Alfred Kimbu v Serah Eme Pakira and Others

• Jurisdiction: Papua New Guinea
• Judge: Manuhu J,David J,Anis J
• Judgment Date: 28 April 2023
• Neutral Citation: SC2387
• Citation: SC2387, 2023-04-28
• Counsel: Alice Kimbu, for the Appellant,Karen P. Nugi, for the First Respondent,Marilyn Saroa, for the Second Respondent
• Docket Number: SCA NO.93 OF 2022
• Hearing Date: 27 October 2022,28 April 2023
• Court: Supreme Court

SC2387

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO.93 OF 2022

Between:

Alfred Kimbu

Applicant

v.

Serah Eme Pakira

First Respondent

and

Credit Corporation Finance Limited

Second Respondent

Waigani: Manuhu J, David J & Anis J

2022: 27^th October

2023: 28^th April

PRACTICE & PROCEDURE — Objection to competency of appeal — Supreme Court Act, s.14(1)(c) — Supreme Court Rules, Order 7 Rule 9(c), 10 and 15 and Order 11 Rule 28, Order 13 Rules 1 and 15.

Cases Cited:

Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (1980) SC185

The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448

Patterson Lowa v Wapula Akipe [1991] PNGLR 265

Chris Haiveta v Paias Wingti & Others (1994) PNGLR 189

David Coyle v Loani Henao [2000] PNGLR 17

NCD Water and Sewerage Ltd v Sam Maskuman Tasion (2002) SC696

PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717

Gregory Puli Manda v Yatala Limited (2005) SC795

Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828

Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322

Jeffrey Turia v Gabriel Nelson (2008) SC949

Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962

Gigmae Taemae v MVIL (2011) SC1121

Talibe Hegele v Tony Kila (2011) SC1124

Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221

Joseph Nandali v Curtain Brothers Ltd (2012) SC1483

Public Curator of PNG v Konze Kara (2014) SC1420

Jimmy Lama v NDB Investments Ltd (2015) SC1423

Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431

Sylvester Kalaut v Royale Thompson (2015) SC1551

Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553

Tukuyawini Peter Philip v Manasseh Makiba (2018) SC1725

Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd (2018) SC1752

Vitolo v Mararea Land Group Incorporated (2020) SC2006

National Capital District Water & Sewerage Ltd (trading as Eda Ranu) v Yambaran Pausa Saka Ben Ltd (2023) SC2365

Counsel:

Alice Kimbu, for the Appellant

Karen P. Nugi, for the First Respondent

Marilyn Saroa, for the Second Respondent

Kimbu & Associates: Lawyers for the Appellant

Pang Legal Services: Lawyers for the First Respondent

In-house Lawyers: Lawyers for the Second Respondent

RULING

28^th April, 2023

1. BY THE COURT: INTRODUCTION: On 7 July 2022, the First Respondent, Serah Eme Pakira (the First Respondent) filed a notice of objection to the competency (the Objection) of an appeal filed by the Appellant, Alfred Kimbu (the Appellant) on 4 July 2022. The Second Respondent, Credit Corporation Finance Limited (the Second Respondent) supports the objection. The Appellant opposes the Objection.

EVIDENCE

2. Usually, all materials or documents to be relied on in an objection are contained in the Objection Book unless ordered otherwise. Only one affidavit is contained in the Objection Book and that is the affidavit of the First Respondent herself sworn on and filed on 7 July 2022. In the Appellant's submissions, he refers to his own affidavit sworn on 30 June 2022 and filed on 4 July 2022 as the affidavit to be used in response to the objection. Given that there was no serious objection from the respondents for the Appellant to use it, we grant leave for its use by the Appellant.

