DC4039

PAPUA NEW GUINEA

IN THE DISTRICT (CIVIL) COURT 

D.C NO. 139 of 2016
BETWEEN:
CHRISTINA KULUNGA 
Complainant
AND:
JOHNNY GIGS
 Defendant
Mount Hagen:  Bamin J

2017: 13 June 2017
Civil- Equity & Trust- Oral agreement between Spouses- Constructive Trust- Debt not necessarily part of everyday expenditure recoverable-To acquire registered proprietor status-obtained debt from spouse- recoverable in court

Legislation Cited: 
District Courts Act 1963
Cases Cited:
Balfour-v-Balfour [1919]2 KB 571
Bulage v.Ben [1990] PNGLR 473
Ofoi-vs-Bonkare [2007] N3248

Appearances:
For the Complainant –In person
For the Defendant –In person  

RULING
Magistrate J. Bamin
INTRODUCTION: 
1.	Once in marital bliss, Ms. Kulunga is alleged to have given to her husband Mr. Gigs substantial cash amounting to K4, 500.00. She is said to have given these money ‘on loan’ to Mr. Gigs to help fund his efforts in obtaining a title to his property at Warakum, where they were all residing in at the time. 

2.	A year later and Ms. Kulunga and Mr. Gigs are no longer living together at Warakum. She files a Summons Upon Complaint on the 8th November 2016 asking this Court to order Mr. Gigs to repay the amount of K4, 500.00. She also seeks K1000.00 as compensation for the hardship caused over loss of the money.

3.	The Court ran a full trial on Ms. Kulunga’s Complaint on the 18th April 2017. Mr. Gigs brought his sister Anna Noi to testify and support him as a witness. Ms. Kulunga called three witnesses, Village Court Magistrates’ Michael Kill, Mugamba Nininge and Newman Johnny (Mr. Gig’s son). The trial ran for half a day as both Ms. Kulunga and Mr. Gigs and their witnesses were examined and cross-examined with assistance from me. I reserved ruling on the Complaint to a later date and I discuss the reasons for decision here. 
BRIEF FACTS: 
4.	Ms. Kulunga is a vegetable farmer and seller. She usually sells peanut at the Mt Hagen market to earn an income to support her family. From the profit, she sells this money out to workers and charges interest and makes extra money. She does not keep record of all this transaction as it’s done at small level. On or around June 2013 she gave K4500.00 all in cash at same time to Mr. Gigs as at the time they were married and cohabitating together at Warakum.

5.	Mr. Gigs on the other hand denied ever receiving K4, 500.00 from her saying that this is a substantial amount of money and he most likely would recall if he was given this money by Ms Kulunga. 
ISSUE: 
6.	The issue that I need to determine is whether or not Ms. Kulunga had K4, 500.00 cash and if so whether or not Mr. Gigs was given this K4500.00 by Ms. Kulunga on or around June 2013? Whether this resulted in creating a constructive trust which is enforceable in court?
Consideration of the issue of Whether or not Ms Kulunga had K4,500 cash and if so did she give this money to Mr Gigs to acquire an interest in his property at Warakum? 
7.	Witnesses who came to support Ms. Kulunga did not see her giving the K4, 500.00 cash to Mr. Gigs. This has placed a great burden on this Court to rely on circumstantial evidence to corroborate in some way the truth of Ms. Kulunga’s word/version of events relating to the time, date and place where this money was given and taken is crucial to establish truth in her claim that she did in fact give the K4, 500.00 cash to Mr. Gigs. 

8.	The evidence from Mr. Gig’s son is controversial in that his son came to testify against him for Ms. Kulunga, who is his step-mother. Newman Johnny did not see the actual handover and takeover of the K4500.00 but heard about it later during an argument between Ms. Kulunga and Mr. Gigs. He supported Ms. Kulunga because she paid his school fee and helped with his other needs after his biological mother deserted him.

9.	The other evidence came from a Village Court Magistrate. He is a Magistrate of Ketepa Village Court. He was not specific about dates but he was presiding over disputes concerning the house belonging to Mr. Gigs that was burnt by himself.  The witness recalls Ms. Kulunga at the time of the sitting, raising the issue of the K4500.00 she gave to Mr. Gigs and how she longed for it to be repaid. Mr. Kill however refused to hear this as he was there to hear complaint about the burnt house and not the money.

10.	Another Village Court Magistrate, Mr. Nininge of Gomis Village Court testified on why the Village Court could not sit and hear Ms. Kulunga’s Complaint over the K4500.00. They said the complaint was beyond the jurisdiction of the Village Court to hear and he had adviced Ms Kulunga to file a complaint in the District Court. He was testifying to support Ms. Kulunga to demonstrate the steps she had taken to recover the K4500.00 she gave to Mr. Gigs. 

