SC1936

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 95 OF 2019

BETWEEN:
WAUWA K LIMITED
Applicant

AND:
BANK OF SOUTH PACIFIC LIMITED
First Respondent

AND:
TRAVELLORS INN LIMITED
Second Respondent

Waigani:   Salika, CJ
2019:   11th December
2020:   31st March
			
SUPREME COURT – Practice and Procedure – Application for leave to appeal on question of fact alone – Section 14(1)(5) of Supreme Court Act.

Cases Cited:
Papua New Guinea Cases

O’Neil v Eliakim [2016] PGSC 40; SC 1524
Wawoi Guavi Timber Company Ltd v Ken Norae Mondia (2007) SC 1028
Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz (1975) PNGLR 262
Henganofi Development Corporation Ltd v Public Officers Superannuation Fund Board (2010) SC 1025
Sidi Adevu v MVIT (1994) PNGLR 57
The City Administrator v Yambaran Pausa Saka Ben Ltd (2009) SC965

Overseas Cases

British Launderer’s Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All ER 21

Counsel:

Mr E Issac, for the Applicant 
Nil appearance for the Respondent

31st March, 2020

1. 	SALIKA CJ: INTRODUCTION: This is an application for leave to appeal the whole of the decision of the National Court made in proceedings WS 2 of 2017 given on 27 June 2019 in Waigani.  This application was filed on 31 July 2019.
2. 	The decision on that date refused to grant the reliefs sought by the applicant in the proceedings commenced by writ of summons.
3. 	Leave is required pursuant to s.14 (1)(c) of the Supreme Court Act as the appeal lies on questions of fact only.
EVIDENCE
4. 	The applicant relies on the following evidence:-
(a)	Affidavit of Wale Bulu filed on 24 September 2019
(b)	Affidavit of Wale Bulu filed on 3 December 2019
(c)	Affidavit of Wale Bulu filed on 5 December 2019.
5. 	The respondents were served copies of the application and the date of the hearing but did not attend the Court on the date of the hearing of the matter.  The Court was shown the affidavits of service on the respondents and upon being satisfied that they had been served documents pertaining to the hearing of the matter today,  I decided to hear the application without the presence of the respondents.
BACKGROUND FACTS
6. 	The Plaintiff is a company incorporated in 2010 of which Wale Bulu is a director.  Although he described it as a landowner company, Wale Bulu and his brother are the only shareholders, and he is the sole signatory on the company’s bank account with Bank South Pacific, Account Number 1002486635, domiciled at the BSP Haus Branch, Harbour City, BSP held Wale Bulu’s photo and specimen signature on file.
7. 	On 30 November 2016 in proceedings on OS 258 of 2016 to which Wale Bulu and the plaintiff were parties, the Court made orders by consent whereby Wale Bulu and the plaintiff were the “lead agents for the PDL 7 landowners”.   The State was to pay K4 million into the plaintiff’s BSP account.  Wale Bulu and the plaintiff were to immediately pay half of that amount namely, K2 million to Pambai Holdings Ltd, and to “provide acquittals and evidence of payments being shared with the landowners of PDL 7”, for their land compensation claim.
8. 	On being served with this Order by Pambai Holdings Ltd, and after obtaining advice from the BSP Legal Tam, BSP placed a restriction on all debits from the plaintiff’s account, to ensure compliance with the terms of the Court Order.  The plaintiff criticized this as being unnecessary when there was no Order for BSP to do this.  However, it is clear that experience has shown BSP that it is better to err on the side of caution, than to risk being charged with being in contempt of Court orders.
9. 	On 8 December 2016, the State issued a cheque for K4 million payable to the plaintiff.  The accompanying letter from the State said that the payment was pursuant to the Court Order.  Wale Bulu paid this cheque into the plaintiff’s bank account, and it was credited into the account on 13 December 2016.  
10. 	On 12 December 2016, Wale Bulu signed a letter on the plaintiff’s letterhead, addressed to BSP at the Harbour City Branch.  This letter said in vague terms that cheque number 0101 – 158 had “gone out” to people “in the pretext of service providers” without the plaintiff’s authorization and requested that the cheques not be processed (“the dishonour letter”).
11. 	According to Wale Bulu, he attended the bank on 12 December 2016 and gave the cheque for K4 million to be deposited, together with the dishonour letter, to Martin Kilage. 
12. 	According to Mr Kilage, Wale Bulu attended at the Port Moresby Premium Branch of BSP in Town on 13 December 2016 and gave him the cheque and letter.  Wale Bulu was not a Premium Branch customer but had entered with a group of landowners who were Premium Branch customers.  Mr Kilage said that after reading the letter, he gave it back to Wale Bulu and informed Wale Bulu that because the Plaintiff’s account was domiciled at the BSP Haus Branch, Harbour City, he would have to present his letter to them at that branch, and that Mr Kilage could not act on it.  He said that the BSP Haus Branch, Harbour City was not far away, in Konedobu.
