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Wagun v Michael [2011] PGNC 226; N4565 (26 July 2011)

N4565

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APPEAL CIA NO. 56 OF 2009

BETWEEN

PAUL WAGUN, The Public Curator of Papua New Guinea
Appellant

AND

KORRY MICHAEL
First Respondent

AND

KORRY SECURITY SERVICES
Second Respondent

Lae: Gabi, J
2011: 26^th July

APPEAL – appeal from District Court – application by appellant for leave to admit documents as ‘fresh evidence’ – justification of reception of fresh evidence discussed - documents credible and would affect outcome of trial and appeal - Leave granted to admit as "fresh evidence" on appeal documents

Facts:

This is an application by the appellant for leave to admit two documents as "fresh evidence" on appeal. These are: (i) a copy of a purported contract for sale of land allegedly between the Public Curator for and on behalf of the late Percival Alfred Sheldon and a Terry Opa in relation to the property at Section 22 Allotment 58 Bowerbird Street, Lae; and (ii) a copy of the affidavit of Maike Zimike sworn and filed on 5^th August 2009

Held:

1. The justifications for the reception of "fresh evidence" on appeal are: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible (Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All E.R. 745 at 748 quoted in The Government of Papua New Guinea and Davis vs. Barker [1977] PNGLR 386).
   
2. The documents are credible and would affect the outcome of the trial and the appeal. Leave is therefore granted to admit as "fresh evidence" on appeal the following documents: (i) the purported contract for sale of land allegedly between the Public Curator for and on behalf of the late Percival Alfred Sheldon and a Terry Opa; and (ii) the affidavit of Maike Zimike sworn and filed on 5^th August 2009.
   

Cases Cited:

James Neap vs. The Independent State of Papua New Guinea (1982) SC228
Raphael Warakau vs. The State (1980) SC184
South Pacific Post vs. Nwokolo [1984] PNGLR 38
The Government of Papua New Guinea and Davis vs. Barker [1977] PNGLR 386

Counsel:

J. Popuna, for the appellant
G. Gileng, for the respondents

DECISION

26^th July, 2011

1. GABI, J: Introduction: This is an application by the appellant for leave to admit two documents as "fresh evidence" on appeal. These are: (i) a copy of a purported contract for sale of land allegedly between the Public Curator for and on behalf of the late Percival Alfred Sheldon and a Terry Opa in relation to the property at Section 22 Allotment 58 Bowerbird Street, Lae; and (ii) a copy of the affidavit of Maike Zimike sworn and filed on 5^th August 2009.

Evidence

2. The following affidavits were filed: (i) two affidavits of Jacob Popuna dated 13^th September 2009 and 9^th December 2009 respectively; and (ii) two affidavits of Kali Ralewa dated 1^st October 2009 and 27^th September 2010 respectively.

Facts

3. The brief undisputed facts were that the late Percival Alfred Sheldon died on 5^th August 1986. Prior to his death he owned the property situated at Section 22 Allotment 58 Bowerbird Street in Lae. The late Percival Alfred Sheldon died intestate, i.e. he left no will prior to his demise. By a purported contract for sale of land dated 3^rd November 2003, the property was allegedly sold to a Terry Opa for K25, 000.00. The documents before me show that Mr. John Unido signed as a witness for Terry Opa.

4. While the appellant was administering the Estate of the late Percival Alfred Sheldon, a Toby Vanua, who was a friend and domestic servant of the deceased was allowed to take care of the property. It appears that in 2001, a Terry Opa moved into the property at the invitation of Toby Vanua. Between 2001 and 2003, Terry Opa verbally suggested to Kali Ralewa and Leva Vuatha, both from the Public Curator’s Office, to purchase the property. He was asked to put his proposal in writing for consideration by the Public Curator, but never did so. He was asked to vacate the property on numerous occasions but he refused. In 2004, Mr. Ralewa instituted proceeding in the District Court (DCPP No. 328 of 2004) to evict Terry Opa, who produced a copy of the title over the property. This came as a surprise and shock to Mr. Ralewa, who then instructed staff of the Public Curator’s Office at Headquarters in Port Moresby to conduct a file search at the Department of Lands to ascertain the procedure used to obtain the title. The search revealed that most of the important documents were missing from the file.

