Gipe v Tumbi [2008] PGDC 87; DC841 (18 March 2008)

DC841

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

DC. N0. 2062 OF 2006

TANDAPE GIPE
Complainant

V

DURIYAME TUMBI
Defendant

Port Moresby: Pupaka, PM

2008: 29th February

Mr. J. Kennedy by leave for Complainant
No appearance by or for the Defendant

18th March 2008

PUPAKA, PM: This case was fixed for hearing ex parte on 29th February 2008 in the continued absence of the defendant. A couple of previous hearing fixtures, the 15th and 22nd of February 2008 respectively, were vacated, due to the lack of appearance by the defendant. The final fixture was the 3rd straight so the complainant was always entitled to be heard in any event. Consequently the complainant was granted permission to present evidence ex parte. He tendered his affidavit dated 27th February 2008 and other affidavits on file for his purposes.

The attendance record in the court file reveals that the defendant has given little attention to these proceedings. The defendant seems to be a field employee of sorts at the Moro Oil Fields. It would mean that she is only able to make herself available in court during her field breaks. However that does not prevent her from making every effort to secure dates for a hearing during her breaks. She would have endeavoured to communicate information about her break days to the complainant and or the Clerk of Court. She could have written, phoned, faxed or sent an email. She could have called in person at the Registry during her breaks and could have left a message. She seems to have had the services of a lawyer for a while. Yet it seems she has simply failed to cooperate in a way that shows her conduct to be careless disregard for this case. She must know that neither the complainant nor the Court is obligated to wait for her for ever.

Nevertheless I have perused all the relevant materials on the court file, including all pleadings and affidavit evidence filed by the defendant. This would put the complainant’s evidence in proper perspective and also, more importantly, it would ensure that there is little cause for error in arriving at the correct decision.

The Complainant’s Case

The complainant’s case, commenced as a default summons, is that he is owed K5, 086.56, as "final total costs of your house". Whatever this, "final total costs of your house," means is anybody’s guess as the substance of the claim was never at any time elaborated.

I should mention in passing that previously a default judgment was entered for the complainant for the sum claimed. However the file contains no evidence which maybe considered as supporting the sum that was assessed then, if indeed assessment was ever done by the last Court. My view is that that default judgment was always voidable. The assessment was unsupported by good evidence and was based upon unclear pleadings. It is just as well that that order was set aside subsequently, albeit for being an ex parte order, so that the issues raised could be litigated properly and fairly.

There is an affidavit dated 24th August 2006 on file that comes close to indicating the nature of the complainant’s claim. I only say comes close to showing the claim because it is not certain just what the complainants’ claim of K5, 086.56 is composed of.

The complainant filed one other affidavit dated 27th February 2008. Now there is a side story behind this affidavit. This complainant was directed, not once but twice, in fact he was almost forced, by this Court to file that latest affidavit because all his previous affidavits simply did not say why he wanted K5, 086.56. Had he not filed this last affidavit, this case would have been summarily dismissed for disclosing no cause of action.
In any event, upon the perusal of the affidavit materials, I note that the complainant had worked on the house, or domestic quarters of the house proper as it really was the case. But just why K5, 086.56 is claimed is unclear though. If the figure is made up of building material costs the complainant must say whether the defendant instructed him to spend his own money and she would refund him afterwards. If that was the nature of their contract the complainant must say if there were any limits placed on the expenditure he may incur on behalf of the defendant. But he has not mentioned them.

I note that the defendant does concede that the complainant worked for her. They also agree that she paid him K400.00. Nevertheless, despite agreement on the work and payment of K400.00, it is still not clear on what contractual terms the complainant was hired. Only paragraph 8 of the complainant’ affidavit of 14th February comes close to disclosing anything on that aspect. It reads:

"8. As such we both verbally agreed that would render my services in completing the building construction works on her other house and she would pay me for the services in cash and kind."

I am reluctant to accept that the defendant engaged the complainant to spend his own money to renovate and fix her house so that later, after work was completed, she would pay him by way of a refund. That arrangement, under the circumstances, seems ridiculously remote and not acceptable. There were no limits set on expenditure. Either the value of the building contract was fixed or the defendant agreed to buy all the materials needed. For the sort of work this complainant allegedly did, the contract type must be clarified. The thing really is that there should not be lack of clarity on the terms of engagement. The Court directed the complainant to file affidavit evidence disclosing the terms of his engagement, three times prior to hearing. File endorsements contain these repeated directions.

Consequently I must accept that this complainant does not want to disclose evidence of the terms of his engagement. He further does not say how much of his payment was to be in cash and how much was to be in kind. To merely state, without clarification, that he was to have been paid partly in cash and party in kind is unacceptable. He must fully expound upon the details of that arrangement.

How much exactly the complainant spent in doing the work is not certain. He has proposed some figures but these are unsupported by receipts and invoices. If this complainant is a regular contractor as he says, he should know that receipts are vital. He cannot possibly hope to make anyone believe him without the production of receipts.

However there is an alternative explanation proffered by the defendant, which may shed light on the arrangements, if any and I would like to consider it in the total context of her case.

