Papua New Guinea Banking Corporation v Pokati [1992] PGNC 21; N1097 (30 June 1992)

Unreported National Court Decisions

N1097

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP 136/91
PAPUA NEW GUINEA BANKING CORPORATION
APPELLANT
AND
WILBAR TIEPE POKATI
RESPONDENT

Goroka

Newell AJ
26 June 1992
30 June 1992

APPEAL - District Court - debtors summons - hearing - exclusion of evidence

APPEAL - District Court - debtors summons - hearing - rights of complainant
This is an appeal against a dismissal of a complaint.

Held

Appeal dismissed with costs to the Respondent.

Cases Cited

Grimshaw v. Dunbar [1953] All ER 350

Counsel

J. HASU for Appellant

D. UMBA for Respondent

Cur ad vult

30 June 1992

PRELIMINARY MATTERS

NEWELL AJ: The District Court at Goroka on 27th June 1991 dismissed a claim by the Appellant for monies lent to the Respondent. On the 26th July 1991 this Appeal was lodged, but it was not served until 1st August 1991 in breach of Section 221 (2) (a) of the District Court Act (Ch. 40).

On 12 February 1992 the Plaintiff filed a Motion (which was heard on Friday 26th June 1992, prior to the hearing of the Appeal) seeking the following orders:

1. Seek an order dispensing tith the Condition Precedent to the right of Appeal, namely Section 221 (2) (a) of the District Courts Act, pursuant to Section 231 (a) of the Act.

2. &##160; S60; Seek to eive ncideefo before the Court pursuant to Section 229 of that Act.

3. Seek todamen Nthece ti Appf Appeal pursua Sect32 ofAct.

Clause 1 of the Motion was not onot opposepposed, bud, but the Respondent opposed orders 2 and 3. I set out below the orders mand rs forse orders:

I gr>I grantedanted clau clause 1 of the Motion.

Clause 2. I refused leave to admit further evidence under Section 229 of the District Court Act after the Lawyer for the Appellant agreed that the Transcript was not being questioned (I had offered to adjourn to get the original transcript if it were being questioned).

The Affidavit of Gibson Nad dated 4th February 1992 suggests he was unable to tender evidence relating to the loan agreement, and Bank Records and Statement of the Appellant (Annexures A & B of his Affidavit). The Transcript shows that he never tendered any records in Examination in Chief on 23rd April 1991, and during Cross-Examination on behalf of the Respondent the lawyer for the respondent consented to a proposal by the magistrate to adjourn so that Mr. Gibson Nad for the Appellant/ Complainant could get bank records to tender. When the matter resumed on 26th April only the Computer print out was tabled. I set out the relevant part of the transcript of the matter below for 23rd and 26th April up to the end of the Complainants case.

Gibson Nad - Cross examination by Mr. Umba for Defendant on 23rd April (I have inserted the question numbers)

"Q2. & Do you have your lour loan statements with you?

A. ټ I60; I should have here if my file.

Q3. ټ Au sayinsaying that that the aent w00.00month fnth for 18 months plus a payment of K5,0005,000.00?

A.  ҈ Yes

Q4. #160; &#16eft had paid off thff thff the loae loan on time he would have paid K14,000, is that true?

A. ـ Y60; Yesund t

. ;&#16ve you got got the lohe loan statement?

A.&p>A. No, but I can alway get af I am ed to

( requested the ainant produce loan loan stat statementement, des, despite pite the Complainant should have bring it in today) Case adjourned to Fridth Apt 9.3.

26/4/91 CourtCourt cont continuesinues with complainant

Q6. ҈ Have bring inng in the loan statement?

A. ҈& Y60; Yes

s

Court: Mr. Umba you can proceed with your cross-examination.

Mr. Nad: I tenderCompurint.bjection

Q. <;d Defence Q on c on computer prin print.

Q7. &#16is doo. shnls only the the balance is this true?

A. &##160;; Y60.

Q

Q8. ҈ his doc. doc. do nodo not sho amouf monstatements in that time?

A.&#160  & ټ Ye0; Yes.

Q9

Q9. &##160; The defendantndant is enteto rechis monthly statestatement,ment, is that true?

A. No, we supply it on request by the customer."

Thve isend of the transcranscript of the examination and cross-exas-examination of Gibson Nad - no mention of any attempt to tender the loanement Bankrds and Statement of t of the Aphe Appellapellant (Annexures A & B of the Affidavit of Gibson Nad dated 4th February 1991 in which he suggests he was unable to tender this evidence).

The summary of the proceedings in the transcript also indicates the following for the 26th April 1991:

"26.4.91 Both parties present.

Case for the Complainant concludes.

Case adjourned to 30th April 1991 at 9 am for defence case."

