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Ango v Hides Gas Development Co Ltd [2020] PGNC 101; N8265 (30 March 2020)

N8265

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE OF]

WS NO.299 OF 2016

BETWEEN:
KUYALI ANGO AND LEPANI KUYALI FOR THEMSELVES AND ON BEHALF OF MEMBERS OF THE ALO CLAN OF NOGOLI, KOMO DISTRICT, TARI, HELA PROVINCE
Plaintiffs

AND:
HIDES GAS DEVELOPMENT COMPANY LIMITED
Defendant

Waigani: David, J
2020: 30^th March

CONTRACT– claim for damages for breach of memorandum of agreement – plaintiff’s allowed defendant to extract and crush stones from quarry – customary ownership of quarry land disputed - spin-off business opportunities – appointment of timekeeper to keep records of extraction and loading of quarry materials – alleged non-engagement by defendant of trucks offered by plaintiffs for use on road construction–alleged non-engagement by defendant of timekeeper nominated by plaintiffs – claim dismissed.

Cases Cited:
Papua New Guinea Cases

Anio v Baliki (2004) 2 PNGLR 78
Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446
Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285
Company Limited and The Independent State of Papua New Guinea (N0.2) (2003) N2456
Galem Falide v Registrar of Titles and The State (2012) N4775
Igiseng Investments Ltd v Starwest Constructions Ltd (2003) N2498
Legu Vagi v NCDC (2002) N2280
Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106
Papua New Guinea Forest Authority v Concord Pacific Limited, Paiso Reference by the East Sepik Provincial Executive (2011) SC1154
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

Overseas Cases

Bank of New Zealand v Simpson [1900] UKLawRpAC 6; [1900] AC 182
Ford v Beech [1848] EngR 10; (1848) 11 QB 852
Horsfall v Braye [1908] HCA 85; (1908) 7 CLR 629

Treatises Cited

Chitty on Contracts, Volume 1, General Principles, Twenty Seventh Edition
Derek Roebuck et al, Pacific Contract Law, University of Papua New Guinea Press
JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996

Counsel:

Justin Haiara, for the Plaintiffs
Edward K. Komia, for the Defendant

JUDGMENT

30^th March, 2020

1. DAVID, J: INTRODUCTION: The plaintiffs, Kuyali Ango and Lepani Kuyali who are father and son respectively, for themselves and on behalf of members of the Alo Clan of Nogoli, Komo District, Tari, Hela Province claim against the defendant, Hides Gas Development Company Limited (HGDCL) a number of relief including specific performance and damages for alleged breach of a Memorandum of Agreement signed between the plaintiffs and the defendant dated 18 December 2014 (the MOA). At the trial, the plaintiffs abandoned the relief seeking specific performance. These proceedings were commenced by writ of summons filed on 31 March 2016 and the plaintiffs’ claim is pleaded in the statement of claim endorsed on the writ. The defendant denies the claim and its defence is pleaded in the defence filed on 27 April 2016. A reply essentially joining issue with the defendant’s defence was filed on 10 May 2016. This is the decision of the Court on the question of liability.
   

EVIDENCE

2. Trial was conducted by affidavits. All affidavits were admitted into evidence without objection.
   
3. The plaintiffs’ evidence comprises the following documents:
   
   1. Affidavit of Lepani Kuyalis worn on 21 June 2016 and filed on 20June 2018 (Exhibit A);
   2. Affidavit of Reuben Hawi sworn on 21June 2016 and filed on 27June 2016 (Exhibit B); and
   3. Affidavit of Liwi Kuyali sworn on 21 June 2016 and filed on 30 June 2016 (Exhibit C).
      

4. HGDCL’s evidence comprises the following affidavits.

1. Affidavit of Bill Kari Paijako sworn on 15 March 2017 and filed on 17 March 2017 (Exhibit 1);
2. Affidavit of Henry Tindipe sworn and filed on 17March 2017(Exhibit 2);
3. Affidavit of Philip Pokopi sworn and filed on 17 March 2017 (Exhibit 3);
4. Affidavit of Alembo Paliawe sworn and filed on 17 March 2017 (Exhibit 4); and
5. Affidavit of Myron Tapuko Ipape sworn and filed on 17 March 2017 (Exhibit 5).
   

