Pulube v Wapia [1996] PGSC 31; [1996] PNGLR 293 (23 December 1994)

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APPEAL - Evidence Act (Ch 48), s 35 (3) - Power of court to call deponents to give evidence on oath - Conflicting affidavits.

EVIDENCE - Evidence by affidavits - Conflicting - Power of Court requiring evidence to be given - Section 35(3) Evidence Act (Ch. 48).

This appeal arose from decision of National Court which dismissed the defendant, now appellant claim without requiring deponents of conflicting affidavits to be examined.

N1>1. Where there is considerable dispute regarding facts between parties to an action, the Court should be careful before conducting a hearing purely on affidavits filed without cross examination or calling evidence on oath.

N1>2. The trial judge fell into error in not exercising his discretion under s 35 (3) of the Evidence Act in not calling the deponents to give evidence on oath or cross-examined.

KAPI DCJ HINCHLIFFE J: This is an appeal from an Order of the National Court on the 16 May, 1994 dismissing a claim of the appellant that a partnership business be dissolved and for its assets to be distributed proportionately.

The grounds of appeal 3 (a) to (e) conclusively say that the trial judge erred in not arriving at the conclusion that a partnership did exist between the appellant and the respondent.

Ground 3(f) indicates that other grounds may arise when the trial judge's notes become available, but it seems to us from perusing the Appeal Book that there is not a record of the judge's notes included therein. To some extent that does not surprise us because the proceedings in the National Court involved the presentation of a number of affidavits followed by written submissions from both lawyers representing the parties. The deponents to the affidavits were not called by the lawyers or the trial judge for cross-examination.

N2>“(g) That the learned judge erred in not making any orders in relation to the ownership and propriety rights of allotments 5 and 6 section 1, Komo District, Southern Highlands Province.

N2>(h) That the trial judge in so doing failed to consider the nature of the plaintiff's claims and the overall evidence before him in relation to the partnership business and the ownership of the property, Allotments 5 and 6 Section 1, Komo.”

The final ground of appeal 3 (i) is a general ground and says that: “the trial judge failed to consider all the evidence before him.”

In the National Court the appellant filed two affidavits sworn by himself on the 4 October 1993 and the 3 May 1994. The respondent/defendant filed two of his own affidavits sworn on the 6 April 1994 and the 20 April 1994. In his defence also was filed an affidavit of Lambi Herepe sworn on the 3 May 1994. Those affidavits and the annexures thereto made up the whole of the evidence before the National court.

The appellant's said affidavit of the 3 May 1994 replies to the respondent's said affidavit of the 6 April 1994. There is no reply by the respondent to the said affidavit of his son Lambi Herepe of the 3 May 1994. After reading all the said affidavits it is abundantly clear to us that there is an enormous difference between the parties on almost everything. They differ with each other on the events leading up to the alleged signing of the alleged partnership agreement in March, 1984. The respondent has always said that a partnership agreement never existed and that he is not aware of any partnership document and that he did not sign or leave his mark on a partnership document.

We are somewhat at a loss as to understand why, when there was such a wide difference of opinion on the facts that the hearing in the National Court was conducted in the way it was. We are also surprised that the lawyers for each party did not elect to cross-examine the deponents to the said affidavits. In fact the allegations and the observations of the said Lambi Herepe in his said affidavit were not replied to and as we have already mentioned he was not called for cross-examination. In all, many matters were either left in dispute or not answered at all and that to our minds did not make the trial judge's task any easier. One can see the difficulty he was experiencing when he said in page 2 of his judgment, when considering the respondent’s alleged mark on the said partnership agreement, by stating the following:

“I have seen documents in this proceedings (sic) which have been signed by the defendant by writing his name where he is required to sign. No oral evidence was given and none of the parties required the deponents of affidavits to be cross-examined. Thus this Court is placed in a difficult position to determine an important issue on very scanty evidence. The officer who is alleged to have witnessed the signing has not been called to give evidence nor has he filed an affidavit to support the plaintiff's claim. The plaintiff did not require the defendant who was present in Court to be cross-examined on his ability to sign his name on documents. This might have helped the Court to determine the issue.”

It is our view that the proceedings in the National Court were not conducted properly. We say that because after the trial judge read the affidavits and was advised by the lawyers that there would be no deponents to the affidavits called for cross-examination nor any other witnesses called to give oral evidence, to our minds he should have considered his powers under s 35 (3) of the Evidence Act (Ch No. 48) which provides as follows:

N2>“(3) On application of a party or person interested or of its own motion, the tribunal may order that the subpoena be issued requiring a person who has made or intends to make an affidavit to attend before the tribunal to give evidence on oath or for cross-examination, or both.”

It would seem from reading the trial judge’s decision that he did not consider the said section. An example of that can be seen when he referred to the plaintiff not calling the defendant for cross-examination and saying, “This might have helped the Court to determine the issue.” Clearly the trial judge, realising the possible solution to the problem could have used his powers under the said section, but he did not. It is an indication to us that if His Honour had considered the said section then he more than likely would have required the parties to be cross-examined as well as the said Lambi Herepe.

We are of the view that when parties to an action are in considerable dispute regarding the facts and in some instances the law, then they and the court should be careful before conducting a hearing purely on the affidavits filed without any cross-examination or calling any other witnesses. The said s 35(3) can go to rectifying the problem by calling the deponents to affidavits and would be deponents for cross-examination and give evidence on oath. We consider that that was the purpose of the said s 35(3) in the first place.

If the lawyers are remiss in calling deponents for cross-examination where it is blatantly obvious some or all of the deponents should be called then it is the duty of the trial judge to assess the situation and to apply the said section if he thinks it is necessary for the proper conduct of the trial and to ensure that not only is justice done but it is seen to be done. Of course it might prevent an unnecessary appeal to the Supreme Court of Justice.

After saying all of that we are satisfied that this case is one where it was blatantly obvious that the deponents to the affidavits and would be deponents should have been called so that a proper and fair trial could be conducted.

We are further satisfied that the trial judge fell into error in not considering and then using his powers under Section 35 (3) of the Evidence Act. We say that with great respect to His Honour because it seems to us that both lawyers fell into greater error by not calling the deponents in the first place together with other vitally important witnesses.

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may:

After full consideration of this whole matter we are of the view that it should be returned to the National Court for a new trial and we would make the following orders:

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Supreme Court of Papua New Guinea

Pulube v Wapia [1996] PGSC 31; [1996] PNGLR 293 (23 December 1994)

PNG Law Reports 1996