Hetegahe v Hagen [2018] PGDC 14; DC3096 (19 February 2018)

DC3096

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION

DCCi 137OF 2017

BETWEEN
Ps TIMOTHY HETEGAHE & JOYCE HETEGAHE

Complainants

AND

INDEX HAGEN & OTUVO INDEX

Defendants

Goroka: P KAUMBA

2017: November21.

2018: February 19

CRIMINAL LAW:

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Complainants, In Person

Lawyer for the Defendants, In person

19^th February, 2018

DECISION

PKAUMBA, Magistrate: The Complainantsfiled their complaintin this proceeding on the 31^st of August 2017 seeking the following orders:

1. The defendantshonor their end of agreement and pays back not more than K3000.00.
2. Special damages of K50.00.
3. Costs and such other orders the court shall deems proper.
   
1. TRIAL.

This case was first mentioned before me on the 14^thof September 2017 and the defendants denied the claim so I issued directions for parties to file their affidavits and adjourned the case to the 17^thof October 2017 for mention. On the 17^th of October 2017 I noted that the complainants have filed their affidavit and not the defendants so I directed the defendants to file their affidavit within 14 days and set the case for hearing on the 20^th of November 2017. On the 20^th of November 2017 hearing was conducted and adjourned it to the 21^st of November 2017 to allow defence to bring a witness to give evidence. On the 21^st of November 2017 the defendantsdid not produce their witness and the case was closed and I set the 13^th of February 2018 at 100pmfor decision. The decision was not handed down on the 13^th of February 2018 due to Election Petition trial and court house was barricaded by police to allow petition to flow uninterrupted.

2. RELEVANT LAW.

District Court Act.

21.CIVIL JURISDICTION.

(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a court has jurisdiction in all personal actions at law and equity where the amount of the claim or amount or value of the subject matter of the claim does not exceed-

(a) where the court consists of one or more Principal Magistrates-K10.000 and

(b) where the court consists of one or more magistrates-K8000.00...

22 GENERAL ANCILLARY JURISDICTION.

Subject to this Act, a court as regards a cause of action for the time being within it’s jurisdiction, shall, in proceedings before it-

(a) Grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
(b) Give the same effect to every ground of defence or counterclaim, whether equitable or legal.

As ought to be granted or given in a similar case by the National Court and in as full and ample a manner’.

Simple Contract: Legally enforceable agreement between two or more persons. There must be a meeting of minds that is the parties must agree to all aspects of the transaction and the agreement must be enforceable.

Principles of equity- primary fairness or natural justice. Maxims of equity relevant here are: equity acts on conscience, equity follows the law, equity looks at intent rather than form, equity looks on that as done which ought to be done and equity will not suffer a wrong to be without remedy.

3. ISSUES.
   1. Is there a legally enforceable contract between the parties. If so then is the complainant entitled to claim K3000.00 from the defendants?
   2. Who owns the cash crops on the defendants land?.
      
4. FACTS AND FINDINGS.
   • (1) The complainantssays thatthe defendants agreed that the complainant will use their land at

Asaro and make garden and from the sale of the crops the complainant will buy 12 foot roofing iron for the defendants to build a semi-permanent (one side) house.

(2) The first Defendant says that for the use of his land, the complainants agreed to buy roofing

iron and other things and give it to them. Furthermore the parties were to work as a team to plant the garden and sell the food harvested from the garden together but that agreement was breached by the complainant by engaging other people to work on the garden. Furthermorethe complainants only were involved in selling their produce at the market thereby excluding the defendants from being involved in the sale of crops and knowing how much was being made from the sale of the carrots etc. Thus breaching they fourex(4X) agreement.Lastly the complainants did not disclose how much was made from the sale of the carrots to the defendants and that is also in breach of their forex(4X) agreement.

(3) The second complainant gave evidence that the planting of the crops and harvesting and

selling were all to be done by the parties only. She referred to the agreement as four X(4X) agreement.

(4) She also gave evidence that the first carrot gardening was done by her husband only and the

complainantsjust provided the seed and came on the scene to harvest them and that
differs from the complainants evidence that theydid the clearing and planting of the carrots

from the start to harvest. The complainants witness evidence was confusing because his oral evidence did not agree with his affidavit evidence and when asked to confirm he said the affidavit evidence is the truth.

(5) The complainants cleared the defendants land and planted carrots and the complainants dug up 10 and ½ bag of carrots and sold them at Lae, market Morobe Province on three(3) occasions.

(6) The complainants tried to buy roofing iron worth K200.00 and give it to the Defendants

through their servant JogabeOesobut they refused because the complainants did not come and get the roofing iron and give it to them personally and used a third party to do so and that was not part of their agreement. Furthermore the defendants say the complainant’s servant was trying to buy 8foot roofing iron worth about K30.00 each and they did not like that because the agreement was for 12foot roofing iron and not 8 foot so they refused to allow him to do so.

