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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT JUSTICE]
APP CIA NO 154 of 2000
BETWEEN:
JACOB YAMBA
Appellant
AND:
TUNA WAMBU
Respondent
LAE: KANDAKASI,J.
2001: January 25
March 28
INFERIOR COURTS - Appeals - District Courts - Appeal from –Finding of facts – Trial magistrate in better position to evaluate – No proper basis established to interfere with findings of Court below – Appeal dismissed.
EVIDENCE – Statutory declaration purporting to contain terms of agreement – Contents not explained and understood by illiterate party – No evidence of document being signed by or for illiterate party by an agent authorized by him – Affirm rejection of the same by District Court.
CONTRACT – Agreement for sale and purchase of vehicle between an illiterate and an literate party – Disagreement on agreed purchase price – Statutory declaration purportedly signed for illiterate party allegedly containing terms – No evidence of contents read to, explained and understood by illiterate party – No evidence of illiterate party authorizing purported agent signing for him – Rejection of by District Court affirmed.
Cases cited:
Mechanical and General Inventions Co. Ltd. v. Austin [1935] A.C. 346
Director of Administration v. Custodial of Expropriated Property (Re Wangaramut) (No.2) [1969-1970] PNGLR 410
Rimbink Pato v. Umbu Pupu [1986] PNGLR 310
Kora Gene v. Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 344
Counsel:
Appellant in Person
Respondent in Person
28th March 2001
KANDAKASI,J: This is an appeal against a decision of the Lae District Court given on the 26th of May 2000. The District Court ordered judgement in the sum of K3, 000.00 against the Appellant. The Appellant appeals against that decision and argues that the learned magistrate erred in arriving at that decision. This court therefore, has to determine whether the learned magistrate has in fact erred as is claimed by reference to each of the grounds of appeal.
Grounds of Appeal
The Appellant’s grounds for appeal are set out in his Notice of Appeal. They are in these terms:
(1) That the learned magistrate erred in law and fact in finding that the appellant was in debt of K3000.00 when the evidence was unreliable, inconsistent and insufficient to support that finding.
(2) The learned magistrate erred in law in not giving adequate time for the appellant to prepare his case.
(3) The learned magistrate erred in law and in fact finding by not considering Statutory Declaration signed dated 10/12/99, as original agreement between both parties.
(4) The learned magistrate erred in law and in fact finding by not allowing the signatory of the Statutory Declaration to clarify.
(5) The learned magistrate erred in Law and in fact finding in reasoning out why the complaint authorised another person to sign the Statutory Declaration Form.
(6) The learned magistrate erred in Law and in fact finding in reasoning out why the complainant fail to comply with agreed date for settlement of debt as signed in the Statutory Declaration Form.
(7) Any other grounds that may rise later.
Facts
For the purpose of determining the appeal, it is necessary to consider the relevant facts. The relevant facts are briefly these. Sometime toward the end of 1999, the Appellant and the Respondent entered into an oral agreement for the sale and purchase of a 25 seater Mitsubishi Rosa PMV bus registration No. P 018N (hereinafter "the bus"). The Respondent sold the bus to the Appellant. The Appellant took delivery of the vehicle upon a part payment of K10, 000.00. These facts are not in issue between the parties.
What was in issue was the purchase price. The Respondent claimed the agreed purchase price was K17, 000.00 of which K4, 000.00 was deducted on the Appellant agreeing to assist him with his children’s school fees and help meet some of his family and other problems. That left a balance of K3, 000.00 to be paid. Despite numerous requests the Appellant did not pay the balance due and owing. The District Court Proceedings were therefore, issued to recover the outstanding amount.
The Appellant on the other hand claimed that the agreed purchase prise was K13,000.00. Accordingly, the balance due and owing was K1, 500.00 and not K3,000.00.
