Bundo v Done [2022] PGDC 64; DC8067 (5 May 2022)

DC8067

PAPUA NEW GUINEA.

CIVIL JURISDICTION.
DC NO: 130/2021

IN THE MATTER BETWEEN:
WILLIE BUNDO
Complainant.

AND:
BARBRA DONE
Defendants

Popondetta: Michael W. Apie’e

2022: March 29 May 05^th.

CIVIL PROCEEDINGS.

-Claim of K5,000.00 in damages/Compensation for 5 years of Care-taking work on Portion 121790 at Sorovi, Higaturu LLG in the Northern Province.

-Prior Arrangement done between the Parties for K2, 783.00 as assessed by the Labour and Employment Department to be paid to the Complainant as advice by Public Curator.

-Concept of Repudiation of Contracts/Agreements discussed.

EVIDENCE-
Both sides called multiple witnesses- submissions both filed and made verbally.

Held:

1. Complainants claim is upheld against the Defendant.
2. 
   

Cases Cited:
-Philip Avosa v. James Koba [2022] PGDC 12; DC8010
-Tom Rangip and Or’s v. Roland Yeung and another [1998] PGDC 25

References:
-District Court Act.
-Pacific Contract Law, Roebuck, Srivastava and Nonggorr (1987) UPNG Press.

Representation:
Complainant appears for himself.
Defendant appears for herself.

JUDGEMENT ON TRIAL.
Background.

1. The Complainant filed his summons dated the 20/07/21 and claimed for damages in the sum of K5,000.00 from the Defendant as compensation for the 5 years he had worked as a care-taker on Portion 121790 at Sorovi, Higaturu LLG in the Northern Province, by the Late owner of this Portion namely Mr. Oswald Done.
   
2. The Terms of his engagement by Late Oswald Done to Take Care Portion 121790 is not elaborated fully but it seems Oswald Done engaged the Complainant because of his Youth and Physical fitness and Attributes to harvest, clean and keep the block in working order.
   
3. Whatever promise in terms of Compensation or payment is not elaborated but it seems he remained loyal to the Block and Late Oswald Done for almost 5 years or so and helped to Repay Outstanding Loans on the block and keep the Block in viable working order.
   
4. Anyway, it seems there was a falling out between the Complainant and the said Late Oswald Done, as it seems the Complainant went ahead and sued the late Oswald Done for the efforts he put into Portion 121790, after Oswald Done Accused the Complainant of Stealing from him.
   
5. So they went to Sorovi Village Court on the 02^nd of September 2019 Presided over by Village Court Magistrates Wilkinson Kageni, Nathaniel Berepo and Stephen wherein the Village Court ordered that some unspecified reasonable payment be assessed and paid to the Complainant by the said Oswald Done.
   
6. The Court notes at this Juncture that the Village Court in its Deliberation on the 02/09/19 never installed any agreement in terms of amounts, and payments schedules, but only that the Parties kept their peace towards each other and settle upon a reasonable amount to be considered by Oswald Done and paid to the Complainant.
   
7. On the 15^th of October 2019, the Department of Labour and Industrial Relations (Labour Dept.) in Popondetta through one (Ms.) Melva Kubu issued an Assessment of K2,783.20 as earned benefits to be paid to the Complainant Willie Bundo Sip at the very minimum labour rate of K0.95 toea per hour.
   
8. After Oswald Done died in the Defendant Barbra Done entered the block and claimed the block and took control over the harvesting of oil palm from the block.
   
9. The Complainant insisted that the Defendant was never seen on the block when the said Oswald Done was still living, and never helped in working on the block at any time but appeared after the death of Oswald to claim the block.
   
10. The Defendant on the other hand claimed that due to the outstanding amount assessed by the Labour Dept. they went and saw Public Curator Officer Mr. David Nohoro and advised that the Complainant could harvest from the Block to off-set his outstanding.
    
11. The Court Notes here that this Arrangement was not a Court Ordered Settlement Amount or Payment Schedule, but it is rather a Payment schedule based on a ‘Gentle-Mans Agreement’ type arrangement imposed on the Complainant by the defendant and the Public Curators Officer.
    
