Bernard Nuri and Western Highlands Provincial Government v Kaipel Du for and on Behalf of 106 Others (2003) N2315

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 17 January 2003
• Court: National Court
• Citation: (2003) N2315
• Year: 2003
• Judgement Number: N2315

Full Title: Bernard Nuri and Western Highlands Provincial Government v Kaipel Du for and on Behalf of 106 Others (2003) N2315

National Court: Kandakasi J

Judgment Delivered: 17 January 2003

1 APPEALS—PRACTICE AND PROCEDURE—Appeal from District Court—Application to amend notice of appeal—Wrong reference to parties—Power to allow amendments governed by relevant provisions of the District Courts Act—No objection to amendment sought—Amendment allowed—District Courts Act s232.

2 CONTRACTS—Purported contract with provincial government—No expressed authority vested in servant or agent of provincial government to enter into contract—No usual or apparent authority in agent to entered into contracts and bind the principal—Contracts with public authorities required to meet requirements of the Public Finances (Management) Act 1995 and other statutory requirements as well as approval by the relevant authorities having the power to bind them—No evidence of these requirements being met in this case—No enforceable contract between the parties—District Court erred in awarding judgment for the respondent—Appeal upheld.

3 EQUITY—Though equity can do what the law can not, there must be something such as a contract which is otherwise valid but for a failure to meet statutory requirements—District Court erred in award damages after having correctly found there was no contract.

4 Samson Dacany v Noah Taia (2002) N2316, Sylvanus Gorio v National Parks Board [1982] PNGLR 364, Panga Coffee Factory Pty Ltd v Coffee Industry Corporation Ltd (1999) SC619, Andrew Wag v Mount Hagen Town Authority [1996] PNGLR 385, Patterson v NCDC (2001) N2145, The Independent State of Papua New Guinea v Barclay Brothers (PNG) Ltd (2001) N2090, Tian Chen Ltd v The Tower Ltd (No 1) (2002) N2313, PNGBC v Barra Amevo (1998) N1726, Putput Logging Pty Ltd v Phillip Ambalis [1992] PNGLR 159 and Credit Suisse v Allerdale BC [1996] All ER 129 referred to

___________________________

N2315

PAPUA NEW GUINEA

[In the National Court Justice]

APPEAL NO. 51 OF 2000

BETWEEN:

BERNARD NURI

First Appellant

AND:

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Second Appellant

AND:

KAIPEL DU FOR AND ON BEHALD OF 106 OTHERS

Respondents

MT. HAGEN: KANDAKASI, J.

2003: 07th & 17th January

APPEALS – PRACTICE & PROCEDURE – Appeal from District Court – Application to amend notice of appeal – Wrong reference to parties - Power to allow amendments governed by relevant provisions of the District Court Act – No objection to amendment sought – Amendment allowed – District Courts Act ss. 232.

CONTRACTS – Purported contract with provincial government – No expressed authority vested in servant or agent of provincial government to enter into contract - No usual or apparent authority in agent to entered into contracts and bind the principal - Contracts with public authorities required to meet requirements of the Public Finances (Management) Act 1995 and other statutory requirements as well as approval by the relevant authorities having the power to bind them – No evidence of these requirements being met in this case – No enforceable contract between the parties – District Court erred in awarding judgement for the respondent – Appeal upheld.

EQUITY – Though equity can do what the law can not, there must be something such as a contract which is otherwise valid but for a failure to meet statutory requirements – District Court erred in award damages after having correctly found there was no contract.

Papua New Guinea Cases Cited:

Samson Dacany v. Noah Taia of National Fisheries Authority C I A. NO. 51 OF 2002 (Unreported judgement and yet to be numbered) delivered on 13th December 2002.

Sylvanus Gorio v. National Parks Board [1982] PNGLR 364.

Panga Coffee Factory Pty Ltd v. Coffee Industry Corporation Limited (Unreported but numbered judgement delivered on 6 October, 1999) SC619.

