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Covec (PNG) Ltd v Kama [2020] PGSC 51; SC1961 (1 June 2020)

SC1961

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA NO. 16 OF 2017


BETWEEN:
COVEC (PNG) LIMITED

Appellant


AND:
PETER KAMA representing himself and for and on behalf of DAMIN KAMIN CLAN of KUMAI TRIBE OF KUP, KEROWAGI DISTRICT, Simbu Province
Respondents


Waigani: Kandakasi DCJ
2020: 04th May

01st June


EVIDENCE – By affidavit – affidavits must contain only facts – not submissions, arguments or opinions of the deponent except only for expert evidence – deponent depositing legal advice, opinions and arguments or submissions – hearsay – Not facts – offending paragraphs struck out.


PRACTICE & PROCEDURE – Slip rule application – amendment of – Order 11, r. 11 of the Supreme Court Rules – application file outside 21 days limitation fixed by the Court Rules - need for finality in litigation –principles that should govern application to amend slip rule applications – application to amend seeking to raise issues not raised at trial and on substantive appeal hearing – some alleged slips could possibly be appeal grounds question deliberate judgment of the court - application made mischievously and not bona fide – no explanation provided as to how the new alleged slips could not be included in original application – no case made out to allow for amendments– application dismissed – Supreme Court Act s. 17 – Supreme Court Rules, O.11, rr.11 and 32, O. 7, r.26


Facts


The Appellant filed an application for slip rule under Order 11, r. 32 of the Supreme Court Rules. That was done within the prescribed time limit of 21 days. Sixteen days later, it filed an application to amend its original application. It was supported by an affidavit that deposed mainly to legal advice given to the deponent by a lawyer in the form of opinions, submissions or arguments without stating any fact. The proposed amendments sought to introduce new alleged slips by the Court. Some of the alleged slips went into matters the Appellant failed to raise in the trial court and also at the hearing of their substantive appeal. Other alleged slips went into questioning the deliberate judgment of the Court and effectively amount to appeal grounds as opposed to identifying slips by the Court. The Appellant filed no evidence explaining its filing of its application outside the 21 days limitation and how it omitted the alleged slips in the original slip rule application. The Respondent objected to the only affidavit filed for the Appellant for not deposing to facts and instead going into arguments, submissions and or opinions and asking for a strike out of a number of paragraphs of the offending affidavit. The Respondent also argued for a dismissal of the application to amend as it was filed outside the 21 days limitation, was introducing new alleged slips which were not slips by the Court but by the Appellant and they amounted to possible further appeal grounds and not slips made by the Court.


Held:


  1. The affidavits filed for the Appellant offended the law requiring affidavits to contain only facts and not submissions, arguments or opinions of deponents (except of expert witness) and the offending parts of the affidavit were struck out.
  2. An application to amend a slip rule application must be filed within the 21 days limitation under Order 11, r. 32 (1) of the Supreme Court Rules.
  3. The object of seeking the amendment must not be to materially change the originating process but must be to correct errors or mistakes apparent on the original documentation the applicant has filed and to add clarity to that which is already pleaded so as to enable the Court to see at once, a slip by itself in its judgment on a critical issue that is so manifested on the face of the judgement and not an arguable error of law or fact.
  4. Additionally, to succeed in an application for amendment, the applicant must demonstrate by appropriate evidence to the satisfaction of the Court that the:

(a) amendment will not cause real prejudice or injustice to the other parties;

(b) application is made bona fide and not mala fide;

(c) other parties can be fairly compensated with costs for such amendment; and

(d) satisfactorily explain how the applicant allowed its original application to contain defects which needs fixing by amendment.


