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Sukina v Chairman Gomberu Primary School [2016] PGNC 297; N6478 (29 September 2016)

N6478

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 119 OF 2013

BETWEEN:

EZEKIEL SUKINA
Appellant

AND:

THE CHAIRMAN GOMBERU PRIMARY SCHOOL
Respondent

Popondetta: Toliken, J.
2016: 11th, 15th March & 29^th September

INFERIOR COURTS – Appeal – District Court – Appeal from – Verbal contract for provision of milled timber – Appellant paid full sum of Contract price – Repudiation of Contract – Suit against Appellant for recovery of Contract price.

PRACTICE AND PROCEDURE – Judgment against weight of Evidence - Capacity of Respondent to sue – Trial by affidavit – Irregularity in conduct of proceedings – Failure to allow parties to cross-examine witnesses – No reasons for decision – Appeal allowed in part – Substantial Miscarriage of Justice – District orders quashed – Matter remitted to District Court for rehearing before another Magistrate.

Cases Cited:
Nil

Counsel:
Appellant in person

J Kerari, for the Respondent

JUDGMENT ON APPEAL

29^thSeptember, 2016

1. TOLIKEN J: The Appellant Ezekiel Sukina was sued in the Popondetta District Court for the recovery of the sum K6600 paid to him by the School Board of Gomberu Primary School to cut timber for the school, a job allegedly not done or performed by the Appellant.

2. His Worship, Principal Magistrate B. Noki, entered judgment in favour of the Respondent on the 17th day of October 2013. His Worship made the following orders-

1. JUDGMENT FOR THE COMPLAINANT IN THE OF K6600 PLUS COSTS OF K3.00 AND INTEREST CALCULATED AT 8% IS K528.00

2. TOTAL SUM TO BE PAID IS K7, 131.00 TO BE SETTLED WITHIN 14 DAYS AS OF TODAY.

3. The Appellant appealed against those orders on the following grounds:

(1) Verdict Against the Weight of Evidence

(a) The learned Magistrate erred in fact and or in law by not taking into account or giving weight to the Defendant's undisputed facts in evidence that:

(i) The School Board of Governors has repudiated or cancelled a valid and enforceable contract to mill timber for the school.

(ii) The defendant was the affected party, who was aggrieved by the decision of the School Board and should be the one in Court to recover cost and claim for economic loss suffered, both pecuniary (actual money lost) and business loss (damages).

(b) The learned Magistrate erred in fact and or in law in failing to taking into account or giving weight the Defendant's evidence that:
(i) That the Defendant had adduced evidence on money spent in salaries and food rations for his workmen, freight cost of transporting. Sawmill machines and other use of resources in mobilization of his team of workers.

(ii) The Defendant and his team were engaged in other contract work at Afore Local Government in Ijivitari District that had to mobilize at Popondetta town for the work engaged by the Complainant. The distance between Afore and Popondetta is far apart that Defendant and his workmen had to walk for miles from where they were in Afore rural areas to get PMV Truck to Popondetta town and had costs money and resources to the Defendant.

(iii) Thus, this mobilization towards the work for the Complainant had cost the Defendant so much money, which the court failed to deduct from the money initially paid to the Defendant's account, instead ordered to repay all amount with cost and interest.

(iv) The Defendant was entitled to keep part of the money initially paid for the anticipated sawmilling of timber.

(2) Party (Complainant): No legal personality.

(a) The learned Magistrate erred in fact and in law in accepting the complainant, who had no legal capacity to sue or be sued, as a party named in these proceedings, that:

(i) The Complainant ("Chairman of Komberu Primary School) as appears in the "Complaint" and "Summons" is not a person or being a name of a person to sue or be sued in that capacity.

(ii) The Complainant or if more than one were not named in representative capacity.

(b) The ultimate Complainant would be Komberu Primary School, who was not named, which had sufficient in the case.

(3) Legal Issues not addressed

(a) The learned Magistrate erred in fact and in law whereby the legal issues of breach of contract were not addressed or properly deliberated in the process of hearing, that:

(i) The party; either Complainant or the Defendant who was responsible for the breach has not been identified by the Court. The undeniable facts and evidence was that the agreement was varied as to enforcement (performance) by either party for first two occasions. Firstly, Complainant postponed the initial date to commence work. Then, the Defendant had to defer the alternative date for it fell on the eve of the year 2012 Christmas and the employees had commitments on Christmas festivals.
(ii) On the third occasion, the agreement was "frustrated" due to "Act of God" which the Court failed to separate this natural incident to one of deliberate act by the Defendant to breach the terms of the contract.

