SC1358

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 101 OF 2011

BETWEEN:

TOALE HONGIRI INCORPORATED LAND GROUP
First Appellant

AND:
TIASAPI INCORPORATED LAND GROUP
Second Appellant

AND:

SOUWOLO INCORPORATED LAND GROUP
Third Appellant

AND:

SOUWOLO HAPOROPAKE INCORPORATED LAND GROUP
Fourth Appellant

AND:
WOLOTOU INCORPORATED LAND GROUP
First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:

RENDLE RIMUA IN HIS CAPACITY AS ACTING SECRETARY OF PETROLEUM AND ENERGY
Third Respondent

AND:
MICAH PITPIT – COMMISSIONER LAND TITLES COMMISSION
Fourth Respondent

AND:

LUHALIPU INCORPORATED LAND GROUP
Fifth Respondent

AND:

ASE TIPURUPEKE INCORPORATED LAND GROUP
Sixth Respondent

Waigani: Manuhu, Gabi, Sawong, JJ. 2013: 27th June
2014: 4 July

PRACTICE AND PROCEDURE – Appeal against consent orders – Fresh evidence to show lack of authority to obtain consent orders – Relevant principles.

Cases cited

Tamara Player Tomscoll v The State (2012) SC1208 Jimmy Ono v The State (2002) SC698.

Counsel

J. Haiara, for the First and Second Appellants, M. Miva, for the First Respondent, P. Ame, for the Fifth and Sixth Respondents.

4th July, 2014

1. MANUHU, J.: This is an application by the first and second appellants (the applicants) to adduce fresh evidence made pursuant to Order 7 Rule 55 of the Supreme Court Rules. The application is supported by the affidavit of Jason Tirime sworn on 3rd November 2011 and filed on 4th November 2011.

2.	The substantive matter is an appeal against orders of the National Court made on 24th August 2011 by consent. The consent orders basically formalized the result of mediation into the Gobe Oil Development Area known as PDL 3 and 4. It was also ordered, by consent, that the parties return to Court on 13th September 2011 with their benefit sharing agreement. 

3.	The nature of fresh evidence in question is described in Tirime's affidavit. The applicants would like to include in the appeal, as fresh evidence, the following affidavits:

(a)	Jason Tirime – sworn and filed on 5th and 6th of September 2011 respectively, 
(b)	Jason Tirime – sworn and filed on 10th and 11th October 2011 respectively, 
(c)	Paul Sapake sworn and filed on 20th and 21st September 2011 respectively, 
(d)	James Siai Wamo – sworn and filed on 19th September 2011, 
(e)	Ken Sale – sworn and filed on 19th September 2011, 
(f)	Joshua Turaha sworn and filed on 19th September 2011, 
(g)	Henry Bosi – sworn and filed on 20th and 21st September 2011 respectively, 
(h)	Nelson Yekili – sworn and filed on 20th and 21st September 2011 respectively.

4.	It was deposed by Tirime that these affidavits would show that the applicants did not authorize Ame Lawyers to obtain the consent orders.

5.	The issue therefore is whether affidavit evidence on lack of authority to obtain consent orders is fresh evidence.

6.	Fresh evidence is defined in the Supreme Court case of Jimmy Ono v The State (2002) SC698 as "evidence not available at the time of the trial and that could not be secured at the time of the trial with the exercise of reasonable care." In the Supreme Court case of Tamara Player Tomscoll v The State (2012) SC1208, the Court said:

"By fresh evidence, as referred to in s 6 (1) of the Supreme Court Act, what is meant is relevant and material evidence which the party applying could have led at the trial or hearing, which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since the hearing or trial which could not by reasonable means have come to his knowledge before that time: John Peng v The State [1982] PNGLR 331, Abiari v The State [1990] PNGLR 250, James Pari v The State [1993] PNGLR 173, Rawson Construction Ltd v Department of Works (2005) SC777 and Ben Kairu v The State (2005) SC782."

7.	On the basis of these authorities, I am of the view that the application is misconceived. The matters in the affidavits are not fresh evidence because, in the first instance, the National Court did not hear and consider any evidence. The applicants would like the Court to believe that there was an ex parte hearing when in fact, there was no hearing or trial. The orders in question were consent orders endorsed by the court below upon being satisfied that all the preconditions have been met – that all the parties have agreed. There is, therefore, no material or evidence before this Court against which fresh evidence can be adduced.

8.	The eight affidavits in question are suitable in an application to set aside a consent order if the applicants' had moved that application. The transcript of the proceeding of 13th September 2011 shows that counsel for the applicants indicated to the trial Judge that he would make an application to set aside the consent orders. The response from the trial Judge was negative. 

9.	As of 21st September 2011, the affidavits in question had been filed but counsel, discouraged by the trial Judge's negative response, did not make any formal application to set aside the consent orders. A formal refusal, if appealed against, would have enabled this Court, in its appellate jurisdiction, to consider and review the affidavits in question. 
 
10.	The application is therefore misconceived in that the evidence to be adduced through the eight affidavits is not fresh evidence. The application is accordingly dismissed with costs.

11.	GABI, J.: I concur with my brother Manuhu, J. I would dismiss the application with costs as well.

12.	SAWONG, J.: I agree with the reasons given by my brother Manuhu, J. I have nothing further to add.	
___________________________________________________________

Steeles Lawyers: Lawyer for the First and Second Appellants
Moses Miva Lawyers: Lawyer for the First Respondent
Ame Lawyers: Lawyer for the Fifth and Sixth Respondents