N8039

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 635 OF 2017

BETWEEN:
JIMMY MALADINA
Plaintiff

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani:  Dingake J
2019:  8 March, 7 June, 8 October

Cases Cited:
Papua New Guinea Cases

Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095;

Overseas Cases

David Securities Pty Limited and Others v Commonwealth Bank of Australia (1992) 175 CLR 353

Counsel:

Mr. Emmanuel P Asigau, for the Plaintiff
Mr. Henry Monei, for the Defendant

11th October, 2019

1. 	DINGAKE J:	By way of a Writ of Summons endorsed with a Statement of Claim filed with this Court on the 5th of July, 2017, the plaintiff commenced proceedings against the defendant claiming restitution of the sum of K2,650,000.00.

2. 	The defendant did not file any defence and the trial was based on affidavit material filed by the plaintiff. The contents thereof were not disputed by the defendant.
3. 	In fact the relief sought by the plaintiff is not opposed by the defendant.
4. 	On the basis of the undisputed evidence placed before the Court, the facts of this matter may be stated briefly.

5. 	The plaintiff was convicted by the National Court on the 21st of May, 2015, in proceedings CR No. 42 of 2004.

6. 	The particulars of the charge alleged that:

a)	Between 1st November, 1998 and 10th October, 2000, at Port Moresby, the plaintiff (then accused) conspired with named and unnamed persons to defraud the National Provident Fund Board of Trustees of the sum of K2,650,000.00 by fraudulently increasing the construction costs of the National Provident Fund Tower situated at Douglas Street, Port Moresby, contrary to s.407 of the Criminal Code; and
b)	Between 26th February, 1999 and 30th July, 1999, at Port Moresby, the plaintiff dishonestly applied to his own use and to the use of others the sum of K2,650,000.00 the property of the National Provident Fund Board of Trustees contrary to s.383A of the Criminal Code.

7. 	It is not disputed that on or about the 24th of July, 2015, following the conviction of the plaintiff (then accused), pending sentence, Isles Builders & Contractors Limited paid the defendant the sum of K2,650,000.00, on behalf of the plaintiff, for the purpose of restitution in relation to the convictions. It would seem that at all material time hereto Isles Builders & Contractors Limited was indebted to the plaintiff in the amount of K2,650,000.00 as consultancy fees.

8. 	On the 20th of April, 2016, on appeal from the decision of the National Court, the Supreme Court unanimously quashed each of the convictions and returned a verdict of not guilty on each count.

9. 	It would also seem, on the uncontested evidence placed before the Court, that the plaintiff paid restitution as a result of a mistake of fact in that he mistakenly believed that the National Provident Fund Board of Trustees had not received restitution or compensation in respect of its monies allegedly misappropriated.

10. 	It is not disputed that in 2006, following and proceedings commenced by the National Provident Fund Board of Trustees, against, inter alia, Kumagui Gumi & Co. Limited, was able to recover monies in excess of K2,650,000.00.

11. 	It also seems incontrovertible that despite the National Provident Fund Board of Trustees having received monies in excess of K2,650,000.00, which were allegedly misappropriated, the defendant retained the monies that the plaintiff paid.

12. 	Despite demand the defendant has failed to pay the plaintiff the monies sought.

13. 	On the evidence, it is not in dispute that the plaintiff paid the monies to the defendant under a mistake of fact, in that he mistakenly believed that the National Provident Fund Board of Trustees had not received restitution or compensation in respect of the monies allegedly misappropriated.

14. 	It is trite learning that money paid under a mistake of fact or law can be recovered (Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095; David Securities Pty Limited and Others v Commonwealth Bank of Australia (1992) 175 CLR 353).

15. 	It is not necessary to consider the possible defences to the claim of restitution as claimed by the plaintiff as the defendant has not put forth any defence and in fact concedes to the claim.

16. 	On the undisputed evidence before me, I find that the payment made by the plaintiff to the defendant in the amount of K2,650,000.00 on the 24th of July, 2015, was made by mistake and the defendant is liable to pay same.

17. 	In the result, it is ordered that:
a)	The defendant pay the plaintiff the sum of K2,650,000.00.
b)	Interest of 2% pursuant to the Judicial Proceedings (Interests vbnmbvn Debts & Damages) Act Ch No654. 52 from the date of Judgment, being the 11th of October, 2019.
c)	Costs of proceedings.
_______ ____________________________________________________
Pacific Legal Group: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants