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Konia v Buka [2010] PGNC 267; N4186 (17 December 2010)

N4186

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 48 OF 2007

BETWEEN

MONALIKA KONIA
Appellant

AND

NICKSON BUKA
Respondent

Mount Hagen: Makail, J
2009: 28th September &
2010: 17th December

CIVIL APPEALS - Appeal from District Court - Civil claim - Conversion - Liability - Entry of judgment of K5,000.00.

EVIDENCE - Trial by affidavits - Conflicting evidence - Substantial factual dispute - Findings of fact - No cross-examination of deponents - Necessary to call deponents for cross-examination - Necessary to determine credibility and reliability of witnesses' evidence - Failure of - Effect of - Miscarriage of justice - Re-trial ordered - District Courts Act, Ch 40 - Section 230(1)(c)&(d) - Evidence Act, Ch 48 - Section 35(3).

Cases cited:

KK Paradise trading as Koreane Enterprises -v- Jack Tepi (2010) N3979

Counsel:

Mr Bosip Aipe, for Appellant
Mr Randolph Lains, for Respondent

JUDGMENT

17th December, 2010

1. MAKAIL, J: This is an appeal against the decision of the Mendi District Court of 20th February 2007 in DC No 1037 of 2006 where the District Court found the appellant liable for damages and ordered her to pay K5,000.00 to the respondent. From my perusal of the complaint, it appears the claim is based on the tort of conversion.

2. The brief facts are these; since 2004 the appellant and the respondent had been living together in a de-facto relationship following the appellant's separation from her husband Peter Konia and seven children. The respondent owned and operated a trade store in Tente village near Mendi town. On 15th December 2006, the appellant left the respondent and re-united with her husband and seven children. The respondent alleged that when the appellant left, she took with her cash of K10,000.00 which was money from the trade store business and used it. He sued the appellant for the return of the money and was awarded K5,000.00.

3. There are six grounds of appeal. They are:

"1. The learned Magistrate erred in law and fact in ordering that the Appellant pay a sum of K5,000.00 to the Complainant since the learned Magistrate erred in not considering the evidence of the Appellant that the Respondent had exhausted his money in pursuit of a civil case between himself and the landlord of his rented place which is currently before the National Court.

2. The learned Magistrate erred in fact and law in not considering evidence that the Appellant had assisted the Respondent with K2,000.00 to restart his collapsed business after the Respondent had threatened the Appellant.

3. The learned Magistrate erred in law and fact in not considering evidence that on the day of her alleged escape with the Respondent's money the Appellant was met (sic) in Mendi where a mediation was held and she paid K400.00 in order to be released which was witnessed by the Respondent's Community leader Mr. David Maip.

4. The learned Magistrate also erred in law and fact when he did not consider at length that the Appellant was returning to her first husband whom with which they have seven (7) children and the Respondent was inspired by ulterior motives.

5. His Worship erred when he did not consider that the Respondent did not produce any evidence as to establish that he generated K10,000.00 in cash by 15th December 2006 when the Appellant had assisted the Respondent with K2,000.00 on November K2,000.00 (sic) after the Respondent's business had collapsed then.

6. Further the learned Magistrate erred in law and fact when he did not consider evidence that the actual Summons was never served on the Appellant as she was in Simbu with her family and Proof of Service documents was falsely attested to."

4. From these grounds of appeal, it appears grounds 1 to 4 raise the issue of credibility and reliability of witnesses' evidence. Therefore, they will be addressed together. From my perusal of the court depositions in the appeal book, it is apparent that the trial before the District Court was conducted by way of affidavits and none of the deponents were cross-examined. This is evident in the written judgment of the District Court which maybe found at p 46 of the appeal book where the learned magistrate said:

"A careful consideration of evidence presented by both parties, I am satisfied that there was some truth in complainant's claim."

5. This is also confirmed by the absence of trial notes of the learned magistrate to verify if the deponents were cross-examined in relation to their affidavits.

6. From the first four grounds of appeal, it is noted that the appellant is complaining that the learned magistrate rejected her and her witness's evidence and accepted the respondent's evidence. In so doing, he found her liable for conversion and entered judgment of K5,000.00 against her. If the learned magistrate had accepted her and her witness's evidence, he would not have found against her.

7. The appellant had filed three affidavits. Two by her and one by her husband Peter Konia. She denied the claim. She said at paragraph 4.1 of her affidavit at p 31 of the appeal book that when she started teaching at Mendi High School, she used her fortnight pay to start a trade store business and poultry project. They broke down in 2006.

