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Yalwi v Amean [2011] PGNC 248; N4942 (27 September 2011)

N4942

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 136 OF 2008

BETWEEN:

ROBERT YALWI & 42 ORS
Plaintiff

AND:

DR. SAMSON AMEAN
First Defendant

AND:

ENGA PROVINCIAL GOVERNMENT
Second Defendant

Wabag: Gauli, AJ
2011: 31st August
27, 30 September

DAMAGES – Construction of new route for the road washed away by flooding – Loss of arable land, food gardens, trees, crops and ceremonial grounds resulting from the said construction – Claims payment for work done – No agreement to construct new route – Only agreement to divert the river away from the road – Plaintiff paid for diversion of the river.
Facts
A certain road was washed away by a flooded river. Plaintiff approached the Provincial Works Office at Wabag who in turn requested the second defendant to divert the flow of the river to the other side of the road to avoid erosion. Provincial Works Unit carried out the road maintenance work assisted by the plaintiffs. The road maintenance and construction saw the plaintiffs lose their arable land and other properties. And the plaintiffs claim damages against the second defendant.

Cases Cited

Dobiam Kope v Tourism PNG Ltd (2010) N4138
Ume More & Ors v The University of Papua New Guinea [1985] PNGLR 401
Madiu Andrew v Mineral Resources Development Company Ltd & Ors (2004) N2601
Kiku Plumbing Pty Ltd v Enga Provincial Government [1993] PNGLR 439

Counsel:

Mr. M. Thoke, for the plaintiffs
No Appearance, for the defendants

EX PARTE JUDGMENT

30th September, 2011
1. GAULI, AJ: The plaintiff's claim against the second defendant for damages done to their properties resulting from constructing a new route where the road was washed away by flooded river. He also claims payment for the work done in constructing the new route. The Plaintiffs claim a total amount of K82, 900.00.

EX PARTE PROCEEDINGS

2. The defendants were represented by Mr. P. Potane of Potane Lawyers. On 27 June 2011 the trial date of 23 August 2011 was fixed in the presence of both lawyers. On the trial date the defendants' lawyer failed to attend. Mr. Thoke advised that defence lawyer is overseas and will be returning on 24 August and requested for adjournment. Trial was vacated and adjourned to the 31st of August for trial. Again the defence counsel failed to appear for trial. Mr. Thoke submitted that he tried to serve on the defence counsel's secretary the following documents – (a) Supplementary Affidavit in Reply; (b) Notice to Rely on Affidavits pursuant to s 35 of the Evidence Act; and (c) Notice to Cross Examine pursuant to s. 36 of the Evidence Act, but the Secretary refused to accept the documents. And he submitted the Court to proceed ex parte in the absence of the defendants and their legal representative, pursuant to Order 10 rule 12 of the National Court Rules (NCR).

3. The O. 10 r. 12 (1) NCR gives the Court the discretion to either proceed to trial in the absence of the other party or adjourn the trial to a later date. I have already vacated the trial on this proceedings once during this Court circuit last month. The defence counsel has been given ample opportunity to represent his clients but he has failed to attend. He has shown no courtesy to inform the Court why he would not be available for the trial of this matter. Using my discretion under O 10 r. 12 (1) N.C.R. I grant the application to proceed ex parte.

4. The proceedings were adjourned to 27th September for submissions. Again the defendants and or their legal representative failed to attend. I received the submission from the plaintiff.

ISSUES:

1. Whether or not the plaintiffs have properly pleaded their claim.

EVIDENCE FOR THE PLAINTIFFS

5. The plaintiffs relied entirely on the evidence of the only witness namely Mr. Robert Yalwi who relied on his sworn Affidavit filed on 02/02/2009 (marked EXHIBIT "A") and his sworn Supplementary Affidavit filed on 29/08/2011 (marked exhibit "B"). His evidence is that during the heavy rainy season in early January 2003, the Lyepyaris Kundis road along Yambu Londol trunk road at Ambum Valley was badly washed away by flooded Ambum river and needed urgent attention to keep the traffic flowing.

6. On 18 January 2003 he wrote to the Engineer of the Public Works Transport Services (PWTS) informing of the road condition. There had been several communications from him to the PWTS and the Enga Provincial Government from that time to 20 February 2008 before the writ of summons was issued to commence this cause of action.

