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Noki v Paraka [1993] PGNC 6; N1168 (13 August 1993)

Unreported National Court Decisions

N1168

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 186 OF 1992
SOLOMON NOKI
v
MANGI PARA;

Mount Hagen

Woods J
21 July 1993
13 August 1993

PARTNERSHIP - Oral agreement - discussions between clan rels in village situation - mo - modern commercial reality - applicable law.

Cases Cited:

The following case is cited in this judgement:

Bafino v Tibiro [1992] PNGLR 168

Counsel:

P Kunai for the Plaintiffs

D O’Connor for the Defendant

13 August 1993

WOODS J: This is a claim for an accounting of a PMV business run by an alleged business partnership of the plaintiffs and the defendant. The plaintiffs claim thay held discussions in the village with the defendant for the three of them to buy a PMV andV and run it as a partnership. Thereno paship or other buer business document to evidence any such oral agreement and there appe appear to have been no business returns idence such a business arrangement.

The plaintiff Solomon Noki said that he is a PMVa PMV driver and that he and the others had discussions and he agreed to contribute K1,000, Wama K1,500 and the defendant the rest to purchase a 25 seater bus. Theyed that as the defendafendant contributed the most the registration should be in his name however he and Wama were to manage theto day operation of the vehicle. Although he then said that all the daily takings wers were handed over to the defendant who was responsible for the safe keeping. He then said that after 6 months the defendant told them to hand over the vehicle to hd he then went and sold it.d it. Howin cross-examination Soon Solomon did admit that he did not have a PMV drivers licence and ot run it as the driver.

The plaintiff Wama Rokopa agrees with the discussion with the defendant to buy and operate a PMV and he says that he contributed K1,500. He admits he was refun1,00K1,000 after the business was stopped.

The defendant agrees that there were discussions to buy a PMV however after the initial discussions he received sufficient money to buy the PMself so he refunded the mone money contributed by the plaintiffs. He said he hired drivers to run the PMV for him and the plaintiffs helped as assistants and were paid wages.

It is very difficult for this Court to analyse and interpret the real sitn when the court is not supplied with more facts. For; For examhat was the pthe portions of the partnership, the 2 contributions of K1,500 and K1,000 as stated by the plaintiffs are not much when the full purchase price of a 25 seater bus is considered.&#There is no evidence of anyf any records being kept, yet the plaintiffs say that they managed the day to day running of the bus. Surely they must know how much they spent on maintenance and fuel and service and also how much they received each day.

From the evidence presented to me I am expected to find a customary consensus between clan brothers. But what was needed to cahry that plan through, K20,000 or K30,000 for the purchase of a bus, yet the plaintiffs only supplied a small fraction. Di plais understand the rehe reality of a capital asset of that cost.

Whilst it may beay be easy to find how casual customary agnts work in the village over traditional matters can such apply when the subject matter is r is a modern business or commercial asset. A PMV involves an expensape capital asset, a daily turnover of fares and expenses, we are here talking about a modern commercial undertaking not a customary transaction. The Parliamen gone to a lo a lot of trouble to find ways to enable people to enter into commercial arrangements in their customary relationships such as with Business Groups. In a case like this isn&;t it expecting too much ofch of the Court to find all the terms for a modern commercial undertaking from such a vague oral discussio>

If you want modern accounting of your modern partnership agreements you must do such auch agreements or arrangements in a way that modern courts can determine what the facts are. Lookinghe balance which thch the Defendant was expected to contribute compared to what the plaintiffs say they contributed the arrangement could also only mean a loan to help get the venture started n doing so provide employmeloyment for the plaintiffs.

Whilst I should be ready to find the relationship sought albeit by evidence of the understanding of the parties at the time they had their discussions and by how they actually entered into and ran the business, the Court needs more evidence than has been presented here.

The evidence at the end of the case here was the defendant contributed most if not all of the money, the vehicle and operating licence was in the defendant's name, Solomon was not a PMV driver at all, the plaintiffs say they collected all the money yet they have no idea of the figures involved.

As I have said in Bafino v Tibiro [1992] PNGLR 168 if you are going to enter into modern commercial arrangements it may be neccesary to use modern methods of organisation. There are not enobjective tive facts here for me to give any credence to any commercial partnership.

I dismiss the claim.

Lawyer for the Plaintiff: P Kunai