Danny Yai v Joseph Pindu (2009) N3630

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 May 2009
• Citation: (2009) N3630
• Docket Number: APP NO 94 0F 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3630

Full Title: APP NO 94 0F 2008; Danny Yai v Joseph Pindu (2009) N3630

National Court: Cannings J

Judgment Delivered: 19 May 2009

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...