Halle Nange on his own behalf and members of the Lapindi Clan of Lyeimi v Telikom (PNG) Limited
| Jurisdiction | Papua New Guinea |
| Judge | David, J,Murray, J,Numapo, J |
| Judgment Date | 03 November 2023 |
| Neutral Citation | SC2490 |
| Citation | SC2490, 2023-11-03 |
| Counsel | Aaron Benny, for the Appellant,Sam Kati, for the Respondent |
| Docket Number | SCA NO.26 OF 2017 |
| Hearing Date | 15 December 2022,03 November 2023 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO.26 OF 2017
Between:
Halle Nange on his own behalf and members of the Lapindi Clan of Lyeimi, Enga Provincee
Appellant
v.
Telikom (PNG) Limited
Respondent
Waigani: David, J, Murray, J & Numapo, J
2022: 15th December
2023: 3rd November
CIVIL APPEAL — appeal against decision to dismiss proceedings for being statute-barred — claim seeking damages for trespass and breach of agreement entered between the parties — no error shown — appeal dismissed.
PRACTICE & PROCEDURE — Failure to object to or take issue with evidence led at trial of matters or issues not pleaded entitles a Judge to make judgments on evidence presented despite lack of foundation in pleading — Party affected not entitled to hack back at the lack of pleading.
PRACTICE AND PROCEDURE — Discretionary powers of National Court to control proceedings before it — a Judge is entitled to raise and determine on own initiative a question of competency at any stage of the proceeding with or without an application by a party.
Cases Cited:
Papua New Guinean Cases
Government of Papua New Guinea and Davis v Barker (1977) PNGLR 386
Jacob Simbuaken v Neville Egari (2009) N3824
PNGBC v Jeff Tole (2002) SC694
Philip Takori v Simon Yagari (2008) SC904
Public Curator of Papua New Guinea v Kara (2014) SC1420
Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549
Sogeram Development Corporation Ltd v Som (2014) N5874
George Kila v Shichun Zhu (2017) N7043
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370
Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596
Michael Keka v. Pius Yafaet (2018) SC1673
Mainao v Akori (2021) SC2090
Karl Paul v. Aruai Kispe and 2 Ors (2001) N2085
Overseas Cases
Gould and Birbeck and Bacon [1916] HCA 81; (1916) 22 CLR 490
Counsel:
Aaron Benny, for the Appellant
Sam Kati, for the Respondent
Niuage Lawyers: Lawyers for the Appellants
Kandawalyn Lawyers: Lawyers for the Respondent
JUDGMENT
3rd November 2023
1. THE COURT: INTRODUCTION: This is the decision of the Court in relation to the appellants' appeal commenced by Notice of Appeal filed on 6 March 2017. The Notice of Appeal contains five grounds of appeal, and they are set out at paragraph 3 of the notice and restated below. At the hearing, the appellants abandoned the fifth ground and it was dismissed as a consequence.
2. The four remaining grounds of appeal are:
“3.1 His Honour erred in fact and in law by finding that, in the absence of any defence being filed, the respondent could rely on facts giving rise to a defence by way of evidence by affidavit.
3.2 His Honour erred in fact and in law by finding that the court at its own discretion can raise matters not pleaded in the absence of any defence when the circumstances of the case did not warrant the exercise of such discretion.
3.3 His Honour erred in fact and in law by making findings that the proceeding WS No. 1140 of 2009 taken out by the plaintiff was statute barred under Section 16 of the Frauds and Limitations Act when in fact that proceeding was a continuation of an earlier proceeding in WS No. 1797 of 2005 which was filed within the 6 months requirement of Section 16 of the Fraud and Limitations Act and therefore Section 16 was not applicable.
3.4 His Honour erred in fact and in law by deciding that the cause of action for trespass was statue barred under Section 16 of the Fraud and Limitations Act when this was case(sic) of recurring damages over a long period of time up to the present when a time period could not apply to such a case.”
BRIEF BACKGROUND FACTS
3. The appellants who were plaintiffs in the National Court proceedings namely, Immanuel Kandata on his own behalf and members of the Lapindi Clan of Lyeimi village, Enga Province v Telikom (PNG) Limited, WS 114 of 2009 (the National Court proceedings) commenced the National Court proceedings by writ of summons endorsed with a statement of claim filed on 8 September 2009 (7–13 AB). After the commencement of the appeal, the lead appellant Immanuel Kandata died and was replaced by one Halle Nange. The appellants claim that in 1975, the respondent without the prior knowledge or approval of the appellants cleared an area within their customary land at Mt. Burgers in Lyeimi village, Lagaip-Porgera District in Enga Province (the Disputed Land), erected a tower and installed radio communication equipment for its operations. The appellants claim, among others, damages for trespass, environmental loss, breach of constitutional rights and for breach of an agreement entered into between the parties.
