Jelsiwi v Umion [1999] PGDC 21; DC173 (6 January 1999)

DC173

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

Case No 196 OF 98

GEORGE JELSIWI

V

KOS UMION & MAF (PNG) LTD

Mt Hagen: Pupaka, P.M.
1998, 1999: 24th & 31st Dec., 06th Jan.

CASES CITED
Robinson v National Airline Comm. [1983] PNGLR 476

COUNSEL
Mr. Bongere for the Complainant
Mr. Kwimberi for the Defendants

M.M. PUPAKA: In these proceedings the complainant sued for rental arrears in the specific sum of K4400.00, and also for an equally specific relief of "Execution of a Lease Agreement" (sic). For reasons which would become much clearer, when discussed at a more appropriate juncture, I wish to set out the complainant’s statement of claim:

"15. AND THE COMPLAINANT CLAIMS:-

(a) K4400.00 in rental arrears.

(b) An order that the defendants execute tenancy agreement.

(c) Costs of this proceeding.

(d) Such other orders as the Court sees fit".

THE FACTS

Much of the alleged facts are disputed. What, however, seems to be at least common ground between the parties are these:

The complainant sought and secured employment with the second defendant as an Accountant. Before the complainant took up his employment, at the locality of employment at Mt. Hagen, there were some discussions between himself and the first defendant, (who obviously acted for the second), in relation to the possibility of the second defendant renting the complainant’s house at Section 7 Allotment 123 in Vanimo, West Sepik Province. The parties are at least agreed that the complainant’s house was needed by the second defendant to house one of its pilots, one Mr. Robert Anderson.

As to whether possession and occupation of the said house was given and same accepted, is disputed. It is in fact the focal point of this dispute, but it is at least clear no formal lease agreement between the parties had been executed.

THE ISSUES

The issues here, as I perceive those same to be, are these:

(a) Was there any legally binding and equally enforceable rental agreement between the parties over the complainant’s house on Section 7 Allotment 12 in Vanimo, West Sepik Province?

(b) If there is such an agreement, properly binding on the parties, was possession given and same accepted?

(c) If possession was given and same accepted, for how long was the second defendant or its employees and agents in occupation?

(d) Or if there was no possession, either given or taken, but there was nonetheless a binding rental agreement, when was such agreement breached?

(e) Are the various relief sought sustained on the evidence available.

I have quite deliberately stated issue numbered as (d) above as a fact in dispute in these proceedings. Even though the relief sought by the complainant are specific, in all the circumstances of the case it is only fair and in fact quite appropriate, that matters fairly litigated upon be fairly addressed. The complainant does not seek damages for any breach of any rental agreement and none will be considered. However, the question of just when any rent agreement between the parties, (either with or without possession), was breached, would have to be discussed.

THE EVIDENCE:

It is necessary to outline each parties’ case as presented, to be able to put the available evidence into proper perspective. Discussions on each specific head of evidence will be done as and when appropriate.

First of all the complainant says he agreed to be employed and did take up his employment as Accountant of the Second defendant based at Mt. Hagen, on the condition and understanding that the second defendant agreed to rent his house in Vanimo. He further says, further to the rental agreement between himself and the second defendant, he left the house keys with the second defendant’s base Manager at Vanimo, (one Andrew Sumner), when he left Vanimo to take up his employment at Mt. Hagen.

The complainant says one Jacob Okbon, an employee of MAF, was accommodated in his house at Vanimo for the period of time for which he is claiming rent.

The complainant seems to be saying that even though the initial rent of his house was sought by the second defendant (MAF) to house its pilot, he nonetheless now says his house was occupied by the second defendant in the person of one other of the latter’s employees, the man Jacob Okbon. It is contended for the complainant that the sum of K4400.00 is accrued rental arrears. It also seems the complainant has drafted a formal lease agreement which he now wants the second defendant to execute. It is clearly evident MAF has refused to execute that draft agreement. It may be of no consequence in the end but it is interesting to note that the complainant has changed the rent rate from the orally agreed rate of K550.00 per month to K600.00 per month in the draft agreement. In any event the complainant now seeks an order also, as additional relief, for MAF to execute the draft lease agreement as I said.

