DC281

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 133 OF 2001

BETWEEN

Peter Ongil
Complainant

V

Arnold Koim
First Defendant

The Department of Western Highlands Province
Second Defendant

Mt. Hagen: Appa, P.M.
2002: 11th, 18th April, 6th June

JUDGMENT

The complainant was engaged by the Engineering Division to carry out an urgent maintenance work to Aunta Bridge near Holy Trinity College in about August – September 2000.

It was apparent that no tender was called for. The work was carried and in about October 2000 complainant provided his quotation to the Engineering Division for a sum of K6,986.17 which was approved except for labor and grass cutting claims (K3,600.00) reduced to K1,800.00. Payment was delayed until 21st December 2001 when complainant was paid K5,187.17. That was after the summons was taken out and served on the defendants.

The complainant is now claiming the balance of (K1,799.00) plus damages (K2,000.00), 8% interest and cost.

Defence argued that there was no proper contract of services entered into by the parties so there was no agreement to be enforced. They further submitted that the complainant had already been paid for the work done. It was further argued that cost of labor and grass cutting was not part of the work required, however, if the services were rendered, it came in one package which was already settled.

There was no dispute that work was carried out at the said bridge. The issue was whether or not there was proper agreement in place. It is my observation that since there was no tendered procedures followed, the price of work could not be ascertained. It was done on an adhoc basis in which neither party was sure of the terms and conditions of the implied agreement. After the work was completed, complainant submitted his quotation (invoices) for payment which was approved by the Engineering Division as work commissioned. It was approved by the appropriate authority – the Manager Engineering after inspection reports received from field officers in the like of Mr. Oki. No full amount (K6,986.17) was paid because they (defendants) were not sure about the claims for grass cutting and use of labor which was reduced to K1,800.00, that was reasonable because no proper contract was in place prior to engagement of the work. What the defendants did was reasonable under the circumstances. The only problem was the delay in the payment. Summons was issued on the 03rd October 2001 and payment was made in December, 2001. The payment of K5,186.17 was made according to figures approved by the Engineering Division. The delay in the payment was by one year before summons was taken out. There was no doubt complainant was put into some awkward situation e.g. paying his workmen and to recover his expenses.

The complainant therefore claims damages for the delay, mental distress and frustration, labor’s demand and putting pressure, credit timbers obtained from another company and letters of demand, all fall into one basket.

That is of inconveniences, those claims are not directing relevant to the issue but it’s a show of frustration but I will make due allowance on the issue of delay which was not contested in defence. That will only involve the cost factor.

It is adjudged that the payment of K5,186.17 being the full payment already made for the services rendered only allow for K1,000.00 to make up for the inconveniences the complainant had to face over the one year period of waiting to be paid (as alluded to above) plus complainant’s legal cost. Such payment is to be settled by the 2nd defendant under the principal of vicarious liability.

Robert N. Maki & Co. Lawyers: Complainant
Paulus M. Dowa Lawyers: Defendant