Tupou v Bank of South Pacific Ltd [2022] PGNC 472; N9989 (15 September 2022)

N9989

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 613 OF 2018

SAMUEL TUPOU
Plaintiff

AND
BANK OF SOUTH PACIFIC LIMITED
Defendant

Waigani: Linge AJ
2022: 7^th September

INTERROGATORIES – practice and procedure – defendant seeks to set aside orders requiring defendant to deliver to the plaintiff in a letter a list that specifically set out reference to answers in the Amended Statement in Answer to Interrogatives filed on 22 July 2022 which the plaintiff claims were insufficiently answered by the defendant - whether the present application under Order 12, Rule 8 (4) of the Rules seeking to set aside the orders of 20 June 2022 is proper and has jurisdictional basis - rules of practice and of Court - evidence may be by affidavit or written statement in the form of interrogatories, which are written questions drafted by one party which the court directs the other party to answer on oath - in appropriate cases, the deponent or maker can be obliged to attend for cross examination - plaintiffs and defendants to serve on each other correspondences, files and documentations by or before the timelines ordered by court

Cases Cited:
Ekepe v Gaupe [2004] PGNC 82; N2694
John Siune v Ian Randal Rimua [2013] PGNC 83; N5110
Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522

Counsel:
Ms. H. Masiria, for the Defendant

RULING

15^th September, 2022
1 LINGE A J: This is a ruling on the defendant’s Notice of Motion filed on the 20 July 2022 seeking to set aside and vary the order of 20 June 2022. The critical order being sought to set aside is one requiring the defendant to deliver to the plaintiff in a letter a list that specifically set out reference to answers in the Amended Statement in Answer to Interrogatives filed on 22 July 2022 which the plaintiff claims were insufficiently answered by the defendant.

This Application

2 The applicant/defendant relies on Order 12 Rule 1 and Order 12 Rule 8 (4) of the National Court Rules (hereinafter the “Rules”). Rule 8 (4) states:

“In addition, to its powers under Sub-rules (1), (2) and (3), the Court may, on terms set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.”

Background

3 On 20 June 2022, the Court heard the plaintiff’s application pursuant to Order 9 Rule 24 (1) and (2) and Order Rule 25 (1) (b) of the Rules and granted orders that:

(i) bank officers namely Mukeshwar Madho, Roger Kauk, Keve Gui and George Barrat to attend court to be orally examined; and,

(ii) all communications (letters, emails, notes, worksheets) imposing monthly loan service fee on the loan signed on 31 July 2012 be released into Court by Bank South Pacific (BSP);

(iii) all communications (letters, emails, notes, worksheets) and decisions vetting and approving K1, 392, 700.00, loan signed on 31 July 2012 be released into Court by BSP.

Facts

4 The plaintiff obtained 3 Property Investments Loans from the applicant/defendant for construction of 3 Unit Apartments. The loans were:

(i) K500, 000.00 Residential Investment Property loan, Account No. 100 161 4991 drawn down on the 22 September 2009.

(ii) K204, 600.00 refinancing loan, account 100 2259320 which was fully drawn by plaintiff on 21 September 2010 and 25 July 2012. To facilitate the second loan the defendant terminated Residential Investment Property Loan (PIPL) No. 100 1616 499 for the new one as described in the foregoing.

(iii) K688, 000.00 consolidation, account number 1008589713 was fully drawn down by the plaintiff commencing on the 4 September 2012.

5 The three (3) loans had the usual terms for repayments and interests but vary in some respects. For example, in the third loan the defendant imposed a monthly loan service charge or penalty interest at 5% and commitment fee at 2.5% undrawn balance from 25 July 2012 if loan is not drawn by 25 October 2012.

6 The plaintiff did not fully draw down the loan but made early repayments of K742, 948.00. Despite this early repayment by the plaintiff the defendant still imposed the loan service charge.

7 The plaintiff filed this proceeding claiming the actions of the defendant were in breach of the terms of the consolidated loan agreements. These breaches include taking funds from plaintiff by debting the loan with funds which were not meant for repayment of dues, penalty interest or commitment fee which were utilized to repay loan account. He claims these were errors and omissions on the part of the defendant and he seeks damages for pecuniary loss and anxiety.

Submissions

For the appellant/defendant

8 Ms Masiria for the applicant submits that Order 12 Rule 8 (4) of the Rules is applicable in this matter and can be invoked as the orders of 20 June 2022 were not final in nature and did not determine the proceedings. This provision of the Rules can be invoked to deal with the present situation where a dispute has arisen as to the interpretation and effect of an order.

9 Counsel submits that the orders of 20 June 2022 were granted pursuant to Order 9 Rule 24 and 25 of the Rules. Order 9 Rule 24 (1) (b) in particular allows the Court to order a party or persons specified under Order 9 Rule 23 to attend court to be orally examined.

10 She submits further that:

(i) Order 9 Rule 23 (1) (b) to (d) of the Rules sets out who can depose to an affidavit verifying a statement of a party in answer to interrogatories;

(ii) The persons who have sworn an affidavit verifying a statement of a party in answer to interrogatories are those who the Court may order to attend and be orally examined; and

(iii) Order 9 Rules 23, 24 and 25 of the Rules do not make provision for a party who gives insufficient answers to produce documents in court.

