N3039

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 552 OF 2005

BETWEEN:

MOHAMMED AKTAR UZZAMAN
(Plaintiff)

AND:

MOROBE PRINTING & SUPPLY LTD
(Defendant)

LAE: Kirriwom, J
2005: 7th & 20th September
2006: 17th February

Counsel:
Mr Ousi for the Plaintiff
Mr Sihil for the Defendant

17th February 2006

RULING

KIRRIWOM, J: The Plaintiff sues the Defendant for damages for breach of contract. This action by the Plaintiff is founded on what is asserted by him to be a breach of Contract of Employment that is partly written and partly oral between himself and the Defendant. The Plaintiff was engaged by the Defendant under some arrangement between his then employer Muda Jaya Corporation and the Defendant. By letter dated 28th March 2005 this employment was terminated for reasons discussed in the judgment. Plaintiff claims this termination as being unlawful and a breach of his Employment Contract with the Defendant.

The Defendant on the other hand is asserting that it never executed any contract with the Plaintiff directly as he claims. However the Defendant says that it engaged the professional services of the Plaintiff through a company known as Muda Jaya Corporation that employed the Plaintiff for him to operate certain printing machinery that the Defendant was purchasing from Muda Jaya for printing stationery. It was a kind of seconded labour provided at the instigation or gesture of one T.T Tan, the proprietor of Muda Jaya Corporation and a Director of the Defendant company as well. This was believed to have been entered into in early 2004. It was about that time that same kind of draft agreement was circulated with the Board for decision and endorsement prior to execution of contract of employment.

The Plaintiff as it appears was quite anxious to have a formal contract of employment in place and spoke to good number of people with whom he worked. As time went the relationship between Muda Jaya and the Defendant changed when one of the machinery with the Defendant was withdrawn by Muda Jaya. This resulted in one of the two technical people engaged in the arrangement described earlier being displaced due to redundancy or not required as there was nothing for him to do. 

The issue in this trial was whether there was a contract of employment between the Plaintiff and the Defendant. According to the Plaintiff the issue is whether the Plaintiff had a valid contract of employment with the Defendant? This argument was advanced on the basis of a document described as ‘Employment Contract’ that the Plaintiff placed before the Court as evidence of that relationship between himself and the Defendant. The document is under the letterhead of Morobe Printing and Supply Ltd bearing the date 29 February 2004 with heading ‘EMPLOYMENT CONTRACT’. It is a two-paged document marked as Annexure ‘B’ to the Plaintiff’s Affidavit sworn 2nd June 2005. The document bears the signature of John Nicholas as Chairman of Morobe Printing & Supply Ltd with carbon copy (cc) to Cemas Tomala, Geob Karri and TT. Tan as directors on the second page. There is no other signature besides John Nicholas. However in the same annexure I referred to there are also two additional documents also under the letterhead of Morobe Printing and Supply Ltd, one bearing the heading ‘EMPLOYMENT NON-COMPLETE AGREEMENT’ and signed by the Plaintiff on 29 February 2004 and the Second document also under Morobe Printing & Supply letterhead, under the heading ‘EMPLOYEE INTERVENTION AGREEMENT’ also of the same date and signed by the Plaintiff. Both these documents have no other signatures except those of the Plaintiff.

Plaintiff claims that all these four pages of documents constitute the contract of employment between him and the Defendant.

None of the respective signatures, be that of the Plaintiff or that of John Nicholas as Board Chairman of Morobe Printing & Supply Ltd are witnessing the other or have separate independent witnesses of them. The authenticity of these instruments per se is also thrown into doubt particularly when the Plaintiff relies on a director of the Defendant one Geob Karri as his witness and this person is said to have been deceased for some years and is not able to verify his assertion.

Weighing this evidence against that of John Nicholas that the two-paged document headed ‘EMPLOYMENT CONTRACT’ that he signed and now relied upon by the Plaintiff was a discussion paper prepared and signed by him for purpose of the Board’s deliberation, I am inclined to accept Mr Nicholas’s evidence on this.

Mr Nicholas was present throughout the time during the Plaintiff’s case when he gave his evidence. This was a failure on the part of the counsel for the Defendant. The Court found no reason to reject his evidence as it was consistent with his earlier story deposed to in his affidavit sworn 16 June 2005 and tendered in evidence as Exhibit ‘D2’.

The totality of both his oral and written testimony was that there is no denial that the Defendant wanted to employ the Plaintiff initially when the Defendant took over the assets of Muda Jaya Corporation. He was one of the two technicians under the employ of Muda Jaya Corporation who had sound knowledge of the machine for book printing that the Defendant was acquiring from Muda jaya Corporation. So at the time the Plaintiff resumed on the Defendant’s pay-roll he was still employed under the Work Permit issued by Muda Jaya Corporation. The acquisition of assets from Muda Jaya Corporation by the Defendant was covered in an incomplete Sales and Purchase Agreement between Muda Jaya Corporation Ltd and Morobe Printing & Supplies Ltd that never got to see the light of day when the relationship between the parties turned sour and the two machines necessary for the Plaintiff to operate had to be returned to Muda Jaya Corporation. The resultant effect of these turn of event was that there was no reason for the Defendant to retain the Plaintiff as the machinery that he was to operate had gone back to Muda Jaya corporation and he could not be gainfully retained by the Defendant. He was therefore given notice of termination of employment.

On the credibility of witnesses, I accept the evidence given by John Nicholas. Although he was present throughout the testimony of the Plaintiff, he gave evidence in a very fair and balanced manner consistent with what he deposed to in his affidavit.

I accept his explanation that had the arrangement in the making between the Defendant and Muda Jaya Corporation Ltd, the Plaintiff’s principal employer succeeded, a permanent working arrangement would have been completed between the Defendant and the Plaintiff whose technical expertise the Defendant needed to operate the machines it was acquiring from Muda Jaya Corporation. That failed to materialise due to the severance of relationship between the Defendant and Muda Jaya Corporation, hence, there was never any contract signed with the Plaintiff.

A proper employment contract must survive on a valid work permit under the labour and employment laws of this country concerning non-citizens. The Defendant was still trying to organise this work permit while the Plaintiff continued to enjoy the benefit of the work permit acquired by Muda Jaya Corporation as the transfer of his employment from Muda Jaya Corporation to the Defendant which was in the best interest of the principal of Muda Jaya Corporation, the whole process collapsed before maturity thereby even affecting that aspect of his employment as well.

The documents that the Plaintiff relies on as constituting a valid contract are not proper contractual documents, never expressed as such that both parties amicably accepted the way they are expressed especially those two that contain the signature of the Plaintiff alone and I do not accept it as having the endorsement of the Board of Directors of the Defendant company.

I accept that the documents executed and bearing only the signature of John Nicholas were meant and intended for discussion only and they are not contractual documents intended to bind the parties in a contract of employment relationship.

The Plaintiff has not satisfied me on the balance of probabilities and I dismiss his claim.

Cost shall follow the event.

Lawyer for the Plaintiff:	Warner Shand Lawyers
Lawyer for the Defendant:	Morobe Provincial Administration Legal Services