Kore v Lapa [2018] PGSC 53; SC1699 (29 August 2018)

SC1699

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 106 of 2017

BETWEEN:
PHILIP OPA KORE
Appellant

AND:
PASTOR CHARLES LAPA, OBE
First Respondent

AND:
LIFE OUTREACH MINISTRIES
INCORPORATION
Second Respondent

Waigani: Hartshorn, Bona and Higgins JJ
2018: 4^th May,
: 29^th August

APPEAL

Cases cited:

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Counsel:

Mr. P. Othas, for the Appellant
Mr. T. Injia, for the Respondents

29^th August, 2018

1. BY THE COURT: This is a decision on a contested appeal from a National Court decision that dismissed the appellant’s claim. The appellant had sought specific performance of a contract for the sale and purchase of a property in Mount Hagen (property) pursuant to which the second respondent would transfer title to the property to the appellant. The primary judge gave an oral decision dismissing the appellant’s claim, about one year and nine months after a two day National Court trial.

2. The appellant submits that the most relevant legal issues that require determination based upon his appeal grounds are:

a) Whether the trial judge failed to give reasons for his oral judgment delivered briefly and whether the appellant was denied natural justice and his right to appeal;

b) Whether a legally binding contract existed between the parties and if so whether the respondents breached that binding contract and failed to perform their part of the contract;

c) Whether the court can order specific performance if the contract had been breached.

Background

3. The second respondent purchased the property in 2004 from the appellant’s paternal cousin brother. Relatives of the vendor were permitted to remain in the property by the second respondent. In or about 2007 a partly oral and partly written agreement for the sale and purchase of the property was entered into by the appellant and the second respondent. The purchase price was K45,000.00. The appellant paid K24,000 on 19^th June 2007. The appellant was to pay the balance of K21,000.00 by first paying K11,000.00 and then secondly, K10,000.00 once the title to the property had been transferred into his name. The appellant did not pay any further money. On or about 28^th April 2009 the first respondent, on behalf of the second respondent, informed the appellant to vacate the property, and by letter dated 3^rd June 2011, the first and second respondents formally withdrew their intent to sell the property and informed that they would refund the sum of K24,000.00. The appellant commenced proceedings in October 2013 claiming amongst others, specific performance of the contract.

Whether the plaintiff was denied natural justice and whether the primary judge fell into error because of the failure of the primary judge to give a written decision after stating that he would do so

4. At the beginning of his oral ruling at p. 380, line 17, Appeal Book, the transcript records the primary judge stating that:

“... I do not intend to give you detailed reasons ..... So I am going to summarise, briefly summarise the main points in relation to this proceedings and followed by my conclusion and orders and detailed reasons for decision will be furnished to you later.”

Then at p. 384, line 33, Appeal Book, the primary judge states:

“... and as I said counsel, detailed reasons will elaborate upon those matters firstly that I have commented on in relation to the case.”

5. The appellant submits that the failure of the primary judge to give detailed reasons as undertaken by him, is an error of law and a denial to the appellant of natural justice. The respondents’ submit that although the primary judge did not provide a written judgment, he did provide sufficient reasons for his decision in refusing to grant specific performance of the agreement and that is what was necessary. Consequently, the respondents’ submit that the primary judge did not fall into error.

6. Whilst it is the position that it is not necessary to give written reasons for a decision, it is necessary to give a decision with sufficient reasons for arriving at and making the decision. For the purposes of appeal or review, a transcript of such an oral decision may be obtained from the court reporting services. A different scenario exists where, notwithstanding that the primary judge has given oral reasons for his decision, he nevertheless states, and states twice, that detailed reasons for his decision will be given at a later date but those detailed reasons are not given and now cannot be given as the primary judge is no longer a judge.

7. In such circumstances, the appellant is entitled to enquire whether all of the reasons for the primary judge arriving at his decision have been disclosed and if not disclosed, what those undisclosed reasons are, so that a view may be formed as to whether they provide the appellant with grounds to appeal. That there may be reasons for decision not disclosed by the primary judge, in our view, constitutes an error of law, and also deprives the appellant of natural justice. Simply put, how can an appellant determine if he has grounds to appeal an adverse decision if he is not told all of the reasons for that decision?

8. In this regard, we respectfully agree with the comments of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 at [13], [14] and [16]:

“13. In this case, it is not a situation of the trial Judge failing to provide reasons for his decision. He did that when handing down his decision in open court. He did not however, publish a written judgment which he undertook would set out finer details of his reasons.

14. With respect, where the trial judge undertakes to publish his reasons, the judgment ought to be made available to the parties at the end of the proceeding or soon thereafter. The parties are entitled to it, more so for the parties in an appeal or judicial review application. The written reasons for decision will assist them to consider whether to proceed with or to defend the appeal or review. It will also assist the Appellate Court when it deliberates the grounds of appeal or review. So, the reasons for decision whether oral or published are an integral part of the appeal and review process. Besides, providing the published reasons is essential for completion and completeness of the decision making process by a public official. .........

16. If anyone is aggrieved by the lacked of detailed reasons, it would be the Applicant. He was the one driven from the judgment hall of justice by the decision of the trial Judge. Therefore, he is entitled in law to know the full reasons for the Court decision which was adverse to him and his interest.”

9. Consequently, on this ground alone the appeal should be upheld and a rehearing in the National Court ordered. Given this it is not necessary to consider the other submissions of counsel.

Orders

a) This appeal is upheld and the judgment of Sakora J. in Philip Opa Kore v. Pastor Charles Lapa, OBE and Life Outreach Ministries Inc, WS 1091 of 2013 delivered on 15^th June 2017 is reversed;

b) The whole of the case in Philip Opa Kore v. Pastor Charles Lapa, OBE and Life Outreach Ministries Inc, WS 1091 of 2013 is remitted to the National Court for a further hearing;

c) Each party shall bear their own costs of and incidental to this appeal.
_____________________________________________________________
Paul Othas Lawyers: Lawyers for the Appellant
Ashurst Lawyers: Lawyers for the Respondents