Pitu v Kuna [2011] PGNC 261; N4506 (29 July 2011)

N4506

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 125 OF 2010

BETWEEN:

PAUL PITU
Appellant

AND:

SIMON KOPAL KUNA
Respondent

Waigani: Thompson, AJ
2011: 29 July

DISTRICT COURT APPEAL – District Court limit of jurisdiction - findigainst weight of evid evidence.

DISTRICT COURT APPEAL – errors of law and fact – findings against weight of evidence – limit of District Court jurisdiction unable to be increased by estoppels or consent.

Counsel

Ms. E. Kama, for the Appellant
Mr. J. Kolo, for the Respondent

DECISION
29th July, 2011

1. THOMPSON AJ: This is an appeal against a District Court decision made on 10 August 2010 whereby the Court found that the Respondent was the legal owner of a PMV vehicle registration number P0439C. The main grounds of appeal are that errors of law and fact were made by the Magistrate when reaching his decision, and that the decision was outside the jurisdiction of the District Court.

2. Having read the Affidavits and transcript material, and having heard Counsel or both parties, I am satisfied that there were errors of law and fact.

3. At page 132 of the Appeal Book, the Court found that the Appellant "... made no specific mention of what he did with the cash withdrawal of K6,000.00 on 13 February 2009", when in fact the Appellant said in his Affidavit sworn on 29 June 2010 and apparently filed on 1 July 2010, at page 77 of the Appeal Book, that "... the previous owner, Mr. Marcus Palem Kara was paid the sum of K20,000.00 ... by the Defendant" and goes on to refer to his bank statements and other documents showing his payments of K6,000.00 and K14,000.00.
4. At page 132 of the Appeal Book, the Magistrate said that he could not see why the Defendant had withdrawn K6,000.00 cash and transferred K14,000.00 and says that would be illogical, when in fact the evidence was that it was what the vendor had required, and the Appellant's evidence clearly showed that the reason was that the vendor wanted some cash and some in his bank account. The Court said that it "... would be illogical to do two transactions ... in the absence of any explanation by the Defendant", when the Defendant did give an explanation, the explanation was credible, and supported by the documents.

5. It was unreasonable for the Court to accept the Respondent's uncorroborated evidence that he had paid K6,000.00 cash, without any supporting evidence at all, in preference to the Appellant's evidence which was corroborated by a witness, the banking records, and the vendor's statutory declaration.

6. At page 133 of the Appeal Book the Court found that the vendor confirmed receiving the final K8,000.00, but the Court omitted to note that the vendor did not confirm receiving it from the Respondent in the way alleged by the Respondent. The Vendor simply confirmed that he received it from the same three people i.e the Appellant, the Appellant's wife and the Respondent.

7. At page 134 of the Appeal Book the Court found that in his verbal evidence the vendor had said that he had "authorized the ownership transfer to be supervised by Constable Tripi". However, saying that he had authorized the transfer to be supervised by a policeman, is not the same as saying that he had authorized the actual transfer to the Respondent.
8. The Court also erred in the way in which the hearing was conducted. While it is correct that the Appellant was represented, it appears from the record that there was no examination or cross examination of any witnesses, including the vendor. The vendor should at least have been asked by the Court, if not by the parties, about the difference between his signature on the deposition and that on the transfer document.

9. When giving his verbal evidence, the vendor was not asked if he had signed the transfer, or if it was his signature on that document.

10. This leads to the issue of evidence of the ownership. The Respondent relied almost entirely on the registration certificate to prove his ownership. He had no other corroborating evidence from bank records or documents or witnesses. The registration certificate does provide prima facie evidence of ownership. However, that prima facie evidence is able to be rebutted by other evidence.

11. The registration certificate was based on documents which were only prepared and signed by the Respondent, with the exception of the transfer. The transfer document purported to have been signed by the vendor. The signature on the document was not witnessed.

12. There are two other documents on the Court file which were signed by the vendor – his statutory declaration of 24 March 2010 which was signed at a Police Station and witnessed by a Commissioner for Oaths, and the deposition of the verbal evidence he gave at the District Court, which was signed before the Magistrate. The signature on those two documents is the same. However, it is completely different from the signature on the transfer document. The authenticity of the vendor's signature on the Court deposition can not be challenged, and it is the same as that on the statutory declaration. It is nothing like the unwitnessed signature on the transfer document. That was sufficient evidence to rebut the prima facie evidence of the registration certificate.

13. When also then taken in conjunction with the other corroborating evidence consisting of the bank records and witnesses, the weight of the evidence was substantially in favour of the Appellant, and against the Respondent. The Court erred by failing to accept the weight of the evidence.

14. In summary, the Court's findings were against the weight of the evidence, and they resulted in a substantial miscarriage of justice.

15. There is also the remaining ground of appeal, relating to jurisdiction. Section 21 of the District Court Act says that the Court does not have jurisdiction where the value of the subject matter of the dispute is more than K10,000.00. In this case, the vehicle was the subject matter of the dispute, and its value was K28,000.00. The Court exceeded its jurisdiction.

16. I reject the Respondent's argument that the parties waived the jurisdiction because the Appellant did not challenge the jurisdiction at the hearing. The parties do not have that power. The jurisdiction of the District Court can not be increased by estoppel or by consent of the parties. It is a court of record, and can only exercise the powers given to it by the Act. The Court's decision was ultra vires the Act.

17. For these reasons, I uphold the appeal, and set aside the District Court orders of 10 August 2010.

18. I find that, on the evidence before the District Court, the Appellant was entitled to a finding that he was the purchaser of the vehicle. I therefore grant a Declaration that the Appellant Paul Pitu is the owner of the vehicle registration number P0439C, and is entitled to have it registered in his name.

19. No evidence was called in support of the relief claimed by way of damages, which is therefore refused.
20. Each party is to pay its own costs.
________________________________________________
Ms. E. Kama: Lawyer for the Appellant
Kolo Lawyers: Lawyers for the Respondent