurred including the Plaintiff being charged for contempt for not complying with a previous court order. That order saat heto move move out of the cross claimant’s house by a certain date. This he s he didn&#8217 ando and he was eventuallysted and detained. After that, he mout of thef the said premises and the substantive tive matter was set down for trial on 30 J997.

On that day, neither the Plaintiff nor his coun counsel red to prosecute his case.case. Consequently, Mr Umba applied to have the substantive proceedings by the Plaintiff be dismissed for want of prosecution. I granted the order and proceededear ece on the cross coss claim by the Defendant. This decision is iation toon to that crot cross claim.

After hearing the evidence, I allowed Mr Umba to file written submissions. This he one. I have have read and considered carefully both tidence and the submissions.ions.

The cross claim against the Cross Defendant is for the sum of K31,371.66 being alleged outsta rent the cross claimalaimant would have received had it rented nted the property out, if the Cross Defendant had vacated the premises.

The premises is known as Section 22 Allotment 44, Goroka. There is no dispute that the Plaintiff occupied the premises from 9 August 1991 up to and including 24 April 1997.

The issue is whether the cross claimant is entitled to claim thisy, that is the sum of K31,371.66 from the cross defendant.&ant. The Cross Claimant’s evidence consisted of both oral and documentary evidence. In so farocumentary evidenvidence is concerned, the relevant evidence is a copy of the Title Deed topremises. That document shows conclusively that the cthe cross claimant is indeed the proprietor of the said premises.

Mr Norman Yaga gave oral evidence. Heappointed caretaker Mana Manager of the affairs of the cross claimant. Included in his responsiielities was to care for the properties of the cross claimant and to rent out and collect rents from tenants renting the cross cnt’s properties and banking them. He further stated upat takn taking up t up the job, he requested the cross defendant on several occasions over a lengthy period, since his termination, to vacate the premises. Howevhe cross defendan notn not at. secause of t of that, Mr Y Mr Yaga said that he was unable to let the property out to be rented and thus the cross claimant fina benefits. His evidence was thaMr Gamr Gamu Gamuta had moved out soon after his serviservices was terminated, the Society would have rented out the property at approximately K450.00 per month. The uncontested evidence was that the property could have been rented out a rental of K450.00 per month. Thus he said the Sochad load lost potential rental income from 9 August 1991 to date when Gamuta left the premises (24 April 1997), a total loss of K31,371.66.

Mr Umba has submitted that in those circumsta and in view of the undispudisputed and uncontested evidence, the cross claimant is entitled to the sum of K31,371.66.

It is quite clear that Mr Gamuta had no legal nor equitable right or interest to remain in the cross claimant’s premises after his services were terminated. His only remedy at law was to move out of the premises, and sue for wrongful dismissal, if at all. It is also equally clear that because of his unlawful occupation of the cross claimant’s premises, the cross clt was deprived of the incomincome from the rental of its premises. Ise circumstances, I accepaccept Mr Umba’s submission.

However, I consider that some allowance must be made for contingencies such as the property remaining unrented or not being r out at all, or being renterented at a lower sum. I would allowfor such cont contingencies. Thill therefore be j be judgement for the cross claimant in the sum of K25,097.33.

I allow interest on K20,000.00 at the rate of 8% from the datthe Wo dattrial wial which is K2,251.32.

I make the the following orders:

Total:

1.	I award the cross claimant judgement in the sum of:	K25,097.33
2.	Interest:	K2,251.32
	K27,348.65

Finally, I note that toss claimant owes the cross defendant the sum of K10,185.3185.31. I order that that amount be deducted from the sum of K27,348.65, which will leave the cross defendant owing the cross claimant a sum of K17,163.28.

Costs shall follow the event.

wyers for the Defendant/Cross Claimant: Acanufa & AssocAssociates

Plaintiff/Cross Defendant: In Person