Umanda v Kondo [2008] PGDC 7; DC661 (1 February 2008)

DC661

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 245 of 2004

BETWEEN

LOMBUNA UMANDA
Complainant

AND

PATRICK KONDO
First Defendant

AND

BILATI COFFEE LIMITED
Second Defendant

Goroka: F MANUE
2007: November 30
2008: February

CIVIL - Law of contract – oral agreement for service – whether there was offer and acceptance – whether the contract was performed. Practice – procedure – matter remitted for re-hearing – request for more and better particulars – No defence filed. It constitutes admission.

Cases Cited
Nil

References
1. Section 28 of the District Court Act

Counsel
Complainant: Mr. Bino of Pilisa Lawyers
Defendants: Mr. Umba of Umba Lawyers

February 2008

REASONS FOR DECISION

F Manue: This is a complaint by the complainant Mr. Lombuna Umanda against the defendants Mr. Patrick Kondo and Bilati Coffee Limited. His claim is based on an oral contract where he alleges that the defendants particularly the first had agreed to have him collect outstanding debts from one Francis Yarokave and Obiaka Plantation, Asaro. He is claiming K5, 810.00 for breach of contract, interest at 8% and costs.

2. The issues are whether there is a binding oral contract and whether the contract had been performed and if performed whether the defendants have any defence.

3. Brief background

This matter comes before this court by way of a re-hearing as directed by the National Court order dated 21 day of June, 2005.

4. Procedure

The procedure taken when a case is remitted by the National Court for re-hearing is the same as that of a fresh complaint being instituted in the District Court. This is clearly stipulated under Section 28 of the District Court Act. This was pointed out to both parties on the commencement date.

5. As far as this Court is concerned, this meant that the only documents to be taken from the Appeal documents would be the complaint, summons upon complaint, statements of claim, if any, proof of service and the order of the National Court.

6. All the other procedural requirements of filing other necessary court documents will have to fall into place as in any other fresh matters before the District Court or alternatively be taken from the Appeal Book on application by either of the parties as the case may be.

7. This process of compiling those documents lies with the litigant parties. The Court is not obliged to go through the Appeal Book and sip out the necessary documents. The reason is simple. This Court is not a reviewing avenue, and secondly the court would be seen to be acting in the interest of the litigants, which clearly is not it’s role and duties..

8. Having said that, the proceedings commenced on the 15 June 2007. From that date, the complainant has filed through counsel, “Reply to Request for Further and better particulars dated 28 August 2007, and its reply submission to the Non Suit Application by the defendants. No affidavit evidences by the complaint were filed.

9. The defendants on the other hand had filed letters requesting for further and better particulars on the 5 July 2007, Notice of Cross Examine six (6) witnesses dated 08 May, 2007 and Notice pursuant to Section 36 (a) of Evidence Act – to rely on Patrick Kondo’s and Ago Olime’s affidavits at the hearing. The two witnesses, affidavits, however have not been filed.

10. I highlight availability these documents on file, because the complaint has raised a point in its submission of the defendants failure to file a notice of intention to defend and Particulars of Defence.

11. On the commencement date, as in any fresh complaint, the only documents on the fresh file, were the complaint, the summons, proof of service and notice of civil proceedings which was issued by the Court to both parties.

12. There were no affidavit evidence filed by the complainant and his witnesses. Neither was a Notice of Intention to Defend and a Defence filed by the defendants. In the course of various adjournments neither of the parties filed these necessary documents nor did either of them applied to have those documents taken out of the Appeal Book, and be relied upon.

13. In the given circumstances, both parties are guilty in attempting to by pass court procedures and by doing so, attempted to mislead the court in arriving at an unjust decision.

14. At the hearing date the complainant at the crucial time of giving evidence waved to give oral evidence, as no affidavit evidence was filed. The other witnesses were not available. The complainants evidence is that he is a debt collector with extensive experience, having come from a Police officer background.

