Danny v East New Britain Commodities Ltd [2022] PGNC 617; N9879 (1 August 2022)

N9879

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1497 OF 2019

BETWEEN:
LEO DANNY
Plaintiff

AND:
EAST NEW BRITAIN COMMODITIES LTD
First Defendant

AND:
EAST NEW BRITAIN DEVELOPMENT CORPORATION LTD
Second Defendant

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Third Defendant

Kokopo: Dingake J
2022: 1^st August

CONTRACT – claim for breach of employment contract – defendants allegedly breached contract by failing to repatriate plaintiff after his employment with defendant ceased – for claim of breach of contract Plaintiff must prove the following to establish liability – that there was a contract between the parties, that the Defendant breached a material term of contract, that the breach was without legal justification – defendants’ pleading confusing – defendants admit to some allegations of breach of contract pleaded by the plaintiff -liability established by plaintiff – trial on quantum to follow – costs in the cause

Counsel:
Mr. Kihanges, for the Plaintiff
No Appearance for the Defendants

1^st August 2022

1. DINGAKE J: The Plaintiff by way of Writ of Summons sued the Defendants for breach of a contract of employment.
   
2. The Plaintiff in his statement of claim says that he was employed by the Defendants from June 2010 to April 2018 and that his contract was terminated by the First and Second Defendants.
   
3. In terms of the statement of claim the First Defendant company is a subsidiary of the Second Defendant.
   
4. Essentially, the Plaintiff’s complaint or grievance is that the Defendants delayed to pay his repatriation costs and other entitlements by one year and two months forcing him to remain in East New Britain for a period of fifteen months without income.
   
5. The Plaintiff alleges that due to the Defendant’s delay in repatriating him, he suffered psychologically, physically and financially. He says he was forced to incur rental debts in the sum of K21,000 and also had medical problems as a result of being under stress.
   
6. The other complaint of the Plaintiff is that upon the termination of his employment the Defendants failed to give him his Motor-Vehicle Isuzu D-Max Double Cab Registration RAR 101 that he purchased by sacrificing around K39,000 per annum for eight consecutive years from his total remuneration package towards the purchase of the motor-vehicle.
   
7. The Plaintiff says in consequence of the delay in repatriating him and paying out his entitlements he suffered damages particularized in his statement of claim all of which come to a total of K241,000.
   
8. The Defendants’ statement of defence is not couched or stated in clear terms and is confusing. Some parts of the Defence deny that they delayed repatriating the Plaintiff and in some instances they accept that they did. The extent of delay may be relevant in the calculation of damages.
   
9. In the statement of Defence, the Defendants deny that the Plaintiff was employed by both Defendants and say that he was employed by the First Defendant.
   
10. The Defendants admit that the Plaintiff’s contract of employment was terminated on the 12^th April, 2018. They say that on the 8^th of May, 2018, the Second Defendant paid the Plaintiff K24,138.22 and rented accommodation for the Plaintiff and his family until December, 2018. They also deny that the Plaintiff was forced to remain in East New Britain for a period of fifteen months. They also deny the Plaintiff’s claim with respect to Motor-Vehicle Isuzu D-Max Double Cab Reg RAR 101.
    
11. At paragraph 9 (nine) of the Plaintiff’s statement of claim the Plaintiff alleges that: The Plaintiff’s repatriation cost and other entitlements was finally paid on June, 27^th, one year and two months after the Plaintiff’s Contract of Employment was terminated.
    
12. In response at paragraph 8 (eight) of their Defence, the Defendants admit the above allegation and state that: The Defendant admits paragraph nine of the Statement of Claim.
    
13. The admission that some payments were made in May, 2018, when he was dismissed on the 12^th, April, 2018, and rented accommodation was provided for him until December, 2018, suggests that the Defendants delayed repatriating him as he claims.
    
14. The trial was conducted by way of affidavit, being the affidavit of Leo Danny (Document No.16), filed on the 4^th of November, 2021.
    
15. It is trite law that the Plaintiff bears the burden of proving his claim on balance of probabilities.
    
16. In a breach of contract claim the Plaintiff must prove the following to establish liability:
    • (a) That there was a contract between the parties.
    • (b) That the Defendant breached a material term of contract.
    • (c) That the breach was without legal justification
      
17. According to the evidence, the Plaintiff was employed by the Defendants and his contract was terminated on the 12^th of April, 2018. In the said affidavit the Plaintiff avers that the Defendants failed to repatriate him and his family to Mt. Hagen, Western Highlands Province, which led him to suffer damages.
    
18. The Plaintiff relies on the terms of an unsigned contract between him and the Second Defendant. The Defendants do not deny these allegations in their Defence.
    
19. In terms of the unsigned agreement referred to above which is not denied by the Defendants, in the event of termination of employment, the Plaintiff and his family were entitled to airline tickets of K6000 to cover shipping costs of personal belongings from Rabaul to Mt. Hagen.
    
20. The damages allegedly suffered relates to rentals in the amount of K21,000, psychological and mental distress, stress, anguish, anxiety K50,000, general financial sufferings K20,000 and K50,000 general damages.
    
21. The Plaintiff’s affidavit says nothing about the contributions he made towards purchasing the car as claimed in the statement of claim, nor does the Plaintiff attach any proof of payments he made towards the purchase of the car.
    
22. Based on the uncontested evidence of the Plaintiff, I am satisfied, on a balance of probabilities that:
    • (a) a contract of employment between the parties existed, as alleged by the Plaintiff.
    • (b) that the contract was terminated on the 12^th of April, 2018.
    • (c) that in terms of the contract the Plaintiff and his family were entitled to be repatriated to Mt. Hagen, Western Highlands Province, upon the contract of employment being terminated.
    • (d) that the repatriation was a material term of contract.
    • (e) that the repatriation was delayed which may have caused the Plaintiff some damages.
      
23. In the result:
    • (a) The Plaintiff’s claim on liability succeeds.
    • (b) The issue of the quantum of damages is adjourned for trial on a date to be communicated to the parties by the Registrar, and or the Court.
    • (c) Costs are reserved to the end of the trial on damages.

_______________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Lawyer for the Defendants: No Appearance