12. As settlement the K2783.20 is being slowly paid off through harvests and according to the Defendant K1,114.34 remains outstanding on the amount assessed by Labour Dept. yet to pay since 2019.
    
13. The Defendant claims that one time at HQH Supermarket in Popondetta, she told the Complainant that rather than harvesting himself, he should give her his account Number so she can harvest and pay off his K1,114.34 outstanding, but the Complainant did not give her his account details.
    
14. Later she was surprised when he sued her for K5,000.00.
    

Observations/Assessment.

15. Having considered the whole of this case, the Court makes the following Observations;
    
    1. Whatever was promised to the Complainant by the Late Mr. Oswald Done to get him to come and work for him has not being revealed but it is clear that both Late Mr. Oswald Done and now the Defendant Barbra Done have benefited greatly from the Complainants efforts on Portion121790 for the close to Five years he was engaged on this block.
       
    2. The Blocks Loans were paid off according to the Complainant and the Block itself maintained at a viable state that the Defendant and her children are able to harvest Palm oil fruits and sell for money to this day.
       
    3. Even Oil Palm Industry Corporations Divisional Manager for Sorovi a Mr. Bito Mula wrote to the Labour Dept. on the 26/07/2021 urging them to reconsider their assessment of K2,783.34 as the Labour Cost for the Complainant on Portion 121790, given the nature of his overall efforts on the block was of a greater value than they assessed.
       
    4. In his filings the Complainant claimed that, in his time with Late Oswald Done, he was minimally paid K20.00, K50.00, K60.00 randomly and sporadically and sometimes never.
       
    5. During his final Submission, he further claimed that he has built a house on the Block that still stands and also planted plants on the block that ought to be accounted for before he is evicted fully.
       
    6. The Complainant clearly does not agree with the K2783.34 Labour Dept. Assessment as the final amount applicable to his case given his almost Five years of work and effort on Portion 121790.
       
    7. The Payment Schedule relied on by the Defendant is not a binding Legal Agreement as it was not Formally Signed, Sealed and Delivered so the Complainant was perfectly within his right to not honour it and seek Formal Court Adjudication instead, which he has done through this action.
       
    8. Even if an Argument can be made, that this K2,783.34 Payment Schedule was Formal , Legal and therefore Binding between the Complainant and Defendant, when the Complainant opted not to harvest the oil palm as agreed between the Defendant and Public Curators officer Mr. David Nohoro, and then subsequently refused to give the Defendant his account number for her to pay the balance remaining on the Labour Dept.’s Assessment of K2,783.34, he was more or less refusing to be bound to that Arrangement thereby effectively Repudiating that ‘Gentle- Mans Agreement.’
       
    9. Therefore, that agreement reached at the Public Curators Office was no longer binding on the Parties as it was Effectively Repudiated when the Complainant chose no longer to adhere to the Propose Labour Dept. Assessment and the intended payments by the Defendant, by refusing to give her his account details.
       
    10. In my ruling in another case here in Popondetta of Philip Avosa v. James Koba, I found that the Lease Agreement between the Parties for the Defendant to lease the Complainants property in Popondetta Town was Repudiated when the Complainant chose to withdraw from the Agreement due to Bad Faith Activities (Mala Fides) by the Defendant when he was making enquiries and trying to take over the Complainants property for himself.
        
    11. However, in that case I still found that the Defendant still owed Rentals for the months he was in occupation of the Complainants house, in the same manner the Complainant in this case can be said to be owned money still on his almost 5 years of work on Portion 121790.
        
    12. I refer to the earlier Unreported case of Tom Rangip and Or’s v. Roland Yeung and another where Senior Magistrate George Manuhu as he then was, returned certain Rulings including the Ruling in respect of ‘Repudiation of an existing Lease Agreement on the basis of an inability to continue to perform to the Lease Agreement when the Property was supposedly sold or disposed to Second Person after being first sold or disposed previously to another person.
        