15. He stated that he had traveled to main, centres of highlands region and Morobe Province while engaged to do debt collecting. This was not his first engagement.

16. In December 2002, he was doing work for Mendikwae Ltd and Capital Authority (Goroka Urban Local Level Government) when the first defendant approached him. At that time, the defendant acknowledged and appreciated what the complainant did as a debt collector.

17. The defendant than explained to the complainant his difficulty in re-couping debts from his two (2) debtors, namely Obiaka Coffee Plantation and Francis Yarokave. The defendant then asked the complainant to assist him in re-couping the debts and that he would pay the complainant commission at the rate of 20% for collecting debt of K8, 800.00 from Francis Yarokave and 15% for collecting debt of K31, 000.00 from Obiaka Coffee Plantation.

18. Based on this simple oral contract, the complainant went ahead and did what he had to do in collecting the debts.

19. According to him, when the debts were fully collected, the first defendant advised him verbally and terminated his services. For both work, he said, he was paid only K500.00 respectively and not as agreed on respective percentage.

20. Submissions

The defence submitted that there is insufficient evidence for the complainant to prove his case on the balance of probabilities. The submission is based on the complainant’s lack of keeping records of delivery of cherries from the debtors plantations, weight per load and value of cherries per load. On this basis the Court should consider a non-suit application and enter judgment in favour of the defendants.

21. The complainant in reply to the non-suit application submitted that from the evidence of the complainant, the fundamental elements of a contract have been made out and that there has been a breach of the contract. It submitted that there was an offer made by the first defendant. The offer was accepted by the complainant who had performed the contract, but his due commission as agreed was not paid to the complainant.

22. The complainant also submitted that the defence has no defence and therefore are liable for the breach of contract.

23. What was the contract between the parties. The only evidence which can be relied upon is that of the complainant. From that evidence, it was the first defendant who initiated to offer orally the services of the complainant to recover his debts. It would seem that both parties know each other in terms of what each does. This is shown by the first defendants approach acknowledgement and appreciation of the complainant. Likewise, of the complainant having knowledge of the first defendant being a businessman doing business in the coffee industry.

24. In answer to the defence submission, I would have thought that the details of what is expected of the complainant would have come from the first defendant. He was the one who offered to engage the complainant for his services. And so, if the agreement was to have been in writing, the details of the offer would have come from the first defendant.

25. That did not happen. Instead, I view that the contract was a general oral agreement where it was offered to the complainant. I take it that the first defendant left the methological aspect of how to collect the debts to the complainant.

26. The agreement did not go into minute details of what the debt collector was expected to do, and what means and ways he was to employ in order to collect the debts.

27. In my view, the task of getting cherry coffee from the debtors of the defendant was the complainants own initiatives. Having been offered to collect debts, the complainant than accepted it and made counter offer of what he was to be paid. He offered the price commission in terms of 20% for debt to be collected from Francis Yarokave and 15% for debt to be collected from Obiaka Coffee Plantation.

28. The commission price was accepted by the first defendant and so the complainant went ahead and performed the contract.

29. On that basis I am inclined to accept the complainants submission in that all the elements of a contract have been fulfilled and made out, and the contracted was performed.

30. I must say that defendants have no defence, as it has not given notice of its intention to defend, nor has it filed any particulars of their defence. By law, it cannot be allowed, to plead any facts of defence where such have not been placed on notice initially.

31. Since the defence has elected to make a non suit application, and that it has no defence, it cannot by law be allowed to be heard.

32. On these basis, I find on the balance of probability that the complaint is made out and that damages be awarded for breach of contract.

33. As to damages, I infer that the claim of K5, 810.00 is minus the K1, 000.00 already given and so I award the claim with interest at 10% and costs.

34. Orders accordingly.

Complainant: Mr. Bino of Pilisa Lawyers
Defendants: Mr. Umba of Umba Lawyers