Kuglame v Seka [2019] PGSC 47; SC1816 (27 May 2019)

SC1816

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 171 & 172 of 2016
(Consolidated)

BETWEEN:

BRIAN KUGLAME
First Appellant

AND:
MARY KUGLAME
Second Appellant

AND:
COFFEE INDUSTRY CORPORATION LIMITED
Third Appellant

AND:
RODNEY SEKA
Respondent

Waigani: Gavara Nanu J, Hartshorn J, Geita J
2018: 28^th August
2019: 27^th May

PRACTICE & PROCEDURE - Appeal - Original plaintiff deceased - Substituted plaintiff lacking standing to bring the proceeding - Pleadings not amended to reflect different plaintiff - Error of law.

PRACTICE & PROCEDURE - Appeal - Evidence - Trial judge collecting evidence- Evidence relied upon by the Court not from witnesses - Evidence not received in the presence of counsel - Error of law.

Cases Cited:
Papua New Guinea Cases

Nil

Overseas cases

Jones v. National Coal Board [1957] EWCA Civ 3; [1957] 2 WLR 760
Ottewell v. Smith (1959) 28 W.W.R. 139, CanLii 547

Counsel

Mr. N. Kopunye, for the Appellants
Mr. A. Token, for the Respondent

27^th May, 2019

1. BY THE COURT: This is a decision on an appeal from a National Court decision which amongst others found the three defendants, now appellants, liable for damages for the property of the plaintiff, now respondent. The property was destroyed by fire on 5^th September 2002. The National Court found that to be due to the negligence of the second appellant.

2. The appellants appeal on numerous grounds. The first grounds that we consider are in essence that the primary judge fell into error by seeking, obtaining and relying upon a copy of the State Lease for the property from the Registrar of Titles, and then finding that the respondent owned the property.

Obtaining a copy of the State Lease from the Registrar of Titles

3. In the decision of the primary judge at p 7 [6] it is stated:

“No copy of the State Lease was tendered, so the Court obtained one from the Registrar of Titles. It shows the plaintiff was registered as proprietor (Journal entry H. 6669 on 12 April 2002) in State Lease Volume 10 Folio 210.”

4. A judge should not receive evidence other than in open court and in the presence of counsel. We refer by way of example of this principle to the Supreme Court of Alberta, Canada decision of Ottewell v. Smith (1959) 28 W.W.R. 139, CanLii 547, in which Macdonald JA, on behalf of the Court said:

“It is obvious that an investigation was made by the attorney-general’s department pursuant to a request made by the late Mr. Justice Wilson. It is clear from Mr. Anderson’s statement to the court this morning that the results of such investigation were communicated to Mr. Justice Wilson before his judgment was delivered. We are of the opinion that this information constituted evidence which was received by the learned trial judge not in open court and not in the presence of counsel. In the result, we will set aside the judgment and direct a new trial.”

5. We also refer to the following passage of Lord Denning in the English Court of Appeal decision in Jones v. National Coal Board [1957] EWCA Civ 3; [1957] 2 WLR 760 at 766:

“Let the advocates one after the other put the weights into the scales - the “nicely calculated less or more” - but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky, Bock & Co.”

6. Both of these decisions are persuasive in our jurisdiction. Given the above, we are satisfied that the primary judge fell into error in obtaining and relying upon a copy of the State Lease in the manner that he states.

Ownership of the property

7. We now consider the observation of the primary judge that the plaintiff was registered as proprietor of the property and the finding of the primary judge that the, “plaintiff did have standing to lease to the defendant and to bring this proceeding”.

8. At p 123 line 10 the primary judge notes that the plaintiff died after the issue of the writ and on 30^th March 2015 the Court ordered that his son Rodney Seka be substituted as plaintiff. The primary judge then states that, “The term plaintiff is used in a generic way to refer to the original plaintiff except where it is clear a reference is made to the substituted plaintiff.” We assume that the references to the plaintiff being registered as proprietor and having standing are references to the original plaintiff given that he was purportedly registered as proprietor in 2002 and the lease occurred before the death of the original plaintiff.

9. The order of the court dated 20^th March 2015 states that:

“The deceased Plaintiff, the late Rock Seka has ceased to be a party in the proceeding styled as WS No. 1320 of 2003 and that his biological son, Rodney Seka will now substitute him as the Plaintiff to progress the said proceeding.”

10. The said court order does not state in what capacity, Rodney Seka becomes a plaintiff. For instance, it does not state that he is the plaintiff in his capacity as Administrator, or Executor or Trustee of the original plaintiff. Consequently, Rodney Seka is substituted as plaintiff in his own right. He does not represent the rights that his father had.

11. Notwithstanding that Rodney Seka is the plaintiff in his own right, there is no amendment to the statement of claim to plead his entitlement to the property - for instance by purchase or by inheritance as a beneficiary, or by being the Executor or Trustee or Administrator of his father’s estate.

12. The finding by the primary judge that the plaintiff, the original plaintiff, had standing to lease to the defendant and to bring the proceeding does not apply to the plaintiff who was substituted. We are satisfied that the primary judge fell into error to the extent that he formed the view that, and proceeded on the basis that the plaintiff Rodney Seka had standing to bring the National Court proceeding by being entitled, in some capacity, to the property.

Capacity of the original plaintiff to sue

13. In his decision the primary judge finds that the original plaintiff had standing to lease the property and to bring the proceeding and that it was not necessary for the original plaintiff to be the owner of the property to sue. The primary judge used the example of a bailee having the right to litigate against a wrongdoer as his reason for finding that the original plaintiff could sue as lessor. The pleading in the statement of claim however, is that the original plaintiff is the registered owner of the property. He sued on that basis. There was no amendment to the pleading to the effect that he sued other than as the registered owner. He did not sue on the basis that he claimed title as lessor, contrary to what the primary judge states at [4] of p 7 of his decision. In our respectful view, the primary judge fell into error in this regard.

Default judgment set aside

14. A further ground of appeal that we consider is that the primary judge considered that at the time of trial, default judgment had been entered on 18^th August 2004 and continued in force. It is clear from the court order dated 26^th November 2004 that the default judgment was set aside.

15. For the above reasons, the appeal should be allowed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

16. It is ordered that:

a) The appeal is upheld

b) The judgment of the National Court of 19^th October 2016 is quashed;

c) The costs of the appeal and the National Court proceeding shall be paid by the respondent.
__________________________________________________________________
Kopunye Lawyers: Lawyers for the Appellants
Office of the Public Solicitor: Lawyers for the Defendant