Both parties called themselves and gave oral evidence to support their respective positions. They both gave oral evidence. There was no other evidence except for a statutory declaration, signed by a third party whom the Appellant claimed was the Respondent’s agent and the agent signed the document with the authority of the Respondent. The Appellant wrote out that document. Its contents were not explained to the Respondent. The Respondent did not sight and sign that document. He therefore, disputed the authenticity of the document. He stated that, he does not know how to read and write and as such he did not know what was in it and that he would not have authorised someone to sign it on his behalf without knowing what was in the document. He further stated that, he did not authorise the person who signed the document or any body else to sign on his behalf that document.
What the District Court did
The District Court had to decide which version of the evidence to accept and arrive at a decision. The Court decided to accept the Respondent’s evidence. This is how the Court put it:
The case boils down to whose version is believable and credible. I noted their demeanour in Court. Complainant is elderly person but the Defendant is young, middle age man. Complainant impressed me as a truthful witness. He admitted that he was illiterate. He did not sign the Stat. Dec. which was confirmed by the Defendant.
The learned magistrate, also found that the statutory declaration was written by the Appellant and that the contents were not read and explained to the Respondent. The learned magistrate further found that the contents of the statutory declaration were not understood and accepted by the Respondent and that the Respondent did not sign the statutory declaration. On these basis, the learned magistrate, rejected the statutory declaration.
Consideration of the Appeal
The grounds of appeal relied on by the Appellant concern the learned magistrate’s treatment of the evidence generally (appeal ground 1) and in particular the statutory declaration (appeal grounds 3- 6) and procedural fairness in terms of time given to the Appellant to prepare and present his case (appeal ground 2). Accordingly, the appeal grounds are considered under those headings.
Trial Courts Treatment of Evidence: Ground 1
As will be apparent from the way this ground of appeal has been framed, no details have been provided to demonstrate how the evidence was "unreliable, inconsistent and insufficient". This was not improved upon at the time of the hearing of the appeal. The appellant simply asked the court to look at the learned magistrate’s reasons for judgement and the depositions and determine whether or not this ground has been made out.
This ground calls for an interference of the learned magistrates assessment of the evidence presented before him. The learned magistrate found the Respondent was an elderly person whilst the Appellant was a middle aged young man. More importantly he found and said the Respondent "impressed me as a truthful witness". The evidence before the Court below consisted of the oral evidence of Appellant in his defence and that of the Respondent in support of his claim. The only other evidence was the statutory declaration purportedly signed for the Respondent by a purported agent. That was rejected because there was no evidence of it being signed by the Respondent or was signed on his behalf by a person authorised to be his agent. It was also reject because, there was no evidence of the contents being read, understood and accepted by the Respondent after it was drafted by the Appellant. I will come back to that when I go to grounds 3 to 6 of the appeal. For now, I consider the relevant law on interference with the finding of a primary courts finds of fact.
The law is very clear, that a primary judge or magistrate is in a better position to asses the evidence presented and determined what evidence is credible and not. This is because the primary judge sees the witnesses and observes the witnesses’ demeanour and general attitude in court, which opportunity an appellate court does not have. Therefore, an appellate court should always be very slow to interfere with a trial judge or magistrate’s findings of fact. In Mechanical and General Inventions Co. Ltd. v. Austin [1935] A.C. 346, at pp. 373-374, per Lord Wright said:
For the appellate court to set aside the verdict of a jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury; that would be quite wrong.
These words were quoted with approval and applied with necessary modification in the pre-independence case of Director of Administration v. Custodial of Expropriated Property (Re Wangaramut) (No.2) [1969-1970] PNGLR 410 at page 438. Subsequently, well after independence, the Supreme Court in Rimbink Pato v. Umbu Pupu [1986] PNGLR 310 at 316 and 317, per Wilson J discussed that principle in these terms:
[A]ppellate courts will normally show deference to the assessment of credibility made by the trial judge. This has traditionally been explained in terms of the advantage, which the trial judge has in assessing credibility from seeing and hearing the witnesses. Lately, psychological and other research has tended to cast doubt upon this rationalisation of deference to the trial judge’s assessment: see L Re, ‘Oral v Written Evidence: The Myth of the "Impressive Witness"’ (1983) 57 ALJ 679. In Voulis v Kozary [1975] HCA 44; (1979) 50 ALJR 59; 7 ALR 126, the High Court of Australia referred to the special advantages of a primary judge over an appellate court on matters of fact. Particularly, the court referred to the advantages involved in evaluating conflicting oral testimony and the credibility of witnesses. Nevertheless, in that case, the court disturbed the conclusion of the trial judge, and the decision of the majority of this Court. It held that the judge’s findings were necessarily outweighed by the compelling inferences to be drawn from the conduct of witnesses. Accordingly, it set aside his decision. ...
In that case, the Supreme Court set out the following guidelines or principles to be followed when a call is made to re-assess and interfere with the trial court’s treatment of the evidence on appeal has is done here. Those principles are best summarised and set out in the head notes to that judgement in these terms:
(a) The court may draw its own inferences from undisputed facts or facts established by the trial Judge’s findings;
(b) allowance should be made for the trial Judge’s advantage in evaluating conflicting oral testimony and the credibility of witnesses; and
(c) in assessing circumstantial evidence the court must rely upon reasonable and definitive inferences, not conjecture, speculation and guesswork.
Applying the above principles to the present case, I allow for the fact that the learned trial magistrate was in a better position to evaluate the "conflicting oral testimony and the credibility of the witnesses" and he did. No reason has been advanced to the satisfaction of this Court to enable it to disturb the trial court’s evaluation of the credibility of the witnesses and their respective oral evidence so as to allow this court to arrive at a different inference on the basis of the evidence presented before the Court below. In the absence of any clear basis being shown or established to warrant an interference with the trial courts’ treatment of the evidence, the Appellant is asking this court to arrive at a different finding to that arrived at by the Court below. That cannot be accepted because the Appellant has first failed in his duty to show where and how the learned magistrate erred in his judgement. It is not simply enough to allege that "the evidence was unreliable, inconsistent and insufficient" without demonstrating how that was so.
Indeed, the Supreme Court in the context of a appeal to the Supreme Court against a decision of the National in Helen Tumul v. Motor Vehicles Insurance (PNG) Trust (Unreported and Unnumbered Supreme Court decision delivered on 30th April 1999), said at page 9 of the judgement in effect that, an appellant is obliged to demonstrate how a trial judge has fallen into error. Where an appellant fails to do that there is no basis to uphold the appeal.
In the present case, I take into account the above factors and find that the Appellant has not made out the first ground of his appeal. I therefore dismiss this ground of the appeal.
Procedural Fairness - Ground 2
The depositions of the proceedings in the Court below which are in the Appeal Book show that, the proceedings were issued on the 15th of May 2000 and the relevant summons was returnable on the 22nd of May 2000. On the 22nd of May 2000, both the Appellant and the Respondent appeared and the matter was listed for hearing on the 25th of May 2000. That was upon the Appellant informing the Court that, it was denying the claim. There is no record of the Appellant not agreeing to the matter being listed for trial on the 25th of May 2000 or requiring more time to prepare and present his case. On the 25th it seems, the parties appeared and each of them went into evidence in their own behalf. Then on the 26th of May 2000, the Court delivered its decision, the subject of this appeal.
There is no record of the Appellant taking any issue on the matter proceeding to trial on the 25th May 2000. He did not, according to the records, indicate that he had other witnesses and evidence to call to support his case for which he required more time than that which was given to him and the Respondent. He did not tell the Court below that, the time given by the court was too short or insufficient for him. Instead he accepted the time period given and he proceed with a hearing of the claim against him. The first time, at least on the records he is saying anything against the time given to him to prepare and present his case is by way of this appeal. Accordingly, I also find the second ground of appeal has not being made out and in any case is without any merit. I thus dismiss this ground of appeal.
