Hondole v Palai [2021] PGDC 94; DC6053 (30 June 2021)

DC6053

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

CIVIL JURISDICTION

GRFCV NO. 10 OF 2021

Between:

OBERT HONDOLE

Complainant

And:

TAYA PALAI

Defendant

His Worship Mr. E. Komia

30^th June 2021

CONTRACT LAW (Civil Jurisdiction) – verbal agreement between parties – agreement to hire vehicle – uncertainty of terms requiring strong evidence – lack of evidence to support claim – verbal agreement only an agreement where terms are certain – uncertainty of terms of verbal agreement – agreement voidable and unenforceable.

Held:

1. A verbal agreement can only be a valid and enforceable agreement where the terms of the agreement between parties are certain and that the complainant or plaintiff must have strong and credible evidence to support the claim. Uncertainty in any term of the agreement renders the agreement voidable and unenforceable.
   
2. A claimant in a proceeding claiming verbal agreement has the onus to prove the balance of probabilities based on evidence supports the assertion of an existing and enforceable verbal agreement.
   
3. A defendant cross claimant who makes a cross claim based on the term of the initial verbal agreement relied by complainant or plaintiff has the same degree of onus to prove the balance of probabilities backed up with evidence to substantiate his claim, failing which, his claim must also fail.
   

Papua New Guinea cases cited

Lyn v Yaku [2017] PGSC 6; SC1574 (10 March 2017)

Woodward v Woodward [1987] PNGLR 92

Mel v Brian Bell and Company Ltd [2005] PGDC 114; DC287 (16 October 2005)

Legislations

District Courts Act

Counsels:

Complainant: in person

Defendant: in person

INTRODUCTION

1. This proceeding is instituted by the complainant for an alleged breach of contract by the defendant for failing to honor certain terms of what he claims to be a verbal agreement. The defendant has also cross claimed for the loss of his business for one day takings from his twenty – five seat bus which was hired.
   

BRIEF FACTS

2. In brief, the facts pertaining to this proceeding is that, the complainant is the President and manager of the Hela Wigmen Team that took part in the Inaugural Coca Cola Ipatas Cup. The tournament was to be played from 12^th February 2021 to 16^th February 2021.
   
3. On 08^th February 2021, the complainant approached the defendant, who was the driver of a twenty-five seat bus and offered to hire the bus to transport rugby players and official for the Hela Wigmen team from Tari, in Hela Province to Banz in Jiwaka Province and back.
   
4. The complainant and the defendant agreed in principle for the engagement of the bus, but the defendant advised the complainant that he would liaise with the owner of the bus and return with the owner so that the complainant and the vehicle owner can discuss the terms of the hire.
   
5. The defendant then returned with one Jack Molo, who was the elder brother of the owner of the bus, and the complainant then discussed with Mr. Molo at the roadside, next to the Tari National Court house carpark, opposite the Police Station. Their conversation and the nature of their agreement was never witnessed by any person.
   
6. After the short discussion between Mr. Molo and the complainant, the players and team officials of Hela Wigmen Rugby Team boarded the bus. Jack Molo then had a short conference with the players and the team management and coach that the amount of K 5, 000.00 which was agreed for hire was not enough, but as community service, he allowed the bus to be hired for the Wigmen team to take with them to Jiwaka Province and back.
   
7. He then summed up and made two remarks where he stated that there was to be zero consumption of alcohol inside the bus, and the bus was to return with the players after Wigmen Team had completed all its games that was required to be played. He then made a short prayer to release the bus and after the prayer, the defendant drove the car and set off for Banz with the team.
   
8. The team arrived on Wednesday, 10^th February 2021. The Wigmen team then played their three games on 11^th February 2021 12^th,February 2021 and the final game on 13^th February 2021, but lost all their games and consequently did not qualify to go into the finals.
   
9. Soon after the final game on 13^th February 2021, the complainant bought some beer and some of the players along with the complainant started drinking in the afternoon, and continued into the night.
   
