DC440

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 153 OF 2005

BETWEEN

SOMNOG PAUL
Complainant

AND

JOE WALI alias JOE HARLEY
Respondents

Lae: C Inkisopo
2005: 29 September

CIVIL - claim for value of chickens raised for commercial purpose – issue of partnership or lack of it to be drawn from evidence presented – sharing in the proceeds of partnership project – 

Partnership - parties - defendant not party but contributed in running costs on a bona fide but mistaken belief – whether Defendant entitled to benefit from the profit of the joint venture on account of but not necessarily commensurate with his contribution in the project’s running costs

Practice & Procedure - trial/hearing conducted by affidavit evidence – affidavit material for both parties not tested by way of cross-examination – findings to be reached by taking account of objective facts - recourse to be had on every day practice and behaviour & of what is normal & natural– also of normal business practice and procedure in raising small holder poultry projects – as well as normal supplies of day-old chicks by suppliers. 

Cases Cited
Paul Bafino -vs- Auno Tibiro [1992] PNGLR 168

References

Counsel
Complainant In Person Somong Paul
Lawyer / Counsel for Defendant Mr S Daniels of Counsel of Habuka Lawyers 

29 September 2005

DECISION

C Inkisopo: Background Complainant Somnog Paul, a national female sues Defendant, a national male for the recovery of nine hundred kina (K900.00) plus costs and interests which she claims are proceeds of forty-five (45) chickens she says she raised for commercial purpose that were realizable from their sales at twenty kina (K20.00) per head plus costs and interests.

2. The facts according to her are that she was renting out a place for her accommodation with her husband and child from the Defendant who had a rentable accommodation at Kapiak Street here at Lae. She says she was a student attending Balob Teachers College at that time. At the time of her family living, she approached the Defendant who was the land lord of the premises they were renting from to use his chicken house to raise chicken to which she says Defendant permitted. She says she did this to help her in her study expenses. Her brother one Jimmy Yangun helped her with one hundred (K100.00) with which she bought a box of day-old chicks from Niugini Table Birds containing fifty four (54) chicks. On opening the box, it was discovered that nine (9) of the chicks had died leaving only forty five (45) chicks which she put in the Defendant’s chicken house. When the chickens had not yet reached maturity, a serious fall-out occurred between the Defendant and the Complainant’s husband which meant Complainant and her family had to leave Defendant’s premises. Complainant says that Defendant assured her that she was innocent as the problem was with her husband and it was men’s problem and she could leave the chickens behind and he could look after them for her until maturity. She claims that Defendant used up all the forty five (45) chickens for a customary after-funeral commitment involving a relative of his. When the Complainant asked for the payment to her of the proceeds of the chickens, Defendant could not give it. Even a pro-forma Notice to Debtor issued by the Court went unheeded. She says she took out a summons and that is how and why Defendant is before this Court to answer this Complaint.

3. Complainant served on the Defendant a default summons upon her Complaint and the Defendant in turn filed his Notice of Intention to Defend and subsequently filed his Defence to the Complainant’s claim saying that the chickens were his wife’s and he himself contributed towards the costs of raising them and all those while, he knew the chickens to belong to his wife- meaning that they belonged to his family and as the family head they were his - so he claims!

Issues

4. From these contentions the Court discerns the following issues to have been borne out from what the parties are each saying;-

a.	Whether the chicken project belonged to the Complainant alone?

b.	If the answer to the above is “Yes”, the answer is self-evident – in that the Complainant should be entitled to judgment on her claim. But the evidence presented to this Court does not exclusively and conclusively show this to be the case and for this reason we have to take the case and the issues a step further.

c.	If the answer to the first above issue is to be to the negative, what then is the nature and extent of the ownership?

d.	Was it an arrangement which can, on the evidence presented, safely be held to be a partnership or a joint venture?

e.	Who were the parties?

f.	What is the degree of costs/investments/contributions made by each person and the benefits each of the party is entitled to?

5. This case is not an easy one to deal with when each party is putting up his/her respective case so strongly that it proves difficult to arrive at a definite finding of fact. Each party has filed and served affidavit material with supporting witnesses’ affidavits that it proves difficult to accept one set of evidence and disregard the other. The Court was therefore thrown into a state of confusion and much difficulty when the parties have not assisted the Court in as much as they should have in that apart from their affidavits that were filed, these affidavits were not at all tested by way of cross-examination in order to elicit and establish their truthfulness and accuracy. 

