N3630

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APP NO 94 0F 2008

DANNY YAI
Appellant

V

JOSEPH PINDU
Respondent

Kimbe: Cannings J
2009: 16, 22 April
Bialla: 2009 19 May

APPEAL

CONTRACTS – oral agreement as to use of land – whether sufficient evidence of time and place at which agreement entered into or terms of agreement.

APPEAL FROM DISTRICT COURT TO NATIONAL COURT – discretion of National Court to decide on appropriate orders when it is satisfied that one or more grounds of appeal are upheld – District Courts Act, Section 230.

The appellant is the registered proprietor of an oil palm block. He left the block and allowed the respondent and his family to move on to it on certain conditions. The respondent stayed for a number of years and made a living from the proceeds of the oil palm he harvested. A dispute arose between the appellant and the respondent and the appellant obtained an eviction order against the respondent, who complied with the order and left. The respondent then instituted proceedings in the District Court claiming damages for breach of agreement and pain and suffering and improvements he had made to the block. The District Court found in favour of the respondent and ordered the appellant to pay him K6,500.00. The appellant appealed to the National Court on four grounds: (1) there was no such agreement; (2) the Magistrate was biased; (3) the appellant was denied a fair hearing; and (4) there was a miscarriage of justice.

Held:

(1)	The District Court erred by basing its decision on the breach of an oral agreement as the time and place of the agreement and its terms were not clearly apparent from the evidence before the Court and no findings on those matters were made by the District Court.

(2)	There was no credible evidence that the Magistrate was biased.

(3)	There was no credible evidence that the appellant was denied a fair hearing.

(4)	To say that a decision of the District Court involved a great miscarriage of justice is not a proper ground of appeal.

(5)	Therefore one of the grounds of appeal was upheld, three were dismissed. The ground upheld involved a significant error and was sufficient to give rise to a "substantial miscarriage of justice" under the District Courts Act, Section 230(2); and therefore the appeal was upheld.

(6)	The order of the District Court was quashed and substituted with an order that the appellant pay the respondent the sum of K3,000.00 within two months.

Cases cited

The following cases are cited in the judgment:
Jimmy Mostata Maladina v Posain Poloh (2004) N2568
Kwame Okyere Boateng v The State [1990] PNGLR 342
Sela Gipe v The State [2000] PNGLR 271
The State v Keboki Business Group Incorporated and Morobe Provinsel Gavman [1985] PNGLR 369
Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182
Veltro Ltd v Steven Liu Huang OS No 478 of 2006, 12.09.06

APPEAL

This was an appeal from decision of the District Court ordering the appellant to pay damages to the respondent.
Counsel

J Yapao, for the appellant
J Pindu, the respondent in person

19 May, 2009 

1. CANNINGS J: This is an appeal against a decision of the Bialla District Court, constituted by Magistrate Mr V Eralia, ordering the appellant, Danny Yai, to pay the respondent, Joseph Pindu, K6,500.00 damages for breach of an agreement regarding the use of land.

2. The land in question is at Vilelo, near Bialla: Section 11, Block No 947. It is a 4.6 hectare oil palm block. Mr Yai is the registered proprietor (the owner) of the block. He bought it in 1995 after moving to West New Britain from his home province, Enga. He lived on it for a couple of years then left it to take up employment elsewhere in West New Britain. At some time from 1999 to 2001, Mr Yai gave permission to Mr Pindu, who also hails from Enga and is related to Mr Yai, to move on to the block and live there and harvest the oil palm. They agreed on some conditions, but what they were has become a contentious issue.

3. Mr Pindu and his family stayed on the block until Mr Yai obtained eviction orders against Mr Pindu. As a result Mr Pindu vacated the block in late 2007.

DISTRICT COURT PROCEEDINGS 

4. In January 2008 Mr Pindu instituted proceedings in the District Court claiming K8,000.00 damages for breach of agreement and pain and suffering and improvements he had made to the block. The case commenced before Mr Eralia in January 2008 and his Worship directed the parties to try to settle the matter through mediation. A mediation was conducted by Village Court officials at Vilelo in April 2008 and Mr Yai was asked to pay K1,500.00 to Mr Pindu and allow him to collect the proceeds of the oil palm harvest for a period of two months. Mr Pindu, however, did not accept that and the case went back before the District Court.

