Auhari v Tasam [1992] PGSC 1; [1992] PNGLR 303 (1 December 1992)

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APPEAL - Leave of the Court required on a question of fact - Duty of the appellant - Court to consider nature of the grounds - Supreme Court Act Ch 37 s 4(2).

N1>1.�� On an appeal against a final order of the trial judge, it is the duty of the appellate court to consider the nature of the appeal grounds. Where they are shown to relate to questions of fact, leave will only be granted in particular cases.

N1>2.�� Where the evidence accepted by the trial judge was neither glaringly improbable nor inconsistent with facts incontrovertibly established, leave should not be given.

N1>3.�� The motion seeking a stay, dependent as it is on the grant of leave to appeal, is dismissed.

BROWN J: The appellants, consequent upon filing an application for leave to appeal the decision of the National Court made on 18 November 1992, seek by motion a stay of that decision and consequential orders. Amet J. made orders determining ownership of a Suzuki Vitara motor vehicle which was the prize in a raffle conducted by the TST Supermarket. He effectively found that the first appellant was one of some 16 members of the Tokarara Clinic Staff Social Club entitled to the vehicle. The appellants, husband and wife, filed a notice of appeal seeking to substitute for the orders of the trial judge a declaration that the motor vehicle is solely their property.

An appeal lies without leave insofar as it refers to questions of law or mixed law and fact, but leave is required where matters of fact are in issue.

The appellants, by motion supported by the affidavit of the second appellant, Patrick Leslie (the husband of the first named appellant), seek orders that, pending determination of the appeal, the motor vehicle be detained by the Sheriff, presumably at his risk. No undertakings to indemnify his risks have been given.

The first question must be that of leave. I have read the notice of appeal carefully, and I am satisfied that the grounds relate wholly to questions of fact for the trial judge's determination. The only ground that touches in any respect, in my opinion, on a question of law is ground 3(5): "the learned judge erred in finding the first defendant (this first appellant) did not have any greater claim to ownership than the plaintiffs (the respondents herein").

In fact, from a perusal of the reasons for his decision, the trial judge expressly declined to find in what shares the respective owners held the vehicle. Consequently, I propose to ignore that ground for it clearly is erroneous.

The judge said in his last paragraph that the manner in which it is jointly owned by all members, including the first defendant, is a matter entirely for them to decide.

The first and second appellants argued in the court below that, in fact, the wife had purchased the ticket through her family shopping purchases and, thus, it jointly belonged to her and her husband. The trial judge, in his analysis of the evidence, found otherwise. The first appellant said she had also written "Tokarara Clinic Sr In Charge" on 2 additional tickets given her for her personal purchases. There was evidence to the contrary, directly relating to the first defendant's assertion about her personal shopping purchases.

The evidence accepted by the trial judge was neither glaringly improbable nor inconsistent with facts incontrovertibly established. Where the grounds, as here, really relate to his acceptance or otherwise of the credibility of witnesses, no sufficient reasons have been advanced to justify the grant of leave.

The very issue of weight raised by the appellants in their ground of appeal goes to credibility, a matter solely for the trial judge.

Consequently, the motion, relying as it does on leave, is dismissed. I make no order as to costs.

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Supreme Court of Papua New Guinea

Auhari v Tasam [1992] PGSC 1; [1992] PNGLR 303 (1 December 1992)

Papua New Guinea Law Reports - 1992