Leontine Ofoi v Kris Bongare (2007) N3248

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 20 July 2007
• Citation: (2007) N3248
• Docket Number: WS NO 1748 of 2003
• Court: National Court
• Year: 2007
• Judgement Number: N3248

Full Title: WS NO 1748 of 2003; Leontine Ofoi v Kris Bongare (2007) N3248

National Court: Injia, DCJ

Judgment Delivered: 20 July 2007

N3248

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1748 of 2003

BETWEEN:

LEONTINE OFOI

Plaintiff

AND:

KRIS BONGARE

Defendant

Waigani: Injia, DCJ.

2007: 20 July

CIVIL – Claim for re-imbursement of monies spent on rebuilding house owned by de facto husband – Expenses incurred based on promise to marry – Equitable trust created – Breach of - Enforcement of - Expenses not amounting to “everyday expenses incurred in course of the relationship” allowed – Monies spent on rebuilding the husband’s house recoverable – Judgment for the plaintiff in the sum of K101,185.79 – Defendant restrained from selling house until judgment is settled in full.

PNG Cases cited:

Bulage v Ben [1990] PNGLR 473

Overseas Cases cited:

Balfour v Balfour [1919] 2 KB 571.

Binions v Evans [1972] Ch. 359;

Cooke v Head [1972] 1 W.L.R 518

Eves v Eves [1975] 1 WLR 1338

Gissing v Gissing [1971] A.C. 886

Husley v Palmer [1972] 1 W.L.R. 1286

Synge v Synge [1894] 1 QB 466.

Counsel:

S. Kassman and J. Nidue, for the Plaintiff

A. Amet (Jnr), for the Defendant

20 July, 2007

1. INJIA, DCJ: The trial on this action was commenced initially inter partes. The plaintiff gave her evidence, was cross-examined and the matter was adjourned for the defendant’s case to commence. The defendant and/or his counsel failed to attend on the date and time fixed. After further adjournment and notification to the defendant’s lawyer and their failure to attend, I granted leave to the plaintiff to proceed ex parte. The plaintiff’s lawyer filed two written submissions for my consideration.

2. The evidence before me consists of the plaintiff’s evidence and the following affidavits:

i. Exhibit “A” – Plaintiff’s affidavit sworn on 5 December 2003 and filed on 8 December 2003.

ii. Exhibit “B” – Plaintiff’s affidavit sworn and filed on 12 December 2003.

iii. Exhibit “C” – Plaintiff’s affidavit sworn on 29 July 2005 and filed on 9 August 2005.

iv. Exhibit “D” – Affidavit of J. Ofoi sworn and filed on 21 July 2005.

v. Exhibit “E” – Affidavit of Mary Kassman sworn and filed on 21 July 2005.

3. I have considered the evidence and submissions.

4. There is no dispute that the plaintiff and the defendant lived in a de facto relationship between 1996 – 2001. They have a son from that relationship, born on 11 February 1998. In this period, they occupied the property situated on Section 21 Allotment 38, Vavai Avenue (the property), Boroko. The property is owned by the defendant. In March 2001, they separated. The defendant went on to marry another woman.

5. The plaintiff’s claim is for:- (a) transfer of the property to her or alternatively re-imbursement of expenses incurred in repairing or re-building the house situated on the property; (b) re-imbursement of expenses incurred on a motor vehicle owned by the defendant; (c) for compensation for another motor vehicle owned by the plaintiff but damaged beyond repair by the defendant’s agents; and (d) re-imbursement of money she spent on his education.

6. The defendant denies the claim and says even if she incurred those expenses, she did so out of total love and affection for him, that in the circumstances, there was no legally binding agreement entered into for the reimbursement of these monies and therefore they are not recoverable. In respect of the house he says no proper physical planning and building approval was obtained from relevant authorities. She has failed to prove that she built the house of the description given in her evidence.

7. In my view, except to the extent that the defendant through cross-examination contested the plaintiff’s evidence in certain respects, the plaintiff’s evidence remains virtually uncontested.

8. The main issue is whether the defendant, in law should reimburse these monies. I will first deal with the claim over the property.