10. On 14^th of February 2021, the defendant prepared to return to tari with the Wigmen tesm as there was no reason for staying back because the games were already completed and Wigmen had no more games to be played. When the defendant went to pick the team, he realized that there were only seven players and the team trainer Amos Muli and manager Bob Ekari, waiting whilst the complainant and the other players were absent. He later learnt that the missing players and complainant were still continuing their drinking spree.
    
    11. At around 10 am on 14^th February 2021, after waiting for some time, the seven players and the two officials boarded the bus and they began their trip back to tari and arrived later that afternoon to Tari.
        
    12. When the complainant and the other drunk players arrived at the lodge where they had been residing, they found out that the defendant had left already with the seven players and two team officials. They then got on a different PMV and returned to Tari.
        

EVIDENCE

13. The complainant and the defendant both gave sworn evidence and also brought in their witnesses. The complainants evidence is that the defendant and Jack Molo had agreed at the hire price to be K 5, 000.00, and that the vehicle would be returned after the games.
    
14. The defendant the same evidence but stated that the return dates were made specific and it was that the bus was to return to Tari the next day after Hela Wigmen had played all their games.
    
15. The complainants two witnesses, Amos Muli and Bo Mekeria also gave sworn evidence that they all knew that the hire of the bus was K 5, 000.00 but the other terms of the agreement with respect to the exact time the vehicle would return were never known to them.
    

ISSUE

16. The pertinent issue is whether there was a breach of agreement on the part of the defendant, as alleged by the complainant.
    

DISCUSSION

17. This proceeding is based on a claim of an oral or verbal agreement. It is trite law that an agreement must be clear and precise and the terms must be agreed to by parties. Furthermore, in an oral or verbal agreement, the parties must agree to terms that are specific and certain, so as to avoid ambiguity, that can render the agreement void.
    
18. A plaintiff or complainant cannot plead verbal agreement with respect to an agreement for the Sale of Property^[1], but the complainant can plead verbal agreement for other types of agreement. In the case of Mel v Brian Bell and Company Ltd [2005] PGDC 114; DC287 (16 October 2005), the District Court presided by Gauli M. enforced a verbal agreement in which parties agreed to use the complainants vehicle to assist them in recovering a stolen vehicle belonging to the defendant. The court found in favor of the plaintiff stating that there was an agreement and it was binding and enforceable for all intent and purpose.
    
19. The Supreme Court in Woodward v Woodward [1987] PNGLR 92 also stated per curiam that;
    

“where as a general rule, the court will not enforce an agreement the terms of which are so vague or indefinite that the intention of the parties cannot be ascertained with reasonable certainty, nevertheless, if the court can resolve the uncertainty by reference to other acceptable evidence or the subsequent conduct of the parties, it may enforce the agreement where parties have acted upon and intended the agreement to have legal effect.

20. From the evidence put forward by this case, the court notes that there is ambiguity and confusion over the terms of the agreement. Whilst there is clarity around the hire price which is fixed at K 5, 000.00, the defendant understood the time for the return of the bus with the players within the context of the agreement to be the next day after the Wigmen’s games were over. In this case, it was Sunday as the Wigmen had played their final game on Saturday. On the other hand, the complainant understood the return date of the bus to be after the completion of finals in the inaugural Coca Cola Ipatas Cup, and hence; stated that the defendant is in breach of the agreement.
    
21. I also find the evidence of the complainant yearning as the two witnesses called by the complainant, namely Amos Muli, and Bob Ekari did not assist much in ascertaining the exact terms when the vehicle would return. Therefore, given the different versions of the agreement by the defendant and the complainant, shows that there is ambiguity and that the complainants claim cannot stand.
    
22. Having found that, I do not need to delve any further into other aspects of the contract and shall order that the proceeding be dismissed.
    
23. I will therefore Order that;
    
    1. This complainant’s claim in this proceeding is dismissed in its entirety.
       
    2. Cost to be borne by parties.
       
    3. Time is Abridged.
       

By the Court.

Magistrate E. Komia

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[1] Lyn v Yaku [2017] PGSC 6; SC1574 (10 March 2017)