ISSUES:
4. The main issues that emerge from the four grounds of appeal for determination are:
1. Whether the trial Judge erred in fact and in law by finding that in the absence of any defence filed, the Respondent could rely on facts adduced from affidavit evidence giving rise to a defence?
2. Whether the trial Judge erred in fact and in law in finding that in the exercise of his discretion, he could raise matters not pleaded in any defence filed?
3. Whether the trial Judge erred in fact and in law when he found that that the proceedings in WS No.1140 of 2009 were statute-barred under s.16 of the Frauds and Limitations Act when in fact those proceedings were a continuation of an earlier proceedings in WS No.1797 of 2005 which was filed within the 6-year requirement of s.16 of the Frauds and Limitations Act?
4. Whether the trial Judge erred in fact and in law by deciding that the cause of action for trespass was statute-barred under s.16 of the Frauds and Limitations Act when this was a case of recurring damages over a long period of time up to the present when a time period could not apply?
5. We will address Issues 1 and 2 together as they raise the question: whether in the absence of a defence having been filed, the trial Judge could raise and address a defence that is apparent on affidavit evidence adduced, on his own initiative.
6. We will also address Issues 3 and 4 together as they relate to the question whether the appellant's claim was statute barred.
LACK OF PLEADING OF A DEFENCE (Grounds 1 & 2)
The first major issue is: Whether in the absence of a defence having been filed, the trial Judge could raise on his own initiative and address a defence that is apparent on affidavit evidence adduced.
Submissions
7. With respect to ground 3.1, the appellants submit that, under Order 8 Rule 14 of the NCR, the respondent is required to file its defence which should specifically plead the defences that it will rely on, but it failed to do that. The defence it claimed to have been filed was not filed in accordance with the National Court Rules so it was not properly before the trial Judge. Hence, it is contended that the trial Judge fell into error when he allowed the respondent to call evidence and make findings based on evidence not supported by pleadings contained in a defence properly before him contrary to the principle on pleadings, ie, that a party cannot obtain relief which has not been sought in the pleadings. Reference was made to Mainao v Akori (2021) SC2090 which adopted the principle on pleadings enunciated in Sogeram Development Corporation Ltd v Som (2014) N5874, Jacob Simbuaken v Neville Egari (2009) N3824, PNGBC v Jeff Tole (2002) SC694 and Philip Takori v Simon Yagari (2008) SC904.
8. As for ground 3.2, the appellants submitted that the trial Judge erred in fact and in law when he found that he could raise on his own initiative, the defence of time bared which was not pleaded in a defence, as none was filed. It was argued that, the exercise of such discretion was contrary to established principles enunciated in Government of Papua New Guinea and Davis v Barker (1977) PNGLR 386 which warranted a review and the appellate Court in the exercise of its own discretion should substitute its own decision for the trial Judge's.
9. The respondent, on the other hand, submits that the trial Judge did not commit any error as alleged by the appellants as:
1. The respondent was entitled to take further steps in the proceedings by the filing of its Notice of Intention to Defend consistent with Order 7 Rules 2 and 6(1) of the National Court Rules;
2. Following the filing of its Notice of Intention to Defend, the respondent filed its defence;
3. The appellants did not take any step to set aside the respondent's defence prior to going to trial and apply for the entry of default judgment in their favour;
4. By their conduct, the appellants accepted the filing of the respondent's defence;
5. The appellants did not oppose the respondent tendering affidavit evidence at the trial;
6. The respondent was entitled to rely on its affidavit evidence to raise and substantiate its defence;
7. The trial Judge's findings were consistent with the principle that the court is vested with wide powers to screen, analyse and filter cases brought before it and that includes raising a statutory defence under the Frauds and Limitations Act such as, the proceedings were statute-barred for the cause of cation for trespass to land and that proposition is supported by case precedents such as The State v Brian Josiah (2005) SC792, The State v Downer Construction (PNG) Ltd (2009) SC979 and Kauba v Willie (2021) SC2162; and
8. The appellants have failed to demonstrate any special circumstance that prevented the trial Judge from exercising his wide powers.
Consideration & Reasons for decision
10. There are 2 parts to the first issue which covers grounds 3.1 & 3.2. In accordance with the submissions by the appellants, the first part concerns the learned trial Judge permitting Telikom to raise defences from facts adduced from the 4 affidavits that it relied on. The second concerns the powers of the learned trial Judge. More specifically, whether he can raise a matter or issue on his own initiative.
11. Turning now to the first part of the issue. Was the trial Judge wrong...
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