5. Mr Eralia handed down judgment on 15 May 2008 and ordered Mr Yai to pay Mr Pindu K6,500.00, inclusive of costs. His Worship based his order on the finding that the parties had entered into an oral agreement under which Mr Pindu was allowed to move on to the block, to take care of it and to obtain the proceeds of the oil palm harvest, provided that he send some of it to Mr Yai. His Worship noted, however, that Mr Pindu failed to send any money to Mr Yai. Despite that, the case was decided in favour of Mr Pindu. His Worship concluded:

In my view although the complainant has benefited enormously from the defendant’s [Mr Yai’s] block, the court has to strike a balance in order to amicably resolve the dispute between the parties.

After taking into account the conduct of the parties as justice of the case requires, customary practices prevailing in the Enga Province should be applied here. This is necessary to maintain the status quo between the parties so that they can reconcile, forget and forgive and restore their relationship again.

And finally the amount I intend to award is fair, just and reasonable.

6. His Worship proceeded to order Mr Yai to pay Mr Pindu the total sum of K6,500.00 inclusive of costs within two months.

THE APPEAL 

7. Mr Yai has appealed to the National Court on four grounds: 

1	there was no oral agreement proven to exist;
2	the Magistrate was biased;
3	the appellant was denied a fair hearing; and
4	there was a miscarriage of justice.

8. He seeks an order quashing the District Court order and dismissing the District Court proceedings.

9. I will address each of the grounds of appeal and then consider whether the appeal should be upheld and what order should be made by the National Court.

GROUND 1: NO AGREEMENT PROVEN TO EXIST

10. Mr Yapao, for Mr Yai, submitted that there was never any oral agreement between Mr Yai and Mr Pindu. What actually happened is that Mr Yai allowed Mr Pindu to move on to the land after Mr Pindu asked him for permission. There was evidence before the District Court, Mr Yapao submitted, to show that Mr Pindu had actually moved on to the block before he even asked for permission. Mr Yai allowed him to stay there as Mr Pindu is married to Mr Yai’s cousin-sister. There was no evidence of an oral agreement, Mr Yapao asserted.

11. Besides that, as Mr Pindu was claiming damages for breach of contract it was incumbent on him to plead clearly how the contract was made and what its terms were and how those terms were breached.

12. I agree with some parts of Mr Yapao’s submission. As I pointed out in Veltro Ltd v Steven Liu Huang OS No 478 of 2006, 12.09.06, a contract (a legally enforceable agreement) can be entered into orally or in writing or by a combination of those forms of agreement. Whatever form it takes it must be clearly identifiable. If a dispute over interpretation or application of the contract ends up in court or, as in this case, there is a dispute as to the existence of a contract, the party seeking to prove its existence must precisely plead the details of the contract in the originating process. Who are the parties to the contract? When did it come into existence? What form is it in? Where was it entered into? Why was it entered into? (See The State v Keboki Business Group Incorporated and Morobe Provinsel Gavman [1985] PNGLR 369). These principles of practice and procedure should be applied in the District Court just as they are in the National Court.

13. Having pleaded its existence, the party relying on the contract must come to court with evidence of its existence. If it is a written contract, it must be adduced in evidence. If it is oral, there must be clear evidence of the oral communication that gave rise to the agreement.

14. In this case, it is not correct to say that there was no evidence of an oral agreement. Mr Pindu swore an affidavit deposing to an agreement he reached with Mr Yai at Kapiura in 1999, which led to Mr Pindu giving up his job at the Kapiura Plantation and moving on to Mr Yai’s block. Against that was an affidavit by Mr Yai who deposed that he only expressly gave permission to Mr Pindu to move on to the block in 2001, when Mr Pindu over-nighted with him at Kimbe.

15. His Worship, with respect, erred by not weighing these two pieces of evidence and not making a clear finding of fact about the existence of the oral agreement. His Worship should have said which piece of evidence he found to be more reliable and made a clear finding on where and when the agreement was entered into and what it contained. That is, what were the terms of the agreement and how did Mr Yai breach the terms?

16. I therefore uphold the first ground of appeal.

GROUND 2: MAGISTRATE BIASED

17. Mr Yapao submitted that his Worship was biased because there was a lot of evidence adduced by Mr Yai that he failed to consider in his judgment. This was presented as an argument that his Worship was actually biased, not just that the way in which the proceedings were conducted gave rise to a reasonable apprehension of bias.

18. I agree that there was some evidence that his Worship should have considered, but did not; and I have ruled on that under ground No 1. It does not follow from that, however, that his Worship was biased. A claim that a Magistrate or a Judge is biased must be supported by clear evidence that he or she has a connection with one of the parties or otherwise has an interest in the case or has conducted the proceedings in such an obviously one-sided way that there is no impartiality (Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182; Kwame Okyere Boateng v The State [1990] PNGLR 342; Sela Gipe v The State [2000] PNGLR 271).