For its part the second defendant – the first defendant is only a nominal defendant – denies total liability on the bases that no such rental agreement was ever entered into between itself and the complainant. The second defendant further says the occupation of the complainant’s house in Vanimo by Jacob Okbon was a purely private matter arranged between the complainant and Jacob Okbon. The second defendant, through its witness, the first defendant, Kos Umion, says whatever discussions that took place between the complainant and the second defendant, (the latter through the first defendant), was never finally reduced into any binding agreement.

Kos Umion says the discussions were only prospective and that any such agreement was discussed with a view to housing the second defendant’s pilot. Mr. Umion says that the pilot, a Robert Anderson, got transferred to Telefomin before any agreement for renting the complainant’s house would be reached. He says MAF therefore was no longer in need of the complainant’s or any one else’s house. Kos Umion was at pains to stress the point that the complainant was informed of the fact of MAF no longer needing to rent his house before the complainant left for Mt. Hagen. The fact of it, the complainant being so informed before he left for Mt. Hagen, I must find to be true. It is one point on which Kos Umion stood firm and the complainant, no matter how hard his council tried, could not in any way rebut.

This must therefore effectively mean that if there ever was or had been a binding contract for the lease of the complainant’s house between the parties, such a contract can only have been terminated upon that communication by Kos Umion to the complainant. When Kos Umion told the complainant that MAF no longer needed to rent his house because the pilot for whose benefit the house was to be rented had been transferred to Telefomin, any agreement for the rental of the complainant’s house would have been terminated. Any rent agreement based on the pilot being based and available at Vanimo can not continue to bind the parties. Unless the defendants needed the house for any other reasons at all, the contract can only have been frustrated due to the fact that it would be unenforceable on the part of the 2nd Defendant.

Even if I was to have erred in this finding, that is the finding as to when Kos Umion told the complainant that the latter’s house was no longer needed, I can not possibly agree when the complainant says he was never told of the second defendant’s intentions, (not to rent the house), until much later. The proof of the complainant’s knowledge of the defendant’s intentions is found in the complainant’s letter to Kos Umion dated Monday 4th May 1998. In his letter the complainant refers to being informed by Kos Umion of MAF intentions not rent his house. The complainant did not state in his letter when Kos Umion actually notified him of the intentions of MAF, but any such communication can only have been before the 4th of May 1998.

The complainant would have done well to have said in Court just when he was told of the MAF decision not to go ahead with the finalization of the rental agreement. He cannot continue to say he was never informed. His own letter dated the 4th of May, 1998, clearly shows he was at least aware of MAF’s decision not to rent his house at about the date that letter. The complainant’s failure to give or disclose the date of that vital communication to himself by Kos Umion can only lent support and credibility to Kos Umion’s assertion that he told the complainant of the MAF decision before the complainant departed for Mt. Hagen. In any event, I have said I find it to be a fact that Kos Umion informed the complainant of the pilot’s transfer to Telefomin, and the consequent result of MAF not needing the complainant’s house at Vanimo, before the complainant left for Mt. Hagen.

I must then find, as a matter of fact, that any agreement to rent the complainant’s house at Vanimo, that is if any such legally binding agreement existed up to that point, was effectively terminated before the complainant left for Mt. Hagen. That too would be whilst the complainant and his family were still living in their house at Vanimo. This finding settles issue No. (d) I raised above.

The next logical issue that should be discussed at this juncture is as to whether there was a legally binding rental agreement between the parties, up to and at the time the complainant left for Mt. Hagen from Vanimo.

Towards this end there is at least some common ground in that the parties are agreed that there were preliminary discussions between Kos Umion and George Jelsiwi, the complainant, about the possibility of MAF renting the complainant’s house at Vanimo. Indeed a figure of K550.00 per month was a figure considered as acceptable between the parties. I must also find that the house was inspected by various persons from MAF with a view towards ascertaining its suitability for the purpose of housing a MAF pilot. I should also find as a matter of fact, but not necessarily a common ground between the parties, that maintenance to the house was to be carried out before the pilot moved into the house. I find too that there may have been talk of bond fees at least. So all the basic discussions for the rent of a house was done, and to a point agreement on basics like, the rate of rent, maintenance, and bond fees were reached. All that was need I think, was the formalities of the execution and the giving and taking of possession. Then, before formalities were concluded, the whole matter was put to an end by the transferring of the pilot to Telefomin.