AGREED FACTS

5. In the Statement of Agreed and Disputed Facts and Legal Issues filed on 9June 2017 (the Statement of Facts and Legal Issues), the parties state that the following facts are not disputed:

1. The plaintiffs have the capacity to sue HGDCL as natural adult citizens and as signatories to the MOA.
2. HGDCL has the capacity to be sued and is sued as a party to the MOA.
3. HGDCL is the upstream umbrella landowner company representing the interests of the landowners affected by the project areas of Hides PDL1, PDL7, Angore PDL 8, Juha PDL9, Komo Airport and Benaria Pipeline in PNG LNG Project.
4. Between late 2014 and early 2015, Oil Search Limited (OSL) under its Tax Credit Scheme awarded to HGDCL a contract to construct a thirty five kilometres road from Komo to Ayaka Ipa village in the Komo LLG.
5. Both parties entered into the MOA on 18 December 2014 which was legally binding.
   

DISPUTED FACTS

6. In the Statement of Facts and Legal Issues, the parties state that the following facts are disputed:

1. The plaintiffs are leaders and members of the Alo Clan.
2. The plaintiffs hold customary landownership interest over the land known as the Timalia Quarry located between Komo and Nogoli Hides Gas Project Area in Komo District, Hela Province.
3. The plaintiffs had no knowledge that HGDCL had similar agreements with the Tagobali and Tapu clans over the same subject (extraction from Timalia Quarry).
4. The land dispute between the plaintiffs and the Tabogali and Tapu clans are before the Mendi Provincial Land Court.
5. The MOA was basically for the plaintiffs to lease the Timalia Quarry to HGDCL to extract and crush stones and quarry materials for use to construct the Komo to Ayaka Ipa Road Construction Project (the Road Project).
6. HGDCL is a local company with the local knowledge and expertise on the local tribal settings and customary land boundaries and with that knowledge, HGDCL acknowledged that Alo Clan holds customary land ownership interest over the Timalia Quarry as was evident under Clause A1 of the MOA.
7. Pursuant to the MOA, the plaintiff allowed HGDCL to extract and crush stones from the Timalia Quarry and used the crushed stones from the Timalia Quarry on the Road Project.
8. The MOA also contains other relevant terms and conditions which are binding on the parties.
9. The plaintiffs did not own a vehicle to be leased to HGDCL.
10. The plaintiffs own a company called Goi Limited.
11. The plaintiffs through Goi Limited entered into a lease agreement with Anugu & Iniya Sons Limited (AISL); for AISL to lease three trucks to Goi Limited; and for Goi Limited to then sub-lease the trucks to HGDCL pursuant to Clause G1 of the MOA.
12. AISL leased to Goi Limited three Nissan UD Ten Tonner/Ten Cubic fully kitted LNG Standard trucks bearing registration numbers HAP 121, LBB 651 and HAM 215 (the trucks).
13. On 6 March 2015, the trucks were brought to HGDCL’s yard at Para Camp.
14. Mr. Reuben Hawi was employed by HGDCL as a Road Supervisor and Foreman on the Project.
15. Mr. Hawi’s job was to supervise the flow of the project, monitor the workers, inspect vehicles, plants and equipment and other things.
16. Mr. Hawi reported to Mr. Henry Hare, the Project Manager and Mr. Bill Kari Payago, the Community Affairs Manager.
17. The trucks were inspected and tested by Mr. Hawi on 6 March 2015.
18. Mr. Hawi cleared the trucks after passing inspection and all tests and declared them as meeting PNG LNG Project’s standard and that of HGDCL.
19. Each truck was required to be used for ten hours per day and so on HGDCL’s rate of K350.00 per hour for hiring a Ten Tonner Heavy Vehicle, each truck would have fetched K3,500.0 per day.
20. On 6 March 2015, the plaintiffs brought to HGDCL’s yard one Arawi Parapu for “inspection” to be a time keeper at the Timalia Quarry site to keep record of all the extractions of stones and quarry materials.
21. The time keeper was “inspected” and found to conform with the requirements of PNG LNG Project’s standard and that of HGDCL.
22. HGDCL failed to engage the trucks.
23. HGDCL failed to employ the timekeeper.
24. On 15 March 2015, the plaintiffs led the Alo clansmen in a peaceful protest and blocked off the Timalia Quarry.
25. The plaintiffs demanded HGDCL to accept the trucks and the timekeeper in order for the plaintiff’s to re-open the Timalia Quarry.
26. When the news about the blockade went out, HGDCL and OSL organized a team and headed to the Timalia Quarry site to find out the cause of the blockade and talk to the plaintiffs.
27. The team consisted of Terry Puale, OSL Road Project Coordinator, Cr. Liwi Kuyali, HGDCL’s Community Control Team Leader, Albert Yawari, OSL Community Affairs Officer, and others.
28. The team got the plaintiffs’ views, informed them that their complaint would be taken up with HGDCL at their office at Para Camp and asked the plaintiffs to re-open the quarry operations.
29. Given the positive response received, without hesitation, the plaintiffs re-opened the Timalia Quarry.
30. However, HGDCL failed to honour the MOA.
31. Instead, HGDCL organised a meeting at its office at Para Camp on 15 July 2015 to address the issue.
32. The plaintiff’s attended the meeting.
33. Mr. Hawi said that HGDCL needed more vehicles to fast track the Road Project so it should engage the trucks.
34. Mr. Hawi also mentioned that notwithstanding the existence of the MOA which HGDCL failed to honour, but continued to extract quarry materials from Alo Clan’s customary land instead, HGDCL should hire the trucks for its use in the Road Project.
35. Bill Kari Payago refused to accept the proposal by Mr Hawi.
36. Mr. Payago challenged the plaintiffs to take the matter to court and obtain proper court orders to stop the defendant from extracting materials from the Timalia Quarry.
37. HGDCL then used police personnel to forcefully re-open the Timalia Quarry and continued to extract stones and quarry materials from Tamalia Quarry until the completion of the Road Project.
38. HGDCL has failed to respond to the plaintiffs’ demands to date and has been in breach of the MOA.
39. The plaintiff has lost proper recordings of the extractions and loading of crushed stones and quarry materials by the defendant and their monetary value.
40. The plaintiffs have lost job opportunities.
41. The plaintiffs made several requests orally to HGDCL to honour the MOA.
42. Had HGDCL engaged the trucks and timekeeper, the plaintiffs would not have suffered loss and damage including loss of business for twelve months from 10 January 2015 to 10 January 2016 at the rate of K315,000.00 per month for the three trucks; loss of proper recordings of the extractions and loading of crushed stones and quarry materials and their monetary value; and loss of job opportunities for Alo clansmen.
    