5. In or about September 2008, Mr. Ralewa was informed by Peter Suluwan and Toby Vanua that Korry Michael has advised them to vacate the property as he had just purchased it and would be moving in shortly. On 2^nd October 2008,
Mr. Ralewa wrote to the Manager of Korry Security Services advising him that Terry Opa obtained the title over the property fraudulently and that he should not deal with him on the basis that Terry Opa cannot pass a valid title to him. Korry Michael admits receiving the letter. On 29^th December 2008, Korry Michael wrote to Peter Suluman advising him that the property is being registered in his name and that he should vacate the property within fourteen (14) days of the letter. On 19^th January 2009, Mr. Ralewa instituted proceeding DC No. 4 of 2009 in the Lae District Court to restrain Korry Michael and Korry Security Services from entering the property and interfering with the occupants. On 20^th January 2009, the restraining orders were granted by the District Court.

6. On 26^th March 2009, the District Court set aside the restraining orders, dismissed the entire proceeding and gave vacant possession to the defendants after an application by Posman Kua Aisi Lawyers on behalf of the defendants. On 27^th March 2009, Mr. Ralewa instructed Gamoga Lawyers to appeal the decision. On 2^nd April 2009, Gamoga Lawyers filed this appeal.

7. On 18^th May 2009, a copy of the purported contract for sale of land allegedly between the Public Curator for and on behalf of the late Percival Alfred Sheldon and a Terry Opa was discovered at the Department of Lands. This evidence was not available to the Public Curator when the District Court proceeding (DC No. 4 of 2009) and this appeal were filed.

The Law

8. The law on the reception of "fresh evidence" on appeal is settled in this jurisdiction. In The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386; Raphael Warakau v The State (1980) SC184; James Neap v. The Independent State of Papua New Guinea (1982) SC228; South Pacific Post v. Nwokolo [1984] PNGLR 38, the Supreme Court decided that the justifications for the reception of "fresh evidence" on appeal are:

"... first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible." Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All E.R. 745 at 748 quoted in Barker's case at 393.

9. This is sometimes called the Lord Denning’s test. Admitting fresh evidence is a matter for the court’s discretion. The discretion must be exercised with care and the ultimate object of the exercise is to reach a decision according to the truth and that the interests of justice require the fresh evidence to be admitted.

10. In the present case, I am satisfied that the three grounds of Lord Denning’s test have been met. It is clear that a file search was conducted in 2004 at the Department of Lands. A number of important documents including the purported contract were missing. Subsequently, a copy of the purported contract was mysteriously on the file and was found on 18^th May 2009. By operation of law, the property of a deceased person vests in the Public Curator until probate or administration is granted (see: s. 44 of the Wills, Probate and Administration Act; s. 14 of Public Curators Act). The Office of the Public Curator was unaware of the sale and never authorised the transaction. Mr. Ralewa has always maintained that the title produced by Terry Opa was obtained fraudulently. On 2^nd October 2008, he wrote to Korry Michael, who admitted receiving the letter, advising him not to deal with Terry Opa as he has no title to the land and could not pass a good title to anyone. Korry Michael has prior knowledge of Terry Opa’s defective title. I am also satisfied that the documents are credible and would affect the outcome of the trial and the appeal. The interests of justice require that they be admitted into evidence.

11. For all the above reasons, I grant leave to admit as "fresh evidence" on appeal the following documents: (i) the purported contract for sale of land allegedly between the Public Curator for and on behalf of the late Percival Alfred Sheldon and a Terry Opa; and (ii) the affidavit of Maike Zimike sworn and filed on 5^th August 2009. The respondents shall pay the appellant’s costs of this application.

__________________________________________

In House Lawyer: Lawyer for the Appellant
Posman Kua Aisi Lawyers: Lawyer for the Respondent s