8. Further on at paragraphs 4.2 and 4.3 of the same affidavit (supra), she said the respondent was unemployed and abusive. On 15th December 2006, a mediation was held before village elders at Momei oval in Mendi town where it was agreed that she was free to leave the respondent but was to pay K400.00 to the respondent which she did, and left. Her evidence was corroborated by her husband Peter Konia in his affidavit which maybe found at pp 41- 44 of the appeal book.

9. What she and her husband said were in direct contradiction to what the respondent said in his affidavit at pp 24 and 25 of the appeal book. He said the appellant left for her husband Peter Konia and took with her K10,000.00 from his trade store business without his consent. He never mentioned anything about a mediation and receipt of K400.00 from the appellant.

10. He commenced a separate proceeding against the appellant and BSP Bank in the District Court at Mendi in DC No 1038 of 2006 and obtained an interim restraining order against them from dealing with funds in her two bank accounts at BSP bank until the present proceeding, the subject of this appeal was finalised. Unbeknown to him, the District Court discharged the interim restraining orders and he was unable to access the funds in the bank accounts to satisfy the judgment.

11. From the parties' evidence, it is clear that there were two different factual versions of the dispute before the District Court. First, there was the dispute in relation to whether the respondent owned and operated the trade store. Secondly, there was the dispute in relation to the circumstances and reasons for the appellant's departure. Did she flee or was her departure by agreement of the parties as a result of mediation? Thirdly and very importantly, there was the dispute in relation to whether the appellant converted the K10,000.00.

12. In finding the appellant liable, the learned magistrate said these in the written judgment (supra):

"Liability is therefore established on the balance of probabilities. There is evidence to show that there was an opportunity for the defendant to deceive the complainant in his small business. Once realized that business was going down she had made up her mind to leave him and offered him consolation payment. The complainant had that believe (sic) in his mind. He somehow felt empty and angry. That was the basis of his complaint."

13. What was the basis for the learned magistrate's findings? How did he arrive at these findings? How did he know that the appellant deceived the respondent? How did he know that the respondent had that belief? It seems to me that he evaluated the witnesses' evidence from just by reading them and decided to accept the evidence of the respondent. In so doing, he rejected the evidence of the appellant and her witness.

14. In cases where the facts are substantially in dispute and the evidence is based purely on affidavits, it has been held that it is difficult to ascertain which witness is telling the truth based on the affidavits. This is because obviously, one party may not be telling the truth and the only way for the Court to determine the credibility and reliability of the evidence of the deponents of the affidavits was to call them for cross-examination. In cases where the parties or their lawyers choose not to do so, the Court has the ultimate discretion to call the deponents for cross-examination: see KK Paradise trading as Koreane Enterprises -v- Jack Tepi (2010) N3979.

15. That discretion is provided under section 35(3) of the Evidence Act, Ch 48 which states:

"(3) On application of a party or person interested or of its own motion, the tribunal may order that the subpoena be issued requiring a person who has made or intends to make an affidavit to attend before the tribunal to give evidence on oath or for cross- examination, or both."

16. In the present case, I am not satisfied that it was sufficient for the learned magistrate to merely rely on the affidavits to make these findings of fact when the facts were substantially in dispute. On the other hand, I am convinced that the only and fair way to determine which party's evidence was credible and reliable before the learned magistrate may accept and proceed to determine whether the respondent had proven his claim on the balance of probabilities was for him to exercise his discretion by calling the deponents for cross-examination.

17. As the evidence were conflicting in relation to the ownership of the trade store, the circumstances and reasons for the appellant's departure and the conversion of K10,000.00 by the appellant, I find there was insufficient evidence from the affidavits to support the learned magistrate's conclusion that the appellant deceived the respondent and converted the K10,000.00. For these reasons, I am satisfied that the findings of the learned magistrate could not have been reasonably reached. This is where I find he fell into error.

18. In my view, a miscarriage of justice has occurred here and must be corrected. The way to correct the miscarriage of justice is to uphold the appeal, quash the decision of the District Court on both liability and assessment of damages and order a re-trial before the Mendi District Court in accordance of the Court's power under section 230(1)(c)&(d) of the District Courts Act, Ch 40.

19. As I have upheld the appeal in relation to grounds 1 to 4, it is therefore not necessary to consider grounds 5 and 6 of the appeal. The respondent shall pay the appellant's costs of the appeal to be taxed if not agreed.

Judgment: Appeal upheld and re-trial ordered accordingly.

______________________________________
Bosip Aipe Lawyers: Lawyers for the Appellant
Tamutai Lawyers: Lawyers for the Respondent