LEGAL ISSUES FOR TRIAL

7. I have digested the issues that the parties have suggested in the Statement of Facts and Legal Issues to be the legal issues that require determination in this trial and they have been crystalized into two main issues and these are:

1. Whether or not HGDCL breached the MOA?
2. If so, what damages are the plaintiffs entitled to claim that flow from the breach?
   

8. The second issue will be visited if the outcome of the first issue is favourable to the plaintiffs.

WHETHER MOA BREACHED?

9. In civil proceedings, the general rule is that he who asserts must prove it (Shaw v Commonwealth of Australia [1963] PNGLR 119, Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Reference by the East Sepik Provincial Executive (2011) SC1154, Galem Falide v Registrar of Titles and The State (2012) N4775, Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446) and the standard of proof is on the balance of probabilities. Hence, the burden may shift to the party who asserts and who must then prove it: JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996, paragraphs 7200-7230.

10. It is a settled general principle of law that generally where parties have reduced their agreement into writing, the document should be allowed to speak for itself to the exclusion of any extrinsic evidence to add to, vary or contradict the document: Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285; Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106; Legu Vagi v NCDC (2002) N2280; Papua New Guinea Forest Authority v Concord Pacific Limited, Paiso Company Limited and The Independent State of Papua New Guinea (N0.2) (2003)N2456;Igiseng Investments Ltd v Starwest Constructions Ltd (2003) N2498;Anio v Baliki (2004) 2 PNGLR 78, Chitty on Contracts, Volume 1, General Principles, Twenty Seventh Edition at pages 580-582.

11. In Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea, the Supreme Court said.

... the cardinal presumption is that the parties have intended what they have in fact said so that their words must be construed as they stand..... the meaning of the document or of a particular part of it is to be sought in the document itself; one must consider the meaning of the words used, not what one may guess to be the intention of the parties.”