The Defendant’s Case

The defendant contends that she permitted the complainant and his partner to stay at the boy house that is located at the back of her house proper. She gave permission because the complainant was in a relationship with Maria Tumbi, who is her younger sister. In fact the complainant and Maria had fled Tari, SHP, after being in strife with Maria’s late husband’s relatives. She says the complainant and Maria needed a place to stay so she allowed them to stay in her domestic quarters located at the back of her house. The following are excerpts from the defendant’s affidavit sworn on 19th December 2006:

"8.3 On their request I kindly allowed them to live at the back of my house (boy house) which was enough for the couple to live in. they lived there for eight (8) months and whilst living there Maria bore a child for the Complainant.

Whilst living there, by his own volition the complainant had started to renovate the house for himself and his child to live in, without me issuing approval while I was away for work at Kutubu. When I returned from Kutubu for field break, Complainant told me that he was carrying out renovation because the house was too small for all of them to fit in.

As such I never asked the Complainant to renovate or fix the house. Whatever little maintenance work he did, he did it own volition for his own purpose and use.

.............................................

8.7 After I had been feeding and accommodating the complainant and his de facto wife and child for 10 months in the city I have forced them to move out of my premises because they were creating problems for me in my premises and for my family by quarrelling and fighting every day and damaging my properties in my premises.

Upon being told to leave my premises for the foregoing reasons the complainant immediately served me summons to pay him money for the work he did on my boy house.

He issued constant threats to me and abused Maria so I gave him K400.00 although he insisted for K750.00. As such the K400.00 that I paid him is not a part payment of the work as he claimed nor does it indicate that I admitted owing him money for the renovation he did. I paid him simply because he was issuing verbal threats against me and was constantly abusing Maria for me not paying the money because Maria is my sister."

These excerpts and other assertions in her affidavit seem credible. These are not extraordinary or self-serving or over the top. In fact she admits that renovation work was done to her boy house, albeit done primarily for the comfort of the complainant and his family. The explanation given for paying K400.00 also seems credible. She says K750.00 was actually demanded but she gave only K400.00.

The defendant further says the complainant came back later, after he left her premises, and lived in her house until her place was rented out, as a result they all – including the defendant herself and the complainant and his family – moved out of the premises. She says the following in paragraph 8.10 of her affidavit:

"The complainant had been out of my premises operating a mini trade store at Bench Peak Settlement while Maria was still living with me. Few months later in or about September 2005 he ran out of stock for his trade store so he close it down and came back to my house and lived with us for a couple of months until the place was rented out in around July 2006 and we all moved out."

Findings on the Evidence

The complainant did put in work. Whether he worked because he was engaged as a contractor as he asserts or because he was occupying the house and he needed to renovate it to make it suitable for himself and his family’s use is uncertain. As I alluded to above, just how much exactly he spent in doing the work is not certain. He was paid K400.00. That can only have been reward for the work. The complainant says K400.00 was paid as part payment. The defendant, for her part, says she was forced to pay K400.00 as the complainant was threatening her and her sister. Whatever it was, the K400.00 was meant to be payment for the work done.

Even if there was no contract of engagement, the complainant put in work, possibly at some costs to himself, for valuable consideration. I cannot imagine that he worked simply to appease his new found sister in-law (defendant). He says he did expect to be paid. Then again he may have renovated the place for himself to live in with his family. The defendant says the complainant lived in the place for 8 months. The complainant may have actually expected to live there for a lot longer than that. He could have thought he was going to live in the house for longer, which is why he may have renovated and expended it. Therefore he may have instituted this proceeding after he was tossed out of the place, quite unceremoniously in fact.

Whatever the case was, the complainant did want something for working on the defendant’s domestic quarters. He did not stay overly long in the place to be considered as having been paid in full, and he clearly thinks K400.00 is inadequate.

Quantum Meruit

By the operation of this equitable principle the complainant seems to have earned the right to be compensated for the work he did. He is entitled to sue for an ascertained sum for the reasons already given earlier. But he can sue for compensation on a quantum meruit bases. The suggestion by the defendant that the complainant demanded K750.00 but then he later sued for K5, 086.56 is undisputed. The complainant also seems to have lived in the house for some time so he at least derived some material benefit for his efforts.

No witnesses have testified on either side. There still seems to be a relationship between these two, over their common affinity to one Maria Tumbi, who apparently has borne a child for the complainant. If the complainant were still in occupation of the defendant’s domestic quarters I doubt very much that he would have sued the defendant. Therefore it is open for a conclusion that the complainant sued the defendant principally because he was tossed out of the place he thought he might call his home for a while. Moreover there is every need to be cautious as one or the other maybe lying under these emotionally charged circumstances.

Conclusion

In all the circumstances I consider that a global sum of K2000.00 is adequate compensation for the defendant for his efforts. From this K400.00 shall be deducted, which leaves K1600.00 yet to be paid.

Ergo I enter judgment in favour of the complainant, Tandape Gipe, against the defendant Duriyame Tumbi, in the sum of K1600.00 plus interests at the statutory rate of 8% from the date of summons to the date of settlement. The complainant shall have his costs of this proceeding, the same to be taxed if not agreed.

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The Complainant in person
No appearance by the Defendants