1993

PNG Law Reports 1993

[1993] PNGLR 1 - Imambu Alo v MVIT 

[1993] PNGLR 1

SC443

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IMAMBU ALO

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Woods Andrew Sakora JJ

28 May 1993

30 June 1993

APPEALS - Practice and Procedure - Leave to appeal - On question of fact - Grounds of appeal relate to question of fact - Leave not sought - Notice of appeal defective - Appeal struck out.

Facts

The facts are adequately stated in the judgment.

Held

A notice of appeal containing grounds of appeal which specify questions of law, questions of mixed law and fact, and questions of fact alone should indicate specifically that leave is being sought in respect of the questions of fact.

Cases Cited

Chief Collector of Taxes v Folkes [1981] PNGLR 58.

Kunangel v The State [1985] PNGLR 144.

Counsel

D Lambu, for the appellant.

A Kandakasi, for the respondent.

30 June 1993

WOODS ANDREW SAKORA JJ: The appellant appealed against the judgment of the National Court given at Wabag in December 1992 whereby the appellant's claim for damages was dismissed. The respondent filed an objection to the competency of this appeal on the basis that the appellant's grounds of appeal involved questions of both fact and law and no application for leave has been filed, as is required where appeals include questions of fact; s 4(2) of the Supreme Court Act.

Whilst there are cases where judges have said that they had difficulty in deciding whether a question is one of fact or of law, in the case before us now, a perusal of the grounds of appeal shows that most of the grounds are raising pure questions of fact, even though the questions are raised using the words "erred in fact and law". The remaining grounds would require the Supreme Court to have reassessed or reweighed the facts first.

Ground (a) is purely questioning the finding that there was no evidence of the motor vehicle being registered and insured at the time of the accident. The appellant is asking the Supreme Court to re-assess that evidence or lack of it; this is a question of fact, for which leave is required.

Ground (b) is questioning the judge's assessment of the evidence of the driver and the policeman which led the judge to conclude that the motor vehicle was not registered and insured. The appellant is asking the Supreme Court to assess the evidence of the two witnesses. This is not a question of law, and this requires leave.

Ground (c) uses the words "misdirected himself" in questioning the evidence of the driver and policeman. There is no legal principle here; it is purely a matter of weighing the evidence, and this is a question of fact, for which leave is required.

Ground (d) is questioning the judge's weighing of the evidence of the official police accident report. Again, this is not a question of law but an assessment of the facts, for which leave to appeal is required.

Ground (e) challenges the judge's findings on whether the vehicle was registered and insured when, it is claimed, that fact had to be found in the plaintiff's favour because the defendant had not specifically traversed that in the pleadings. This may be a question of law, but the fact of whether the vehicle was registered and insured is fundamental to the whole claim, so it still becomes a matter dependent on the evidence before the judge, the findings of facts made by the judge.

Grounds (f) and (g) challenge the judge's interpretation of s 54 of the Motor Vehicles Insurance (PNG) Trust Act. Whilst questions of law, they depend on the finding of fact as to the insurance and registration of the vehicle, which would depend on the Supreme Court's reassessment of the nature of the basic facts first.

The grounds of appeal here are, in essence, asking the Supreme Court to reassess the facts that were before the judge. This is completely different to the appeal in the case Chief Collector of Taxes v Folkes [1981] PNGLR 58, where the matters raised as to whether certain sums of money were assessable income depended on the construction of the word "income" in income tax law and, thus, were questions of law.

The court has ruled quite clearly in the case Kunangel v The State [1985] PNGLR 144 that a notice of appeal containing grounds of appeal which specify questions of law, questions of mixed law and fact, and questions of fact alone should indicate specifically that leave is being sought in respect of the questions of fact.

The failure to seek leave means the notice of appeal is defective. The appellant has failed to approach this Court correctly. If the parties omit important steps and fail to comply with the rules, then that is the end of the matter.

We strike out the notice of appeal.

Lawyer for the appellant: D Lambu & Associates.

Lawyer for the respondent: Young & Williams.

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