Cases Cited:
Papua New Guinea Cases


William Duma v. Yehiura Hriehwazi (2004) N2526.
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126.
Geru Holdings Ltd v. Kruse (2019) N7867.
Trinity Grammar School v. Henry Bale Tomai (2018) N7819.
Application by Cloudy Bay Sustainable Forestry Ltd v. Pako F & C Holding (PNG) Ltd (2019) SC1788.
Stephen Asivo v. Bank of South Pacific Ltd (2011) N4252.
Raywill Parapen v. The Independent State of Papua New Guinea (2014) SC1354.
Mirenbean Enterprise Ltd v. Kaugla (2019) SC1826.
Minister for Lands and Physical Planning & Ors v. Air Niugini Limited (2013) SC 1233.
Ata v. Logae (2019) SC1784.
Charles Bougapa Ombusi v. The State [1996] PNGLR 335
Schubert v. The State [1979] PNGLR 66
Damane v. The State [1991] PNGLR 244
Arua Maraga Hariki v. The State (2007) SC1320
Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510
Yanta Development Association v Piu Land Group Inc & Ors (2005) SC798
Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112
Application by Honourable Belden Namah (2020) SC1934
Lucas Dekena v. Nick Kuman (2018) SC1715
James Lovika& 79 Others v. Carl Malpo& The State (2019) SC1895
Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea [1994] PNGLR 78
Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063
Eki Investments Limited v. Era Dorina Limited; Era Dorina Limited v. Eki Investments Limited (2006) N3176
HJ Heinz and Hugo Canning Company Ltd v. Foods Pacific Ltd & Ors. (1999) N1867
Komboro George v. MVIT [1993] PNGLR 477
The Papua Club Inc v. Nusaum Holdings Ltd & Or (2002) N2273
Waine Kerowa v. Hargy Oil Palms Ltd (2012) SC1194
Paru Aihi v. Peter Isoaimo (2013) SC1276
PNG Bible Church Inc v. Carol Mandi (2018) SC1724
Rimbunan Hijau (PNG) Ltd v. Enei (2019) SC1859


Overseas Cases cited:


Cropper v. Smith [1884] UKLawRpCh 91; (1884) 26 Ch. D. 700


Legislation cited:


Supreme Court Act Chapter No. 37 section 17
Supreme Court Rules 2012 (Consolidated) Order 7 Rule 26 and Order 11 Rules 11 and 32


Counsel:


W. Mapiso, for the Appellant/Applicant
C. Gagma, for the Respondents


RULING ON APPLICATION TO AMEND


01st June 2020


1. KANDAKASI DCJ: The Appellant (Covec) and the Respondents (Kama) have each filed an application for leave to make slip rule applications against a decision of the full Court by the majority of Kassman and Toliken JJ with myself dissenting, delivered on 4thFebruary, 2020. Covec has also filed an application seeking to amend its slip rule application. With the agreement of the parties, I heard the application seeking leave to amend first.

Preliminary Issue


2. In view of my dissenting in the substantive decision, I sought the parties’ views through their respective counsel on the appropriateness of my presiding and dealing with the application. The parties saw no problem and agreed to my presiding. I saw no difficulty with that as the law governing slip rule applications are clear and that it is a matter of applying them to the present case.


Application to amend slip rule application
(a) Objection to affidavit in support


3. Covec is applying for leave to amend its initial application for leave to make a slip rule application filed on the 24thFebruary, 2020[1] (original application). Covec argues that its original application does not include the nature of the slips it now wishes to raise. Counsel also submits that, the original application is too general, vague and obviously defective and wanting. Therefore, the proposed amendments are necessary to correct the defect to clarify the specific slips or errors and or omissions committed by the Court. Further, counsel goes on to argue that, the amendments will not prejudice Kama because his slip rule application is related to the proposed amendments. Thus, the interest of justice requires leave to be granted to correct or rectify these obvious defects in Covec’s original application and to render the application competent to invoke this Court’s jurisdiction. In support of its application, Covec filed an affidavit by a Hu Gang sworn and filed on 12thMarch 2020.[2]


4. Kama objects to paragraphs 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 22, 23, 24, 25, 26, 27 (v), 29, 30, 31, 32, 33, 34, 35, 40 on the basis of opinions, arguments and submissions. Covec argues two points in response. Firstly, it submits that its application for leave to amend the original application does not require supporting affidavits to substantiate the proposed amendment as those are matters for hearing of the original application. Secondly, the affidavit only explains why leave is being sought and it also annexes the proposed amendments. It thus argues that, Kama’s objection is without any proper basis.


5. In support of his client’s objection to the said parts of the affidavit, learned counsel for Kama drew the Courts attention to my decision in William Duma v.Yehiura Hriehwazi (2004) N2526. There I held:


“The law on what must be set out in an affidavit is clear. An affidavit must set out facts to the exclusion of any submissions on the law and or other arguments. For the whole purpose of using affidavits is to put relevant facts in a matter before the Court. This is restated in s. 34(1)(a) of the Evidence Act ... in these terms:


‘(1) Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that—

(a) a particular fact or facts may be proved by affidavit; ...” (Emphasis supplied)


This is not surprising because only facts is what the Court is interested in and nothing else except where a person is called to give evidence as an expert, in which case he may be permitted to express an opinion. It is the function of the Court to draw such inferences and conclusions and to determine what is in issue between the parties based on the evidence or facts before it and not a party or a witness.Given this, opinions, arguments and or the submissions amounting to a determination on the issue before the Court by witness are inadmissible evidence ... and are certainly not facts on which a Court can act.”