19. Such evidence was not presented in this case, so I dismiss the second ground of appeal.
 
GROUND 3: MR YAI DENIED A FAIR HEARING 

20. This is a natural justice argument but there is no evidence to support it. An appellant who wants to argue denial of natural justice by the court must have clear evidence that he or she was not given notice or was given inadequate notice of the hearing or that the Magistrate or Judge conducting the hearing did not afford an equal opportunity to be heard to the parties (Jimmy Mostata Maladina v Posain Poloh (2004) N2568).

21. I dismiss the third ground of appeal.

GROUND 4: MISCARRIAGE OF JUSTICE

22. This ground of appeal states that "the learned magistrate erred in fact and in law in the circumstances and as such there was a great miscarriage of justice".

23. This is not a proper ground of appeal. It is too vague and general. The notion of "miscarriage of justice" is important in appeals to the National Court from decisions by the District Court. But it is something to be considered after the National Court determines whether any of the grounds of appeal are upheld. It is a pre-requisite to an appeal being allowed but it is not a ground of appeal, as such.

24. I dismiss the fourth ground of appeal.

SHOULD THE APPEAL BE UPHELD?

25. This is the part of the National Court’s decision-making process where the notion of miscarriage of justice comes into play. Section 230(2) of the District Courts Act states:

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

26. Here, only one of the grounds of appeal (No 1) has been upheld. Three were dismissed. However, the ground that has been upheld involves a significant error of law on the part of the District Court and I consider that it has given rise to a substantial miscarriage of justice. I will therefore uphold the appeal.

WHAT ORDERS SHOULD BE MADE BY THE NATIONAL COURT? 

27. The National Court has a wide discretion under Section 230(1) of the District Courts Act, which states:

On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a)	adjourn the hearing from time to time; and
(b)	mitigate or increase a penalty or fine; and
(c)	affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d)	remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e)	exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f)	make such further or other order as to costs or otherwise as the case requires.

28. The first order I am going to make is to quash the order of the District Court under Section 230(1)(c). The award of K6,500.00 is not justified. Mr Yapao wants me to then substitute the quashed District Court order with a National Court order that Mr Pindu’s claim be dismissed in its entirety. I can do that also under Section 230(1)(c) but I am not going to do it as it would not be fair to Mr Pindu to do so. He has come before the National Court without a lawyer and, more importantly, I do not feel that I have heard his full side of the story over the alleged agreement with Mr Yai.

29. Another thing I could do, which would be a reasonable order to make, is to remit the matter to the District Court for re-hearing. I could do that under Section 230(1)(d) but I have decided not to do that either as I think that it would just prolong this already drawn-out legal battle, unnecessarily.

30. I am confident that I have the material before me to make a fair decision that balances the conflicting interests of the parties and avoids further litigation and animosity. I am going to order that Mr Yai pays Mr Pindu some money, but not as much as the District Court ordered him to pay. The reason I am making this order is that the mediators listened to both sides and suggested that Mr Yai pay Mr Pindu K1,500.00 plus a two-month harvest. No-one has suggested that they were one-sided or biased so it seems that there is some merit in Mr Pindu’s underlying claim that he ought to be compensated for looking after Mr Yai’s block for so many years. And although I have, with respect, found a significant error in Mr Eralia’s judgment, his Worship must have also been convinced that there was some underlying merit in Mr Pindu’s claim. The amount I consider appropriate is K3,000.00. 

COSTS AND INTEREST

31. The question of legal costs and the question of interest on the judgment debt is at the discretion of the National Court. In this case, where neither party has had a clear win or loss, it is appropriate that they bear their own costs and that there be no interest payable on the judgment debt.

ORDER

(1)	The appeal is upheld.

(2)	The order of the Bialla District Court in DC No 01 of 2008 of 15 May 2008 is quashed and all subsequent writs, summons, orders and other District Court processes regarding this matter are quashed and substituted by the following:

(a)	Danny Yai shall pay to Joseph Pindu the sum of K3,000.00 within two months after the date of this judgment.

(b)	No interest is liable to be paid on the judgment sum.

(c)	The parties shall bear their own costs.

Orders accordingly.

Paul Paraka Lawyers: Lawyers for the appellant
Lawyers for the respondent: Nil