Munagun v Teia [2005] PGDC 125; DC467 (8 December 2005)

DC467

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1237 OF 2005

BETWEEN

Theresa Munagun
Complainant

V

Andrew Teia
Defendant

Port Moresby: Gauli, Apm
2005: November 03rd, 17th, 30^th; December 08th

Counsel
For the complainant Ms. Carol S. Jaran of Murray & Associates
For Defendant: In person

DECISION OF THE COURT

GAULI, APM: The complainant sued and claimed against the Defendant a sum of K153.74 as part of the cost of constructing the fence along the common boundary shared by the properties owned or occupied by the both parties.

Brief Facts:

Both parties are neighbours occupying premises at North Waigani. They are former employees of the PNG Electricity Commission now known as PNG Power Limited. And houses they occupy are the staff houses of the PNG Power Ltd.

On 14th April 1998 the complainant wrote to the defendant advising him of her intention to erect a fence around her premises and asked him (Defendant) if he would reimburse half of her money spent on constructing the fence. And Defendant orally agreed to this arrangement. The Complainant constructed the fence at a total cost K999.31, the complainant then requested the defendant to reimburse her part of the cost for a sum of K153.74. The defendant refused as a result this proceedings been commenced.

The Issue

The only issue before this court is whether or not the Defendant entered into an oral agreement with the complainant to:-

a. Allow the complainant to erect a fence

b. Reimburse part of the complainant’s expenses in erecting the fence.

The Evidence

The evidence for the complainant is that in April 1998 she entered into an oral agreement to erect a fence around her premises. And since that fence will be seen as part of the fence for the Defendant’s premises on their common boundary, the Defendant had agreed to reimburse the complainant part of her costs.

The Defendants evidence is that he did agree for the complainant to erect her but he denied entering into any oral agreement to reimburse part of the complainant’s expenses.

Both parties have no witnesses to either confirm or deny what each of them have said. An oral agreement may be difficult to prove when one of the parties denies entering into such an agreement. The burden is on the complainant to prove it. Evidence of the complainant alone may be insufficient to prove liability on the balance of probabilities. The complainant’s letters to the Defendant dated 14th April 1998, 22nd July 2004 and 7th September 2004 which are Annexured "B" "D" and "F" respectively did not state that the Defendant had earlier agreed to reimburse part of the cost and therefore those correspondences were in-reference to such an agreement. On that basis I could not be satisfied that on the balance of probabilities that the Defendant has agreed to reimburse some of the complainants cost on the fencing. I am however satisfied that the Defendant did agree for the Complainant to put up a fence around her premises.

I find the Defendant not liable and I order that the case be dismissed

By Court: