COVEC (PNG) Ltd v Peter Kama representing himself and for and on behalf of Damin Kamin Clan of Kumai Tribe of Kup, Kerowagi District, Simbu Province (2020) SC1961

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ
• Judgment Date: 01 June 2020
• Court: Supreme Court
• Citation: (2020) SC1961
• Docket Number: SCA No 16 of 2017
• Year: 2020
• Judgement Number: SC1961

Full Title: SCA No 16 of 2017; COVEC (PNG) Ltd v Peter Kama representing himself and for and on behalf of Damin Kamin Clan of Kumai Tribe of Kup, Kerowagi District, Simbu Province (2020) SC1961

Supreme Court: Kandakasi DCJ

Judgment Delivered: 1 June 2020

SC1961

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 16 OF 2017

BETWEEN:

COVEC (PNG) LIMITED

Appellant

AND:

PETER KAMA representing himself and for and on behalf of DAMIN KAMIN CLAN of KUMAI TRIBE OF KUP, KEROWAGI DISTRICT, Simbu Province

Respondents

Waigani: Kandakasi DCJ

2020: 04th May

01st June

EVIDENCE – By affidavit – affidavits must contain only facts – not submissions, arguments or opinions of the deponent except only for expert evidence – deponent depositing legal advice, opinions and arguments or submissions – hearsay – Not facts – offending paragraphs struck out.

PRACTICE & PROCEDURE – Slip rule application – amendment of – Order 11, r. 11 of the Supreme Court Rules – application file outside 21 days limitation fixed by the Court Rules - need for finality in litigation –principles that should govern application to amend slip rule applications – application to amend seeking to raise issues not raised at trial and on substantive appeal hearing – some alleged slips could possibly be appeal grounds question deliberate judgment of the court - application made mischievously and not bona fide – no explanation provided as to how the new alleged slips could not be included in original application – no case made out to allow for amendments– application dismissed – Supreme Court Act s. 17 – Supreme Court Rules, O.11, rr.11 and 32, O. 7, r.26

Facts

The Appellant filed an application for slip rule under Order 11, r. 32 of the Supreme Court Rules. That was done within the prescribed time limit of 21 days. Sixteen days later, it filed an application to amend its original application. It was supported by an affidavit that deposed mainly to legal advice given to the deponent by a lawyer in the form of opinions, submissions or arguments without stating any fact. The proposed amendments sought to introduce new alleged slips by the Court. Some of the alleged slips went into matters the Appellant failed to raise in the trial court and also at the hearing of their substantive appeal. Other alleged slips went into questioning the deliberate judgment of the Court and effectively amount to appeal grounds as opposed to identifying slips by the Court. The Appellant filed no evidence explaining its filing of its application outside the 21 days limitation and how it omitted the alleged slips in the original slip rule application. The Respondent objected to the only affidavit filed for the Appellant for not deposing to facts and instead going into arguments, submissions and or opinions and asking for a strike out of a number of paragraphs of the offending affidavit. The Respondent also argued for a dismissal of the application to amend as it was filed outside the 21 days limitation, was introducing new alleged slips which were not slips by the Court but by the Appellant and they amounted to possible further appeal grounds and not slips made by the Court.

Held:

1. The affidavits filed for the Appellant offended the law requiring affidavits to contain only facts and not submissions, arguments or opinions of deponents (except of expert witness) and the offending parts of the affidavit were struck out.

2. An application to amend a slip rule application must be filed within the 21 days limitation under Order 11, r. 32 (1) of the Supreme Court Rules.

3. The object of seeking the amendment must not be to materially change the originating process but must be to correct errors or mistakes apparent on the original documentation the applicant has filed and to add clarity to that which is already pleaded so as to enable the Court to see at once, a slip by itself in its judgment on a critical issue that is so manifested on the face of the judgement and not an arguable error of law or fact.

4. Additionally, to succeed in an application for amendment, the applicant must demonstrate by appropriate evidence to the satisfaction of the Court that the:

(a) amendment will not cause real prejudice or injustice to the other parties;

(b) application is made bona fide and not mala fide;

(c) other parties can be fairly compensated with costs for such amendment; and

(d) satisfactorily explain how the applicant allowed its original application to contain defects which needs fixing by amendment.