3. We have considered the evidence.

BRIEF BACKGROUND FACTS

4. The background facts are not disputed. The First Respondent is the registered proprietor of all that property described as Allotment 56 Section 48, Hohola (North Waigani), National Capital District and contained in State Lease Volume 23 Folio 5539 (the Property). The Property was mortgaged by the First Respondent to the Second Respondent as security for a loan obtained by the First Respondent from the Second Respondent. Sometime in 2020, the First Respondent and the Appellant verbally agreed that; first, the Appellant would purchase the Property from the First Respondent as the latter was behind in her loan repayments to the Second Respondent; and secondly, the Appellant would assist with the repayment of the First Respondent's loan with the Second Respondent and subsequently purchase the property in full (the Verbal Agreement). In July 2020, upon payment of the sum of K44,000.00 to the respondents, but without first settling in full the purchase of the Property from the First Respondent, the Appellant moved into the Property. On 23 April 2021, the Second Respondent, as mortgagee, advertised the Property for sale as the First Respondent had defaulted in her loan repayments and the Appellant successfully bid to purchase the Property for K660,000.00. On 4 May 2021, the Second Respondent sent a letter of offer to the Appellant which, among others, required him to pay a 10% deposit within 24 hours and to pay the balance of the purchase price within 14 days after that. The Appellant did not meet the Second Respondent's requirements.

5. The Appellant then filed proceedings WS 200 of 2021, Alfred Kimbu v Sera Eme Pakira and Credit Corporation Finance Limited (the National Court proceedings) seeking orders that; he and the First Respondent had the Verbal Agreement which was lawful; the Second Respondent recognize and give effect to the Verbal Agreement; and that he be allowed to settle the First Respondent's outstanding loan with the Second Respondent and then fully purchase the Property. The First Respondent contended that she terminated the Verbal Agreement with the Appellant because the Appellant did not make the full payment for the purchase of the Property and she wanted the Appellant to vacate the Property. The Second Respondent, on the other hand, argued that the Appellant did not meet the terms of the mortgagee sale and therefore in October 2021 withdrew the sale and requested the Appellant to vacate the Property in early November 2021. On 29 November 2021, the parties entered into consent orders that; the Appellant pay K483,999.00 to the Second Respondent by or before 13 December 2021; if the Appellant defaulted, the deposit paid by the Appellant to the Second Respondent would be refunded and the Appellant give vacant possession to the Second Respondent as mortgagee; and the National Court proceedings would then stand discontinued against the Second Respondent.

6. The Appellant contended that the National Development Bank had granted him finance to finalise his agreement with the Second Respondent, but as the First Respondent had terminated the Verbal Agreement, the Second Respondent refused to conclude the agreement with him.

7. There are fourteen grounds of appeal set out at paragraph 3 of the Notice of Appeal and they are restated verbatim below:

“3.1 The learned trial judge erred in law and in fact in perfecting the orders of 29^th November, 2021 in the terms of those orders when the very orders of 29^th November, 2021 had in fact been extended and its terms varied several times including on 11^th May 2022 and therefore, that the exact terms of the orders of 29^th did not exist for the Appellant to breach.

3.2 The learned trial judge erred in law and in fact in perfecting the orders of 29^th November 2021 in the terms of those orders when the vary (sic) orders of 29^th November, 2021 had been extended and its terms varied several times including on 11^th May, 2021 and therefore, that the subsequent orders including the orders of 11^th May, 2022 that extended and varied the orders of 29^th November, 2021 and its varied terms superseded the orders of 29 November, 2021 and its terms.

3.3 The learned trial judge erred in law and in fact in dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29^th November, 2021 when the very orders of 29^th November, 2021 had been extended and its terms varied several times including on 11^th May, 2022 and therefore, that the Appellant was not in breach and/or could not be in breach of the orders of 29^th November, 2021 and its terms.

3.4 The learned trial judge erred in law and in fact dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29^th November, 2021 when the very orders of 29^th November, 2021 had been extended and its terms varied several times including on 11^th May, 2022 and that the subsequent orders that extended and varied the orders of 29^th November, 2021 and its terms including the orders of 11^th May, 2022 superseded the order of 29^th November, 2021 and its terms and therefore, that the Appellant did not and/or could not have breached the orders of 29^th November, 2021.

3.5 The learned trial judge erred in law and in fact in dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29^th November, 2021 as there was sufficient evidence before the Court confirming that the Appellant complied with the orders of 29^th November, 2021 and its terms as well as the subsequent orders of the Court made subsequent to the orders of 29^th November, 2021 including the orders of 11^th May, 2022 and that where there was a delay in the compliance of any of these orders at any one time, that there was sufficient explanation before the Court explaining or justifying such a delay and/or non-compliance.

3.6 The learned trial judge erred in law [in] dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29^th November, 2021 without first making a formal finding on whether or not the Appellant had in fact breached the Court orders of 29^th November, 2021.

3.7 The learned trial judge erred in law [in] dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29^th November, 2021 without first setting aside the...