Sakigu v Uriab [1982] PGNC 17; N383(M) (22 July 1982)

N383(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. NO. 109 OF 1982

BETWEEN:

SOPI SAKIGU
APPELLANT

AND:

TINOHIN URIAB
RESPONDENT

Rabaul: Woods AJ
22 July 1982

DECISION AND REASONS

WOODS AJ: This matter is an appeal from a decision of the District Court at Rabaul whereby the court ordered that the complaint by the appellant be dismissed. The appellant had complained that the defendant/respondent did harvest cocoa and collected coconuts from the complainant’s land without his approval and the complainant claimed K1,100 being monies earned by the defendant from his crops during June 1980 and August 1981. The grounds of appeal are:

1. The magistrate misdirected himself in law and fact when considering the no-case submission of the defendant.
   
2. From the evidence of the complainant there was sufficient evidence to require the defendant to answer.
   

On the first ground of appeal I think I should say that I find no basis for the no-case submission procedure similar to that in criminal cases to be used in civil matters in our courts. Possibly this is a confusion with non-suit procedures.

Firstly, I refer to s.147 of the District Courts Act:

‘Section 147 if the defendant does not admit the truth of the complaint, the court shall proceed;

(a) to hear the complainant and such witnesses as are examined on his behalf and such other evidence as is adduced in support of the complaint;

(b) to hear the defendant and such witnesses as are examined on his behalf and such other evidence as adduced in his defence; and

(c) to hear such witnesses as the complainant examines in reply if any evidence has been given on behalf of the defendant.

This section suggests that the magistrate is bound to hear the defendant and his witnesses if the defendant appears at the hearing and s.149 of the District Courts Act does not apply.

I note that in the National Court under National Court Rules, Order 39, Rule 35, there is a non-suit procedure available although I am not saying that this procedure is available in the District Court.

In an article in the 1981 Australian Law Journal^[1], Mr Justice Glass of the Supreme Court of New South Wales in an article on the insufficiency of evidence to raise a case to answer under a heading CIVIL TRIALS states as follows:

‘In trials of common law claims before a judge and jury the defendant has two courses open to him when the plaintiff leads evidence which in his view is insufficient in point of law. He may move for a non-suit or for a verdict by direction. If he moves for a non-suit, the plaintiff must elect whether to argue the application or not. If he declines, the application is not entertained. If the plaintiff argues the application and loses, he may commence fresh proceedings for the same cause of action. If the non-suit application is argued and the defendant loses, he may adduce evidence. If, on the other hand, the plaintiff refuses to argue the application, the defendant has to elect whether to call evidence or move for a verdict by direction. If he chooses to apply for a directed verdict and fails, the jury decides the claim on the plaintiff’s evidence. The judge has no discretion to dispense with the election and entertain the motion.’ Mr Justice Glass goes on to suggest that the use of the expression ‘no-case to answer’ in civil proceedings has been deprecated in New South Wales.

I notice that Cross on Evidence in his chapter on the functions of the judge and jury states that a submission that there is no-case to answer maybe made by one of the parties but the judge will in practice decline to rule on the submission unless the party making it elects not to call evidence. In England where the submission is made to a judge sitting alone without a jury, it has been said that the judge must put the party submitting to his election.

Even if this procedure referred to by Cross does apply here the court would have to expressly put the defendant to his election. However I return to the position in the District Courts Act where it is quite clear in s.147 that a magistrate must hear both sides. Of-course it is then up to a defendant to decide whether to call any evidence or to rely solely on a submission that the complainant has not properly proved his complaint and of-course the defendant then does not get a later chance to call evidence. I feel that one should properly regard this as the defendant not calling any evidence and I would adopt Mr Justice Glass’s reference that the use of the expression ‘no-case to answer’ to cover such a situation, should be discouraged.

With reference to the second ground of appeal there are two main matters that the complainant must prove before the court to succeed on his claim. These two matters are liability and quantum. On the matter of quantum just because you claim K1300 in a claim for unliquidated damages doesn’t mean you automatically get it if you prove liability. You must also have shown how the amount is assessed or calculated.

The court must be satisfied on the quantum. The court does not just accept the round figure the plaintiff says he suffered by way of loss. The plaintiff must prove this figure. In this particular case in question this could have been proved by reference to the area of the property involved, the number of the trees and yield over previous years with appropriate estimates of value. In this case before the District Court, the complainant did not produce evidence which could have been accepted by the court on the quantum of the loss or damage suffered and I therefore find that the complainant could not have succeeded because he did not prove the quantum of the damages before the magistrate.

Having in mind s.236(2) of the District Courts Act which states:

‘An appeal shall be allowed only if it appears to the court that there has been a substantial miscarriage of justice.’

I am bound to dismiss the appeal.

Solicitor for the Appellant: The Public Solicitor
Counsel: Mr. Lightfoot
Solicitor for the Respondent: M. Maraleu
Counsel: M. Maraleu

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^[1] (1981) 55 A.L.J. 842