12. The parties to a written contract are presumed to have intended to abide by the plain and ordinary meaning of the written words, and parties to an oral contract, by the plain and ordinary meaning of what they said: Derek Roebuck et al, Pacific Contract Law, University of Papua New Guinea Press, 234; Chitty on Contracts, Volume 1, General Principles, Twenty Seventh Edition at pages 582-586.

13. Therefore, where the agreement in writing is breached, damages that flow from the breach should be assessed in accordance with the written agreement.

14. Extrinsic evidence however could be admitted to help resolve any ambiguity in a written document or record: Bank of New Zealand v Simpson [1900] UKLawRpAC 6; [1900] AC 182, Horsfall v Braye [1908] HCA 85; (1908) 7 CLR 629. In Bank of New Zealand v Simpson, Lord Davey in the Privy Council stated the principle in these terms:

“Extrinsic evidence is always admissible, not to contradict or vary the contract: but to apply it to the facts, which the parties had in their minds and were negotiating about.”

15. The construction of a document may require the Court to look at the context in which it was made, for example, the usages in the trade or the parties’ previous transactions or the language used in the whole of the agreement: Ford v Beech [1848] EngR 10; (1848) 11 QB 852 at 866; Derek Roebuck et al, Pacific Contract Law, University of Papua New Guinea Press, 231-234.

16. As the issue of the dispute over the customary landownership of Timalia Quarry between the plaintiffs’ Alo Clan and Tabogali Clan has been raised, let me quickly address it. The dispute between those clans has been acknowledged and recognised in the MOA and provisions made to address that. The dispute here is between the parties to the MOA. The parties state that the MOA is legally binding and the plaintiffs seek to enforce the relevant terms of the MOA with regard to spin off business opportunities and appointment of timekeepers which they say have been breached by the defendant in the type of relief they seek against the defendant. The MOA is purely a commercial arrangement and speaks for itself unless circumstances allow for extrinsic evidence to be considered in its construction. Thus, I think that the question of jurisdiction relating to disputes over customary land under the Land Disputes Settlement Act, Chapter 45 is immaterial or does not arise in these proceedings. The Court has jurisdiction to deal with issues affecting the parties arising from the MOA.
17. It is abundantly clear from the evidence before the Court that on 18 December 2014, the plaintiffs and HGDCL executed the MOA. True copies of the MOA are annexed as annexure A to Exhibit A and annexure AP1 to Exhibit 4. It is an agreed fact that the MOA is legally binding. This means that all provisions of the MOA are binding on the parties.

18. In the recitals to the MOA, the plaintiffs are referred to as the First Party while HGDCL is referred to as the Second Party.
    
19. The terms of the MOA that require scrutiny are Clauses B, G and H.
    
20. Clause B states:
    

Quarry site ownership dispute

1. Whereas the First Party under the leadership of the persons named and identified within the clan named herein agree to allow the Second Party to extract and crush stones on land known as Timalia Quarry towards Komo section of the land area effective signing of this Agreement.
2. The First and Second Party also agree that any or all royalties or monies payable to the First Party shall be held in Trust until the issue of customary ownership is resolved between the Tagobali and Alo clans.
3. The Second Party acknowledges and agrees to hold in Trust all monies due in Royalties and Non-Disruption Bonus payable to the successful winner of the dispute between Alo and Alo Clans. (sic)
   
21. Clause G states:
    

Spin-off opportunities

1. The Parties agree that spin-off opportunities shall be made available to the First Party especially the provision of a vehicle provided the vehicle meets the standard requirements of the LNG Project and that of the Second Party including but not limited to the following, safety standards, insurance requirements, etc.
2. The vehicle will only be engaged provided it satisfies the project safety and other acceptable requirements promoted by the Second Party.
3. The Parties agree that any vehicle if engaged will only be on the basis of the First Party being a land owning clan of the access road and not necessarily as the landowning clan of the current quarry.
   

22. Clause H states:

Appointment of time keepers

1. The Parties agree that a Timekeeper representing the First Party shall be employed by the Second Party and shall be stationed at the Timalia Quarry to keep records of the extraction and loading of quarry materials from the Timalia Quarry. The Timekeeper shall be employed if they satisfy the recruitment process and conditions of the LNG Project and that of the Second Party.
2. The wages and personal protective equipment (PPE) of the Timekeeper will be paid and provided by the Second Party.
   