6. If the process of cross-examination had been applied to all the deponents of the respective Affidavits, a lot more assistance would have been rendered the Court which would have placed it in a better position to assessing and to placing reliance on one set of evidence than the other. When this process was not extended to all the affidavit materials, it leaves the Court in a very unenviable position where it considers all affidavit material to be equally truthful and correct – at least this is the only presumption that is open under this circumstance. As a direct consequence thereof, the Court is just not able to make definite findings of fact in this case but yet, it has a duty to make a decision any way.

7. In approaching this case along that line, the Court acknowledges Defence Counsel’s assistance in referring to it the case of Paul Bafino -vs- Auno Tibiro [1992] PNGLR 168 which case lends greater assistance to the Court in dealing with the case and making determinations thereof from the objective facts.

8. This Court is more inclined to doing so in determining the facts of this case.

9. As for instance, Complainant says that she approached Defendant for permission to use his vacant chicken house to raise chickens for herself on condition she will pay some money to Defendant after the chickens have been sold for the use of his chicken house, water and electricity.

10. On the other hand, Defendant denies this claim saying that all he knew was that his wife, one Mrs Jenny Harley, raised the subject chickens because he helped her in paying for the box of day-old chicks to start with – effectively denying in its entirety the Complainant’s claim. This is borne out from his affidavit sworn and filed dated 28 July, 2005. He says that he was not aware of the Complainant’s involvement as a partner with his wife, Jenny Harley in raising this chicken business. All he knew was that his wife was raising the chickens on her own as hers alone and so he assumed it to being his family’s chicken business. It was only when these proceedings were issued that he came to know of the involvement of the Complainant in this venture.

11. Both parties are adamant with their respective claims with their untested affidavit material and it is yet this Court’s duty to making a finding of fact from whatever evidence there is before it. The Court in approaching the matter on these issues will deal with them on everyday realistic events and as far as possible the normal every day and day-to-day practice and business practices relating to raising small-holder chicken projects for commercial purposes in and around the City of Lae.

12. In the first instance, Complainant says she bought her box of day-old chicks from NGTBs and upon opening and counting it, she discovered nine (9) out of fifty four (54) chicks had died leaving forty five (45) live chicks which she put in the Defendant’s chicken house. On the other side, Defendant’s wife Mrs Jenny Harley deposed to saying that she and one other named Puri Kain went to ArgMark Didiman store and bought a box of fifty two (52) day-old chicks with funds contributed by both herself and Complainant in partnership to raise chickens. She took the day-old chicks to the chicken house with feeds and commenced raising them.

13. However, according to this witness, not all the chickens survived to maturity. A total of twelve (12) chickens died before reaching maturity leaving only forty (40) surviving to maturity. Five (5) of these chickens at maturity were found to be underweight so were sold at a discounted price of eighteen kina (K18.00) whilst the rest of the thirty five (35) of normal weight went for twenty (K20.00). According to Defendant, the total income was to be seven hundred and ninety kina (K790.00).

14. Then there is this issue of the project’s running costs such as paying for the feeds for the chickens. Complainant says in her affidavit that her brother one Jimmy Yangun assisted her buy the feeds for the chickens through her other brother one Ungi Yangun who delivered them to the chicken project site at Kapiak street.

15. She maintains that she was the only one providing for the chicken feeds as they were hers alone and not a joint venture project. That is the kind of evidence we have from the two sides but as they were not tested upon cross-examination, the Court considers them for what they are and represent. They are to be construed and applied as and where required and applicable in reaching certain findings of fact.

Determination of Facts

16. The Court in its arduous task of making this determination proceeds on the premise (the Court takes judicial notice of this practice as being a common event and knowledge known to all Lae residents) that looking after and raising chickens on small holder basis for commercial purposes are a common practice in and around the city precincts of Lae. There are several retail suppliers of day-old chickens in Lae mostly originating from two main breeders and suppliers of Zenag Chickens and Niugini Tablebirds. The normal number of day-old chicks supplied in each box are fifty two (52). Feeds for the chickens are always readily available as being produced by Goodman Fielder Ltd under its popular flame brand, the Niugini Tablebirds one produced at its Six (6)-Mile plant and the Trukai Farms’ under its brand motto Kamap Strongpela Kwiktaim.