(Emphasis supplied)


6. The Supreme Court in its decision in PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 (per Kandakasi J (as I then was) Hartshorn &Sawong, JJ) endorsed this statement of the law in the following way:


“The decision of the National Court in William Duma v Yehiura Hriehwazi... reiterates the law in these terms:


‘The law on what must be set out in an affidavit is clear. An affidavit must set out facts to the exclusion of any submissions on the law and or other arguments. For the whole purpose of using affidavits is to put relevant facts in a matter before the Court. This is restated in s. 34(1)(a) of the Evidence Act... in these terms:


‘(1) Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that—

(a) a particular fact or facts may be proved by affidavit; ...’

This is not surprising because only facts is what the Court is interested in and nothing else except where a person is called to give evidence as an expert, in which case he may be permitted to express an opinion. It is the function of the Court to draw such inferences and conclusions and to determine what is in issue between the parties based on the evidence or facts before it and not a party or a witness. Given this, opinions, arguments and or the submissions amounting to a determination on the issue before the Court by [a] witness are inadmissible evidence... and are certainly not facts on which a Court can act.”


7. Other cases also adopting and applying the above statement of the principles of law include the decisions of David J., in Geru Holdings Ltd v. Kruse (2019) N7867, which was cited by Kama’s counsel. It also includes the decisions in Trinity Grammar School v. Henry Bale Tomai (2018) N7819 (per David J) and Application by Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holding (PNG) Ltd (2019) SC1788 (per Dingake J). A case that could be most relevant is the decision of Cannings J in Stephen Asivo v. Bank of South Pacific Ltd (2011) N4252. There, his Honour noted and applied the law in this way:


“... the bank argued that the claims Mr Asivo is agitating in paragraphs (8) and (9) of his notice of motion are misconceived and another abuse of process. Unfortunately, these arguments were made not in a written submission but in an affidavit by the bank’s counsel, Mr Koimo, which is improper. An affidavit is not a vehicle through which a lawyer makes submissions on the law (William Duma v Yehiura Hriehwazi (2004) N2526). An affidavit must contain statements of fact, not opinion, unless it is expressed to be expert opinion. ...”


8. In view of the objection taken against the affidavit of Hu Gang, I had a closer look at the whole of that affidavit against the relevant and application law as discussed above. With the exception of paragraphs 1 and 2 of that affidavit, I find the rest of the paragraphs from 3 to 41 breaching the law on what should be in an affidavit. They contain hearsay statements, opinions, arguments and or submissions based on legal advice given to the deponent. The case is similar to what Cannings J had before him in Asivo v. Bank of South Pacific (supra) case. The only difference, however, is in the deponents. In that case, the deponent was the defendant’s lawyer making or presenting his submissions or arguments in his affidavit. In the present case, counsel for Covec, who has apparently prepared the affidavit for his client, got his client to present its arguments or submissions in its affidavit. In the process, counsel has also gotten his client to depose to hearsay material because, most if not, the whole of what is essentially deposed to in the affidavit are submissions or arguments counsel could present on his client’s behalf. His client notbeing atrained and experiencedas a lawyer, could not come up with the views and arguments except as put to him by his lawyer. Any affidavit filed in support of an application for a slip rule application must strictly be restricted to facts as to the evidence and or the submissions presented to the Court during the hearing of an appeal or review application, which should already be part of the Court’s record. Then in an application to amend an affidavit filed in support must depose to facts going into explaining how the original application was not done up properly and where new grounds are sought to be included, explain how they could not be ascertained an included in the original application. Such an affidavit should also depose to facts forming the foundation for an argument that the amendment if allowed will not result in any prejudice to the other side. Here, the contested affidavit does not depose to any facts but are mainly a statement ofopinions, arguments and or submissions and hearsay. Accordingly, I order a strict out of paragraphs 3 to 41 of Mr. Hu Gang’s affidavit, document number 46 on the Court file.


9. With respect, had learned counsel for Covec properly considered and appreciated the law on point as noted above, he would have reviewed his client’s affidavit and accepted the objections to its use. Apparently, he has not. That resulted in the arguments on the issue. This has unnecessarily taken up the Court’s time to hear the arguments, consider them and come toa decision on the application to amend promptly. What counsel did, with respect is contrary to the requirements of the Professional Conduct Rules 1989. Rule 15 (b) obligates a lawyer to “use his best endeavours to avoid unnecessary expenses and waste of theCourt’s time.” Counsel’s failure to ensure the affidavits contained only facts and readily concede when objected to and thereby force arguments and require a decision of the Court on this point has wasted the Court’s time. This kind of conduct is becoming common place in our Courts by lawyers. In appropriate cases, lawyers should be made to account through appropriate orders for costs against them possibly on a solicitor and own client basis against them personally and not their clients. In the present case this will serve only as a warning today.