Again no mention as suggested in the Affidavit of Gibson Nad that the loan agreement, and Bank Records and Statement of the Appellant (Annexures A & B of his Affidavit) were tendered, or any attempt was made to tender them.

If one reads the Affidavit of Mr. Nad one realises that he omitted to tender the documents in examination in chief, when he was cross-examined, or at some time before he concluded his case, and had hoped that he could tender the documents during the defendants case with leave of the court.

One of the most elementary rules all Lawyers learn at some time in their careers is that if you conduct a case for yourself you can make a mistake. This is what has happened here. Mr. Nad was both Counsel and sole witness for the bank, and made a fundamental error. However what happened on 23rd and 26th April 1991 is that the inexperience of Mr. Nad led to an error, that a Lawyer would (or should) not make. If a lawyer had appeared for the Bank, and this error had occurred then action could be taken against the lawyer for breach of his professional duty. You do not use an Accountant to carry out open heart surgery - if you do then you suffer the consequences of any mistakes. Likewise if a Bank Officer tries to do the work of a Lawyer and an error is made you suffer the consequences, without any recourse.

The motion to tender the loan agreement, and Bank Records and Statement of the Appellant (Annexures A & B of the Affidavit of Mr. Gibson Nad) was rejected, as it was quite clear that the Appellant was not suggesting that the Transcript was incorrect, and it was quite clear from the evidence before me (including the Transcript) that there was no attempt by Mr. Nad before he concluded his case for the complainant to tender them, or for that matter at any time before he received the final decision from the Magistrate.

I also agree with the argument by the lawyer for the Respondent, that any application suggesting that the transcript was wrong would be more appropriate for Judicial Review. The lawyer for the Appellant indicated that she did not question the accuracy of the transcript.

Clause 3. With respect to leave to amend the notice of appeal pursuant to Section 232 of the District Court Act, the Respondent did not object to this so long as an order for costs was made in his favour, as the amended Notice of Appeal (of which he had notice in February 1992) substantially altered the grounds of the appeal. I allowed the Amendment of the Notice of Appeal subject to costs for the Respondent to be taxed if not agreed.

APPEAL

The Appeal as amended reads as follows:

1. ҈& T60; that the Magi Magistrate misdirected himself in law when disallowing the Appellants Loans Officer to tender as part of its evidence bank statements of the Respondents loan account aat thisionagainstainst the the evideevidence and the weight of the evidence.

2. ; The Magtstrare erred in prin proceeding exparte to hear the Respondent on 21 June 1991 contrary to section 141 and 142 of the District Courts Act Chapte

ـ҈& In the alteralternativnative thee the Magi Magistratstrate wrongly exercised his power to proceed exparte and hear the respondents evidence on 21 June 1991 without the Appellant being present to cross-examine the Respondent and his witnesses and without it being satisfied on oath or otherwise that the Appellant was informed of the hearing date.

4. & A60;cond quenely there ware was substantial miscarriage of justice details of which are set out in paragraphs 2 and 3 above.

In addition in its Notice of Appeal (as amended) the Complainant did not indicate that the decision of the Magistrate was against the evidence. Paragraph 1 of the Notice of Appeal only stated that the decision was against the evidence and the weight of the evidence in disallowing the Appellants Loans Officer to tender as part of its evidence bank statements of the Respondents loan account . However the Appellant declined to proceed with that part of its Appeal.

FACTS

The reasons of the Magistrate set out below set out all the facts of the matter and what the Magistrate determined:

The respondent obtained a loan of K13,000.00 from PNGBC, Kainantu Branch on or about 28.02.87 which was repayable withine certain period. In May 1990 the appellant paid complainant before this Court claiming that the respondent owed K5,181.00 by way of unpaid loan.

The matter was dealt with before me on 24 April to 21 June 1991 and finally announced the decision on 27 June, 1991 entering the judgement for the respondent. The matter was dismissed with an order that each party meet its own costs. It is against this decision that the appellant appealed.

The appellant called one witness namely GIBSON NAD, a Loans Officer with PNGBC, Goroka Branch. His evidence is that the respondent obtained a loan of K13,000.00 in February, 1987 for purchase of two passenger motor vehicles. He says that the respondent stopped payment in 1988. On cross-examination the witness says that the repayment of loan agreement was for K5,000.00 per month for a period of 18 months. He says that the respondent had promised to pay K5,00.00 in August of the same year 1987. The defence on the other hand called one witness, the defendant himself.

He agrees that he obtained loan of K13,000.00 in February 1987. He states that the amount of K13,000.00 was made up of K10,000.00 for the purchase of two vehicles plus K3,000.00 for Insurance cover of the vehicles. He agrees that he was to pay back the laon within one year and 6 months at K500.00 per month and that he was to pay K5,000.00 at any one time in lump sum.