(7) The complainant’s witness gave evidence that the defendants wanted rental payment for

the use of their land and not roofing iron so they refused to get the roofing iron.

(8) The complainants engaged seven(7) people to plant K100.00 worth of carrot seed and 12

women to plant sweet potatoes(kaukau).

(9) The parties took their differences to middleman to mediate a solution but there are

conflicting views on the result of the mediation. The defendants say the second complainant argued with the women leader and she left and leader Amos one of the mediators made decision and told the defendants to harvest the kaukau and buy their roofing iron. The complainants argue that there was no such decision made.

(10) After the disagreements the second complainant says she gave K50.00 to the First

Defendants and later her husband gave K350.00 to first defendant and he accepted it.

(11) The first defendant took the money to his wife and his wife got angry and scolded him so he

returnedthe K400.00 to the complainant that is after 5 daysof accepting the same.

(12) I adjourned the case on the 20^th to the 21^st of November 2017 to allow the defendants to

get leader(Mediator) who made the decision for the defendants to harvest the crops to testify but the defendants failed to bring him to court to confirm the mediated solution.

(13) I asked the second defendant why leader Amos is not in court and she said that ‘’the

complainants went first and saw leader Amos and were talking him and we thought the complainants have told him(witness)about the courts request and she did not tell him because he avoided them’’.

(14).The complainant’s act in seeing the leader first is improper and questionable and there is

no independent witness to corroborate the evidence of the parties.

(15) Hence I am left with the statements of the parties and the complainants witness Jogabe

Oeso only to make my findings on the facts so court asked the parties about crops planted on another persons who owns the crops in custom.

(16) In response the partiesgave evidence that in situations where another person plants

something on another person’s land the planter owns the plant and he can harvest it and the land only will go back to the owner. If the owner of the land wants his land back quickly before the planter harvests the plants then he has to compensate the planter for the plants.

(17) The complainants will have to prove on the balance of probabilities that there was an

agreement between the parties and the agreement can be enforced in law.

(18) The parties entered into an agreement with manyvital loose ends in that there is no

definite agreement on how many roofing iron the complainants will buy and give to the complainants, when and by whom etc .

(19) The defendants are arguing that there was fourex(4X) agreement between the parties, that

is the parties will do all the work themselves and together sell the produce and account for all the receipts from the sale but that was disputed by the complainants.

(20) In my view a 4x agreement to plant carrots, harvesting and selling the same on the market

is not possible especially when you are involved is medium to large scale farming to sell your produce at the market. You will need labourers to assist and work the lands and plant crops. It will not be possible to allow all parties to be involved in selling the produce because to do so will be uneconomical considering the cost involved in travelling to and from the market plus accommodation at the market place etc. Lastly someone will have stay back to tend and look after the garden if all go to the market that is not possible.

(21) Hence here I have is a typical Papua New Guinean agreement with many loose ends yet to

be tightened up and there is no legally binding agreement in place between the parties.

(22)There may have been good intentions in the first place but as soon as the proceeds from

the sale were coming in and many people were engaged by the complainants to work on the defendants land, some jealous and greedy motives came into play which resulted in this dispute.

(23) If there was such a fourex(4X) as purported by the defendants the complainantfailed to be

transparent is their conduct towards the defendants in accounting for the proceeds of the sale and buy 12 foot roofing iron and give it to the defendants themselves and explain the reasons for doing so etc. This dispute seems to arise out of lack of communication and fair play between the parties as well.

(24) However the complainants have used their resources to plant the Kaukau(sweet potatoes)

andequity requires that I must make a decision that is fair to the parties and I believe it is fair that the complainants should be compensated by the defendants for their expenses and labour in planting Kaukau(sweet potatoes) on the defendants land.

(25) Furthermore in our customary law the planter owns the crops on the land and since the

complainant planted the crops using their funds and resources and the defendants have harvested the same for their own use. The defendantsshould compensate the planter/the complainant for their labour and money expended in planting the Kaukau(sweet potatoes).

(26) Thus I order accordingly.

5. ANSWER TO ISSUES.
   

My answers to the issues before the court are:

1. There is no agreement in placebetween the parties but equity requires that what requires to be done has been done and the court should give a decision on what is fair in the circumstances.
2. The planter owns the crops on the land.
   
6. COSTS.
   

Cost is a discretionary matter for the judge. Cost should follow the event.

7. ORDER.

My formal orders are:

1. The Defendants shall pay damages to the complainants to be assessed.
2. The parties shall file their affidavits and submission on damages within 7 days of this order and serve on the defendants and upon receipt of the affidavits and submission the defendants will file their affidavits and submission within 7 days from the date of receipt of complainant’s affidavits and submission.
3. The case shall return to court for hearing on damages on the 7^th of March 2018.
   

Counsels:

Lawyer for the Complainants, In Person

Lawyer for the Defendants, In person