23. It is abundantly clear from Clause B(1) that the plaintiffs as leaders of the Alo Clan entered into the MOA on behalf of their clan and they have the right to sue HGDCL as parties to the MOA.

24. It is also abundantly clear from Clause B(1) that the MOA was executed to allow HGDCL to extract and crush stones from the Timalia Quarry and the plaintiffs did.

25. It is also clear to me that due to the dispute regarding the customary ownership of the site of the Timalia Quarry between Tabogali and Alo clans, provision was made under Clause B(2) for any or all royalties or monies payable to the plaintiffs to be held in trust by HGDCL until the dispute between those clans was resolved. In acknowledgement and recognition of that state of affairs, provision was also made under Clause B(3) for HGDCL to hold in trust all monies due in the form of royalties and no-disruption bonus which would then be paid to the eventual successful party in the customary land dispute.

26. It is clear to me that under Clause G(1), the parties agreed that the plaintiffs would partake in spin-off business activities arising from the operation of the Timalia Quarry especially the provision of a vehicle subject to meeting the standards of the LNG Project and those promoted by the defendant which included, but not limited to safety standards and insurance requirements. It is the plaintiffs’ position that in furtherance of their contractual right to be availed of business opportunities, they set out to acquire the trucks.

27. Hence, on or about 10 January 2015, their company called Goi Limited entered into a joint venture with AISL by way of a Memorandum of Agreement (JVMOA) for AISL to supply to Goi Limited three Nissan UD 10 Tonner or 10 Cubic fully kitted LNG standard trucks to carry out project operations undertaken in the joint venture. A copy of the JVMOA is annexure C to Exhibit A. The term “project operation or operation” is defined under Clause 2 of the JVMOA and it “means all activities and work carried out in connection with the conduct and development of the business by the joint venture.” According to Clause 5 of the JVMOA, the scope of the joint venture was limited to the activities and transactions relating to the business specified in Item 3 of the Schedule to the JVMOA. Item 3 of the Schedule states that subject to variation, the joint venture business is to supply the required equipment and machinery as required by Goi Limited to carry out the project operations. Under Clause 6 of the JVMOA, from income or benefits received from the project [operations], Goi Limited would receive 40%, AISL would receive 50% and 10% would be applied towards payment of management fees/extra administration. Clause 8 of the JVMOA sets out the duties and responsibilities of Goi Limited and AISL in the joint venture. Goi Limited is responsible for administration, management and overall supervision of the project operation, while AISL is responsible for ensuring that all equipment and machinery supplied to Goi Limited are all in good condition and meet the LNG requirements/standard.

28. Goi Limited was registered under the Companies Act 1997 on 28 August 2000. A true copy of the company’s certificate of incorporation is part of annexure B to Exhibit A.A copy of a company extract of Goi Limited obtained on 20 June 2016 is part of annexure B to Exhibit A as well. It shows that Lepani Kuyali is a director of the company, but the shareholders of the company and other standard details of a company registered under the Companies Act 1997are not shown.
    
29. The plaintiffs’ evidence lacks details of AISL such as those regarding its incorporation if registered under the Companies Act 1997 and who the shareholders and directors are.
    

30. Were the trucks supplied by AISL to Goi Limited brought to HGDCL’s yard? If so, did the trucks meet the standards of PNG LNG Project and that of HGDCL? The plaintiffs’ evidence adduced through Lepani Kuyali and Reuben Hawi which is disputed by HGDCL is that on 6 March 2015, the trucks were brought to HGDCL’s yard at Para Camp. There, Reuben Hawi who was employed by HGDCL as a Road Supervisor and Foreman on the Road Project and whose job was to supervise the flow of the Road Project, monitor the workers, inspect vehicles, plants and equipment and other things reported to Mr. Henry Hare, Project Manager and Mr. Bill Kari Payago, Community Affairs Manager about the trucks being brought in. Mr. Hawi then proceeded to inspect and test the trucks on 6 March 2015. The trucks passed the inspection and tests and Mr Hawi declared them to be compliant with PNG LNG Project’s standard and that of HGDCL.