(b) The law on amendments


10. I now turn to a consideration of the application to amend the original application for leave by Covec. Covec says, its application to amend is pursuant to O.11, r. 11(Adding parties and amendment) of the Supreme CourtRules 2012 (Consolidated to Amendment No. 1 of 2013). This rule states:


“The Court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.”
(Emphasis supplied)


11. The provisions of O.7, r. 26 of the Rules are also relevant, which counsel for Covec does not refer to in his submissions. This provision states:


“A party who files a supplementary notice under Rule 25 shall file and serve it in accordance with Rule 13. The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days.”

(Emphasis supplied)


12. O.7, r. 26 is consistent with s. 17 of the Supreme Court Act, which States:


“Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.”
(Emphasis supplied)
13. Counsel for Covec, submits that O. 11, r. 11 gives this Court the power to order amendment of proceedings generally and is wide enough to include amendments to the applications for slip rule. This he submits is confirmed by the decision in Raywill Parapen v. The Independent State of Papua New Guinea (2014) SC 1354. There, his Honour, Makail J held:


“In my view it is wide enough to include amendment of a notice of appeal where an appellant is outside the time limit of 40 days: See Minister for Lands and Physical Planning & Ors v. Air Niugini Limited (2013) SC 1233. I am satisfied that this Court has power to grant leave to amend grounds of appeal after the expiry of 40 days to file an appeal.”


14. Reliance is also placed on the decision of this Court in Mirenbean Enterprise Ltd v. Kaugla (2019) SC1826, (per Salika CJ, Batari, Dingake JJ), Minister for Lands and Physical Planning & Ors v. Air Niugini Limited (2013) SC 1233 (per Davani, Makail & Poole JJ) and Ata v. Logae (2019) SC1784 (Makail J). All these cases have been decided in the context of applications to amend a Notice of Appeal after the expiration of the 40 days period under s. 17 of the Supreme Court Act. The leading case on point is the decision of the Supreme Court in Charles Bougapa Ombusu v The State [1996] PNGLR 335 (per Amet CJ, Kapi DCJ, Los, Injia and Sawong JJ). That was in a serious criminal case where the appellant was given the death penalty after a lumped together trial for wilful murder and rape. On appeal against that decision, the Courtdecided that the hearing of the appeals should be separate. Following that, the appellant’s lawyer applied to add a new ground of appeal claiming the lumped together conduct of the trial was improper. The Court granted the application. In so doing, the Court reasoned that, the case presented a special circumstance. The special circumstance was the fact that, it was the first ever case of a death penalty being imposed since independence. That made the case an exceptionalone warranting exercise of the Court’s discretion to allow the amendment. The Court then went on to note that, the decisions in Schubert v. The State [1979] PNGLR 66 (per Prentice CJ, Raine DCJ and Andrew J) and Damane v. The State [1991] PNGLR 244 (per Kapi DCJ, Amet and Wood JJ) have already identified the following as special circumstances warranting amendments:


(1) the respondent is not taken by surprise;

(2) the original adjournment was granted at the request of the respondent;

(3) no prejudice could be said to have arisen;

(4) the prisoner filed the appeal in person;

(5) legal representation was granted long time after the filing of the appeal; and

(6) the respondent did not oppose the application.


15. Then at page 339 of the judgment, the Court stated the relevant test to determine whether there is a special circumstance in a particular case. It expressed the test in terms of:


“The test is ...whether there are special circumstances in a particular case which would make the case an exceptional case that would warrant the grant of leave to amend the notice of appeal. It is not whether there are exceptional circumstances that would warrant grant of leave.”
(Underlining supplied)


16. Later as Covec’s counsel submitted, the Supreme Court in Mirenbean Enterprise Ltd case, reiterated the test and said:


“13. It would not be prudent to seek to enumerate a list of special circumstances contemplated by the Court, suffice to say that each case must turn on its own circumstances.

14. It is trite learning that the grant of leave to amend is discretionary. Such discretion must be exercised reasonably, the focus being to promote the interest of justice, at all times.

15. In addition to the above, the modern trend is that, generally, amendments of the nature sought, are most likely to be allowed if the application is not mala fide or would not result in prejudice on the respondent, which cannot be compensated by costs.