17. Firstly, the evidence for the Defence where Mrs Jenny Harley says of buying a box of fifty two (52) day-old chicks sounds more natural and realistic than that of the Complainant’s where she says the box of day-old chicks she bought had fifty four (54) chicks with nine (9) dead chicks inside that box. What renders her evidence a little unusual to appreciate is the fact that she did not raise issue with the supplier Niugini Tablebirds to replace the nine (9) dead chicks as they were a substantial number and not just one to have just ignored. Instead she felt content with accepting the forty five (45) live chicks. If the Complainant had raised issues with the supplier over the dead birds the supplier would have replaced it without any question so long as the box was opened by or in the presence of an official at the premises of the Niugini Tablebirds. It is very certain that Niugini Tablebirds which is itself the breeder and the supplier would have readily obliged with some more free ones to compensate for the loss and to maintain its good name and goodwill. Even to begin with, it is hard to imagine that NGTBs supplied a box of day-old chicks of fifty four (54) with nine (9) dead ones and in view of the commonly known fact that the suppliers check the box to ensure the contents are in the standard number of fifty two (52) and replace all or any shortfalls on account of deaths before they are released to the customers. Her unquestioned acceptance of the box of fifty four (54) chicks with nine (9) dead and not raising any issues with the supplier in my view is quite unusual.

18. The other finding I make relates to the issue of partnership or joint venture between the Complainant and Mrs Jenny Harley. When the Complainant’s family moved out, evidence is not so clear as to her day-to-day attention and tending of the chickens. It is further not certain as to whose custody the day-to-day responsibility was entrusted whilst she was living away from the proximity of the chicken project site remains a thorny issue, hence it would seem that someone was obviously doing that and that Mrs Jenny Harley would more likely have been the one doing it. It is obvious that someone was doing that such as replenishing the feeds and water as and when they ran out as the chicks don’t cease pecking and drinking. Someone had to be physically present and available to doing that as Complainant had by then moved out and was not physically available to have been doing that. This fact lends substance to the Defendants’ contention more than that of the Complainant’s.

19. Another finding the Court makes relates to the potential and the opportunity available for women folks living in close proximity to each other discussing such business options like reaching some common agreements of understandings to do something together. Before the Complainant and her family moved out, opportunity was there for the Complainant and Jenny Harley to have struck up some understanding on the idea of going into a joint venture business in raising chicken using the Defendant’s unused chicken shed even though the Court notes the Complainant’s vehemence in denying any such joint venture but hers alone. The nature of evidence available before the Court suggests joint ownership more than just Complainant’s alone.

20. Accordingly, I find the following to be the facts in this case based on the affidavit materials presented before this Court.

Findings

1:	That this was a joint venture project between the Complainant and one Jenny Harley, wife of the Defendant.

2:	Defendant is not a party to that arrangement. It was an all-women’s affair but I do find that he contributed towards the running costs of the project.

3:	Defendant’s such contribution was not done so as a party to the venture but on a mistaken assumption as owner with his wife. (See affidavits of the Defendant at paragraphs #5 & #6 and Jenny Harley’s at paragraph #5).

4:	Allowing for contingencies of deaths amongst the chicks, I find that forty (40) chicks reached maturity which went for twenty kina (K20.00) per bird.

5:	None of those forty (40) birds were sold for cash as borne out from the affidavit of one David Toll but all applied by the Defendant to sort out a customary after-funeral feast involving a deceased relative of his.

6:	The Defendant is responsible for the entire forty (40) birds and he is liable to making good their cash value which is assessed at eight hundred kina (K800.00).

7:	As this project is found to be a joint venture between the Complainant and Mrs Jenny Harley the project’s return of eight hundred kina (K800.00) is to be split 50% each way between the Complainant and Mrs Jenny Harley..

8:	Defendant is a third party who made contributions in the running of the project only on the mistaken assumption that the project was his wife’s alone, but unbeknownst to him, it was a joint venture between his wife and the Complainant. His level of contribution was not as a party but on the basis of helping his wife in her project and because he thought it was his wife’s and as he was the family head he mistakenly assumed it to being his.

As such, any return due to him on the basis of his contribution in the project’s running cost should properly come out from Mrs Jenny Harley’s share of the returns from the project.

I therefore grant judgment in favor of the Complainant which is to be as follows;-

Judgment/Order

1:	Defendant is liable to the Complainant in the sum of four hundred kina (K400.00) payable within one month as of today’s date, plus

2:	Interests at 8% being seventeen kina, nineteen toea (K17.19)

3:	Costs are awarded to Complainant which is to be taxed if not agreed.

Somnog Paul The Complainant
Mr S Daniels of Counsel of Habuka Lawyers