13. 	Wale Bulu did not either plead or give evidence that he delivered the dishonour letter to the BSP Haus Branch, Harbour City and it was an Agreed Fact No. 22 in the Statement of Agreed and Disputed Facts that it was not delivered.
THE LAW
14. 	Section 14(1)(c) of the Supreme Court Act says:
“14.  CIVIL APPEALS TO THE SUPREME COURT.
(1)	Subject to this section, an appeal lies to the Supreme Court from the National Court-
(c)	with the leave of the Supreme Court, on a question of fact.”
15. 	The purpose of application for leave has been sufficiently stated by the Courts and is now trite law.  The Supreme Court in O’Neil v Eliakim said:    
“The requirement of leave is designed to filter out applications or intended substantive appeals which are groundless or hopeless at the early stage.”
16. 	I adopt that above statement of the law as to the purpose of leave applications as restated by the Supreme Court, with respect.
17. 	As to whether to grant or not to grant the application for leave to appeal is a matter of discretion of the Court.  The Supreme Court in Wawoi Guavi Timber Company Ltd v Ken Norae Mondia (2007) SC 1028 said:
“The grant or refusal of leave to appeal is of course discretionary.  The main test is whether the applicant has shown that there is a prima facie case or an arguable case that the decision was wrong, and that substantial injustice will be done by leaving the erroneous decision un-revisited or unrevised on appeal. The court is not determining the merits of the appeal itself.  It will suffice if the Court is persuaded that the proposed appeal raises issues of law or mixed fact and law which are fairly arguable and require judicial discretion.”
18. 	The applicant here seeks leave of the Court to appeal on questions of facts only.  What is a question of fact only or put another way what does a question of fact entail or what constitutes a ground on a question of fact.  The Supreme Court in Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz (1975) PNGLR 262 at 270 cited with approval the following passage from British Launderer’s Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All ER 21:
“Where primary facts are found (which cannot be challenged on appeal except by leave of the Court) the question of law is what is the proper conclusion to be drawn from those facts.  It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law.  See Edwards (Inspector of Taxes) v Bairstow and Another (1956) A.C. 1413; Instrumatic Ltd v Supabrase Ltd (1969) 1 W.L.R. 51914.  I cannot see anything in the circumstances of this country that would render these principles inapplicable.  I adopt them as part of the underlying law (Schedule 2.2 of the Constitution).”
19. 	The same above passage was again cited with approval by the Supreme Court in Henganofi Development Corporation Ltd v Public Officers Superannuation Fund Board (2010) SC 1025.
20. 	Lord Denning was cited by Prentice DCJ in Whagi Savings and Loans Society Ltd v Bank South Pacific Ltd (1980) SC185.  Lord Denning said:
“What are questions of fact and law are difficult to determine.  On this question Lord Denning said:
On this point it is important to distinguish between primary facts and the conclusions from them. 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.  The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them.  If and in so far as those conclusions can as well be drawn by a layman (properly instructed no the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction on point of law and whether the conclusion is one which could reasonably be drawn from the primary facts.  …If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination by a trained lawyer – as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer – the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of the first instance.”
21. 	I am indebted to counsel for assisting me by citing this case authority.  The Courts in PNG have been using the same above principles to distinguish between what are questions of fact and what are questions of law.  That passage was also quoted by the Supreme Court in Sidi Adevu v MVIT (1994) PNGLR 57 and the City Administrator v Yambaran Pausa Saka Ben Ltd (2009) SC 965.
SHOULD LEAVE BE GRANTED
22. 	In this case the factual background has been canvassed earlier in the judgment.  The issues raised in this leave application raise issues of negligence and fraud and to me with respect are legal issues or issues of law.  In jurisdictions with juries’ issues of fact are for the jury to determine while the Courts determine issues of law.  In PNG, the Courts perform both functions.
23. 	Having set out all those principles, the issues raised in this leave applications with respect are not only issues of fact but also of law.  Therefore, on that basis the matters raised fall under Section 14(1)(b), that is on questions of mixed fact and law for which no leave is required.
24. 	Accordingly, the application for leave to appeal is refused.
25. 	Each party to bear their own costs.
___________________________________________________________
Emmanuel Lawyers: 	Lawyers for the Applicant