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Peyape v Waiya [2018] PGSC 92; SC1749 (6 December 2018)

SC1749

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 136 of 2018

BETWEEN:
LINA PEYAPE, AMOS PEYAPE
and JUMBO PEYAPE
First Appellants

AND:
RAGA KAVANA,
Registrar of Titles
Second Appellant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Appellant

AND:
PEYAPI WAIYA also known
as PEYAPE MUGALO
Respondent

Waigani: David J, Hartshorn J and Kariko J
2018: December 3^rd and 6^th

Application to admit fresh evidence – s. 6 (1) (a) Supreme Court Act

Cases Cited

William Chilen v. The State (2011) SC1099

Counsel:

Mr. P. Harry, for the First Appellants
Mr. J. Apo, for the Respondent

6^th December, 2018

1. BY THE COURT: This is a decision on a contested application to introduce fresh evidence. The application is made pursuant to s. 6(1)(a) Supreme Court Act.

Background

2. The respondent filed a proceeding in the National Court claiming that at all material times he was the registered proprietor of a property described as section 117 allotment 30 Hohola (property). He commenced the proceeding as he had discovered that title to the property had been altered by a change of name in 1999 and a subsequent transfer to the first appellants in 2006. The respondent had not consented to this name change and transfer and so he sought restoration of his registered interest on the title to the property. He also sought damages and interest. The National Court found in favour of the respondent. The primary judge stated amongst others, that the first defendants, now first appellants, had obtained title to the property by dishonest means, and by fraudulent activities or representation. The appellants appeal that decision.

This application

3. This application seeks to introduce fresh evidence to the effect that there is a second person who also has the same name as the respondent (Peyepe Wayai) and that his estate has claimed that he was the owner of the property. The fresh evidence consists of a letter dated 29^th May 2018 and a notice published on the 11^th September 2018. Both dates are after the date of the hearing of the trial in the National Court.

The law

4. As was stated in William Chilen v. The State (2011) SC1099 at [3]:

“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.”

Consideration

5. We consider first, whether the purported fresh evidence is relevant and material to the matters pleaded in the National Court proceeding and to the issues that were argued before and decided by the primary judge.

6. Notwithstanding that the purported fresh evidence concerns the property, it does not concern the subject of the proceeding which was the change of name and transfer of title to the property involving the first appellants and the surrounding circumstances. The purported fresh evidence is concerned with an alleged claim to the title to the property by someone who was not a party to the proceeding appealed and whose alleged claim was not the subject of pleading, or the subject of argument or was decided upon by the primary judge. The alleged claim is also not the subject of this appeal.

7. We note that counsel for the first appellants conceded that this purported fresh evidence disclosed what may be a separate cause of action in respect of the property but it did not concern the issues argued before and decided by the primary judge.

8. We are satisfied that the purported fresh evidence is not relevant and material and so in terms of s. 6(1) Supreme Court Act, it is not evidence that the justice of the case warrants should be adduced. Given this it is not necessary to consider the other submissions of counsel.

Orders

8. It is ordered that:

a) The application filed 9^th November 2018 of the first appellants is refused;

b) the first appellants shall pay the respondent’s costs of and incidental to the said application on a party party basis to be taxed if not otherwise agreed
_____________________________________________________________
Harry Lawyers: Lawyers for the First Appellants
Ame Lawyers: Lawyers for the Respondent