11 She contends that Mukeshwar Madho had answered or verified the Bank’s Amended Verified Statement in Answer to Interrogatories filed on 22 July 2021. As such she submits that under Order 9 Rule 23 and 24 (1) (b) of the Rules Mr. Madho is the only bank officer in this instance who can be orally examined by the Court to provide further answers to the interrogatories as he deposed to the affidavit verifying the Statement.

12 Counsel submits that in respect of bank officers Roger Kauk, Keve Gui and George Barrat the Order does not specify the nature of the evidence they are required to provide in court.

13 Ms. Masiria also submits that the orders of the 20 June 2022 were made pursuant to Order 9 Rules 24 and 25 of the Rules, which themselves do not provide for other persons to be orally examined by the Court except for those who have sworn affidavit verifying a statement of a party in answer to interrogatories.

14 She further submits that Order 9 Rules 24 and 25 of the Rules do not make provision for production of documents in court. Thus, this application seeks to vary the orders of 20 June 2022 to correct the defect or jurisdictional basis in which the said orders were made.

For the respondent/plaintiff

15 Mr Tupou opposed the application on the basis that although Mukeshwar Madho is no longer the Asset Manager for Bank of South Pacific he still works in the Bank.

16 He submits that it is proper to call Mukeshwar Madho to avoid hearsay evidence being adduced. That Order 9 Rule 24 (1) (b) of the Rules can be relied upon to compel him and other persons to give evidence.

17 He further submits that Mr. Madho was evasive in his response to the question in the Interrogatories and the questions must be properly answered and therefore other persons with knowledge of the facts ought to be called.

18 Respondent also relies on Section 155 (4) of the Constitution for the Court to invoke in the interest of justice in the exercise of its discretion.

Consideration

19 The issue for my consideration is whether, the present application Order 12, Rule 8 (4) of the Rules seeking to set aside the orders of 20 June 2022 is proper and has jurisdictional base.

20 It is trite law that a variation to a prior order can be allowed on the basis that it does not alter an order in a substantive way but rather to give effect to the order on proper legal basis. A plethora of cases have held that the National Court has jurisdiction to vary or set aside its earlier interim order as a matter of discretion see for example, Ekepe v Gaupe [2004] PGNC 82; N2694; Tombe v Masket [2009] PGNC79;N3704;Golobadana No.35 Ltd v Bank South Pacific Ltd (2002) N2309.

21 In John Siune v Ian Randal Rimua [2013] PGNC 83; N5110 the Court held that it is proper to vary an original order under O 12 r8 (4) of the Rules and to invoke O 12 r 1 of the Rules and Section 155 (4) of the Constitution if the Court is not altering the order in a substantive way, and if the purpose of the variation is to give effect to, complement or enforce the original order.

22 Further while Order 12, Rule 8 of the Rules allows the court to vary or set aside orders, in particular those made in the absence of a party

23 In Mainland Holdings Ltd v Stobbs [2003] PGNC; N2522, the National Court dealt with an application to set aside an interim injunctive order. In that case, the National Court dealt with an application to set aside an interim injunctive order. The issue was whether the interlocutory order should be varied or dissolved on other grounds such as where new facts which existed at the time of the injunctive order and not disclosed then but are subsequently discovered or where it is subsequently discovered that the order was granted on erroneous legal basis.

24 In his ruling His Honour Injia, DCJ (as he then was) stated:

“In my view, the trial Court has wide discretionary powers to control the management of the case until its substantive disposition. In terms of its interlocutory proceedings, the Court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order either on application by an interested party or upon its own motion, in a wide range of situations including change in relevant circumstances which render the continuation of the order no longer necessary or appropriate. It is also in the court’s discretion to vary or discharge an interlocutory order, where the conditions, if any, stipulated in the order have been met and it is no longer necessary or appropriate to sustain the order. Further, it is in the discretion of the Court to vary or discharge an interlocutory order if it is subsequently discovered by the Court that the interlocutory order was founded on wrong principle.”

Conclusion

25 For purpose of controlling the proceeding I will consider varying the order of 20 June 2022 only if in my view the variation does not alter the order in a substantive way but to give effect to that order on proper legal basis.

26 I have revisited the Order wherein Term 1 compels current bank officers, Mukeshwar Madho, Roger Kauk, Keve Gui and George Barrat to be made available for cross examination with or without compliance with the Evidence Act.

27 Apart from Mukeshwar Madho who did provide the Bank’s Amended Verified Statement in Answer to Interrogatories filed on 22 July 2021, the other bank officers have not provided Statements in answers to interrogatories nor filed any affidavits.

28 The rules of practice and of the Court is that evidence may be by affidavit or written statement in the form of interrogatories, which are written questions drafted by one party which the court directs the other party to answer on oath. It follows that in appropriate cases, the deponent or maker can be obliged to attend for cross examination.

29 Any answers to interrogatories which are deposed to in affidavit may be read at trial as admission by the responding party. This is to facilitate proof of the adversary’s case and to save expense.