Wag v. Mount Hagen Town Authority [1996] PNGLR 385.

Jack Livinai Patterson v National Capital District Commission (2001) N2145.

The Independent State of Papua New Guinea v Barclay Brothers (PNG) Ltd (2001) N2090.

Tian Chen Limited v. Tower Limited (unreported judgement delivered 08/11/02) N2313.

Papua New Guinea Banking Corporation v. Barra Amevo & Ors (unreported judgement delivered 26/03/98) N1726.

Putput Logging Pty Ltd v. Philip Ambalis [1992] PNGLR 159.

Overseas Cases Cited:

Credit Suisse v. Allerdale BC [1996] All ER 129.

Counsel:

Mr. P. Kak for the Appellant.

Respondent in Person.

17th January 2003

KANDAKASI, J: This is an appeal against a decision of the Mt. Hagen District Court delivered on 22nd March 2002. The District Court found and entered judgement for the Respondent in a cumulative sum of K5, 500.00 in two separate but related District Court complaints.

Preliminaries

The reference to the parties in this proceedings are wrongly stated in terms of Kaipel Du and the 106 others as being shown as the appellants whilst the Western Highlands Provincial Government (the WHPG) and Mr. Nuri are shown as the respondents. The correct position, which is apparent from the body of the notice of appeal and the other documents, is the other way around. Counsel for the WHPG and Mr. Nuri applied for an amendment to correct that error at the outset of the hearing. The Respondent took no objection to the application. I therefore allowed that application effectively by consent pursuant to s. 232 of the District Court’s Act 1963. This provision does vest the Court with a power to allow such amendments as a necessary to do justice in a particular case on its merits. See Samson Dacany v. Noah Taia of National Fisheries Authority C I A. NO. 51 OF 2002 (Unreported judgement and yet to be numbered) delivered on 13th December 2002, for a detailed discussion on s. 232 of the District Courts Act.

Background

In the District Court, the respondents claimed K10,000.00 for damages to Mr. Du’s land and a further K8, 025.00 for labour costs for clearing and preparing the land by Mr. Du and the others for the construction of an aid post. The respondent’s requested the WHPG to build an aid post in their area. They undertook to provide the land and the labour required for clearing and preparing the land for the building free of charge. The respondents claimed that the WHPG through Mr. Nuri agreed to build the requested aid post and asked them to clear the land and make it ready for the construction to take place. On that basis, the respondents further claim that they cleared Mr. Du’s land. Furthermore, they claim that instead of building the aid post on Mr. Du’s land, the WHPG built an aid post in a different location, about 13 to 15 kilometers away from the respondents’ area. This they claim resulted in damages to Mr. Du’s land and the wastage of his and the other respondents’ labour.

The District Court in finding for the respondents found that the claims could not be sustain in law because there was no contract between the parties. But the learned District Court Magistrate found for the respondents in what he called “equity” on the basis of the representations of Mr. Nuri and two of his colleagues, who he found, were the servants and or agents of the WHPG.

Arguments of the Parties

The appellants now argue that the learned magistrate erred in law when he found for the respondents. They advance three grounds for that argument, which are their grounds of appeal. First, they argue that there was no evidence to form the necessary foundation to find the WHPG liable. Secondly, they argue that Mr. Nuri and his colleagues did not have any authority to bind the WHPG. Finally, they argue that there was no agreement binding the WHPG.

The respondents argue that, the first appellant and two other senior officers employed by the WHPG did have the necessary authority and or power to speak on behalf of the WHPG and their actions were binding against the WHPG. They say they relied on the representations of the WHPG’s servants and or agents and they took steps to their detriment. They therefore argue that, the appellants are liable to them in damages.

Issues

These arguments present four issues. These are:

1. Was there a legally binding contract for the construction of an aid post on the respondent’s land and for the respondents to provide the...