Before I go the next step to consider if all the above may or may not amount to the making of a enforceable rent agreement I should discuss certain other relevant matters first.

The complainant says his coming to Mt. Hagen was conditional on MAF renting his house at Vanimo. I would state at the outset that I find no truth in this assertion. In fact evidence is to the contrary. On the 3rd of September 1997 the complainant applied for employment with MAF of his own volition. (See Annexure "A" of Kos Umion’s affidavit dated 2nd November 1998). Subsequently the complainant was interviewed and accepted for the position of Senior National Accountant with MAF. There is ample evidence of the terms and conditions of employment, both by way of explanation of those same, and by way of answers to queries as to the conditions of employment by the complainant himself. Nothing in any relevant correspondence relates or refers to employment conditional on rental of any house. If there had been any subsequent discussions on this, there is no evidence or proof of them. It then must remain, at best, an unsubstantiated assertion of the complainant only.

After having stated that, I should think the complainant had the chance not to take up the offer of employment in Mt. Hagen. He, as I have already found, was told his house was not going to be rented before he left Vanimo. If accepting employment with MAF was conditional as he says, the complainant nonetheless came to Mt. Hagen knowing full well his house was not going to be rented by MAF. Whatever else the complainant’s coming to Mt. Hagen may also imply is not necessary to say. It would suffice for our purposes to say that the fallacy of the complainant’s assertions as to conditional acceptance of employment is all too clear. If it is the complainant’s intention to establish and prove a binding agreement by this assertion, his attempt in this regard must fail.

The complainant has claimed, and the defendants have denied, that after MAF agreed to rent the house in Vanimo, the latter put one of its employees into the house for which rent is owing and is in arrears.

The complainant says he left the keys to his house with the Base Manager of MAF at Vanimo. The person who had been living in the complainant’s house, Mr. Jacob Okbon, has testified. He says he got the keys to the house from a person called John Umion. Jacob Okbon said the complainant had given the keys to this John Umion to pass it on to himself. The keys, according to Jacob Okbon, were left for him by the complainant on the day the complainant left for Mt. Hagen at the Vanimo Airport.

Incidentally Jacob Okbon’s giving of evidence was objected to by Mr. Bongere of Council for the complainant. I over-ruled the objection because the reasons for objections were, or in fact was that Mr. Okbon had not filed a affidavit prior to giving evidence in Court. I ruled that the witness, being an otherwise competent and compellable witness, could testify if he had relevant evidence for the side calling him. Jacob Okbon’s said he was asked by the complainant prior to the complainant’s departure from Vanimo to move in and look after the house. Mr. Okbon said he had stayed in the house for most of 1998.

Through his council the complainant sought to discredit Mr. Okbon’s evidence. Generally Mr. Okbon was asked by Mr. Bongere to say just how come he of all people would have been asked by the complainant to stay in the house. The possibility of Mr. Okbon being biased or that he may have been pressed to lie was also put to him. Jacob Okbon is a employee of MAF. He seems to be related to the First defendant Kos Umion too.

At the center of the issue, as to whether MAF took possession of the complainant’s house or not, is the question of the credibility of Mr. Okbon.

I have observed Jacob Okbon in the witness box. He was unshaken in his evidence. He smiled at times. He said his staying in the complainant’s house was a private arrangement between himself and the complainant. He said he is not entitled to be provided housing by his employer, MAF.

In all the circumstances, having considered all that has been said, I would in the exercise of my judgement, consider and accept Jacob Okbon’s evidence to be true. If it ever boiled down to that, I would think that Jacob Okbon would not possibly value his employment with MAF enough to perpetuate a lie for the benefit of a Christian organization like MAF. I have no reason to doubt the sincerity at least of MAF. The reasons specifically indicative of the contrary, would be stated in its proper context later on. For the time being, I accept to be true the evidence of Jacob Okbon and I place credence on all his vital recollections.

Equally important but secondary to the evidence of Jacob Okbon is the prior finding in this judgement of the termination of contract of any possible lease agreement. MAF through its appropriate officers terminated all pending and any continued negotiations or discussions for rental of the complainant’s house. I have no cause to presume that MAF, through its officers, acted contrary to its manifested intentions after that.

