[1997] PNGLR 240

PAPUA NEW GUINEA

[national court of justice]

ROY YAKI

v

HIGHLANDS REGIONAL SECRETARIAT INC.

mount hagen: injia j
23 August, 9 September 1996

Contract - Money re-paid to owner by person charged with criminal charges of misappropriation whilst facing Court - Whether money recoverable.

Criminal Law - Money re-paid to owner by an accused person facing criminal charges of misappropriation - Whether money recoverable.

Facts

The appellant is seeking to recover moneys paid to the respondent in respect of charges of misappropriation against him. The moneys were paid to the respondent before the conclusion of the trial in the District Court.

Held

Money voluntarily re-paid by an accused person facing criminal charges of misappropriation to owner under obscure circumstances is not recoverable, irrespective of the subsequent result of the criminal proceedings.

Cases cited

Moore v Versitry of Fulhan (1895) 1 QB 399.
Muskell v Horner [1915] 3 KB 106
Sebel Products Ltd v Commissioner of Customs and Excise [1949] Ch. 409.

Counsel

M Tamutai, for the appellant.
P Kunai, for the respondent.

9th September 1996

Injia J. The appellant appeals against the decision of the District Court at Mount Hagen made on 12th October 1995 in which the Court dismissed the appellant’s claim for a refund of K8,871.56 being part of monies he purportedly re-paid to the respondent in 1990 upon being charged with six (6) counts of misappropriation under s 383 of the Criminal Code (Ch. 262). The six (6) counts involved, a total of K19,778.48 allegedly misappropriated by the appellant whilst he was employed by the respondent. The monies were paid before trial. Subsequently, the appellant was convicted by the National Court on only two counts involving K10,871.56 and acquitted on the four counts involving the said K8,871.56. He now appeals from a decision of the District Court dismissing his claim for a refund of the balance of K8,871.56 relating to the four counts on which he was acquitted.

In the District Court, he contended that because he was acquitted on those four charges, there was no legal basis for the respondent to retain the money. At the hearing at the District Court, the respondent through its Director, Mr John P. Munul, whilst admitting that the appellant paid the money through his lawyer, Steels Lawyers, contended that the appellant was not entitled to a refund of the money. They were not his entitlements or wages and that the money remained the property of the respondent; the appellant having re-paid the money.

The Magistrate in dismissing the claim gave brief reasons for his decision. I quote the pertinent parts of his reasons below:

"The Complainant relied on the Affidavit of Roy Yaki himself. There was no evidence produced to establish if Roy Yaki had actually paid the K19,778.48 to the Defendant. Even though there was no dispute on this, it is important for the purpose of proving that the money he paid belonged to the Complainant and not out of the Defendant’s funds as submitted in defence. The onus of proof in criminal trials is different from civil trials and they must be decided by their own standards. The fact that Roy Yaki was acquitted in the criminal trial is not exclusive proof that he was entitled to refund of the balance of the money, which he paid voluntarily to the Defendant.

We have no evidence, documentary or otherwise to proof that the money was actually paid to the Defendant. There was no undertaking by the Defendant to refund this money, no conditions attached. There was no contractual obligation on the part of the Defendant to refund the money."

There are four grounds of appeal: -

(a)	That the whole of the decision is wrong in law;

(b)	That the evidence does not support the decision to dismiss the Complaint and as such His Worship erred in dismissing the Complaint;

(c)	That His Worship erred in law and in fact in dismissing the Complaint and finding that the money claimed by the Complainant belongs to the Defendant. The Defendant had not given to the Complainant written notice of his intention or given to the Complainant a set off to the Complainants Claim.

(d)	His Worship erred in finding that there was no evidence to prove that the money was actually paid to the Defendant. The Defendant through the Affidavit of one John Munul had on behalf of the Defendant admitted that the money was paid to the Defendant by the Complainant.

