Unreported National Court Decisions
N1540
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL NO. 163 OF 1996
BETWEEN
TIMOTHY MONG - APPELLANT
AND
GEORGE DOA - FIRST RESPONDENT
Mount Hagen
Lenalia AJ
7 March 1997
20 March 1997
CIVIL JURISDICTION - Appeal - Appeal from District Court - Appeal from decision of District Court - District Courts Act Ch. No. 40 SS. 21 9& 228.
CIVIL JURISDICTION - Appeal from decision of District Court - Standard of proof - Civil Standard on “the balance of probabilities” - Insufficient  evidence.
Facts
Early in 1994, the Appellant offered to sell his Dump Truck which was then registered AKA 113.  The Respondent offered to buy it.  There were two versions to the agreed price.  The appellant priced his vehicle at K3,000.00 while the Respondent said the agreed price was K1,500.00 - see pages 18 and 32 of the Appeal Book:  see also pages 35 & 39 (policies and evidence).  The respondent then agreed and executed the contract by part payment of a sum of K350.00 at different times.  Part of the parties agreement was that the respondent was to pay up the balance at a latter date as soon as he got a work contract with the Western Highlands Provincial Government.  The respondent towed the truck to his house.  It seemed that the appellant was not happy about such arrangement despite partial payment being made by the respondent.  The appellant got up and sold the body to a third party for an amount of K650.00.  Before the third party removed the body, the respondent stripped the engine off and  had it fitted into his own truck also a Mazda vehicle red in colour registration No. AGN 984.
Having completed his fittings, the respondent is said to have engaged himself into a road contract with the Western Highlands Provincial Government.  On the 10th of May 1994, the respondent travelled to Mount Hagen and parked his vehicle outside the Lepo Dealers to buy drinks leaving the ignition keys hanging in the vehicle.  The Appellant walked up to where the truck was parked open the door to the driver’s seat, pulled the ignition keys out and stood outside.  When the respondent came out, the appellant informed him that he could not drive the vehicle away unless, the respondent paid him K2,000.00.  The appellant then took control of the vehicle.
The respondent then sued the appellant for special damages in loss of business at K15.00 per  hour x 8 hours x 6 days x 4 weeks and general damages for the loss of vehicle at K500.00.  The District Court awarded damages in the sum of K1,830.00 in favour of the respondent.
The Appellant appealed to this Court on the grounds that:
(a)      there was insufficient evidence from which the District Court could have found for the respondent; and
(b)      the Court did not allow the defence to give evidence on Oath.
Held
(1)      The standard of proof required in civil cases is Lower than thatrequired in a criminal cases. This requires the plaintiff to prove his case to a reasonable degree of probability, sufficiently for a tribunal of fact to decide it was  more probable not that what the plaintiff alleges is true.
(2)      Evidence of a third party involvement in a business deal, ought to be supported by independent evidence and more particularly the third party with whom a party to the proceedings contracted with and which claim formed the major component of the Plaintiff’s claim.
(3)      There being no independent evidence or evidence in support of the respondent’s claim for special damages, there was no basis from which the District Court could have found for the respondent.  Consequently, the decision of the District Court pronounced in December 27, 1995 must be set aside.  The respondent could have only sued for general damages for the loss and use of his vehicle within those 4 weeks claimed in the Summons, also having in mind that the respondent also had some money to be paid to the appellant.  I would also accept the value of K1,500.00 for a second hand car engine placed by the presiding magistrate.
(4)      Obiter - It was possible for the appellant to file a cross-claim in the District Court for the remaining amount that was due to him from the respondent under their original contract.
Cases Cited
Muller v Minister of Pensions [1947] All E.R. 372
Counsel
P Peraki for the Appellant
No appearance by or for the Respondent
20 March 1997
LENALIA AJ: This is an appeal against the decision of the District Court in Mount Hagen which ordered special and general damages in favour of the Respondent awarding damages to the total of K1,880.00.  As the record shows, the appellant appealed out of time but by an application in the form of a Notice of Motion, in May 1, 1996 the National Court ordered that the time limited for compliance with conditions precedent to the right of appeal prescribed by SS. 220 (2), 221(2) and 222 (1) of the District Courts Act - Ch. No. 40, he was granted extension to appeal out of time.  The Court further ordered the stay of the District Court’s orders made on 27th December, 1995.
The appeal was prosecuted by the Appellant’s lawyer in absence of the respondent’s counsel.  Despite due notice of the date of hearing of this appeal served on the respondent’s lawyer, the respondent nor his lawyer turned up.  Mr Peraki immediately sought leave to prosecute the appeal in absence of the Counsel for the respondent.  Mr Peraki relying on Order 4 Rule 33 which provision is not directly related to the prosecution of appeals but which provides that the Court may proceed with a hearing in absence of the Plaintiff where he has had due notice of a hearing and in the case of a defendant who is in default of giving notice to his intention to defend.  These proviso is applicable where proceedings are commenced under Order 4 of the National Court Rules.
In the recent case I am more compelled to think that once an appeal has been entered for hearing in accordance with S. 227 of the District Courts Act and once a Notice of Hearing has been effected on either party under S. 228 of the Act, the parties are bound to prosecute.  Order 18 Rule 5 of the National Court Rules requires the Registrar to fix a time and place for the hearing of the appeal and besides he must serve copies of the Notice of Hearing on the Appellant, respondent and the Clerk of  Court from which the matter is appealed.  Order 18 Rule 11 says:
“An appeal under this Division shall not be heard and determined unless at the hearing of the appeal all parties to the Appeal appears or are represented before the Court, or the Court is satisfied with respect to any party who neither appears nor is represented that that party has been served with a notice setting out the date and place of the hearing of the appeal.”