In the end result I find that Jacob Okbon’s occupation of the complainants house at Vanimo was a private matter between the complainant and the said Jacob Okbon. It had nothing to do with MAF at all. I find that possession and occupation of the house was not delivered to MAF, and MAF likewise did not accept occupation over the complainant’s property. This should resolve issue Nos. (b), and (c), I posed above.

I have discussed and determined issue (b), (c) and (d) as I have done. In the end the natural consequence is that I must answer issue (e) in the negative. I do not think MAF owes George Jelsiwi K4400.00 in rental arrears. I would dismiss the claim for K4400.00.

The complainant’s claim for an order that the defendants execute a tenancy agreement is a relief that I am unable to even consider. I do not think it is incumbent on the courts to force parties into a relationship that has clearly become noxious on a person level, and MAF clearly does not need to rent a house. More over, the pertinent point of law on this is that the complainant may be best entitled to damages rather than specific performance. (See the case of ROBINSON –V- NATIONAL AIRLINES COMMISSION [1983] PNGLR 476). The complainant’s remedy is in damages and, under the circumstances, he does not say seeking damages for breach of any contract is an inadequate relief.

I made the specific point in the fore part of this judgement about the equally specific reliefs sought by the complainant in these proceedings. These are for an outstanding rental arrears in the sum of K4400.00, and for an order for the parties to formally execute a rental agreement. After discussing the relevant evidence, I have found no outstanding and unpaid rental arrears against the defendants. I have also ruled that the complainant is not entitled to an order for any rental agreement to be executed.

However the question of whether there was any binding oral rental agreement had been reached between the parties, after initial discussions on it were held, was fairly litigated in the hearing of this matter. Towards that end I also said I would determine the issue of a binding oral agreement at an appropriate juncture. This seems to be the opportune moment to address that aspect.

I am of the view that the issue of breach of contract is, of itself, a cause for substantive proceedings. The complainant has neither asserted any claim for assessment of damages, nor amended the statement of claim to make allowance for the alternative relief of assessment of damages. The only reliefs sought have been finally and properly addressed.

In the circumstances I am firmly of the view that determining whether or not there was a binding agreement, and whether any such was breach, would a futile effort. Even if positive findings of fact were made relative to this aspect, no appropriate relief would be determined, for the simple reason that the appropriate relief is not sought. For that reason I decline to answer issue (a) as I posed above, because no answer or finding is now necessary. I would add that this Court is estopped from dealing with the issue of assessment of damages by Section 137 of the District Courts Act, Chpt. No.40. That provision reads:

"137. Evidence of matters not in summons.

Evidence of a demand or cause of action shall not be given on behalf of the complainant on the hearing of a complaint other than a demand or cause of action stated in the summons issued on the complaint, or in the summons as amended".

Whilst the issue of whether a binding oral rental agreement was reached between the parties, was fairly litigated, albeit quite properly in the context of the relief actually sought, not one iota of evidence exist for the purposes of assessment of damages. I might add, the non-existence of such evidence is also quite proper, for the question of assessment of damages was never at issue between the parties herein.

I would refer to one other final matter. There is evidence available, at the behest of the complainant (through cross-examination) that an offer for settlement out of court was made in the sum of K4400.00. The defendants were forced to explain in court that the offer was made purely on the basis of their principles of Christian faith rather than as an acknowledgment of any liability. The first defendant described the full intention of their offer for settlement of these proceedings as: "Our position was, it was better to be wronged than to be wrong". I would accept that as a fair explanation for the offer for settlement. I say nothing more than that on that aspect. However, what I must necessarily have so much difficulty over is as to why the complainant could not accept the settlement. Even if the offer for settlement was not the Christian charity it is said to be, the offer was an effective settlement of the claim sought. What ever else could be said for this decidedly reckless decision not to accept the settlement must remain unsaid. Suffice to say that the complainant’s actions warrant an order for the defendants’ costs to be borne by him on a solicitor /client bases from the date of offer for settlement. Any other items of costs incurred prior to the offer of settlement shall be on a party /party bases.

The orders consequent to all the above are that the complainant’s claim in all its entirety is dismissed. Costs follow the event, but in the manner as aforesaid.

Bongere Lawyers: Complainant
P.M. Dowa Lawyers: Defendant