30 It seems to me that the plaintiff requires other bank officers who have not filed affidavits or statements to be orally examined by the Court and to provide further answers to the interrogatories as deposed in the affidavit verifying the Statement by Mukeswhar Mado, which answers he claims were insufficiently answered or was evasive in his answers.

31 Terms 3 and 4 of the Order of 20 June 2020 requires the defendant to provide copies of evidentiary materials including emails, letters worksheets loan approvals and to be released into court.

32 The defendant /applicant seeks to vary the order of 22 June 2022 so as to give effect to that order on proper legal basis.

33 In this case BSP being a corporation, any affidavit verifying its statement must be made by a member (shareholder) or officer of the corporation. An officer must be a person of some authority to be able to depose to the statements that binds the corporation.

34 I have taken into all of the above factors and in the end, in the exercise of the Court’s inherent powers, I will grant the orders in the following terms.

Order

35 Order of the Court:

1. Term 1of the Orders of the Court made on the 20 June 2022 for Marele Peiwa, Kanawi Chapiu and Tom Wallace to attend before the Court to be orally examined is set aside.
   
2. Further, Term 1of the Orders of the Court made on the 20 June 2022 for Mukeswar Madho to be orally examined in relation to the responses of the defendant to the plaintiff’s Notice to Answer Interrogatories filed on the 6 May 2921 is varied to relate to the following:
   

(i) Paragraph 1 (A) of the Defendant’s Amended Verified Statement in Answer to Interrogatories filed 22 July;

(ii) Paragraph 1 (B) of the Defendant’s Amended Verified Statement in Answer to Interrogatories filed 22 July 2022;

(iii) Paragraph 7 (A) of the Defendant’s Amended Verified Statement in Answer to Interrogatories filed 22 July 2022;

(iv) Paragraph 18 (A) of the Defendant’s Amended Verified Statement in Answer to Interrogatories filed 22 July 2022.

3. The Direction in Term1 for Roger Kauk, Keve Gui and George Barrat to attend before the Court to be orally examined is hereby set aside.
   
4. The plaintiff shall within 7 days from the date of this Order, deliver to the defendant in a letter a list that specifically sets out:
   • (i) All the relevant parts of the pleadings, affidavits and other court documents filed by the defendant in these proceedings that specifically refer to any letters, emails, file notes, memos, worksheets and other communications with the plaintiff regarding the imposing of a monthly loan service fee on the loan signed on 31 July 2012 and the details of all corresponding letters, emails, file notes, memos, worksheets and other communications; and
   • (ii) All the relevant parts of the pleadings, affidavits and other court documents filed by the plaintiff in these proceedings that specifically refer any letters, emails, file notes, memos, worksheets and other communications with the defendant regarding the imposing of a monthly loan service fee on the loan signed on 31 July 2012 and the details of all corresponding letters, emails, file notes, memos, worksheets and other communications; and
   • (iii) All the relevant parts of the pleadings, affidavits and other court documents filed by the defendant in these proceedings that specifically refer any emails, files notes, memos, worksheets and other confidential internal communications of the Defendant regarding the imposing of a monthly loan service fee on the loan signed on 31 July 2012.
5. That the plaintiff shall, within 7 days from the date of this Order, deliver to the defendant in a letter a list that specifically sets out:
   • (i) All the relevant parts of the pleadings, affidavits and other court documents filed by the defendant in these proceedings that specifically refer to any letters, emails, file notes, memos, worksheets and other communications with the plaintiff regarding the decisions vetting and approving K1, 392, 700 loan signed on 31 July 2012 and the details of all corresponding letters, emails, file notes, memos, worksheets and other communications; and
   • (ii) All the relevant parts of the pleadings, affidavits and other court documents filed by the Plaintiff in these proceedings that specifically refer any letters, emails, file notes, memos, worksheets and other communications with the Defendant regarding the decisions vetting and approving K1, 392, 700 loan signed on 31 July 2012 and the details of all corresponding letters, emails, file notes, memos, worksheets and other communications; and
   • (iii) All the relevant parts of the pleadings, affidavits and other court documents filed by the Defendant in these proceedings that specifically refer any emails, files notes, memos, worksheets and other confidential internal communications of the Defendant regarding the decisions vetting and approving K1, 392, 700 loan signed on 31 July 2012.
6. That the defendant shall, within 21 days from the date of the Order and subject to the plaintiff delivering to the defendant the corresponding list of documents, file and serve on the Plaintiff an affidavit annexing all the relevant letters, emails, file notes, memos, worksheets and other confidential internal communications of the defendant referred to above that are within its sole custody and possession.
   
7. That in the event the plaintiff fails to comply with the Order to deliver to the Defendant within 7 days a letter with a list of the specific correspondences and other documentations evidencing communications of the Defendant regarding the decisions vetting and approving K1, 392, 700 loan signed on 31 July 2012, the Order for the defendant to produce such documents shall be set aside.
   
8. Parties to bear their own costs of this application.
   
9. Time is abridged for the entry of these orders which shall take place forthwith upon settlement of the same by the Court.
   

Plaintiff in Person
BSP Inhouse Lawyers: Lawyers for the Defendant