Cases Cited:

Papua New Guinea Cases

William Duma v. Yehiura Hriehwazi (2004) N2526.

PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126.

Geru Holdings Ltd v. Kruse (2019) N7867.

Trinity Grammar School v. Henry Bale Tomai (2018) N7819.

Application by Cloudy Bay Sustainable Forestry Ltd v. Pako F & C Holding (PNG) Ltd (2019) SC1788.

Stephen Asivo v. Bank of South Pacific Ltd (2011) N4252.

Raywill Parapen v. The Independent State of Papua New Guinea (2014) SC1354.

Mirenbean Enterprise Ltd v. Kaugla (2019) SC1826.

Minister for Lands and Physical Planning & Ors v. Air Niugini Limited (2013) SC 1233.

Ata v. Logae (2019) SC1784.

Charles Bougapa Ombusi v. The State [1996] PNGLR 335

Schubert v. The State [1979] PNGLR 66

Damane v. The State [1991] PNGLR 244

Arua Maraga Hariki v. The State (2007) SC1320

Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510

Yanta Development Association v Piu Land Group Inc & Ors (2005) SC798

Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112

Application by Honourable Belden Namah (2020) SC1934

Lucas Dekena v. Nick Kuman (2018) SC1715

James Lovika& 79 Others v. Carl Malpo& The State (2019) SC1895

Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea [1994] PNGLR 78

Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063

Eki Investments Limited v. Era Dorina Limited; Era Dorina Limited v. Eki Investments Limited (2006) N3176

HJ Heinz and Hugo Canning Company Ltd v. Foods Pacific Ltd & Ors. (1999) N1867

Komboro George v. MVIT [1993] PNGLR 477

The Papua Club Inc v. Nusaum Holdings Ltd & Or (2002) N2273

Waine Kerowa v. Hargy Oil Palms Ltd (2012) SC1194

Paru Aihi v. Peter Isoaimo (2013) SC1276

PNG Bible Church Inc v. Carol Mandi (2018) SC1724

Rimbunan Hijau (PNG) Ltd v. Enei (2019) SC1859

Overseas Cases cited:

Cropper v. Smith (1884) 26 Ch. D. 700

Legislation cited:

Supreme Court Act Chapter No. 37 section 17

Supreme Court Rules 2012 (Consolidated) Order 7 Rule 26 and Order 11 Rules 11 and 32

Counsel:

W. Mapiso, for the Appellant/Applicant

C. Gagma, for the Respondents

RULING ON APPLICATION TO AMEND

01st June 2020

1. KANDAKASI DCJ: The Appellant (Covec) and the Respondents (Kama) have each filed an application for leave to make slip rule applications against a decision of the full Court by the majority of Kassman and Toliken JJ with myself dissenting, delivered on 4thFebruary, 2020. Covec has also filed an application seeking to amend its slip rule application. With the agreement of the parties, I heard the application seeking leave to amend first.

Preliminary Issue

2. In view of my dissenting in the substantive decision, I sought the parties’ views through their respective counsel on the appropriateness of my presiding and dealing with the application. The parties saw no problem and agreed to my presiding. I saw no difficulty with that as the law governing slip rule applications are clear and that it is a matter of applying them to the present case.

Application to amend slip rule application

(a) Objection to affidavit in support

3. Covec is applying for leave to amend its initial application for leave to make a slip rule application filed on the 24thFebruary, 2020

Document No. 38

11 (original application). Covec argues that its original application does not include the nature of the slips it now wishes to raise. Counsel also submits that, the original application is too general, vague and obviously defective and wanting. Therefore, the proposed amendments are necessary to correct the defect to clarify the specific slips or errors and or omissions committed by the Court. Further, counsel goes on to argue that, the amendments will not prejudice Kama because his slip rule application is related to the proposed amendments. Thus, the interest of justice requires leave to be granted to correct or rectify these obvious defects in Covec’s original application and to render the application competent to invoke this Court’s jurisdiction. In support of its application, Covec filed an affidavit by a Hu Gang sworn and filed on 12thMarch 2020.

Document No.46

22

4. Kama objects to paragraphs 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 22, 23, 24, 25, 26, 27 (v), 29, 30, 31, 32, 33, 34, 35, 40 on the basis of opinions, arguments and submissions. Covec argues two points in response. Firstly, it submits that its application for leave to amend the original application does not...