Nanda v Minok [2007] PGDC 172; DC835 (12 December 2007)

DC835

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction

DC. N0. 4471 OF 2004

KERRY NANDA t/a NANAI CONSTRUCTION
Complainant

V

MATHEW MINOK
ASSISTANT POLICE COMMISSIONER - RPNGC
1st Defendant

SAM INGUBA
POLICE COMMISSIONER - RPNGC
2nd Defendant

THE STATE OF PAPUA NEW GUINEA
3rd Defendants

Port Moresby: M. M. Pupaka

2007: 23rd November

Mr. Pokea for the Complainant
No appearance by the Defendants

12th December 2007

PUPAKA, PM: The parties must have previously agreed, before the late Principal Magistrate Mr. Ivo Cappo, to file written submissions on the strength of whatever evidence they had already filed for the Court to then make a decision. It seems the parties decided not to call further evidence, oral or otherwise. They have now filed their respective final submissions.

Consequently I have considered their final submissions. I have also perused all relevant evidentiary materials filed by the parties. The following therefore is the considered decision of this Court.

I shall deal with the evidence and the parties’ submissions shortly but before I do that I must set out the complainant’s relevant pleadings that ground his case, to put things in proper perspective. I need to do that because there seems to be any number of the pleadings, or copies of them, in this case file. There may have been amendments done more than once. There are also excerpts or copies of pleadings from an apparently withdrawn National Court case which appear randomly between documents in this file, with no clear indication of the purpose they are intended to serve. This state of affairs does tend to complicate the understanding process somewhat. Further, the Court file before me also appears to be a supplementary file. The original file may have been misplaced and so this file before me may have been created as a supplementary file.

However, despite all of that, I am satisfied that the evidence the parties needed to rely on are before me. As I alluded to earlier the parties elected to call no further evidence. Therefore other relevant evidence not before the Court is apparently because of the parties’ conscious choice not to adduce such evidence.

The Complainant’s Case

That said I now set out the complainant’s claim as I understand it to be. I need only restate the parts of them by which I consider the complainant has set out the substance of his claim:

"6. On or around 26th day of June 2002, the Plaintiff entered into an agreement with the First and Second Defendant whereby the Plaintiff was to carry out maintenance work at the Gordons Police Barracks on house No. D/Room 24, Gordons, National Capital District. The terms of the said contract or Agreement were in form of engagement letter, job requisition and partially verbal or oral.

In accordance with the agreement the Plaintiff attended to the maintenance and repair to the said house and later submitted invoice for payment to the first Defendant for payment after the jobs or repairs were inspected by officers acting on behalf of the First and Second Defendants."

I mention in passing that I do note that there are some differences between the pleading set out above and the equivalent pleaded in the National Court case over this same cause of action. As I said that National Court case was withdrawn. Whilst I think there really is no purpose served in highlighting the difference in the circumstances, particularly as the National Court case was withdrawn, I do note that it is open for a comparison to be made. The excerpts of the National Court case were filed here, seemingly for no apparent purpose.

Evidence

The evidence of the complainant basically consists of his affidavit dated 16th October 2007. For whatever those maybe worth I have also perused other affidavits filed for the purposes of preliminary or interlocutory applications. All up I note that the complainant’s case is basically as disclosed in his affidavit of 16th October 2007.

As far as I am able to make out the complainant’s case is that he somehow sought and obtained approval to carry out running repairs to "Room 24 of House No. D" at the Gordon’s Police Barrack in the N.C.D. I take it that the complainant’s contention is that he was regularly awarded the maintenance contract, by whoever in the Royal Papua New Guinea Constabulary (RPNGC) that was empowered to authorise repairs to barracks quarters. I take it the complainant is saying that he did the job and furnished an Invoice to the 1st and 2nd defendants for payment. He obviously has not been paid.

The defendants have filed no defence or evidence disputing the fact that the work may have been done as asserted. Therefore, were it not for certain factors that needs to be considered and taken fully into account, I would otherwise be normally satisfied that work was done as asserted. However that cannot be the case here. Given the circumstances of this case it is absolutely vital to remember that a finding that the work was done, cannot mean that the defendants are liable automatically. Further a finding like that also cannot mean that there was automatically created, between the parties, an enforceable contract, without there ever being any semblance of the basics. The basics would be a clear offer, a final acceptance, and a clear and unequivocal intention of both parties to be bound by specific terms.