He says that for the payment of K5,000.00 which was payable at any one time, he paid K4,000.00 on 03/05/88 and K1,000.00 on 18/08/88. According to the defendant his last loan repayment was made on 09/10/89 and in total he paid K14,500.00. The witness tendered to Court his record of loan repayment book to confirm the repayments. In view of this record the Court had satisfied that the defendant had paid the total of K14,500.00 in repayment of his loan of K13,000.00.

I have noticed that the loan should have been paid off on or about October 1988. After October 1988 the loan balance outstanding was K1,5000.00 which the defendant paid it off in three payments of K500.00 in 1989.

I have also noticed that the defendant made the last three payments very late. However the complainant's witness do not elaborate as to how the amount increased to K5,181.00 to the date of laying this complaint from the date the defendant should have made his last payment under the loan agreement.

The appellant's witness Mr. Nad did not in his own motion seek to tender any document at all. He is only reminded in cross-examination if he had any document in relation to his loan agreement or a bank statement. The defence in the respect not obliged on cross-examination, to ask the witness to produce any particular document.

For those reasons I was not satisfied on the balance of probability that the respondent owed the appellant the amount as claimed and as I did, Ientered the jundgement in favour of the respondent.

The facts of the adjournments are as follows:

As noted above the case was adjourned at the conclusion of the Complainants case to 30th April 1991 at 9.00 a.m. for the Defendants case.

There is no mention in the transcript of what happened on 30th April 1991, however Mr. Nad in his Affidavit of 4th February 1992 states that:

"I attended the District Court Goroka on 30/04/91 and noted that the Presiding Magistrate had put the matter aside for a new hearing date to be fixed.

I received no notification from the Respondent or his lawyer or from the Court about the new date for the hearing of the Complaint which had been fixed for 21/06/91."

He further stated in his Affidavit that none of his colleagues at the bank were advised of any new hearing date, nor was there anything in writing, and that he would have come to Court if he had been advised of the date, and he would have cross-examined the Respondent as to the accuracy of the Appellants records.

The first record we have in the transcript after 26th April 1991 is as follows:

"14/6/91 Matter set down for hearing on 21.6.91 at 9 am for hearing. Mr. Umba undertakes to advise the C." (Complainant).

Mr. Umba in his Affidavit of 28th April 1992 says:

"I did ring Mr. Nad but he was not available and left a message with one of Appellants staff at Goroka Branch advising Mr Nad that the case has been fixed for hearing on 21 June 1991."

The next part of the transcript reads as follows:

"21.6.91 - No appearance by C.

Mr. Umba for deft

Case for D proceeds.

Case adj. to 25/6/91 at 9am for decision.

Mr. Umba undertakes to advise the C. to attend.

27/6/91 Both parties present.

Mr. Nad for C.

Mr. Umba for D.

Decision: Judgment for Defendant

Case dismissed.

Each party meet their own costs."

DECISION

What has happened in the District Court indicates that Adjournments there are also handled in a casual fashion. What I must determine is whether Mr. Umba complied with his undertaking to the Court on 14th and 21st June to notify the Complainant. There can be no doubt that the message got through about the decision. However with respect to the adjournment on 14th June there is a conflict between the statements of Mr. Nad and Mr. Umba. I do not doubt either statement, but it appears that the message to Mr Nad with respect to the hearing on the 21st June never got to him.

The Professional Conduct Rules 1989 make no provision in relation to the duties of a Lawyer to notify other parties. I would suggest that the Law Society should consider laying down how this should be achieved, where no such rules apply, in the Professional Conduct Rules. Alternatively I recommend that the District Court Regulations be amended to provide for this.

The District Court Act deals with Adjournments in Part IV Division 5. There is nothing in this Division which indicates who is under a duty to inform persons not attending to attend a hearing, except in the case of a postponement under Section 92 when it is the duty of the Clerk to postpone the hearing (after an hour) if there is a request by either party. Neither party has indicated on the appeal whether it made any such request.

The Respondent argues that Sections 141 and 142 do not apply to proceedings by default summons. However Part VIII includes all Complaints, including Default Summons. Sections 141 and 142 are in Division 1 of that Part, and Default Summons are in Division 3 of that Part. I hold that both Divisions be read together, as there is nothing in Part VIII to indicate that Division 3 should not be read together with Division 1, all that Division 3 does is indicate special matters applying to that type of Complaint after a Default Summons is issued.

The Appellant in its amended notice of appeal has omitted reference to Section 144 which was in its notice of appeal, and yet in its submissions refers to this section. By omitting section 144 I take it that the Appellant is saying that it does not consider that the Magistrate made any error in connection with Section 144, but only relies on Sections 141 or 142 on its appeal.