I granted leave for Mr Peraki to prosecute this appeal in absence of the respondent’s counsel.
The appellant appealed to this Court in terms of the following grounds:
1.       That the Magistrate erred in making a finding that the Defendant was liable to pay the complainant as there was insufficient evidence on the balance of probabilities.
2.       That the Magistrate erred in not allowing the witness of the Defendant to give evidence under Oath.
3.       Such further or other grounds as may become available upon receipt of the court depositions.
In support of the first ground, Mr Peraki agreed that there was no evidence to support the conclusion that the Court reached by finding in favour of the respondent.  The deposition bares records of the proceedings before his worship Mr Appa on 18th of October 1995 show that, both respondent and appellant were the only witness called, that is one party supporting his own case.
This is evident from my observation of appeal documents filed in the appeal book see pages 35 & 38 of the appeal book.  The only other piece of evidence accepted by his worship was an affidavit deposed by the respondent - see page 32.  Pages 35 and 39 show that both the appellant and respondent gave evidence under Oaths pursuant to the Oaths, Affirmations and Statutory Declarations Act (Ch. No. 317).
The first ground concerns the “burden of proof”.  Our law knows of two basic standard of proof.
In a criminal case, a party needs to establish his case “beyond reasonable doubt”.  Similarly in a civil proceedings, the standard of proof required of any party to a civil litigation for the discharge of the legal burden of proof is “proof on the balance of probabilities”.  This means no more than that the tribunal of fact must be able to say, on the whole of evidence that the case for the asserting party has been shown to be more probable than not.  If the probabilities are equal that is if a tribunal is wholly undecided the party bearing the burden of proof will fail.  Standard of proof either in criminal or civil refers to the extent or degree to which the burden of proof must be discharged.  It is the measurement of the degree of certainty or probability which the evidence must generate in the mind of a tribunal of fact.  Speaking of the civil standard of proof Denning J (as he then was) said in Miller v Minister of Pensions [1947] 2 All E.R. 372 at 373-374:
“That degree is well settled.  It must carry a reasonable degree of probability, but not so high as is required in a criminal case.  If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.”
Having established that there was a contract for the sale of vehicle between the parties, the respondent claimed that there was a further road contract with the Western Highlands Provincial Government.  It was pleaded in the respondent’s affidavit evidence that the respondent engaged his Dump truck in a road contract with the Provincial Government.  No further evidence was called to support that the respondent’s evidence.  At least there could have been evidence called from someone in the Provincial Engineering Division to support evidence given by the respondent.  No documentary evidence was given to support the view that there was an actual second contract entered into between the respondent and the Provincial Government.  Evidence from an independent source was required to prove existence of such a contract.  There was not even any documentary evidence forthcoming from the respondent.
There being no other evidence apart from that of the respondent to support the allegation about a subsisting contract between him and the Provincial Government, with respect I am of the view that the respondent did not discharge that burden to the required standard.  Seeing that the major component of the respondent’s claim consisted of special damages for which the respondent claimed a sum of K2,880.00 at the rate of K15.00 per hour x 8 hours in 6 days for 4 weeks, it was incumbent upon the respondent to call further evidence to establish existence of such a contract.
My obiter view on the respondent’s claim in the Court below is that, it was possible for the appellant to file a cross claim under S. 154 of the District Courts Act.  This was evident from the parties dealings and more particularly their evidence.  By the time the respondent filed his claim in the District Court he, still owed monies to the appellant for the car engine.  He only made partial payment of K350.00.  I do not think anyone could buy a second hand car engine for K350.00.  I am also of the view that the presiding magistrate was correct in placing a value to the appellant’s car engine at K1,500.00.
The second ground of appeal in my view and with due respect is baseless.  There is evidence that the only witnesses called in the District Court on 18.10.95 were the respondent and the appellant - see pages 35 & 38 of the appeal book.  The record of their oral evidence shows that their evidence were taken under oath.  At the top of page 35, it was written “Sworn Statement of Defendant”.  According to my examination of the appeal book there is no record of any other witnesses called by the appellant.  The requirement of the Oaths, Affirmations and Statutory Declarations Act - Ch. No. 317 is that where a person does not wish to give evidence in Court or before a Commissioner for Oaths, he  may make a solemn declaration instead of taking an Oath:- see S. 5 (2) of the Oaths, Affirmations and Declarations Act.
The reason why a witness cannot give evidence on oath is because it may offend his religious belief: see S. 5 (1) of the Act.  A second instance whereby a witness cannot give evidence upon oath is where a person is incompetent to take oath, see S. 6.  children of tender age and non christians may be under this category.  What is required is that so long as such a witness does not comprehend the nature of the Oath or Affirmation, it must be explained to him that, if  he tells lies in Court of before a Commissioner of Oaths, he is liable to be punished.  Despite this the same consequences follow as if an oath has been administered in the ordinary manner: S. 6 (2).
There is no evidence to support the argument that either the Appellant or  his witness if there was one, were not given the chance to give evidence under oath.  This being the case I must dismiss the second ground of appeal.  As regards to the first ground I have already alluded to the fact that there the decision of the District Court was against the weight of the evidence for reasons that I have already covered in the body of this judgement.  I uphold ground 1 of the appeal and set aside the orders of the District Court made on the 27 of December 1996.  The respondent shall meet the costs of this appeal to be taxed if not agreed.
Lawyers for the Appellant: Peraki Lawyers
No lawyer appeared for the Respondent