The following evidence is also available to this Court: The complainant has filed copies of receipts from hardware stores showing purchases of paint and other materials. There can be any number of conclusions drawn from these. One of it is that someone purchased these materials on or around November and December 2002. These are cash transactions. Not one Invoice was made out to the complainant, either personally or to Nanai Construction Limited.

There is a copy of an ordinary Invoice dated 9th December 2002. It was filled out by "Nanai Construction of P. O. Box 7346, Boroko, N.C.D", and presented to the "Department of Police, P. O. Box 85, Konedobu, N.C.D", requesting payment at K7, 235.47.

In matters like the situation highlighted here, involving functionalities of State, presentation of an Invoice alone is not accepted practice. Normally, when there is work that needs to be done, like it may have been the case here, contractors would be asked to submit job quotes or tenders. Then authorised people would select the best from three or more quotations. There is also a requirement that bidders produce current VAT registration. Thereafter, upon completion of work, after completion is duly certified by authorised officers, the contractor would be paid the quoted amount. In bigger value contracts partial payment may be made for work to commence.

Of course I must be quick to say that this reference to ‘current government contract practice’ is not based on evidence or submission before me. It is something I am aware of. I need to state and refer to these practises because I am of the view that the Court should rely on things like standard government practices to resolve a dispute or issue. These are relevant matters that need to be stated here to put matters in their proper perspective. I should mention also that there may be any number of exceptions to the norm. Whilst on that I should add that the lack of pleadings on mandatory government contract and procurement processes, particularly by those having carriage of the defence case, is an indictment on their competence.

The complainant further attached two documents that he considered were relevant to his case:

The first one is a "MAINTENANCE REQUEST FORM" from the RPNGC Lands and Buildings Section. It is dated 26th June 2002 and it seems to have been prepared by one Constable S. Daura, probably attached to the Logistics Sections at the time. The request was obviously for repairs to Room 24 of House D at the Gordons Police Barracks, again probably occupied by this Constable S. Daura.

The second document is a "CERTIFICATE OF COMPLETION FOR MAINTENCE WORK". It has no date. This document was prepared by one Constable Sekera Daura. I take it that this Constable Sekera Daura is the same Constable S. Daura who requested the maintenance in the first place. Constable Sekera Daura filled out the section reserved to be completed by the "occupier or the Barracks OIC". He obviously filled it out as the occupier for in all probability a constable could not have been the Barracks OIC. Constable Sekera Daura wrote that he was satisfied the work was done. He also seems to have recommended payment for the work. The recommendation did not mean anything though as the good constable neither had the authority nor responsibility to recommended payment, whether or not there was any work done.

The bottom part of the certificate, reserved to be filled out by a "Lands & Buildings Officer" has been left blank. This indicates quite clearly to me that the responsible certifying officer from the key section of the RPNGC, particularly for Barracks maintenance, either never inspected the completed work or was unaware of the work, if indeed work was done. It is only that officer, from the Lands & Buildings Section of the RPNGC who can, after having inspected the completed work, authorise payment by making recommendation to that effect. Therefore, on the evidence available the work, if any, carried out on Room 24 of House D at Gordons Police Barracks, as a result of the request for maintenance dated 26th June 2002 submitted by Constable Sekera Daura, was neither inspected nor certified or recommended or approved for payment.

Evidence Missing

There is vital evidence conspicuously missing. Though the existence of it was alluded to in the pleadings there is no evidence of the award of contract, perhaps by way of an engagement letter. Evidence of award of contract is pivotal. Existence of a contractual relationship can never be based on presumption. There are no copies of any letter of engagement from the RPNGC. In the circumstances of this matter it is not proper to accept that engagement was communicated verbally. The contract was said to have been approved on the 26th of June 2002, which is the same day Constable Sekera Daura requested for maintenance to be done to his room. Now, presuming for the moment that that request was properly progressed through the normal approval process of a single-line department like the RPNGC, it is hard to believe that approval was given on the day of the request. It is doubly harder to accept that approval was verbal only and that the standard requirement for three quotations was ignored. It is also difficult to accept that the contract was an open one, which is contrary to standard government practice. The complainant invoiced the RPNGC upon completion. However if he was properly engaged it could only have been on the bases of his quotation for the job. If the complainant quoted for the maintenance job, there is no evidence of the tender or offer he submitted. No copies of any quotation exist. In fact a quotation would be the first document to be created in this sort of situation. It would give a fair estimate of the costs of labour, materials and time involved, which in fact is the reason why the contractor must have been selected as the preferred one over other tenderers in the first place.