Treatment of Statutory Declaration - Grounds 3 – 6
The remaining grounds of appeal (3 - 6) concern the rejection of the statutory declaration. As earlier noted, the learned trial magistrate rejected that evidence because of a number of factors. First, the Respondent being an illiterate person did not know anything about the contents. Secondly, there was evidence of the contents being written out by the Appellant but there was no evidence of the contents being read to, explained, understood and accepted by the Respondent. Thirdly, there was no evidence of the person who purportedly signed for the Respondent did have the authority of the Respondent to sign the document on behalf of the Respondent.
In Kora Gene v. Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 344, the National Court at page 348 said:
Whilst parties can always talk between themselves without lawyers, in the circumstances of PNG and by virtue of the disparity of education and understanding between the plaintiff and the defendant I must find that the parties here are not on an equal footing. The plaintiff here is at a great disadvantage. I must find it is unconscionable for a plaintiff of the nature and sophistication of the Motor Vehicle Insurance Trust to negotiate directly with an illiterate villager who cannot read without taking appropriate precautions to ensure that the villager understands his legal rights. So whilst strictly at law parties can deal with each in the absence of lawyers a party with education and knowledge and experience must exercise extreme care when negotiating with a party who has no education and no real understanding of his rights and interests.
Those comments are relevant and quite correctly describe what is usually the position for most Papua New Guinean’s today. The present case is an illustration of that. I adopt what was said in the above case for the purposes of this case.
As was found by the Court below, the Appellant was an educated and young middle aged man. He wrote out the statutory declaration and did not explain the contents to the Respondent. The Respondent therefore, does not know what is in the document and does not understand them. Further the Respondent maintains that he did not authorise the person who purportedly signed for the Respondent as his authorised agent. The Appellant was arguing for a finding to the contrary. The onus was thus on him to produce the relevant evidence to establish the factual foundation for such a finding. He failed to discharge that obligation.
In the Kora Gene case, the plaintiff did sign the deed of release, but because of the position he was in and his inability to fully understand the contents and the effects of the contents of the deed of release, it was held not to be binding on him. Here, it is almost the same case, except that the Respondent did not sign the statutory declaration and did not even authorise any agent to sign on his behalf. The statutory declaration was therefore, correctly rejected in my view as having no binding effect on the Respondent.
As to the matters raised in appeal grounds 4 and 5, it was incumbent upon the Appellant to call whatever witnesses or evidence he considered important for his case. It was not for the Court to call witnesses or evidence. The Court below was not an investigator or an inquiry, so as to expect it to call all the relevant evidence and witnesses. Instead, the Court’s role was to consider the evidence presented or brought into the Court by the parties. Then evaluate that evidence and arrive at a decision on the matter in dispute. That is exactly what the court did.
In advancing these grounds of appeal (4 & 5) the Appellant is asking this court to reward him for his own failure. That cannot be done because this court is only concerned about what errors, if any, the Court below may have committed. The Appellant has simply failed to show where and how the learned magistrate erred in his assessment and or treatment of the statutory declaration. These grounds of appeal thus have no merit and I have no hesitation in dismissing them.
Unspecified Grounds - Ground 7
This is not a recognised ground of appeal. It is only a speculation that there may be further grounds for appeal. It is also an indication that, if the transcript or the depositions disclose other possible grounds of appeal, the Appellant will rely on them. The Appellant did not advance any argument under this purported ground of appeal.
I note in any case, that the Appellant has received the transcript of the proceedings before the District Court and the appeal book has been compiled thereafter. The Appellant has not pointed out to any additional ground of appeal. Besides, appeals cannot be lodged without knowing the grounds for appeal. If an appellant does not know his or her grounds of appeal at the time of lodging the appeal, the appeal is without merit and an abuse of process. Even if some additional ground come to light after the receipt of the transcript, an appellant has no automatic right of appeal on such grounds unless the relevant appeal period has not yet run out and the Appellant is still within his right to appeal on such grounds as of right. I thus dismiss this ground of appeal as well.
In the upshot I make the following orders on the basis of the above findings:
______________________________________________________________________
Lawyer for the Appellant: Nil (Appellant in Person)
Lawyer for the Respondent: Nil (Respondent in Person)
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