(iii) The legal implications of the above three variations on the law of contract were not addressed as this would have balance effect on the principles of the law of contract.

(b) The learned Magistrate erred in fact and in law to find the Complainant in breach of the agreement, that:

(i) The Complainant engaged some other people to cut timber, which was against the once existing agreement with the Defendant.

(ii) The Complainant did not "come with hands" to the Court and claim refund of the entire amount of money, deposited earlier into the Defendant bank account.

(4) Court Process

(a) The learned magistrate erred in fact and in law to admit into evidence a fresh Affidavit in support of the claim deposed by George Tinga at the stage of trial or hearing, that:

(i) The particulars in Court documents, especially the “Complaint” and “Summons” where the deponent was a natural person (George Tinga) who had stated to the complainant and yet he was not named in the “Complain t” or “Summons” as a party as he claims.

(ii) The Defendant was not invited by the Court to reply to facts deposed to in the fresh Affidavit by George Tinga.

(iii) The [Court] overruled an objection by the defendant, after the deponent (George Tinga) openly asked the Court while conducting hearing, to accept the Affidavit as His Worship wanted the Complainant to file one.

(b) The learned Magistrate’s conduct was improper and unfair to the Defendant, which had constituted a substantial miscarriage of justice, particularly on significant amount of economic loss, the Defendant suffered, which the Court failed to apportion from initial deposits in his company account. (Sic.)

4. The grounds of Appeal are rather long and convoluted, but they basically challenge the decision of the District Court on four broad grounds, these being; (1) that the decision was against the weight of the evidence, (2) lack of capacity, (3) failure to properly apply the legal principles of the law of contract and (4) irregularities in the conduct of the proceedings.
   
5. At the outset, one of these grounds can be swiftly deposed of and that is the lack of capacity. The Appellant submitted that the Respondent is not an entity or a person who is clothed with legal personality to enable it to sue or be sued. The Appellant through the current Chairman Mr. Kerari countered that the School Boards of Managements through the Chairman are empowered by the Education Act 1983 to represent the Board in all legal matters. And in this case the Chairman acted within his powers to recoup monies that were paid to the Appellant for work which he did not deliver. Hence, this ground should be dismissed.
   
6. The Education Act provides for the functions of Boards of Management of schools for the proper management and administration of schools. Those functions are provided by Section 62 of the Act
   

62. FUNCTIONS OF BOARDS OF MANAGEMENT.

(1) Subject to this Act, a Board of Management is immediately responsible within the limits of funds and other resources available to it–

(a) for the planning for, and the provision and maintenance of, school buildings, teachers’ houses and ancillary facilities as required; and

(b) for ensuring the availability of adequate housing for teachers; and
(c) for the enrolment of pupils; and

(d) within the general framework of policy established under this Act and the philosophy of the education agency conducting the pre-school, community school, elementary school, primary school or vocational centre –

(i) for determining the aims and goals of that school or centre; and

(ii) for supervising the achievement of those aims and goals; and

(e) for the making of rules for the discipline of students including the punishment by suspension, expulsion or the provision of work or services; and

(f) for the suspension or expulsion of students for breaches of rules made in accordance with Paragraph (e); and

(g) for such other matters in relation to the National Education System as are prescribed by or under this Act or any other law relating to education matters.

(2) A Board of Management has, in addition to the functions and responsibilities set out in Subsection (1), any other functions determined by it that are necessary or convenient for carrying out, or that are ancillary to, the functions and responsibilities set out in that subsection.

(3) A Board of Management shall lay down procedures of any committee appointed under Subsection (2).

7. The provision of housing for teachers is a primary function of Boards of Management, which necessarily entails the construction of new housing and maintenance of existing ones and this in turn require the use of funds available to Boards from school and/or project fees or grants from the government.
   
8. Section 61 (3) of the Act provides that a Board of Management shall be accountable for any money made available to it by the State, education authority, or the public. Being accountable entails the prudent and lawful expenditure of school funds and must necessarily include the power to legally recover debts owed to the Board. This is a function that is essential for the proper discharge of responsibilities of the Board.
   
