Yaki v Highlands Regional Secretariat Inc [1996] PGNC 28; N1489 (9 September 1996)

Unreported National Court Decisions

N1489

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP NO 329 OF 1995
BETWEEN
ROY YAKI - Appellant
And
HIGHLANDS REGIONAL SECRETARIAT INC. - Respondent

Mount Hagen

Injia J
23 August 1996
9 September 1996

CONTRACT - Money re-paid to owner by person charged with criminal charges of misappropriation whilst facing Court - Whether money recoverable.

CRIMINAL LAW - Money re-paid to owner by an accused person facing criminal charges of misappropriation - Whether money recoverable.

Held:

Money voluntarily re-paid by an accused person facing criminal charges of misappropriation to owner under obscure circumstances is not recoverable, irrespective of the subsequent result of the criminal proceedings.

Cases Cited:

Moore v Versitry of Fulhan [1894] UKLawRpKQB 225; (1895) 1 QB 399

Muskell v Horner [1915] 3 KB 106

Sebel Products Ltd v Commissioner of Customs and Excise [1949] Ch 409

Counsel:

M Tamutai for the Appellant

P Kunai for the Respondent

9 September 1996

INJIA J: The Appellant ap against thst the decision of the District Court at Mount Hagen made on 12th October 1995 in which the Court dismissed the Appel#8217;s claim for a refund of K8,871.56 being part of monies he purportedly re-paid to the the Respondent in 1990 upon being charged with six (6) counts of misappropriation under S. 383 of the Criminal Code (Ch 262). The s) counts involved, a d, a total of K19,778.48 allegedly misappropriated by the Appellant whilst he was employed by the Respondent. The monies were paid betrial on those charges. Subsequently Appellant want want was convicted by the National Court on only two counts involving K10,8 and acquitted on the four counts involving the said K8,871.56. He npeals from arom a deci decision of the District Court dismissing his claim for a refund of the balance of K8,871.56 relating to the four counts on which he was acquitted.

In the Districrt, he contended that becaubecause he was acquitted on those four charges, there was no legal basis for the Respondent to retain the money.

At the hearing before the Magistrate, the Respondent through its Director, Mr John P. Munul, whilst admitting that the Appellant paid the money through his lawyer, Steels Lawyers, contended that the Appellant was not entitled to a refund of the money because they were not his entitlements or wages and that the money remained the property of the Respondent, the Appellant having re-paid the money.

The Magistrate in dismissing the claim gave brief reasons for his decision. I quote thtinent parts of s of his reasons below:

“The Complainant relied on the Affidavit of Roy Yaki himself. There w evidproduced to esto establish if Roy Yaki had actually paid the K19,778.48 to the Defendafendant. though there was no di on i on this, it is important for the purpose of proving that the money he paid belonged to theo the Complainant and not out of the Defen#8217;s funds as submitted in defence. The onus of prof proof imicriminal trials is different from civil trials and they must be decided by their own standards. The fact that Roy Yaki was acquitted in the criminal trial is not exclusive proof that h entitled to refund of the the balance of the money which he paid voluntarily to the Defendant.

We have no evidence, documentr otherwise to proof that that the money was actually paid to the Defendant. There was no underg by they the Defendant to refund this money, no conditions attached. There was no contractual abligation on the part of the Defendant to refund the money21;

There are four grounds of appeal which are:

(a) That the whole of the dec sion ing in law;

(b) #1660; Th0; That the evidence dots not support the decision to dismiss the Complaint anduch Hrshipd in ssingCompl

(

(c)&#1c) < &160; #1660҈ That His WorshWorship erred ired in law and infact dismissing the Complaint and finding that the money claimed by the Complainant belongs to the Defendant when the Defendant had not given to the Complainant written notice of his intention or given to the Complainant a set off to the Complainants Claim;

(d) ـ His Wors Worship erred in finding that there was no evidence to prove that the money was actually paid to the Defendant when the Defendant throug Affi of ohn Munul had on behalf of the Defendantndant admitted that the money was paid to d to the Dthe Defendant by the Complainant.

