Paldir Community Services and Others v Petkol Trading Limited and Others

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J,Bona J,Liosi J
• Judgment Date: 04 July 2023
• Neutral Citation: SC2425
• Citation: SC2425, 2023-07-04
• Counsel: J. Sioni, for the Appellants,L. Tangua, for the First Respondent,C. Bua, for the Second, Third and Fourth Respondents
• Docket Number: SCM NO. 40 OF 2021 (IECMS)
• Hearing Date: 27 April 2023,04 July 2023
• Court: Supreme Court

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

v.

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: 27^th April, 4^th 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

Twivey Lawyers: Lawyers for the Appellants

Tangua Lawyers: Lawyer for the First Respondent

Solicitor General: Lawyer for the First, Second and Third Respondents

4^th 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.

3. This appeal is from the trial judge's decision of 20^th 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.

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

5. 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 24^th February 2022 and attached to the affidavit of Robert Posu sworn 16^th March 2023.

The Law

6. 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.”

7. 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...