11.	As it is, I heard from two witnesses Newman Johnny and Mr. Gig himself that Ms. Kulunga sells vegetables and nut at the market to sustain their livelihood. This goes to corroborate Ms. Kulunga’s story that she generate income on a daily basis. I accept that as a fact.

12.	Ms Kulunga in her evidence stated that she sells peanut and vegetables at the Mt Hagen Market to earn an income. From this income, she sells money charging 40% example she makes K40 out of every K100 she lends to workers. She does not keep record of all this transaction as she does not need to as it at small level and lending money to mining workers. She tells the Court clearly that she gave K4500.00 all in cash at same time to Mr Gigs whilst cohabiting together with him under his roof at Warakum.

13.	 She says Mr Gigs was so desperate cause he needed to get title to his property and had to have money to procure officers to work on a title for him. Thinking this to be true, she gave him the money, without any one being a witness to this- ‘GIVE & TAKE’ as it was done in the privacy of their home and it was intended to be repaid after Mr Gigs sold the property.

14.	Ms Kulunga’s evidence lacks details about the date, time and place where she had given K4, 500.00 cash to Mr Gigs. She also fails to corroborate her evidence in some material particular such as bank statement and records of income & takings or passbook account.  It’s unbelievable for her to keep large amount of money at home where it can easily be stolen or lost or spent easily.

15.	Adding to that is that money kept in another place other than a bank is susceptible to theft and spending at will. I heard no evidence from the witnesses about Ms Kulunga’s habits, hobbies and her character. Such evidence could have made me doubt Ms Kulunga actually had K4, 500.00 cash to give to Mr.Gigs but since there is no such evidence I am inclined to accept that Ms Kulunga had K4, 500 cash on her at the material time to give to Mr Gigs.

16.	Evidence from Mr. Gigs sheds some light on the dates. On the 13th of August, 2016, he took on board his residence at Warakum another woman. His evidence is that after the Gomis Village Court ordered Ms Kulunga to return to him, she did return to him and he sent her to Lae with a son to sell kaukau (sweet potatoe) bags at the market in Lae. Upon their return to Mt Hagen, they gave him K700 from the sales of the kaukau bags. It was at this time two weeks later upon returning from Lae that Ms Kulunga found out about the other woman in Mr Gigs life.

17.	I find Mr. Gig’s evidence untruthful and unreliable. He is not a credible witness. When he responded that K4, 500.00 is such a big amount of money and if he had received it, he would recall but he never taken that amount of money from Ms Kulunga is not accepted as his statements are inconsistent.  For instance at paragraphs 9 & 10 of his sworn affidavit filed the 7th of February,2016, he says that Ms.Kulunga escaped from him by only giving him K130.00 out of the K400 that the Gomis Village court ordered her to compensate him and return to him.

18.	Gomis Village Court Order was made on or around the 19th of May, 2016, it seems that Ms. Kulunga did not escape from Mr. Gigs but returned to him upon compensating him K130.00 and went to Lae to sell his kaukau bags at the market in Lae. It is reasonable to conclude that Ms. Kulunga was with Mr. Gigs up till October, 2016.

19.	Mr. Gigs is lying on oath when he says that Ms. Kulunga escaped from him until the 8th of November, she summoned him for the K4, 500.00 in this court. Inconsistency in his evidence about Ms. Kulunga’s whereabouts after the 19th May Gomis village court order leaves me to doubt the truthfulness of his denying ever taking and receiving K4, 500 cash from Ms. Kulunga. I therefore, find that Mr Gigs did obtain from Ms. Kulunga the sum of K4, 500.00.
Consideration on the issue of whether or not this constituted a debt which is recoverable in court?
20.	The law is not clear on this issue except to say that the District Court has jurisdiction to hear and determine all personal actions in law and in equity.  After my research on the issue, I found Ms. Kulunga’s action is a personal action that I have categorized to be one based on equity.

21.	 Since the dispute over the money arose during an existing marriage, I find comfort in applying principles of equity taken from the leading case in our jurisdiction dating back to the 1990 decision in Bulage-vs-Ben [1990] PNGLR 473.

22.	 In contrast to the principles in Bulage is the leading case of Balfour-v-Balfour [1919]2 KB 571. In this English case the husband was an engineer who was contracted to Sri Lanka, and he promised his wife 30 pounds a month until she came to sir leone to be with him. However, they drifted apart, Mrs Balfour sued him to pay her the 30 pounds. The Court of Appeal decided that there was no enforceable agreement. This two people never intended to make a bargain, the wife on the other hand made no bargain at all.