FIRST GROUND OF APPEAL

There are two arguments in support of this ground. Thellant contends first, tst, that the money (K8,906.19) was paid on a “without prejudice” basis but under the mistaken belief that he might be found g on those charges as well and now that he was acquitted on d on those charges, he was entitled to recover the money. He relies bel Products Ltds Ltd -v- Commissioner of Customs and Exercise [1949] Ch 409. Secondly, it is cded for tfor the Appellant he paid the money under compulsion “because of the threat in him going to jail due toue to the impending Criminal Action based legations contained in the indictment...however, he had thed the intention of preserving his right to dispute the legality f the allegations.” He relies e decisions in M in Moore v Versitry of Fulham [1894] UKLawRpKQB 225; (1895) 1 QB 399 and Muskell v Horner (1915) 3 KB 106 and a passage in Amniso’s Law of Contract (26th Edn) at p. 595.

These three cases are distinguishable from the present case. They concern civiions for for money had and received where money was paid to local authorities under mistaken circumstances of fact and law or under circumstances of compulsion (Sebel Products case and Muskell’s case), or under compulsion of legal process (Moore’s case) in order to settle a perceived debt. None of these cconcern monn monies paid by an accused person who is facing criminal charges of theft or misappropriation of money under circumstances similar to the Appellant is appeal. Therefore, I am loatadopt dopt and apply tply the principles in those three cases.

In the present case, although there was undisputed evidence from the appellant and the respondent that the appellant paid the money, there was vague or insufficient evidence to show why the money was paid or the precise terms and conditions under which it was paid. The only evidenom the Appe Appellant before the Magistrate was that he paid the money, in the appellant’s words:

“after I warged with the six (6) counts of misappropriation of Secretariat money. Because the Cohe Court ht not found me guilty for the said amount, I am now claiming (para. 10 of his affidavit)...I don’t have an agreement, a bill of sale or any agreement whirports to justify the Secretariat keeping the said money.&#ey.” (para. 11 of his affidavi>)

Such evidence did little to explain to the Court below what the reasons for paying the money were. Further the learneistrate rate was not favourth any evidence as to any undertaking by the respondent to t to refund the money. He had no contractrrangemengement, oral or wr, to interpret and enforce. I agree the Magistraistratstrate that the money was paid voluntarily under obscure circumstances where not disclosed to the Court. The s will not enot enforcnforce such private arrangements because they do not create any legally binding arrangements. I see no erf law committeditted by the magistrate in dismissing the claim on this basis.

Returning to the first ground of appeal, I agree with the Appellant that the learned Magistrate erred in finding that there was no or insufficient evidence to show that the appellant paid the money to the Respondent. There was uncontested evidence from both parties that the money was paid by the Appellant. In my view, however, tbeen been no substantial miscarriage of justice flowing from that factual error: See District C Act (Ch 40)h 40), s. 230 (2). is, even if the Magistratetrate had found that the mons so paid by the Appellant lant to the Respondent, as I do, he would still have to come to the same conclusion which he did - that there w evidence as to the terms arms and conditions of the payment worthy of enforcement by the Court and dismissed the claim. For theasons, I dismiss thss this ground of appeal.

SECOND GROUND OF APPEAL

On the basis of the above, I also thiere was no substantial miscarriage of justice. He correctly disd the comp complaint.

THIRD GROUND OF APPEAL

This ground of appeal is misconceived. The reason for diing the cthe complaint was that there was no proof that thellant paid the money to theo the Respondent. He did not make any fin thgs that the money belonged to the Respondent. I haready decihat the Magi Magi Magistrate erred in finding that the Appellant did not pay the money to the Respondent but such error didresulsubstantial miscamiscarriage of justice. This ground is also died.

FOUb>FOURTH GROUND OF APPEAL

I have already dealt with this ground of appeal under the first ground of appeal. I dismiss this grolso.

.

For these ns, I dismiss all the four four grounds of appeal.

ORDERS

1. & The appeal is.dsed.

2. ټ&##160; T60; The orde orde order of the District Court at Mount Hagen made on 12 October 1995 is cond.

Lawyer for the Appellant: M Tamutai Lawyers

Lawyer for the Respondent: Kunai & Co Lawyers