Mel v Dupai [2005] PGDC 88; DC288 (10 June 2005)

DC288

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1270 OF 2003

BETWEEN

Philip Mel
Complainant

v

Matrick Dupai
Defendant

Port Moresby: Bidar, Pm
2005: 21st April & 10th June

Damages - Breach of verbal contract - Contract under Western Highlands customs -
Custom - Proof and pleadings - Custom ascertained as a matter of fact - Customs Recognition Act - Underlying Law Act - Whether on evidence such custom is proven.

Cases Cited
There Are No Cases Cited.

Counsel
Complainant Appeared In Person.
Defendant Appeared In Person.

DECISION

13th May 2005.

BIDAR PM: On 15th May 2003, complainant filed summons upon complaint against the defendant, claiming damages for breach of oral contract entered between the parties on an unknown date according to Western Highlands Province custom.

Complainant and defendant are from Western Highlands Province. Complainant was a licensed PMV driver at the time the proceedings herein were filed. Complainant earned his living by driving PMV and Taxi owned by others. Sometimes in 2001, defendant offered complainant to drive his taxi. The fares he collected from taxi services were paid to the defendants and he was entitled to keep a percentage of the takings as his commission.

The defendant is employed as welder with Department of Works. He is from Western Highlands Province and speaks the same language as complainant and have same custom and culture. The taxi owed by defendant was operated under David Rop’s PMV license.

On 27th November 2002, whilst complainant was driving the taxi he was involved in a traffic accident, with a Daihatsu Bus, owned by Hebou Constructions. It appeared that the Hebou Construction driver was at fault which caused the accident.

Complainant asserts that under Western Highlands custom, defendant had obligation to meet the consequences of the accident. He asserts further that, they discussed this matter and agreed that complainant would be compensated for 4 months being without job and loss of commission. He calculated that, he should be paid K8,500.00 and defendant K3,500.00.

It appears that as a result of accident a claim was lodged with the Hebou Constructions insurers and was settled at K12,000.00. The cheque was made payable to David Rop being license holder and upon Mr. Rop’s instructions the cheque was released to the defendant. Complainant asserts that, the defendant is in breach of the oral contract and is therefore entitled to damages.

Complainant relies on his declaration which he declared and filed on 10th June 2003. He deposed that, being from Western Highlands Province and lived at 4 Mile Works flat. He is a licensed PMV driver and earn his living by driving bus and taxis owned by others. Defendant owned a taxi and operated under PMV license owned by one, David Rop. Sometimes in 2001, defendant offered complainant to drive his taxi as is the usual practice by taxi owners, complainant was required to pay defendant K350.00 every week ending on Sunday, and anything collected over and above was kept as complainant’s commission. The commission was complainant’s only source of income at the time.

On average complainant calculated K200.00 per day, of which K50.00 was kept for the owner, while K150.00 was for operational costs. The balance of operational costs was kept as commission to the complainant.

On 27th November 2002, about 6:45 am he was involved in traffic accident with a Daihatsu Bus owned by Hebou Construction Limited. It was found that accident was due to other driver’s fault who fell asleep and his vehicle drifted to the complainant’s lane and caused accident.

Complainant deposed further that under Western Highlands custom defendant was under obligation to be responsible for the consequences complainant would face. Complainant had to maintain his livelihood in the city.

On that understanding, he deposed that he (complainant and defendant) discussed and agreed that complainant should be compensated for loss of 4 months commission.

The defendant on the other hand denies entering into any contractual arrangement either verbally or in writing with the complainant in respect of any compensation claims for any motor vehicle related accident involving the complainant. Defendant engaged the services of complainant to drive his taxi. He was required to bring in K250.00 each week to the defendant and anything over and above was kept as his commission. He was engaged on casual basis. After the accident, the complainant’s services were no longer required because the taxi was written off. Complainant did not have any share of the ownership of the taxi so as to entitle him share of insurance payment.

As I alluded to, complainant was engaged on casual basis and there is no evidence of any binding contract either oral or written. Complainant has neither produced evidence of oral contract nor evidence of custom. Custom shall be ascertained as a matter of fact and complainant has not proven any such custom.

It appears that complainant had expected some form of payment on good will from the defendant which did not came about, so he instituted these proceedings.

In all the circumstances I find no contract has been proven to the satisfaction of this Court so as to determine the issue of liability. I find to the contrary that complainant’s claim has not been proven on the balance of probabilities.

I find defendant not liable. I dismiss the proceedings and in the exercise of Court’s discretion I award no costs.

In Person: Complainant
In Person: Defendant