Panges v Talil [2009] PGDC 83; DC978 (14 April 2009)

DC978

PAPUA NEW GUINEA
DISTRICT COURT OF JUSTICE SITTING IN ITS DISTRICT COURT CIVIL JURISDICTION

DCC 36 of 2008

BETWEEN

JULIE PANGES
Complainant

AND

KATAN TALIL
Defendant

MADANG: E Wilmot

2008: 16 & 22 March 2009 and 14 April 2009

CIVIL – Claims Damages – Oral Contract – Simple cause of action – Matter is brought after 12 years – Matter Statute Barred.

Cases Cited
Nil

References
Statues of Frauds and Limitation Act, Section 16(1)

Counsel
Complainant appears In Person
Defendant appears In Person

14 March 2009

DECISION OF THE COURT

Background

1. (DCM E WILMOT) The matter came before this Court on 16 and 23 March 2008. The claim was for the refund of monies paid to the defendant over a piece of land which he had already sold to another.
   

Facts

2. The complainant Julie Panges in 1997 paid to the defendant K700 for a piece of land known as Portion 811 a piece of land located at 26 Bus Stop at the airport junction Madang. When they paid for the land they did not receive a receipt for the payment.
   
3. That on their effort to go to the land they observed other people on the land. When they approached the people there they were informed that the land was allocated to them.
   
4. That between 1997 and 1008 they tried to have the money refunded,
   
5. In May 2002 a notice of debts was issued to the defendant which was prepared by the district court.
   
6. Further notice was issued by the community police on 15 August 2008 to resolve the issue. In both instances the defendant made a non show.
   

Evidence

7. A further notice was sent on 15bseptember. the defendant did not show.
   
8. There is evidence of a supporting affidavit corroborating that the money was given to Mr. Talil.
   
9. There is evidence show a scheme was set up to allow people to rent the defendants land.
   
10. There is evidence of several unsatisfied customers who were refunded.
    
11. There is evidence of attempt to resolve the issue which the defendant fail to show up to
    
12. Defendant does not dispute this he merely denies that he received the money.
    
13. The Complainant’s witness has identified the defendant that he was the one who took the money.
    
14. The defendant evidences a table showing a list of people who bought land. The complainants name does not show. Did he take the money?
    
15. The complainant claims she has been told by the defendant numerous times that he did not have the money to settle that K700.00. Defendant neither denies nor admits that fact.
    

Assessment of Evidence

16. Most of Complainant and Defendant’s evidences is filed in Affidavit. On the other hand the Complainant has brought one witness to support her claim. This is the evidence of her daughter. Why has the complainant's husband not corroborate his wife’s evidence?
    
17. From the evidence, there is an out right denial. His affidavit and submission contain the same denial. If that was so why did he not turn up to resolve this issue? Further he fails to rebut the evidence of the complainant’s one witness.
    
18. What the Defendant is raising in his defense is, he did not get any money from her. if he did he would have her on his list of people occupying his land
    
19. In other words, Complainant has fabricated this whole thing.
    
20. And as to the complainant claiming the defendant when approached has said he had no money to settle, the defendant makes no mention in his defence of these time. This is to his determents.
    
21. In a magistrates job he must act within the confines of the District Courts Act and all legislations either equivalent in status or subordinate to it. It is a creature to state and draws its powers from its founding act. Further it is subject to another act that
    

Issue

22. Is the Issue time barred?
    

Law

16. LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC.

(1) Subject to Sections 17 and 18, an action–

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

Analysis

23. Looking at the provisions of Section 16 this is a simple contract over the rental of land which was made orally. That the time when limitation started after the first instant that the complainant asked for a refund. That means that time would have lapsed in 2003. But are there exceptions?
    
24. It is established law that, if there is fraud time did not begin to run until the discovery of the fraud and in the cases where principles governing the issue of time bar for infants, who does not have a cause of action accruing to him or her until after he or she attains his or her age of majority and is in a position to decide whether or not to either commence or pursue a cause of action.
    
25. The complainant has not commenced an action based on fraud. She has brought an action for a liquidated sum. I also find although the defendant has not brought the time within the specified time period she has within the time continuously kept trying to have the money refunded.
    

Findings

26. The onus the complainant has is to establish his case on balance of probabilities. Indeed the Complainant has established that onus; there appears to be a scheme set up by the defendant to rent his land. And if there was a scheme people came to rent his land. There appears to be several unsatisfied customers who were refunded. Could the Defendant have forgotten?
    
27. The defendant is a illiterate villager, who may have had help to set up the scheme to rent his land.
    
28. Further the Complainant has persisted with this claim for a long time which is the downfall to this action
    

The Claim

29. Claim is for an amount over K 2000 – total cost of damage. I find this claim is time barred and I therefore order the matter be missed for being time barred I find the total claim to be excessive.
    
30. Orders made accordingly.
    

E Wilmot

Complainant appears In Person
Defendant appears In Person