Tiri v Eka [2011] PGNC 252; N4507 (29 July 2011)

N4507

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 8 OF 2008

BETWEEN:

DOMINIC TIRI
Appellant

AND:

ALLISON EKA
Respondent

Waigani: Thompson, AJ
2011: 29 July

DISTRICT COURT APPEAL – no miscarriage of justice – no errors of fact or law

DISTRICT COURT APPEAL – no errors of fact or law – no miscarriage of justice

Counsel

Mr. G. Unjo, for the Appellant
Mr. J. Sirigoi, for the Respondent

DECISION
29th July, 2011

1. THOMPSON AJ: On 15 January 2008, the District Court found that the property had not been transferred from the Respondent to the Appellant, and ordered the Respondent to repay the sum of K6,400.00 to the Appellant, ordered that the Appellant did not have to pay the judgment debt of K2,600.00 for the outstanding balance, and ordered that when the payment was made, the Respondent was to resume possession of the property. The Appellant has appealed against those orders, on the grounds set out in the appeal.

2. The first ground is that the Court erred in making an order for eviction under the Summary Ejectment Act, when there was no evidence of the Respondent's title to the property. However, there was no such order made. The nature of the case as set out in the documents and written reasons for decision, show that the case was essentially a claim for relief arising out of a breach of or a failure to complete a contract for sale of the property. There was no claim brought under the Summary Ejectment Act.

3. The second ground is that the Magistrate said that he did not have time to read a National Court case referred to by the Appellant. However, if he had read the case, it would not have affected his decision, as the case was not relevant. The National Court case concerned a formal written contract and a dispute over the party's obligations to obtain ministerial approval to the transfer under Section 69 of the Land Act. That was of no relevance to this case, where there was no written contract.

4. The third ground is that the Magistrate erred by failing to find that the Respondent did not prove clear title to the property. However, it was not necessary for the Court to make any such finding. The issue before the Court was a breach of or failure to complete a contract for sale.

5. The fourth ground is that the Court erred in enforcing a verbal agreement for the transfer of land, contrary to the Frauds & Limitations Act. But the Court did not do this at all. On the contrary, the Court acted in compliance with the Act, by treating the Contract as void and unenforceable. The Court did not enforce the alleged verbal agreement. The Court ordered that the property be returned to the Respondent and the monies be returned to the Appellant.

6. The final ground is that the Court erred by not finding that the Respondent had made a misrepresentation which induced the Appellant to enter into the contract. That misrepresentation is not pleaded, but even if there was a misrepresentation, say as to the title to the property, which caused the Appellant to enter into the contract, then obviously the result would be that the contract was breached and/or void, and the Appellant would be entitled to rescind the contract and to get his money back. This is exactly what the Court in fact ordered.

7. That is the extent of the Appeal. The documents show that the parties entered into a verbal contract for the sale of the property, whose terms were very uncertain. There was not even any agreement on the price which was to be paid. The Appellant says that a fundamental term of the contract was breached, in that the Respondent did not have title to the property. If the Appellant took the view that the Respondent had no title and so could not prove clear title, then obviously there could not have been a valid contract for sale to the Appellant.

8. These allegations formed the basis of the issues regarding the breaches or performance of the contract which came before the Court. The Court ordered the Respondent to repay the monies which had already been paid by the Appellant, and ordered the Appellant to return the property to the Respondent.

9. The Appellant says that the Respondent intended to defraud him, by pretending to be the owner of the property. If so, the consequence should be that the Contract for Sale is void, and the Respondent should return the monies paid by the Appellant. That is exactly what the Court ordered.

10. Most of the Appellant's submissions are concerned with the Respondent's failure to prove clear title to the property. He appears to believe that if the Respondent does not have title, the Court can somehow award title to the Appellant, or order the relevant authorities to award the title to the Appellant. But just because the Respondent may not be the owner, does not mean that the Court has power to determine ownership. The issue of ownership is properly a matter for the Lands Department.

11. The first two conclusions in the Appellant's written submissions may well be correct. The Respondent may not have title. But that does not mean that the Court has power to award title now. The issue of title is solely a matter for the Lands Department. All it means for the purpose of this appeal, is that the District Court correctly found that the Contract for Sale was not able to be performed and was unenforceable.

12. The Appellant has not demonstrated any errors in the District Court judgment, or that any such errors resulted in a substantial miscarriage of justice under Section 230 of the District Court's Act. As a result of the District Court decision, both parties were restored to the position which they were in, prior to the Contract, and there could be no injustice in that.

13. The appeal is therefore refused. The stay orders of 25 January 2008 are discharged forthwith. The District Court orders of 15 January 2008 are affirmed.
14. Each party is to pay its own costs.
_____________________________________________________
G. Unjo: Lawyer for the Appellant
John Sirigoi Lawyers: Lawyer for the Respondent