31. HGDCL’s evidence is that the trucks were never brought to its yard at Para Camp on the date alleged or at all. They rely on the evidence of Bill Kari Paijako, Henry Tindipe, Myron Tapuko Ipape and Alembo Paliawe.
    
32. Mr. Paijako is employed by HGDCL as its Manager, Community Affairs. He commenced employment with HGDCL in or around 2014. He says that Mr. Hawi is a former employee of HGDCL and was engaged in the Civil Division as a Road Construction Supervisor in the Road Project, i.e., during the construction of Komo-Aijakaipa road. He says Mr. Hawi neither reported to him nor Henry Ware. Mr. Hawi reported to the Construction Managers, Bob Ivy and Lawrence Jowers. He believes that Mr. Hawi’s function was basically to supervise the labour force working on the road. It was not within Mr. Hawi’s duty to inspect vehicles. All HGDCL vehicles and trucks to be leased from third parties were only inspected and certified for use by their Transport Department. He does not recall Alo clan ever taking the trucks to HGCDL’s Para Camp which was about 70-80 kilometres away from Mr. Hawi’s job site.
    
33. Mr. Tindipe is employed by HGDCL as its Manager, Facilities & Transport. He commenced employment with HGDCL in or around 2014.His role was twofold. One was to manage HGDCL’s Para Camp and the other was that he made the final decision as to which third party vehicles/trucks were to be engaged or leased to HGDCL or the PNG LNG Project contractors. He also ensured that all vehicles/trucks that were to be leased by HGDCL were inspected and certified as safe for use. In his evidence, he also states that it was part of company policy enforced by the Transport Department to ensure, prior to engagement of third party vehicles/trucks, that; they were wholly owned by local landowners/landowner entities to ensure full participation by land owners; the vehicles had current MVIL registration; safety stickers were current; vehicle had comprehensive insurance cover evidenced by a certificate of currency; and LNG Project specifications met. If landowner companies were involved, it was also a requirement that they complied with statutory and contractual obligations and observe and comply with internal policies, guidelines, processes and procedures. As Transport Manager, he could not recall Alo clan taking the trucks to HGCDL’s Para Camp for inspection on the date alleged as he neither sighted any of them nor authorised their inspection.
    

34. Mr. Tindipe also states that it was not Mr. Hawi’s responsibility to inspect the trucks, if the trucks were actually brought to Para Camp which he denied. Mr. Hawi was employed as a foreman to supervise the road project and not as transport officer to inspect trucks and or recommend them for engagement on the Project which was the job of Managers, Bob Ivy and Lawrence Jowers.

35. In addition, Mr. Tindipe states at paragraph 16 of his affidavit (Exhibit 2) that he spoke with Mr. Hawi on 17 March 2017 between 11:13 am and 11:16 am on his mobile phone number 70805645 in the presence of the HGDCL’s Company Secretary, Myron Ipape when he, among other things, stated: he was told to sign a prepared affidavit by Lepani Kuyali in a vehicle without reading it; he would write to the plaintiff’s lawyers to complain about the false statements in his affidavit and to withdraw it; he would not have signed the affidavit had he read its content before signing it; he denied driving the trucks to HGDCL’s Para Camp and inspecting them or that he was responsible for driving and or inspecting the trucks.

36. Mr. Ipape who is Company Secretary states that it is the responsibility of the Transport Department to inspect and certify vehicles for engagement by the defendant (Exhibit 5). He said it was not Mr. Hawi’s responsibility as he was only employed as a Civil Foreman and demobbed by HGDCL in December 2015.

37. Mr. Paliawe who states that he is a member and leader of the Tagobali Clan said no such meeting took place between Alo Clan and HGDCL regarding the engagement of their trucks as if there were one, his clan would have stopped it.
    

38. Mr. Haiara for the plaintiffs urged the Court not to accept the evidence of Messrs Paijako,Tindipe and Ipape simply because they were HGDCL’s employees at the material time and each of them had a motive to lie. I reject this submission. I accept the evidence of Messrs Paijako,Tindipe and Ipape as credible because they accord with logic and common sense, there is corroboration; and they were in relevant management positions at the material time to know of the goings-on at Para Camp particularly on the date asserted by Mr. Hawi. Mr. Hawi’s evidence appears to me to contain untruths and is unreasonable or incredible that it would be not accepted by a reasonable person. I reject the evidence. Lepani Kuyali’s evidence is tainted in light of Mr. Hawi’s questionable evidence I have referred to already and the contrasting credible evidence of Messrs Paijako, Tindipe and Ipape. I give no weight to Mr. Paliawe’s evidence on this aspect as it amounts to an opinion.