9. As the governing or managing authorities of schools and education institutions under the National Education System, Boards must necessarily be deemed to have the power to do all things that are necessary for the proper management of schools and their funds. And this must include the power to sue or be sued for that matter. The Chairman is the principal Officer of the Board and any suit by or against the Board must necessarily name him/her either by name or by Office. I say all these advisedly, given the fact that there is no specific provision in the Education Act empowering Boards to sue or be sued – or to put it another way – clothing them with corporate or legal entity.
   
10. Boards of management and their functions and responsibilities are created by law. And in the discharge of those functions, they may incur liabilities in contract or in tort. When they incur liabilities they are liable to sued. Conversely when liabilities are incurred against them, Boards must have the same right to sue. Nobody should be left without a remedy for a tort or breach of contract and the Board of Gomberu Primary School or any School for that matter, should not be denied access to a legal remedy by an assertion that the Chairman is not a person, hence, cannot sue on behalf of the Board. The Chairman of Gomberu Primary thus has the capacity to represent the Board and is therefore a proper party.
    
11. In this Appeal, the Appellant did not object to the Chairman’s legal capacity to sue on behalf of the Board of Management in the court below. The Appellant cannot now hark back on this issue. Where a party does not raise issue with a particular matter at trial he cannot later on appeal raise that issue.
    
12. The ground of Appeal challenging the legal capacity of the Respondent in the District Court should therefore be dismissed.
    
13. The remaining grounds appear to me to be more meritorious. And they can be perhaps dealt with together.
    
14. It appears from the Appeal Book that the decision of the learned Magistrates indeed against the weight of the evidence. It is also clear to me from the record that the trial was conducted entirely by Affidavit evidence and nothing in the Appeal Book shows me that the parties were allowed the right to cross examination.
    
15. There is also some merit in the Appellant’s assertion that an Affidavit by the Chairman of the Board was admitted during the trial not without objection from the Appellant. This is clearly in breach of Section 35 of the Evidence Act Ch. 48 which requires that a party wishing to rely on an affidavit at trial must give notice to the other party five clear days before trial.
    
16. It also appears that the Appellant was not allowed to cross-examine the deponent who happened to be the Complainant and main witness for the Board. In that regard the presiding Magistrate erred substantially because in so conducting himself, His Worship denied the Appellant a fair hearing.
    
17. Where trial is substantially by affidavit evidence, the parties must be allowed and be given a real opportunity to cross-examine witnesses for the opposing party, unless of course, that party or parties chose not to.
    
18. Finally, the Appellant asserts that the presiding magistrate did not properly ascertain who frustrated the contract and in so doing, failed to apply the proper or appropriate principles of the law of contract.
    
19. The presiding magistrate did not give any reasons at all for deciding as he did. And to that end it is impossible for this Court to know how he came to his decision. Judicial decisions involve the application of the judicial process, which is, finding the facts and applying them to the law.
    
20. So in the case at hand, what were the findings of his Worship? What legal principles did he apply to those facts? The claim in question was one based on an alleged breach of a simple verbal contract and it behoved the learned Magistrate to enquire into the exact nature of the parties’ agreement, the breach thereof and who was responsible, or if the contract was terminated or repudiated, who was responsible and then finally decide on liability.
    
21. Whether his Worship addressed his mind to these is hard to ascertain because he did not provide any reasons at all for his decision which he should have done. Having failed to provide reasons it can therefore be deemed that he had no reason to decide as he did – that his decision was baseless. Judicial officers are required to give reasons for their decisions, which can either be written or oral. However, where a magistrate in particular, decides to give an extempore, or an oral judgment - as was the case here - they must reduce their finding of fact and their application of the law to those facts in writing.
    
22. This was not done in this case and this resulted in a substantial miscarriage of justice to the Appellant.
    
23. So, what must I do with the appeal? Obviously it must be allowed in the interest of justice, but because of the manner in which the trial was conducted and the unresolved issues raised herein, the most just outcome would be to remit the whole matter to the District Court for rehearing before a different Magistrate.
    
24. My orders are therefore that –
    1. The Appeal is allowed.
    2. The orders of the District Court dated 17^th October 2013 are quashed.
    3. The matter is wholly remitted to the District Court for rehearing before a different Magistrate.
    4. The parties are to meet their own costs.

Ordered accordingly,
___________________________________________________________
Appellant in Person
J. Kerari for the Respondent.