Mungul v Seke [2000] PGDC 50; DC403 (8 December 2000)

DC403

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE

CASE NO 513 OF 2000

BETWEEN

Arre Mungul
Complainant

V

Joseph Edward Seke
Defendant

Goroka: Manue F
2000: 27th November & 08th December

CIVIL JURISDICTION

Contract Law - Parole contract, whether there was an offer.

MANUE F - This is a claim for a Declaration that the complainant is the new legal tenant of Block 94/4 and for a restraining order against the defendant. His application is based on the purported sale agreement of a block of land at Piswara Settlement, which is probably a State lease by the National Housing Commission.

In support of the complainant’s claim that there was a contract whereby the defendant had sold to him the block of land, he called two other witnesses. The complainant heard from undisclosed sources that the defendant was putting his block of land out for sale. Upon learning of that, he approached the defendant, who denied the assertion, but referred that his family may have some knowledge. Following that, the complainant found the defendant’s wife the same time and discussed the sale of land issue with her. He claims that the proposed amount was K1200.00 was made then.

The next morning he proceeds to the defendant’s house, where he found the defendant and his wife. He then claims that the wife of the defendant was sent with the complainant to sort out the sale.

The second witness was called in to the deal when he was required to witness the transaction. By tradition he was to give notice to the Provincial National Housing Commission Authorities of any tenants of any blocks of land who wish to vacate and sell off their block of land. He was sent by the complainant to the defendant’s house armed with a Statutory Declaration form, for the defendant to sign. At this time, the defendant who was immobile due to knee problem and was in his house had some discussions with this witness - Alois Kargl. He was reluctant to sign, but upon insistence by the witness, and upon misunderstanding, he signed the Statutory Declaration.

The complainant now relies on this document and his own Statutory Declaration that a valid contract had been entered and thus claims the right to the block of land 94/4. The transaction took place in the NHC office Goroka, where K1200.00 was paid and formality of tenancy was made.

The defendant and his witness, especially his wife, denies that there was any agreement for the sale of the block of land.

In his evidence, he says that he is the legal tenant of the block. He has not advertised for the sale of the block as his mother in law was living there. If he is selling it his mother-in-law who is a widow would have been involved in the final say and sale of the block. He denies that there was any concrete offer for the sale of land at his house when the Complainant went there. Although he admits signing the Statutory Declaration, he insists that he was somewhat mislead by the complainant’s witness, Alois Kargl when he allegedly said, "Em liklik samting", upon queries by the defendant, whether the defendant’s wife and her mother had agreed to the sale.

His witness, the wife, denies offering the sale of land for K1200.00. She said that when discussing with the complainant, she informed him that the land may be out for sale in 2 - 3 years time for some thousand kina. When the Complainant with the Statutory Declaration form approached him she refused to sign it, as she was not the legal tenant to the block of land.

The payment of K1200.00 is not an issue.

In order that Court exercises its power to restrain it must be satisfied that the Complainant is legally entitled to the block of land.

And before doing so, the question for this Court to deliberate on is whether there was a contract and if not whether all the requisites of a legally binding contract have been complied with.

The law of contract requires that the parties should have reached agreement as a first requisite.

"An agreement, generally speaking, is made when one party accepts an offer made by the other party. An offer is an expression of willingness to contract on certain terms made with the intention (actual or apparent) that it shall become binding as soon as it is accepted by the person to whom in it was addressed". (The law of Contract, G.H. Treitel, 5th edition, London, Stevens & Sons 1979).

In any contract, whether parole or written or both, a party must as a requisite, made an offer, to a particular party or to the world at large. Offer may be made in any form.

In the present case, the facts have been out lined earlier. The defendant denies having to put out an advertisement to the world at large for the sale of the block of land nor, was there any offers made to Complainant on the two occasions, first in the Bird of Paradise Hotel and second in his house, there was no discussion as to offering or sale of the block of land in issue.

I find that, the defendant, who is the legal tenant, did not make any offer to the Complainant. The Complainant most likely relied on his discussion with Maria, wife of defendant, when he misunderstood in concluding to the K1200.00 as the sale price. Even if Maria may have given the sale price, she is not the legal tenant to have made the proposition. There is no further verification as to which source the Complainant relied on when he asserted that the defendant was offering the sale of the block of land.

The Complainant in his submission relied on the Statutory Declaration made by the Defendant and asked to reject the oral evidence. Any declarations made in the nature of Statutory Declarations are made by virtue of the Oaths.

Affirmations and Statutory Declaration Act.

The Act requires the defendant to make the Declaration before a Commissioner for Oaths and in his presence. I find that this procedure was not adhered to. The Defendant instead signed in the absence of the Commissioner for Oaths. The Statutory Declaration Form was later taken to the Commissioner for Oaths for his authentication by Alois Kargl.

On the foregone reasons, I declare that there was no offer made for the sale of Block 94/4 at Piswara Settlement, Goroka.

I further declare that the Statutory Declaration made by the Defendant on the 9th August 2000 was improperly done and therefore nullified.

I therefore refuse to grant Restraining and Declaratory Orders as applied for in these proceedings.

ORDER:
Case is dismissed.

The Complainant is at liberty to reimburse his K1200.00 from the Defendant.

..............................
F. MANUE
(Magistrate)