National Court of Papua New Guinea

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 appellppellant appealed out of time but by an application in the form of a Notice of Motion, in May 1, 1996 the National Court ed that the time limited for compliance with conditions precedent to the right of appeal pral 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&#82lawyer in absence of the respondent’s counsel. Despite duice of the date date oate of hearing of this appeal served on the respondent’s lawyer, the respondent nor his lawyer turned up. Mr Peraki immediately soueht leave to prosecute the l in absence of the Counselunsel for the respondent. Mr Peraki relyi Order 4 Ru 4 Rule 33 which provision is not directly relat the prosecution of appeals but which provides that the Coue Court may proceed with a hearing in absence of the Plaintiff where he ha due notice of a hearing anng and in the case of a defendant who is in default of giving notice to his intention to defend. Theoviso is applicable whee where proceedings are commenced under Order 4 of the National Court Rules.

In the recent case I re compelled to think that once an appeal has been entered for hearing in accordance with Sith 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. Or8 Rule 5 of the Nationalional Court Rules requires the Registrar to fix a time and place for the hearing of the appeal and besid must serve copies of the Notice of Hearing on the Appellant, respondent and the Clerk of&# of from which the matter is r is appealed. Order 18 Rule 11 says:

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“An appeal under this Division shall not be heard and determined unless at thring of the appeal all parties to the Appeal appears or arer 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. &##160; That the Magistratetrate erred in making a finding that the Defendant was liable to pay the complainant as there was insufnt eve on alancprobabilities.

2. &ـ 160; 160; Th0; That That the Mthe Magistagistrate erred in not allowing the witness of the Defendant to give evidence under Oath.

3. ټ&#S60; fuch further ther or other grounds as may become able upon receipt of the cohe court depositions.

In support of the first ground, Mr Peraki agreed that there was no evidence tport oncluthat that the Coue Court rert reached by finding in favour of the respondent. The deposition baecords ofds 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 isparty supporting his own case.

This is evident from from my observation of appeal documents filed in the appeal book see pages 35 & 38 of the appeal book. The only other piece of ecidence accepted by his worship was an affidavit deposed by the respondent - see page 32. Pagesnd 39 show that both both the appellant and respondent gave evidence under Oaths pursuant t Oaths, Affirmations and Stnd Statutory Declarations Act (Ch. No. 317).

The first ground concerns the “burden of proof”. Our law knows of two basan standard of proof.

In a criminal case, a party needs to establish his case “beyond reasonable doubt”. Simy in a civil proceedingedings, 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 toore probable than not. If the pilities are equal qual that is if a tribunal is whollyholly undecided the party bearing the burden of proof will fail. Standardroof either in crin criminal or civil refers to the extent or degree to which the burden of proof must be discharged. It is theurement of the dehe degree of certainty or probability which the evidence must generate in the mind of a tribunal of fact. Speaof the civil standard dard 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 carryasonable degr degree of probability, but not so high as is required in a criminal case. If the nce is such that that the tribunal can say ‘we think re probable than not’, the burden is discharged, but but if the probabilities are equal it is not.”

Having establ that there was a contract ract for the sale of vehicle between the parties, the respondent claimed that there was a further road contract with the Western Highlands Provincial Government. Itpleaded in the respondenondent’s affidavit evidence that the respondent engaged his Dump truck in a road contract with the Provincial Government. No furtvidence was called lled to rt that the respondent̵’s evidence. At least there could heen been evidence called from someone in the Provincial Enging Division to support evidence given by the respondent.&#nt. No dotary evidence was givs given to support the view that therean actual second contract eact entered into between the respondent and the Provincial Government. Eve from an independent e nt e was required to prove exie existence of such a contract. There waseven any documentumentary evidence forthcoming from the resnt.

There being no other evidence apart from that ofat of the respondent to support the allegation about a subsisting contracteen him and the Provincial cial Government, with respect I am of the view that the respondent did not discharge that burden to the required standard. Seeing the major componentonent 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 tie respondent file filed his claim in the District Court he, still owed monies to the appellant for the car engine. He only madeial payment ofnt of K350.000; I do not think anyone could buy a second hand car enginengine for K350.00. I am also of the view the the presiding magistras correct in placing a value to the appellant’s car ecar engine at K1,500.00.

The second ground of appeal in my view and due respect is baseless. Therevidence that the the 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 theof page 35, it was wwas written “Sworn Statement of Defendant”. Accordingy examinatf the athe appeal book there is no record of any any other witnesses called by the appellant. equirement of the Oathfirmhfirmations and Statutory Declarations Act - Ch. No. 317 is that where a person does not wist wish to give evidence in Court or beforemmissioner for Oaths, he may masolemn declaratioratioration 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 s instance whereby a wita witness cannot give evidence upon oath is where a person is incompetent to take oath, see S. 6. childr tender age and non 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 teles int of before a Ce a Commissioner of Oaths, he is liable to be punished. Despite tite this the sans consequences follow as ioath has been administered in the ordinary manner: S. 6 (2).

There is no evidence toce to support the argument that either thellant or his witness if there we, wne, were not givengiven 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 deciof the District Court was against the weight of the evidence for reasons that I have alreadlready covered in the body of this judgeme160; I uphold ground 1 of t of the appeal and set aside the orders of the District Court made on the 27 of December 1996. The rdent shall meet the cthe costs of this appeal to be taxed if not agreed.

Lawyers for the Appellant: Peraki Lawyers

No lawyer appeared for the Respondent