7. He estimated the maintenance and construction of the road to cost about K300,000. The estimated scope of work done by West Zone Supervisor Mr. Collin Kipalan was not properly done but was on assumption or guess work. Even the Engineer Nathan Joshua did not visit the affected site. On 16 May 2003, Mr. R. Yalwi was awarded emergency work by the Enga Provincial Government Provincial works and Transport Services (EPGPWTS) with the contract amount of K65,000.00 to divert Ambum river to the other side of the road to have the traffic going. He was paid K50,000.00 first and later another K15,000.00 was approved and paid on 10 June 2003, bringing the total of K65,000.00 (refer to Annexure "D" of his Affidavit marked EXHIBIT "A"). The work took almost two months.

8. The project was satisfactorily completed to the expectation of the Provincial Works and Transport division. The work done exceeded the agreed amount of K65,000.00 and the value of work done was K147,000.00. Extra work performed worth K82,900.00 was done for the purpose of improving the Yambum/Londol route. He had informal discussions with the Provincial Administrator of this extra work done. He received no satisfactory answer. So on 16th May 2006 he engaged the Provincial Cadet Valuer within the Division of Lands and Physical Planning of the Enga Provincial Administration. His assessment of the work done and the environmental damage caused during the bypass road construction was K51,610.00. After the defendant's failure to respond to numerous correspondences and reports to the defendants has prompted him to file this cause of action. He claims the defendant is still owing K82,900.00 to the plaintiffs.

9. I have read the submission by MR. M. Thoke for the plaintiff. His submission is mainly touching on whether or not the defendant had a defence and he made submissions on the assessment of damages. There is no mention in his submission that the plaintiff's claim was based on breach of contract, negligence or trespass or whatever.

DEFENCE CASE

10. The defendants failed to attend for the trial but they have filed their defence and the affidavit in reply of Josiah Nathan. The defence claim that after the West Zone Supervisor Collin Kipalan did a detailed scope of work, the plaintiff was awarded a fixed contract amount of K65,000.00 and was paid for the work that required diverting the river. The extra claim of the K82,900.00 based on assessment done three years later by the Cadet Valuer in 2006 cannot support the plaintiff's claim as the properties lost or damaged were the result of a natural cause or an act of God. The defendants are not entitled to pay the extra claim of K82,900.00 since the defendants have already paid the agreed amount.

ISSUE NO. 1: Whether or not the Plaintiffs have properly pleaded their claim.

11. It is proper that I should first restate the relevant parts of the plaintiff's statement of claim. Particularly the Paragraphs 7 - 10.

7. In the same month, the Second Defendant or its agent the Provincial Works Unit carried out road maintenance at the site by diverting the Ambum river further left with the assistance of the plaintiff and his group.

8. During the course of road maintenance and construction the Second Defendant engaged the Plaintiff and his clansmen to assist the Defendants to divert Ambum river further to the left hand side and built new road for the traffic to flow.

9. As a result of that road maintenance and construction for new routine to cater for flow of traffic, the plaintiff and his group suffered loss and damages in terms of losing arable land food gardens, trees, crops, ceremonial grounds etc, total costs including labourer's pay went up to K147,900.00.

10. Prior to diverting Ambum river, the Defendant PWTS staff had informed the Plaintiff's that diverting of Ambum river to save the said main road costed around K65,000.00 which was paid by the Defendant.

12. The plaintiff's statement of claim did not clearly specify the exact nature of the claim. Is the plaintiff claiming damages for negligence, trespass or for a breach of contract. This has not been made clear in the statement of claim. From the evidence as presented before the Court, it would appear that there was an oral agreement that the work required to divert the Ambum river costs K65,000.00, which the plaintiff had already received it. There was no agreement for constructing a new route to cater for the traffic. There was not agreement that the defendant will pay the wages of those assisting in carrying out the road maintenance and or the road construction. Again there was no agreement that the defendant will pay for the damages to trees, crops, ceremonial ground, food gardens and or loss of arable land.