First Ground of Appeal

There are two arguments in support of this ground. The appellant contends first, that the money (K8,906.19) was paid on a "without prejudice" basis, but under the mistaken belief that he might be found guilty on those charges. Now that he was acquitted on those charges he was entitled to recover the money. He relies on Sebel Products Ltd v Commissioner of Customs and Exercise [1949] Ch. 409. Second, it is contended for the Appellant that he paid the money under compulsion "because of the threat in him going to jail due to the impending criminal action based on allegations contained in the indictment...however, he had the intention of preserving his right to dispute the legality of the allegations." He relies on the decisions in Moore v Versitry of Fulham (1895) 1 QB 399 and Muskell v Horner (1915) 3 KB 106 and a passage in Amniso’s Law of Contract (26th ed.) at p. 595.

These three cases are distinguishable from the present case. They concern civil actions for money had and received. The money was paid to local authorities under mistaken circumstances of fact and law or under circumstances of compulsion (Sebel Products case and Muskell’s case), or under compulsion of legal process (Moore’s case) in order to settle a perceived debt. None of these cases concern monies paid by an accused person who is facing criminal charges of theft or misappropriation of money under circumstances similar to the appellant in this appeal. Therefore, I am loath to adopt and apply the principles in those three cases.

In the present case, although there was undisputed evidence from the appellant and the respondent that the appellant paid the money, there was vague or insufficient evidence to show why the money was paid or the precise terms and conditions under which it was paid. The only evidence from the Appellant before the Magistrate was that he paid the money, in the appellant’s words, "after I was charged with the six (6) counts of misappropriation of Secretariat money. Because the Court has not found me guilty for the said amount, I am now claiming (para. 10 of his affidavit).... I don’t have an agreement, a bill of sale or any agreement which purports to justify the Secretariat keeping the said money" (para. 11 of his affidavit).

Such evidence did little to explain to the Court below what the reasons for paying the money were. Further, the learned Magistrate was not favoured with any evidence as to any undertaking by the respondent to refund the money. He had no contractual arrangement, oral or written, to interpret and enforce. I agree with the Magistrate that the money was paid voluntarily under obscure circumstances, which were not disclosed, to the Court. The Courts will not enforce such private arrangements. They do not create any legally binding arrangements. I see no error of law committed by the magistrate in dismissing the claim on this basis.

Returning to the first ground of appeal, I agree with the appellant that the learned Magistrate erred in finding that there was no or insufficient evidence to show that the appellant paid the money to the respondent. There was uncontested evidence from both parties that the money was paid by the appellant. In my view, however, there has been no substantial miscarriage of justice flowing from that factual error: see District Courts Act (Ch. 40), s 230 (2). That is, even if the Magistrate had found that the money was so paid by the appellant to the respondent, as I do, he would still have to come to the same conclusion, which he did. There was no evidence as to the terms and conditions of the payment worthy of enforcement by the Court. He dismissed the claim. For these reasons, I dismiss this ground of appeal.

Second ground of appeal

On the basis of the above, I also think there was no substantial miscarriage of justice. He correctly dismissed the complaint.

Third ground of appeal

This ground of appeal is misconceived. The reason for dismissing the complaint was that there was no proof that the appellant paid the money to the respondent. He did not make any findings that the money belonged to the respondent. I have already decided that the Magistrate erred in finding that the Appellant did not pay the money to the Respondent, but such error did not result in substantial miscarriage of justice. This ground is also dismissed.

Fourth ground of appeal

I have already dealt with this ground of appeal under the first ground of appeal. I dismiss this ground also.

For these reasons, I dismiss all the four grounds of appeal.

Orders

1.	The appeal is dismissed.

2.	The order of the District Court at Mount Hagen made on 12 October 1995 is confirmed.

3.	The appellant shall pay the respondent’s cost of this appeal.

Lawyer for the appellant: M. Tamutai Lawyers
Lawyer for the respondent: Kunai & Co. Lawyers