39. Given these, I find that the trucks were not taken to HGDCL’s yard at Para Camp.Even if the trucks were brought to HGDCL’s yard, Mr. Hawi was not the person authorised to conduct inspection, certification and recommendation for engagement by HGDCL.

40. Under Clause H(1) of the MOA, the parties agreed that a timekeeper representing the plaintiffs would be employed by HGDCL and who was to be stationed at the Timalia Quarry site to keep records of all the extraction and loading of stones and quarry materials from the site. The timekeeper’s engagement was subject to meeting the recruitment process and conditions of the LNG Project and that of the defendant. Under Clause H (2) of the MOA, the parties agreed that HGDCL would be responsible for the wages and personal protective equipment of the timekeeper.
    
41. The plaintiffs’ evidence through the affidavits of Lepani Kuyali and Mr. Hawi which is disputed by HGDCL is that on 6 March 2015, the Alo clan brought to HGDCL a person called Arawi Parapufor “inspection” in order to be engaged as a timekeeper. Mr Haiara for the plaintiffs contends that Mr. Parapu was “inspected” and determined as a fit and proper person to be engaged for the job. He said the “inspection” was conducted by Mr. Hawi in his capacity as HGDCL’s supervisor.
    
42. HGDCL disputes the plaintiff’s assertion that Mr. Parapu was brought to it for recruitment as timekeeper on the date asserted by the plaintiffs. The reasons advanced are; that Mr. Parapu resides some 100 kms from the Timalia Quarry (Exhibit 1); no meeting took place between Alo Clan and HGDCL regarding the recruitment of a timekeeper as if there had been one, Tagobali Clan would have stopped it (Exhibit 4).
    
43. In Mr. Hawi’s evidence, contrary to Mr. Haiara’s submission, he does not expressly state that he “inspected” Mr. Parapu. I have also, for reasons I have given already, rejected Mr. Hawi’s evidence. I have also found earlier that Lepani Kuyali’s evidence is tainted in light of Mr. Hawi’s questionable evidence. I reject the plaintiffs’ contention.
    
44. The onus is on the plaintiffs to prove their case on the balance of probabilities. It is not for HGDCL to prove the contrary.
    
45. Given these, I find that Alo Clan did not take Mr. Parapu to HGDCL to be engaged as a timekeeper. Even if Alo Clan did, in light of the evidence of Messrs Paijako, Tindipe and Ipape, I am not convinced by the plaintiffs that Mr. Hawi had authority to undertake and conduct the recruitment process for Mr. Parapu’s engagement by HGDCL.
    

46. HGDCL did not breach the MOA.

CONCLUSION

47. The plaintiffs have failed to prove their claim on the balance of probabilities and therefore it is dismissed.

COSTS

48. Costs will follow the event, i.e.,HGDCL is awarded costs of the entire proceedings not specifically awarded during the course of the proceedings. This means that the plaintiffs Kuyali Ango and Lepani Kuyali for themselves and on behalf of members of the Alo Clan of Nogoli, Komo District, Tari, Hela Province shall pay HGDCL’s costs not specifically awarded during the course of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

ORDER

49. The formal orders of the Court are:

1. Judgment is entered in favour of the defendant, Hides Gas Development Company Limited.
2. The entire proceedings commenced by writ of summons filed on 31 March 2016are dismissed.
3. Costs shall follow the event, i.e., the plaintiffs, Kuyali Ango and Lepani Kuyali for themselves and on behalf of members of the Alo Clan of Nogoli, Komo District, Tari, Hela Province shall pay the defendant, Hides Gas Development Company Limited’s costs of the entire proceedings not specifically awarded during the course of the proceedings on a party-party basis, which shall, if not agreed, be taxed.
4. Time is abridged.
   

Judgment and orders accordingly.
___________________________________________________________
Haiara’s Legal Practice: Lawyers for the Plaintiffs
Chesterfield: Lawyers for the Defendant