SC2425

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 40 OF 2021 (IECMS)

BETWEEN:
PALDIR COMMUNITY SERVICES
DEVELOPMENT LIMITED
First Appellant

AND:
ROBERT POSU
Second Appellant

AND:
PETKOL TRADING LIMITED
First Respondent

AND:
ROMILY KILA PAT
Secretary Department of Lands and Physical Planning
Second Respondent

AND:
BENJAMIN SAMSON
Acting Registrar of Titles
Third Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J, Bona J, Liosi J
2023: 27th April, 4th July

SUPREME COURT – practice and procedure - Application to adduce fresh evidence

Cases Cited:
William Chilen v. The State (2011) SC1099

Counsel:
J. Sioni, for the Appellants
L. Tangua, for the First Respondent
C. Bua, for the Second, Third and Fourth Respondents

4th July, 2023

1. BY THE COURT: This is a decision on a contested application made by the appellants to adduce fresh evidence. The application is made pursuant to Section 6(1)(a) Supreme Court Act.

Background

2. The first respondent filed judicial review proceedings in the National Court seeking declaratory orders to resolve issues involving two state leases. These were issued to the first respondent and the first appellant on two different occasions over land described as State Lease Allotment 23, Section 22 Vol 09 Folio 215 Mendi SHP.

2. This appeal is from the trial judge’s decision of 20th July 2021. The trial judge found that the first respondent’s title was correctly issued in law and consequently made orders for the Secretary for Lands and Physical Planning and the Registrar of Titles to rectify their records to reflect the findings of the Court.

3. The Appellants being aggrieved, filed this appeal. Pending the hearing of the substantive appeal the appellants filed this application seeking to adduce fresh evidence.

4. The appellants seek to adduce fresh evidence in the form of a letter from Lane Lawyers representing Allestree No. 10 Ltd (Allestree) to the Registrar of Companies dated 24th February 2022 and attached to the affidavit of Robert Posu sworn 16th March 2023.

The Law

5. In William Chilen v. The State (2011) SC1099 the Court at [3] stated:

“3. By fresh evidence, as referred to in s. 6 (1) (a) 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 that 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.”

6. The relevant criteria for an application to adduce fresh evidence has been discussed and applied in numerous cases including Peng v State (supra). There are four prerequisites to admitting fresh evidence and they are: was the evidence not available at trial; is the evidence relevant to the issues; is the evidence credible and whether the court would have come up with a different decision if this evidence was available at the court below.

Consideration

7. As to whether the evidence is fresh, the evidence sought to be adduced is a letter dated 24th February 2022 purportedly written by Mr. Tony Noki, the principal of Lane Lawyers. The substantive hearing of the proceedings in the National Court was concluded around June 2017 in Mendi, Ialibu. The decision was handed down on or around 20th July 2021. Clearly the letter sought to be adduced was written after the trial and hence could not have been available to the court below.

8. Some of the purported evidence contained within the said letter is not fresh. For instance, the purported holding of a joint tenancy by Allestree was referred to by the primary judge in his reasons for judgment.

9. As to whether the evidence is relevant to the issues, the issues before the National Court were agreed between the parties in a statement of agreed and disputed facts and issues for trial. There is no mention of Allestree in these agreed issues. Allestree was not a party to the National Court proceeding and no relief was sought concerning or affecting Allestree. The State Lease pursuant to which Allestree purportedly claims title was cancelled on 17th February 2009. This is not in dispute. Further, any claim Allestree may have against amongst others, the Registrar of Companies would appear to be precluded by s. 16 Frauds and Limitations Act. To our minds, the said letter and the evidence contained therein is not relevant to the issues that were before the National Court and therefore now, the Supreme Court.

10. As to the credibility of the evidence, that the said letter was produced after the trial was concluded, that it is in the possession of a party whom the National Court found against and if the evidence in the letter is accepted, it adversely affects the title of a company which is owned by that party and that the letter is written purportedly on behalf of a company which took no action to enforce its rights for about 15 years, are all pertinent factors for consideration.

11. In regard to whether the National Court would have come to a different decision if the evidence sought to be adduced was available to that National Court, for the above reasons and given that the National Court did refer to and consider the purported title of Allestree, we are of the view that it is unlikely that the National Court would have come to a different decision.

12. As to whether the justice of the case warrants the said evidence to be adduced, again for the above reasons we are not satisfied that it has been made out that such evidence should be allowed to be adduced.

Orders

a)	The application filed 17th March 2023 of the appellants is refused.

b)	The appellants shall pay the respondents’ costs of and incidental to the 	said application on a party/party basis to be taxed if not otherwise agreed.

________________________________________________________________
Twivey Lawyers: Lawyers for the Appellants
Tangua Lawyers: Lawyer for the First Respondent
Solicitor General: Lawyer for the First, Second and Third Respondents