At this juncture I should state for the record that there is a serious issue of credibility raised here. Without the existence of minimum evidence no reasonable tribunal would presume that a valid contract was created and executed between the parties, particularly when one of the contracting parties happens to be the Department of Police. The standard [minimum] requirements are the check and balance features of the government procurement process. These check and balances are necessary, and mandatory, so as to prevent abuse of the government procurement system.

Vicarious Liability of State

The RPNGC is a single line department with separate budgetary allocation for expenditures such as maintenance of barracks quarters. Therefore liability would otherwise lie with the RPNGC alone. Since the RPNGC is a functionality of the State, the State has been named as nominal defendant but it must remain nominal only. In the end, if liability were found against the 1st and 2nd defendants, funds would have to be sourced and appropriated from the budgeted allocation of the RPNGC for the judgment debt to be retired.

Yet the evidence does not support the claim that a valid contract was created and executed between the complainant and the defendants.

Moreover this is an inappropriate case for the principle of quantum meruit to apply. If for instance, even if the complainant may not have been properly engaged to carry out the maintenance, but he somehow was and the fact that work was done were admitted, it may be possible for the Court to assess damages. However there is no admission by the defendants here that work was done.

The credibility issue, which has squarely manifested itself here on the facts, would also prevent the principle of quantum meruit from applying, even if work was admittedly done. The circumstances that give rise to and create the issue have been alluded to above and I need not traverse them again as it would only be repetitious.

Suffice to say that Constable Sekera Daura’s role or conduct is left uncertain. He has not testified on anyone’s behalf. Why no one considered him or his role in the matter to be of any significance remains a mystery. I say that because the possibility that this whole thing was a private matter between the complainant and Constable Sekera Daura, and was never sanctioned by any authorised member of the RPNGC, is an open conclusion. Also the possibility that this matter may well have been an invention between the complainant and Constable Sekera Daura cannot be safely or otherwise fully eliminated under the given circumstances.

This complainant’s claim is also the story of a policeman with no rank who seems to have bypassed Barracks hierarchy to recommend ‘urgent’ maintenance work and then also, quite surprisingly too, had the clout to obtain instant permission to engage someone of his own choice to do the work. All that happened in apparent contravention of mandatory government procurement processes. Need I mention too that the constable also seems to have had the power to recommend payment? One thing is certain though: Constable Sekera Daura always had information relevant to these proceedings. It is tragic that he was not called as a witness. Had he testified, things may have appeared in a different light, possibly even in a better light for the complainant perhaps, but that we shall never know now.

Conclusion

The complainant has failed to establish that there was a binding contract between him and the RPNGC. He has failed to establish liability on the part of the defendants. He has particularly failed to establish proof of how he was engaged to provide running repairs, at a cost of K7, 000.00 plus, to just one room of a building at the Gordons Police Barracks. The fact that the defendants have failed to defend the proceedings in the usual way cannot give rise to liability, by default as it were, where there can be none. A party is obligated to provide proof of things that that party asserts. This complainant has failed to provide the proof needed for the Court to compel the defendants to pay him. Proof of award of government contract requires that at least there is some documentary evidence, like for instance tender for work or notification of engagement. Even if work is done payments are hard to process without documentary records evidencing proper approval and engagement. In fact payments cannot be justified without records. That is why entities, including government departments, create records and retain them.

Whilst it is not totally outside the realms of possibility for a person to be engaged to repair only one of many rooms or flats at a barracks the size of Gordons Police Barracks, it does begs the question as to why Constable Sekera Daura’s room was singled out for repairs at the time. Perhaps, given the circumstances, the complainant ought to have said just how he got to know of the need for repairs to Constable Sekera Daura’s room and how he landed the maintenance contract. Evidence like this can add to the credibility value.

It is of course a cause for concern that some police constable can request for repairs and on that bases ‘engage’ a contractor and, possibly worse of all, certify payment by signing a certificate of completion. I say that because if there had been anyone else involved, who was possibly higher in rank than Constable Sekera Daura, there is no evidence of that person’s involvement.

Ergo, on the bases of the forgoing I dismiss the complainant’s claim. I further order, in the exercise of my discretion, that the parties’ bear their own costs; no less because the RPNGC and the State, or those who acted for them, have done nothing to deserve a costs order.

_________________________________________________

Nandi & Co., Lawyers for the Complainant
Police Legal Services Division for the Defendants