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Kopaol v Steamships Ltd [2020] PGSC 123; SC2033 (24 November 2020)

SC2033

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 107 OF 2020

BETWEEN
ROBERT KOPAOL
Appellant

AND
STEAMSHIPS LIMITED
First Respondent

AND
BENJAMIN SAMSON REGISTRAR OF TITLES
Second Respondent

AND
THE NATIONAL HOUSING CORPORATION
Third Respondent

Waigani: Makail J
2020: 12^th & 24^th November

SUPREME COURT – Practice & Procedure – Application for leave to appeal – Leave sought to appeal questions of fact – Whether proposed grounds raised questions of fact – Supreme Court Act – Section 14 (1) (c)

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases Cited:

British Launderer’s Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 ALL ER 21

Counsel:

Mr. S. Wanis, for Appellants
Ms. G. Nigs, for the First Respondent
Mr. J. Bakaman, for the Second Respondent
Mr. D. Tol, for the Third Respondent

24^th November, 2020

INTERLOCUTORY RULING

1. MAKAIL J: The appellant seeks leave to appeal questions of fact from the whole of the judgment of the National Court given on 4^th September 2020 at Waigani in proceeding OS. No. 60 of 2014 (CC2): Steamships Limited v. Robert Kopaol and Benjamin Samson & National Housing Corporation. Leave is required under section 14 (1)(c) of the Supreme Court Act.

2. The National Court proceeding related to a dispute over the ownership of a property described as Allotment 7, Section 33, Granville, Port Moresby (property). The third respondent (NHC) was the original proprietor of the property located in a prime location in Port Moresby at Ela Makana overlooking Koki and Ela Beach. It is currently vacant.

3. The first respondent claimed it was the legitimate title holder of the property while the appellant also, claimed he was. Both parties alleged fraud against each other in collusion with the second respondent. The first respondent claimed it bought it from a Sir Tore Lokoloko. The NHC claimed it did not sell or give the property to Sir Tore, but it transferred it to the appellant.

4. After a trial, the National Court held that the property was given by the NHC to Sir Tore as a free gift based on a government decision made sometimes in 1991. The NHC had no title to give to anyone else including the appellant. On this basis, the Court further held that Sir Tore lawfully transferred the property to the first respondent. It upheld the first respondent’s title.

5. Based on the grounds pleaded in the application for leave the appellant argued that leave is required to appeal the finding of fact that Sir Tore was the title holder of the property after being given the property as a fee gift from the government in 1991 on the following proposed grounds:

1. It was not pleaded by the first respondent that Sir Tore was given the property as a free gift in the further amended statement of claim filed 5^th March 2015.
   
2. The question of validity of the gift was not one of the questions agreed between the parties for consideration in the statement of agreed and disputed facts.
   

100. The National Court heavily relied on the, more than 20 years old, verified list of hearsay documents such as letter and gazettal notices that were in custody of and produced by the NHC through discovery notices given by the first respondent to conclude that the property was given to Sir Tore as a free gift and he sold it to the first respondent.
     

4. A claim based on Sir Tore’s title is statue-barred under section 16(1) of the Frauds and Limitation Act, 1988.
   
5. The title of the first respondent based on an undated contract of sale between it and Sir Tore has no retrospective effect given a proprietary right that was either lost by Sir Tore or did not exist from 1991 to 2013.
   
6. There is no evidence of a State Lease registered in favour of Sir Tore pursuant to the Land Registration Act.
   
7. Sir Tore is guilty of acquiescence when he failed to file legal proceeding against NHC’s offer on 7^th January 2008, the NHC cancelled the contract of sale between him and NHC.
   
8. The actions by Sir Tore to enter into a contract of sale with the NHC on 24^th February 1997 and another on 2^nd June 2008 and later was cancelled by the NHC and failed to pay the purchase price is a confirmation that he is guilty of acquiescence.
   
9. There was evidence from the NHC through Bugave Gabina (General Manager of Property) Johan Sasingian (Principal Legal Officer), Edward Oropa (Conveyancing Manager) and Paul Asakusa (Former Managing Director) that the NHC did not transfer the property to Sir Tore.
   
10. There was no consent from either party for tender of affidavits at trial.
    
11. There was no evidence of the NHC applying for a replacement owner’s copy of title.
    

50. There was evidence from the NHC that the title of the property was transferred by the NHC to the appellant.
    

6. Summarising what Lord Denning MR said, in relation to ascertaining questions of fact and questions of law in British Launderer’s Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 ALL ER 21:

“Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact and the only question of law that can arise on them is whether there was any evidence to support the finding.........”

