PNG Law Reports 1995
[1995] PNGLR 472
SC476
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SAMSON PULUBE
V
HEREPE WAPIA
Waigani
Kapi DCJ Hinchliffe J
1 July 1994
23 December 1994
EVIDENCE - Affidavit evidence - Power to call deponents to give evidence on oath - Evidence Act Ch 48 s 35(3).
Facts
The plaintiff sought the dissolution of a partnership business and the distribution of its assets. There was conflicting evidence of the existence of the alleged partnership. In dismissing the claim, the judge relied solely on affidavit evidence and the written submissions of the lawyers. The plaintiff appealed on various grounds of judicial error.
Held
1.       Where there is considerable dispute regarding facts between parties to an action, the Court should be careful before conducting a hearing purely on affidavits filed, without cross-examination or calling evidence on oath.
2.       The trial judge fell into error in not exercising his discretion under s 35(3) of the Evidence Act to call the deponents to give evidence on oath or be cross-examined. The appeal is upheld and a new trial is ordered.
Counsel
J Kil, for the appellant.
V Mirupasi, for the respondent.
23 December 1994
KAPI DCJ HINCHLIFFE J: This is an appeal from an order of the National Court on 16 May 1994 dismissing a claim of the appellant that a partnership business be dissolved and for its assets to be distributed proportionately.
The grounds of appeal 3(a) to (e) conclusively say that the trial Judge erred in not arriving at the conclusion that a partnership did exist between the appellant and the respondent.
Ground 3(f) indicates that other grounds may arise when the trial Judge's notes become available, but it seems to us from perusing the appeal book that there is not a record of the Judge’s notes included therein. To some extent that does not surprise us, because the proceedings in the National Court involved the presentation of a number of affidavits, followed by written submissions from both lawyers representing the parties. The deponents to the affidavits were not called by the lawyers or the trial Judge for cross-examination.
Grounds 3(g) and (h) read as follows:
“(g)    That the learned judge erred in not making any orders in relation to the ownership and proprietary rights of allotments 5 and 6 section 1, Komo District, Southern Highlands Province. 
 (h)     That the trial judge in so doing failed to consider the nature of the plaintiff's claims and the overall evidence before him in relation to the partnership business and the ownership of the property, Allotments 5 and 6 Section 1, Komo.”
The final ground of appeal, 3 (i), is a general ground and says that: “the trial judge failed to consider all the evidence before him”.
In the National Court, the appellant filed two affidavits sworn by himself on 4 October 1993 and 3 May 1994. The respondent/defendant filed two of his own affidavits, sworn on 6 April 1994 and 20 April 1994. In his defence also was filed an affidavit of Lambi Herepe, sworn on 3 May 1994. Those affidavits and the annexures thereto made up the whole of the evidence before the National Court.
The appellant’s affidavit of 3 May 1994 replies to the respondent’s affidavit of 6 April 1994. There is no reply by the respondent to the said affidavit of his son, Lambi Herepe, of 3 May 1994. After reading all the affidavits, it is abundantly clear to us that there is an enormous difference between the parties on almost everything. They differ with each other on the events leading up to the alleged signing of the alleged partnership agreement in March 1984. The respondent has always said that a partnership agreement never existed, that he is not aware of any partnership document, and that he did not sign or leave his mark on a partnership document.
We are somewhat at a loss as to understand why, when there was such a wide difference of opinion on the facts, the hearing in the National Court was conducted in the way it was. We are also surprised that the lawyers for each party did not elect to cross-examine the deponents to the affidavits. In fact, the allegations and the observations of Lambi Herepe in his affidavit were not replied to, and as we have already mentioned, he was not called for cross-examination. In all, many matters were either left in dispute or not answered at all, and that, to our minds, did not make the trial Judge’s task any easier. One can see the difficulty he was experiencing when he said the following in p 2 of his judgment, when considering the respondent's alleged mark on the said partnership agreement:
“I have seen documents in this proceedings (sic) which have been signed by the defendant by writing his name where he is required to sign. No oral evidence was given and none of the parties required the deponents of affidavits to be cross-examined. Thus this Court is placed in a difficult position to determine an important issue on very scanty evidence. The officer who is alleged to have witnessed the signing has not been called to give evidence nor has he filed an affidavit to support the plaintiff's claim. The plaintiff did not require the defendant who was present in court to be cross-examined on his ability to sign his name on documents. This might have helped the Court to determine the issue”.
It is our view that the proceedings in the National Court were not conducted properly. We say that because, after the trial Judge read the affidavits and was advised by the lawyers that there would be no deponents to the affidavits called for cross-examination, nor any other witnesses called to give oral evidence, to our minds he should have considered his powers under s 35 (3) of the Evidence Act Ch 48, which provides as follows:
“(3)    On application of a party or person interested, or of its own motion, the tribunal may order that a 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.”
It would seem from reading the trial Judge’s decision that he did not consider the said section. An example of that can be seen where he referred to the plaintiff not calling the defendant for cross-examination and added, “This might have helped the Court to determine the issue”. Clearly, the trial Judge, realising the possible solution to the problem, could have used his powers under s 35(3), but he did not. It is an indication to us that, if his Honour had considered the said section, then he more than likely would have required the parties to be cross-examined, as well as Lambi Herepe.
We are of the view that when parties to an action are in considerable dispute regarding the facts and, in some instances, the law, they and the Court should be careful before conducting a hearing purely on the affidavits filed, without any cross-examination or calling any other witnesses. Section 35 (3) can go to rectifying the problem by calling the deponents to affidavits and would-be deponents for cross-examination and evidence on oath. We consider that that was the purpose of s 35(3) in the first place.
If the lawyers are remiss in calling deponents for cross-examination where it is blatantly obvious some or all of the deponents should be called, then it is the duty of the trial Judge to assess the situation and to apply s 35(3) if he thinks it is necessary for the proper conduct of the trial and to ensure that not only is justice done but it is seen to be done. Of course, it might also prevent an unnecessary appeal to the Supreme Court of Justice.
After saying all of that, we are satisfied that this case is one where it was blatantly obvious that the deponents to the affidavits and would-be deponents should have been called, so that a proper and fair trial could be conducted.
We are further satisfied that the trial Judge fell into error in not considering and then using his powers under s 35(3) of the Evidence Act. We say that with great respect to his Honour, because it seems to us that both lawyers fell into greater error by not calling the deponents in the first place, together with other vitally important witnesses.
Section 16 of the Supreme Court Act provides, inter alia, as follows:
“16.    Decision, etc on appeal.
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may ...
(e)      order a new trial.”
After full consideration of this whole matter, we are of the view that it should be returned to the National Court for a new trial, and we would make the following orders:
1.       Appeal upheld.
2.       The order of the National Court given on 16 May 1994 be quashed.
3.       The matter be returned to the National Court for a new trial. 
4.       The matter be placed back into the National Court call-over list.
5.       The question of costs of the appeal is adjourned, to be argued later.
Lawyers for appellant: John Kilburn Kil.
Lawyers for respondent: Nii & Mirupasi.