DC471

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 41 OF 1995

BETWEEN

Titus Kariaha
Plaintiff

v

Demas Kumaina
First Respondent

National Broadcasting Commission
Second Respondent

JUDGEMENT

FACTS

This is a Civil Law Suit. It is a Law Suit of contractual relationship. The facts before this Court are such that the first respondent is an employee of the second respondent. The first respondent was transferred to Buka in 1993 to be the Provincial Programme Manager for Radio North Solomons.

Due to the shortage of housing in town the National Broadcasting Commission arranged for the leasing of the complainant's house at Kotopan Village, Ralia, Buka. The National Broadcasting Commission occupied the house for only seven days. The occupancy was disrupted by the crossing over to Buka by Moses Tseraha (BRA). Due to the danger created by the presence of Moses Tseraha on Buka, the National Broadcasting Commission Manager could not continue to live in the said house at Kotopan.,The, said house did not have proper kitchen facilities. The plaintiff claims rental fee for seven days at Ten Kina (K10.00) per day and Seventeen Kina and fifty toea (Kl7.50) for food supplied to the National Broadcasting Commission Manager. The NBC Manager also claimed that he had supplied food and favours to the plaintiff and his family.

RATIO DECEDENT I -

According to Law of Contract the determination of whether parties had entered into contract or not is a "question of fact". This means that it is the Court that decides whether parties had entered into contract or not. It is not a "question of fact". As well as that Law of Contract says that only God is able to see the minds of the parties, therefore the human Court of Law must see the actual actions of the parties determine the existence of a contractual relationship agreement had been reduced to writing or not. This human shall now consider the actual action of the parties.

The NBC argued that there was no agreement for NBC to accupy the plaintiff's house for rent since only the landlord signed the tenancy agreement papers, but not NBC. If there was no agreement then JY did NBC occupy the said house for seven days? If NBC did not agree co the tenancy why did it occupy the house for seven days?

This Court is guided by principles of law of contract to see the actions of the parties in order to establish the existence of contractual relationship between the parties.

In this case NBC in fact occupied the house. In law the "act of occupancy" is the action which shows that NBC agreed on the tenancy of the house. This Court rules that there was a contract entered between NBC and the plaintiff Mr. Titus Kariaha even though the tenancy agreement on paper had not been signed by NBC. The action of NBC in occupying the house, in law, amounted to the signing of the contract to occupy the house on rent of K10.00 per day. It must be understood that only the plaintiff has absolute right to his house. National Broadcasting Commission as a corporate entity has no right whatsoever to the said house and therefore, it can not say, "I occupied the house, I am not going to pay because both parties did not sign the tenancy agreement. This state of mind in both law and common sense is illogical and unreasonable.

The National Broadcasting Commission entered into contract with Mr Titus Kariaha by its "action of occupancy of the house". The contract of tenancy was properly terminated by NBC by means of "force majeure". The presence of B.R.A man Moses Tseraha created a "force majeure" "which terminated the contract of tenancy. The existence of "force majeure" did not create a legal obligation on NBC not to pay for the tenancy of the house for seven days.

This Court shall also consider the bona fide actions of the parties toward each other which do not relate to the contract of tenancy. The parties told this Court that they shared food, with each other. These actions are only bona fide. They were done in good faith and do not affect the contract and its consideration.

The plaintiff can not charge for the food he provided to the NBC employee. Like wise NBC can not deny liability on the basis of the food and favours its employee had given to the plaintiff and his family members. Bona fide actions are never part of the elements of contract.

It as not legally safe for National Broadcasting Commission to occupy the house if it did not agree to the tenancy. By occupying the house. NBC agreed to the tenancy. According to principles of law of contract a party that does not want to enter into a contractual relationship with another must not do actions that would amount to entering into the contract.

If is true that there is a shortage of housing on Buka at this time of restoration. However, this is not the issue of this case. This case is purely of contract law. The only issue before this Court is whether NBC is liable to pay rent for the seven days it occupied the Plaintiff's house at Kotopan Village.

This Court has found National Broadcasting Commission liable to pay the rent for the seven days it occupied the plaintiff's house.

Judgement entered against the respondent National Broadcasting Commission in the sum of K70.00 to be paid within thirty (30) days as of today and in default of payment Warrant of Execution to be issued against National Broadcasting Commission for any of its property anywhere in Papua New Guinea.