7. I address each proposed ground as set out in the chronological order at [5 (a) - (l)] below:

1. Under this proposed ground, the requirement to plead that Sir Tore was given the property as a free gift by the government in the further amended statement of claim is a legal requirement. To plead or failure to plead it is a question of fact. Put both together and this proposed ground raises a question of mixed fact and law.
   
2. As to this proposed ground, it is a legal requirement to file a statement of agreed and disputed facts and issues for trial because it is prescribed by the National Court Rules. The question whether it is a legal requirement under the National Court Rules for parties to file a statement of agreed and disputed facts and issues for trial is a question of law. If the appellant is arguing that the parties did not agree that the question of validity of the gift was not one of the questions pleaded in the statement of agreed and disputed facts and issues for trial, it raises a question of fact. The question of fact is whether parties agreed to include the question of validity of the gift in the statement of agreed and disputed facts and issues for trial. Put these two questions together and this proposed ground raises a question of mixed fact and law.
   

100. This proposed ground does not allege that the applicant is disputing the existence of such documents as letters and gazettal notices held by the NHC but their reliance by the National Court to support the finding that the property was given as a free gift to Sir Tore. This is a question of mixed fact and law. In addition, if the appellant is alleging that these documents are hearsay, it raises a question of law, it being whether the documents are admissible evidence for the Court to accept and find a favour of the first respondent that the property was given as a free gift to Sir Tore.
     

4. This proposed ground is based on the defence of the action being statute-barred. The law under section 16(1) of the Frauds and Limitation Act is six years. The computation of the six years will require the Court to look at the time the alleged cause of action accrued to the date of filing of proceeding. Based on the computation a finding will be made if the cause of action was filed within six years. If not, it will be statute-barred. The proposed ground raises a question of mixed fact and law.
   
5. In relation to this proposed ground, the observation by the National Court in relation to an undated contract of sale is a question of fact and the question of retrospectivity of Sir Tore’s entitlement to the property is a question of law. Whether that entitlement to the property accrued in 1991 or 2013 is a question of mixed fact and law. All up, this proposed ground raises a question of mixed fact and law.
   
6. As to this proposed ground, a registered proprietor holds a title free of any encumbrances under Section 33 of the Land Registration Act. This is legal position. A document in the form of a State Lease is proof of the registered proprietor’s title. A finding that Sir Tore is the registered proprietor of the property without a State Lease being tendered in evidence raises a question of mixed fact and law.
   
7. In relation to this proposed ground, the question of acquiescence raises a question of mixed fact and law because the doctrine of acquiescence is an equitable principle applied by the Court against a person who has slept on his right, so to speak. It raises a question of law. Whether Sir Tore slept on his right to challenge the NHC to be given title to him is a question of fact. All up, this proposed ground raises a question of mixed fact and law.
   
8. This proposed ground raises the question of acquiescence. For the same reasons given in the proceeding sub-paragraph (g) it raises a question of mixed fact and law.
   
9. As to this proposed ground, the appellant is challenging the National Court’s assessment of the evidence of the NHC’s witnesses. However, he does not state why the evidence was better than the evidence of the first respondent and should have been accepted by the Court. It is vague and does not identify the question for determination.
   
10. As to this proposed ground, rules of evidence, and practice and procedure allow parties to adduce evidence in a number of ways. Evidence by affidavit may be tendered by consent with or without cross-examination of the deponent or, orally. This is a question of law. Whether affidavits were tendered by consent or not and witnesses cross-examined or not is a question of fact. Combine both questions according to how this ground pleaded and it raises a question of mixed fact and law.
    
11. In relation to this proposed ground, the Land Registration Act makes provision for replacement titles: Section 162. Replacement titles are common where the owner’s copy is lost. This is a question of law. Where an allegation is made that there is no evidence to establish that the NHC applied for a replacement title, it raises a question of fact. Put both questions together and the proposed ground raises a question of mixed fact and law.
    

50. As to this proposed ground, the question of transfer of title is a legal one and the act of transferring it raises a question of fact. Combine both and this proposed ground raises a question of mixed fact and law.
    

8. Given that the proposed grounds raised questions of mixed fact and law, leave is not required. There were other submissions made by parties but will not be addressed. It follows that the application for leave to appeal will be dismissed with costs to the first respondent, to be taxed, if not agreed.

Ruling and orders accordingly.
________________________________________________________________
Solomon Wanis Lawyers: Lawyers for Appellant
Dentons Lawyers: Lawyers for First Respondent
Solicitor General Lawyers: Lawyers for Second Respondent
In- House Lawyer: Lawyers for Third Respondent