Sections 141 and 142 merely state that duties of the complainant and the defendant under the rules of evidence, but do not make it mandatory to have the complainant present if the complainant declines to appear. The court did not proceed exparte, but proceeded on the basis that the complainant did not appear. It took all measures it considered appropriate to ensure the attendance of the complainant.

The matter at issue is not a matter of the rules of evidence, but whether the complainant was informed of the date of the hearing, or if it was not informed did the Court and the Lawyer for the Defendant take all necessary steps to inform it of the adjourned date.

The Appellant submits that the decision of Jenkins L.J. in Grimshaw v. Dunbar [1953] All ER 350 at 355,

"... A party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's witnesses, and give his own evidence in Court. If by some mischance or accident a party is shut out from the right and order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that litigant who is absent should be allowed to come to Court and present his case, no doubt on suitable terms as to costs...",

means that the court should have adjourned the matter on 21st June.

The Appellant did not have an order made in its absence, it was represented by Mr. Nad when the order was made, but nowhere in his Affidavit of 4th February 1992 does he suggest that he objected to the Magistrate proceeding with the decision before the order was made on 27th June 1991.

In addition the Appellant argues (in a ground not stated in its notice of appeal), that the Defendants evidence was not signed as required by Section 145. I cannot see how the Defendant can argue this point on appeal, and take the respondent by surprise in an appeal where it has confined its appeal to Sections 141 and 142, omitting Section 144. But even if I were to consider the argument, I am of the opinion that the Appellant lost any right to object to the statements of the Defendant when it failed to raise this objection before the decision was handed down by the Magistrate in the presence of Mr. Nad on 27th June 1991.

The failure of the Bank Officer, Mr. Nad to object to the procedure used by the Magistrate before the decision was handed down on 27th June 1991 precludes the appeal succeeding. I feel sure that if the Bank had been represented by a Lawyer when the decision was handed down, then the lawyer would have objected to the matter proceeding before he had heard the Complainants objection relating to Sections 141 to 145 of the District Court Act, and the Magistrate might well have declined to proceed with his decision, until he had heard the Complainants objections.

The Appellant loses its appeal in this matter because it failed to object to the decision being handed down at the time the Magistrate was to hand down his decision. If in fact there was an objection at this time, then I find that there is nothing in any evidence before me or in the transcript that the Complainant raised the objection at that time.

If the Appellant is to learn any lesson in this matter it should be that in future it should use a lawyer for such matters, or suffer the consequences of a non-qualified person conducting the matter with the ever present risk that an error in law or procedure will occur.

With respect to the failure to notify the Complainant, I am satisfied that there are no rules that lay down how this should be achieved, and am satisfied that the Lawyer for the Defendant used his best endeavours to notify the Complainant, but that the Complainant lost any right to object to the failure of Defendants Lawyer to get the message through to him when he failed to object to that matter before the Decision was handed down. If in fact he did object, I have no evidence before me from the Appellant (or any other evidence before me) that this in fact occurred.

For the guidance of the parties I advise that they should use the Fax to notify other parties not present in Court of new dates, followed up by a letter delivered by post or by hand; use of voice telephones is always a problem, because the other party can always say, I was not informed. In this matter I hold that the Appellant lost any right to object to his not being informed, by not bringing this to the attention of the Magistrate before the decision was handed down in the District Court.

I should add that the District Court Act allows any person (with leave of the Court under Section 59) to appear for a Complainant. That is not in question in this matter, what is in question is that the Complainant in choosing to be represented by a person not a lawyer, suffers any consequences (including lack of knowledge of proper procedure) if an error is made by that person at the hearing of the matter.

What I have before me is that there is no evidence that he produced the required documentary evidence, attempted to produce it, or objected at the appropriate time before the decision was handed down to the way the proceedings were conducted. His failure to do this led to the decision by the Magistrate dismissing the case.

This appeal was lost at the time the decision was handed down by the Magistrate. If the Magistrate had made errors of procedure, the Complainant had the right at the appropriate point in the proceedings (in this matter before the final decision), to object to the matter. If the Magistrate had then declined to hear him before the decision was handed down, then he would be in a position to Appeal now, but there is no evidence before me that this occurred at any time before the decision was handed down.

The Complainant cannot now come to the National Court on Appeal and say I made a mistake in the way I conducted the case in the District Court, give me another chance to do it right. It would be an "injustice to other parties" (per Jenkins L.J. in Grimshaw v. Dunbar) to allow this to happen.

I dismiss the Appeal with costs to the Respondent to be taxed if not agreed.

Lawyer for the appellant: William Neill

Respondent in person: Dennis Anton Umba