    13. Repudiation simply means ‘refusing to Accept’ or in Contract situations ‘When one party being aggrieved within certain breaches or infractions or terms and conditions in a contract no longer wishes to be bound by the terms of the contract moves to terminate the contract and ending any and all duties and responsibilities emanating from such.
        
    14. In adjudicating in the Rangip v. Yeung case above Magistrate Manuhu cited extracts of the Pacific Contract Law, Roebuck, Srivastava and Nonggorr (1987) UPNG Press, and I also refer to that here;

In Pacific Contract Law, Roebuck, Srivastava and Nonggorr (1987) UPNG Press at 709 the writers stated:

"Breaches of contract may be put into three categories: failure to perform, repudiation, and self-imposed inability to perform which is really a sub-category of repudiation. Breaches usually arise where a party fails to perform what he promised to do under the contract, because he fails to pay or deliver on time, or perhaps his goods or workmanship is faulty. Repudiation takes place where a party expressly or impliedly says that he will not carry out his part of the contract. The third category is of cases where a party makes it impossible for himself to perform his part; if A has contracted to sell his car to B and then sells it to C, he has no car with which to perform the contract."

15. In the case at hand, in the first instance, it is the finding of this court that there is no binding Agreement binding the Complainant to settle for the K2,783.34 assessment by the Labour Dept.
16. Alternately, even if there is a Binding Gentle-Mans Agreement to settle for K2,783.34 between the Parties, such an agreement if it indeed existed has being effectively Repudiated and so is no longer binding on the Parties.
17. The Complainant is therefore perfectly within his right in mounting this claim against the Defendant.
18. Another interesting point to consider is the Point made by the Complainant in his Submission to be allowed to remain on the block and to take over the Block.
19. However, regarding that point, the power lies with the Lands Department upon OPIC and even Public Curators making appropriate Recommendations.
20. It is however not in the ambit of this court to adjudicate on, except for what had being claimed in this Action only.

16. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Level of efforts put in by the Complainant for the close to 5 years he was on Portion 121790 in assisting in paying off Loans and keeping the block in a viable condition is worth more than the Menial Labour Rates employed by the Labour Department at K0.95 per hour.
       
    2. The Defendant was never present when the Complainant was Labouring away for Oswald Done on Portion 121790, but because of the marital connection she probably had with Late Oswald Done, she inserted herself in after Oswald Demise to take over the Block.
       
    3. The Sorovi Village Court never made any assessment or orders for settlement between the Parties.
       
    4. The Repayment Schedule adopted by the Defendant at the direction of the Public curator is firstly Not a Court Ordered Settlement Schedule, but rather an Informal ‘Gentle-Mans Agreement’ that the complainant was unwittingly dragged into until he refused to be bound by it and issued this proceeding against the Defendant.
       
    5. The ‘Gentle-Mans Agreement’ was effectively Repudiated in the assessment of this Court when the Complainant refused to be bound by it by refusing to give the Defendant his Account details and issued this proceeding instead.
       
    6. In all the Circumstance of this case, there was no binding agreement endorsed by a Court or properly entered between the parties for the Complainant to accept the Labour Dept. Assessment of K2783.34 at K0.95 toea per hour for the close to 5 years he was tending to Portion 121790.
       
    7. In the whole of the matter, this Court is of the opinion that the Complainant is entitle to the Amount claimed in this claim and so would uphold his claim against the Defendant.
       
    8. This Court would assess and Additional K2,000.00 as sufficient compensation for the Complainant to pull down and remove him himself (Removal) and his properties from Portion 121790.
       
17. Accordingly, this Court Orders as follows;
    
    1. The Complainants Claim is upheld against the Defendant and the Court Accordingly assess K7,000.00 as an appropriate Compensation for the Complainants efforts for almost 5 years on Portion 121790 at Sorovi.
       
    2. The Defendant is allowed 60 days until the 05/07/22 to fully settle this amount.
       
    3. In default, enforcement to ensue against the Defendant, including the Levying of Portion 121790 to settle the judgment Debt.
       
    4. Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.

Complainant Willie Sip Bundo appeared for himself.
Defendant Barbra Done appeared for herself.