9. The plaintiff’s main claim is over the house. The evidence adduced by the defendant in cross examination in effect do not challenge the plaintiff’s main evidence that she spent her own money to tear down the old house and built a new house in its place. The issue remains to be determined whether the defendant approved of this. The evidence clearly establishes the fact that the plaintiff pulled down the old house and built a new house on the defendant’s land, the house is still there, the defendant remains the owner of that house and he is benefiting from its use, to the exclusion of the plaintiff. The oral evidence is that the new house is valued at K250,000. The new house cost K122,390.25. The plaintiff contributed K92,790.50 and the defendant contributed K29,599.75. As a Senior officer of the Investment Corporation, (now ICPNG), I am satisfied she had sufficient finances to cover the cost of the building. Her share of the cost came from her retrenchment benefits paid to her in 1999 by her former employer. In her evidence, she has summarized each item of expenditure and substantiated them with copies of receipts. I am satisfied that the amount she says she spent is reasonable and I accept her evidence.

10. In my view, the defendant’s assertion that there is no evidence of any approved building plan, physical planning approval and certificate of completion issued by the relevant authority is no answer to the fact that the plaintiff pulled down the old house and built a new house and he is now its sole owner and he and his new wife are the beneficiary of the house. The only valid issue raised by the defendant in cross examination is whether the plaintiff is entitled at law to recover this money.

11. The plaintiff accepts that there is no written contract between them on the demolition of the old house and the construction of the new house. But I accept her evidence that the work was done with the full knowledge and verbal and tacit approval of the defendant, who at the material time was studying overseas.

12. Her claim in law is based on what her lawyer submits is a breach of a quasi-contract and based on principles of equity relating to doctrine of estoppel by acquiescence or “propriety estoppel”. It is in two parts. First, the defendant allowed or agreed to the plaintiff spending her own money on the house on the understanding that the property would be transferred to her and their son. He allowed or agreed to her pulling down the old building and building a new one. Based on that agreement, she spent her retrenchment money and demolished the old house and built a new one. He breached the agreement by leaving her and their son and married a new woman in March 2001. The plaintiff seeks to enforce the contract by seeking orders in the nature of specific performance by ordering him to transfer the house to her and their son or alternatively to reimburse the money she spent.

13. In my view, an action to enforce an oral agreement to transfer legal title to the property to the plaintiff and her son would not be possible as an agreement to transfer interest in land is required by statute to be in writing: ss 2 & 4 of Frauds and Limitations Act 1988. As there was no such written agreement, no action lies upon an oral agreement to transfer land.

14. The question is whether there was such an agreement(s) that is enforceable at law. The evidence shows that the agreement was in the nature of a promise to marry the plaintiff. At law it is possible for a man and a woman living outside lawful wedlock or de facto relationship to enter into an agreement to improve or purchase real or personal property, based on a promise to marry.

15. The case of Eves v Eves [1975] 1 W.L.R 1338 cited by the plaintiff’s counsel is a case on point. There is also a local case on point which the plaintiff’s lawyer has overlooked and that is Bulage v Ben [1990] PNGLR 473, a National Court judgment of Brunton, J. in which Eves case was cited.

16. Eves’ case, involved two divorcees. The man induced the woman to live with him, intending to marry her sometimes later. They lived in a de facto relationship and had several children. During the relationship, the man bought a house for them to live in. They intended to buy the house as a family home under their joint names but could not because the woman was below 21 years of age and therefore lacked capacity to hold title to property in her own name. He purchased the house in his own name but he intended to convert it to a joint tenancy after their respective pre-existing divorces came through and she came of age. Although the woman did not contribute to the purchase of the house financially, she worked hard to maintain and improve the house as any normal wife would do in respect of their family house. When she turned 21 and the divorces came through, she asked him to enter into the marriage but the man said nothing and went on to marry another woman. The woman and her children were forced out of the house. The woman sued the husband for a share in the house.

17. On appeal, the English Court of Appeal found in favour of the woman. The Court applied the principle of constructive trust developed by Lord Diplock in Gissing v Gissing [1971] A.C. 886 at 905 which was followed in a number of cases including Binions v Evans [1972] Ch. 359; Cooke v Head [1972] 1 W.L.R 518 and Husley v Palmer [1972] 1 W.L.R. 1286. In Cooke’s case, Lording Denning amplified the principle as follows:

“. . . whenever two parties by their joint efforts acquire property to be used for their joint...