23.	Balfour was adopted and applied with modification in the PNG case of Bulage v.Ben [1990] PNGLR 473,it was said by Brunton J that and quote:
“A more modern example is Eve v Eve [1975] 1 WLR 1338. That was a case of an unmarried couple living together as husband and wife.
It was said to be part of the bargain between the parties, expressed or implied that the woman should contribute her labour towards repairing the house and get a beneficial interest in the house. This arrangement was held to be enforceable by way of either contract or constructive trust. The essence of the modern cases seems to be that there was some sort of an agreement, either express or implied between the parties in relation to some property, and that one the parties acted in reliance on the promise, and contribute labour, or resources, on the basis of the promise (either express or implied)".
24.	His Honour Brunton J distinguished between those types of "every day expenditure incurred during the course of the relationship" which are not recoverable in law and those types of expenditure on "particular items of property accumulated, or passed during such a relationship" which are recoverable in law.

25.	Most of the District Court decisions that I have researched applied and adopted the court’s reasoning in Bulage as it is the leading case in PNG that adopted and applied the principles from the Balfour case. They have held that when a wife or husband expended money on each other during the course of a marriage relationship it is not recoverable in a court of law. However, it differs in other circumstances and the money is recoverable. 
 
26.	A good example is the National Court decision of Ofoi-vs-Bonkare [2007] N3248, which was a claim for reimbursement of monies spent on rebuilding property owned by the husband on his promise that he would transfer title to the wife when the property was rebuilt. The court modified the principles in Balfour and Bulage and described the arrangement as one constituting constructive trust which would form a basis in equity to recover monies spent on reliance and trust of the other spouse which was deemed recoverable. The court reasoned that it only applies where interest in or acquisition of property is a concern to both parties at the time of and during their marriage.

27.	The present case came before me by way of a civil claim for recovery of debt. In the course of presiding over the trial and hearing evidence from Ms Kulunga and Mr Gigs and their witness, I came to realise the parties were husband and wife. They had a garden wedding at the SDA church even though there is no certificate of marriage to support this claim. Adding to that, when they appeared before me, they were still married as I gathered from their evidence they were only living separately.
 
28.	The distinguishing feature of the present case is that, K4, 500.00 was not spent over a period of time but it was offered by Ms.Kulunga in one day to Mr Gigs so that she could acquire an interest in his property. Mr Gigs convinced her so much that she readily and willingly made available to him her hard earned cash. I find that given the circumstances of their marriage, Ms Kulunga reliant on her marketing and Mr Gigs on his rental income.

29.	 It is obvious she trusted him to do what he said to do as it was evident to her that Mr Gigs was collecting fortnightly rentals from his property and sustaining the family but did not have his legal rights formally registered and recognised. If he did have formal title, he failed to produce a copy to the court. I have reasonably concluded that he is still working on getting the relevant officers to facilitate a title to him. 

30.	She saw the property’s potential to yield money and relied on his promise of sharing the proceeds of sale of the property after he obtained the formal title. Clearly, Ms Kulunga wanted to benefit from the property when Mr Gigs formalised his legal rights to it. They probably built trust over the course of the marriage as no one was on a steady income that is neither one of them was a wage earner, they survived on the market and rental income. Such as the evidence about Ms Kulunga going off to Lae to sell sweet potatoe bags and returning with the money to give to Mr Gigs, there in itself is trust as Mr Gigs himself trusted Ms Kulunga to be honest and return to him with the profit money.

CONCLUSION
31.	 I am satisfied on the balance of probabilities that a constructive trust was created by the implied promise from Mr. Gigs to Ms Kulunga and she relied on that promise to lend him the K4, 500.00 on the understanding that she will later benefit from the share of the proceeds of sale of Mr. Gig’s property when he was a registered proprietor.  

32.	The maxim “Equity will not suffer a wrong to go without a remedy” is very relevant in this case as such the debt is recoverable in equity in this court. It would be most unfair and most un-equitable that he should shelter his new wife in the property and telling Ms Kulunga to leave without repaying her debt and he living on the property with a new woman. Mr Gigs must repay her the K4, 500. If he is unable to find the money, he should sell the property and repay her share. 

33.	I will not make orders for compensation due to the simple reason that both parties have not formally dissolved their marriage.

ORDER:
1.	Judgment entered in the sum of K4, 500.00 against the Defendant in favour of the complainant, to be paid in instalments at K200.00 per fortnight by Johnny Gigs to the clerk at the District Court registry and to be collected by Christina Kulunga until the debt is settled in full.

2.	Interest at 8 percent on the judgment debt from date of filing of Summons Upon Complaint to date of satisfaction of judgment debt.

3.	Costs awarded and fixed at sum of K200.00