13. The maintenance work was requested for by the plaintiffs and the plaintiffs assisted in the project. There is evidence that the parties have orally agreed and plaintiffs accepted and received the K65,000.00 offered by the defendant without objection. The plaintiff's evidence is that the offer made by the defendant was made without proper assessment of the area that required the maintenance and the construction to be carried out. If that was the situation then he should have refused the offer and insist that defendant should do up a proper assessment before the work would start. Instead he accepted the offer and he proceeded to work on the project.

14. It is trite law that once the offer is accepted, the parties are bound by that agreement. An oral agreement is a legally binding contract just as the written contract.

15. There is no evidence that the parties have entered into a contract valued at K147,900.00 and that the defendant only paid part of it and the balance of K82,900.00 remains to be unsettled. I find that these claims are quite vague as they have not been properly and clearly pleaded in the statement of claim. The Court shall not be left to speculate. The pleadings must be clear so that not only the defendant should know what to defend but the Court should also know the exact nature of the claims and I adopt the principles of law outlined in Dobiam Kope v Toursim PNG Ltd (2010) N4138 by Gavara-Nanu J, at para. 38.

16. The plaintiff in his pleading should clearly state the necessary particulars of his claim. A failure to plead specific claims would be detrimental to the plaintiff. The civil providing before this Court are queried by the National Court Rules. The Order 8 rule 29 (1) of the National Court Rules makes it unequivocally clear that the pleading should provide the necessary particulars in the claim.

"A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him".

17. The law is very well established in our jurisdiction in Uma More & Ors v. The University of Papua New Guinea [1985] PNGLR 401 at page 405, where the Supreme Court said:

"A party cannot obtain relief which has not been requested or sought in the pleadings".

18. Without proper pleadings in the statement of claim, the plaintiff cannot claim damages he is seeking. Justice Kandakasi stressed the importance of pleadings in Madiu Andrew v Mineral Resources Development Company Ltd & Ors (2004) N 2601 at page 2:

"Pleadings in a civil claim play a vital role. They lay a foundation for a claim and dictate the kind of evidence the parties can call and the grant of a relief subject to evidence proving it. Thus, in order to enable the Court to properly assess and arrive at a reasonable award of damages, the law requires a plaintiff to properly plead and then establish by appropriate evidence of his loss or damage. Both this Court and the Supreme Court have denied the plaintiff's grant of relieves that have no foundation in the pleadings even if there is evidence of it. Supreme Court affirmed this in Steven Charles Pickthall v Lae Plumbing Pty Ltd and many other subsequent judgment with the latest in Papua New Guinea Banking Corporation v Jeff Tole. This stems from O. 8 r. 33 of the National Court Rules, which require claims for damages arising out of death or personal injuries to plead specifically the injury or loss with particulars of loss. "(words in bold are mine).

19. I have not been able to cite any case laws of a similar nature. The only case that came closer to a similar situation as the present case is that of Kiku Plumbing Pty Ltd v Enga Provincial Government [1993] PNGLR 439. In that case the plaintiff signed a purported agreement, namely Minute of Mutual Understanding of Work Agreement with the defendant and undertook minor works in Laiagam District of Enga Province. After the required work was performed and satisfactorily completed the plaintiff claims the money owing. His Honour Justice Woods (as he then was), held that although there was no legally binding contract the plaintiff can only claim on quantum merit. In that case the plaintiff was not claiming anything over and above what they have mutually agreed on.

20. It is not quite the same in the present case scenario. The plaintiff was paid the agreed contract money for the work performed. He now claims amounts well over what the parties have agreed to for which there was no agreement to support it. The agreement between the parties was for the plaintiff to divert the Ambum river away from the road. There was no agreement for the plaintiff to construct a new route. Defendant cannot be held liable for damages done to the properties or the environment in constructing the new route and or for the work performed or for labor costs for that matter. The parties are bound by their oral agreement. If there were properties damaged during the work on diverting the Ambum river, those damages would have been accounted for and included on the monies already paid to the plaintiff.

21. I find that the plaintiff has not properly pleaded the claims in his statement of claim and it follows that the plaintiff cannot be granted the claims he sought before this Court. For those reasons I dismiss his claim for K82,900.00 against the defendants.

_____________________________________________________
Mr. M. Thoke: Lawyer for the Plaintiff
Lawyer for the Defendants: No Appearance