Unreported National Court Decisions
N1168
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 186 OF 1992
SOLOMON  NOKI
v
MANGI PARAKA>
Mount Hagen
Woods J
21 July 1993
13 August 1993
PARTNERSHIP - Oral agreement - discussions between clan relatives in village situation - modern commercial reality - applicable law.
Cases Cited:
The following case is cited in this judgement:
Bafino v Tibiro [1992] PNGLR 168
Counsel:
P Kunai for the Plaintiffs
D O’Connor for the Defendant
13 August 1993
WOODS J:  This is a claim for an accounting of a PMV business run by an alleged business partnership of the plaintiffs and the defendant.  The plaintiffs claim that they held discussions in the village with the defendant for the three of them to buy a PMV and run it as a partnership.  There was no partnership or other business document to evidence any such oral agreement and there appear to have been no business returns to evidence such a business arrangement.
The plaintiff Solomon Noki said that he is a PMV driver and that he and the others had discussions and he agreed to contribute K1,000, Wama K1,500 and the defendant the rest to purchase a 25 seater bus.  They agreed that as the defendant contributed the most the registration should be in his name however he and Wama were to manage the day to day operation of the vehicle.  Although he then said that all the daily takings were handed over to the defendant who was responsible for the safe keeping.  He then said that after 6 months the defendant told them to hand over the vehicle to him and he then went and sold it.  However in cross-examination Solomon did admit that he did not have a PMV drivers licence and did not run it as the driver.
The plaintiff Wama Rokopa agrees with the discussion with the defendant to buy and operate a PMV and he says that he contributed K1,500.  He admits he was refunded K1,000 after the business was stopped.
The defendant agrees that there were discussions to buy a PMV however after the initial discussions he received sufficient money to buy the PMV himself so he refunded the money contributed by the plaintiffs.  He said he hired drivers to run the PMV for him and the plaintiffs helped as assistants and were paid wages.
It is very difficult for this Court to analyse and interpret the real situation when the court is not supplied with more facts.  For example what was the portions of the partnership, the 2 contributions of K1,500 and K1,000 as stated by the plaintiffs are not much when the full purchase price of a 25 seater bus is considered.  There is no evidence of any records being kept, yet the plaintiffs say that they managed the day to day running of the bus.  Surely they must know how much they spent on maintenance and fuel and service and also how much they received each day.
From the evidence presented to me I am expected to find a customary consensus between clan brothers.  But what was needed to carry that plan through, K20,000 or K30,000 for the purchase of a bus, yet the plaintiffs only supplied a small fraction.  Did the plaintiffs understand the reality of a capital asset of that cost.
Whilst it may be easy to find how casual customary agreements work in the village over traditional matters can such apply when the subject matter is a modern business or commercial asset.  A PMV involves an expensive capital asset, a daily turnover of fares and expenses, we are here talking about a modern commercial undertaking not a customary transaction.  The Parliament has gone to a lot of trouble to find ways to enable people to enter into commercial arrangements in their customary relationships such as with Business Groups.  In a case like this isn’t it expecting too much of the Court to find all the terms for a modern commercial undertaking from such a vague oral discussion.
If you want modern accounting of your modern partnership agreements you must do such agreements or arrangements in a way that modern courts can determine what the facts are.  Looking at the balance which the Defendant was expected to contribute compared to what the plaintiffs say they contributed the arrangement could also only mean a loan to help get the venture started and in doing so provide employment for the plaintiffs.
Whilst I should be ready to find the relationship sought albeit by evidence of the understanding of the parties at the time they had their discussions and by how they actually entered into and ran the business, the Court needs more evidence than has been presented here.
The evidence at the end of the case here was the defendant contributed most if not all of the money, the vehicle and operating licence was in the defendant's name, Solomon was not a PMV driver at all, the plaintiffs say they collected all the money yet they have no idea of the figures involved.
As I have said in Bafino v Tibiro [1992] PNGLR 168 if you are going to enter into modern commercial arrangements it may be neccesary to use modern methods of organisation.  There are not enough objective facts here for me to give any credence to any commercial partnership.
I dismiss the claim.
Lawyer for the Plaintiff:  P Kunai
Lawyer for the Defendant:  DL O’Connor