16. In our considered view an amendment that facilitates a proper ventilation of the issues in dispute and causes no prejudice to the respondent should ordinarily be granted.”


17. Before the decision in Mirenbean Enterprise Ltd case, the Court in Arua Maraga Hariki v. The State (2007) SC1320 (per Injia DCJ (as he then was and Cannings J), usefully provided a list of questions that could assist in determining whether a special circumstancemaking the case an exceptional case is made out. The list without being necessarily exhaustive includes:


(1) If it is a new issue of law that is being raised, should it have been raised earlier?

(2) Is the amendment so significant that it could reasonably be expected to determine the result of the appeal?

(3) Is the amendment raising an arguable point of law?

(4) Has there been a change in the applicant’s legal representation?

(5) Is the application being made at the hearing or before the hearing of the appeal?

(6) Is there any good reason that the need for the amendment was previously overlooked?

(7) Will the respondent be prejudiced by the amendment?

(8) What is the significance of the merits of the appeal?

(9) Is the life or liberty of the applicant at stake?”


18. Applying the test and the asking the above list of questions, the Court decided to grant an application to amend the appellant’s notice of appeal. In arriving at that view, the Court found the following:


(1) The proposed amendment raised an entirely new ground of appeal and it should clearly have been raised earlier;

(2) The proposed amendment was very significant raising a possible substantial miscarriage of justice, which if permitted could result in a quashing of the conviction;

(3) A cursory examination of the argument demonstrated an arguable point of law being raised;

(4) The applicant had a change of lawyers which may have resulted in some confusion about what happened at the trial;

(5) It was a late application as it was made after the appeal was set down for hearing and not at the hearing;

(6) It appeared that appellant’s counsel did not examine the case sufficiently closely after having received instructions from the applicant;

(7) The respondent could not be unduly prejudiced by the amendment as its lawyer had ample time to prepare to argue the point raised by the amendment;

(8) The merits of the appeal would, even if leave to amend the notice of appeal is refused, raise significant legal issues, eg application of the rules regarding circumstantial evidence and the circumstances in which the National Court is warranted in passing the death sentence; and

(9) The life of the applicant is at stake. He is facing the death sentence. No more serious case can be envisaged.
19. There appears to be an obvious conflict in authority. On the one hand are the cases, Covec has referred to and relies upon and O.11, r. 11 of the Court Rules. On the other hand, are the provisions of s.17 of the Supreme Court Act and O.7, r. 26 of the Rules, and case authorities on point. I received no helpful assistance by way of submissions from Covec’s counsel on this point. It is settled law however, that the Act would prevail over any inconsistent provision in the Court Rules. The decision in Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510(per Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J (as their Honours’ then were) made that point clear when it held r. 32 of the then Supreme Court Rules was inconsistent with the Supreme Court Act and was therefore held invalid and ineffective. This is not surprising because the rules must be read subject to the Act: Yanta Development Association v Piu Land Group Inc & ors (2005) SC798 (per Kirriwom, Batari and Mogish JJ). It is also clear law that, an appellant cannot introduce an entirely new matter to his or her notice of appeal outside the 40 days limitation. The Court in Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112 (per Kapi DCJ, Sheehan and Brown JJ) in a unanimous decision made that point clear in the following terms:

“There is a long line of authorities which support the proposition that where an appeal is not filed within 40 days as required by s 17 of the Supreme Court Act, there is no power in the Supreme Court to hear such a matter under the Supreme Court Act. see Avia Aihi -v- The State (supra); Shelly -v- PNG Aviation Services (supra); Dillingham Corporation -v- Diaz [1975] PNGLR 262; Wood -v- Watkins (PNG) [1986] PNGLR 88; PNG -v- Colbert [1988] PNGLR 138.


Applying these principles to the present case, the Appellant cannot introduce a new matter, that is application for leave to appeal outside the 40 days period. The Appellant has failed to apply for an extention (sic) of time in which to file an application for leave to appeal. The Supplementory (sic) Notice of Appeal is therefore incompetent in so far as it relates to the decision of the National Court on joinder of parties. No amendment can be allowed in these circumstances. This part of the decision of the National Court can not be reviewed under the Supreme Court Act.”


20. In recent times, the Supreme Court has refused to allow last minute applications for amendments in light of objections to the competency of an originating process in the Supreme Court. The decision of this Court in theApplication by Honourable Belden Namah (2020) SC1934 (per Kandakasi DCJ, Cannings and Shepherd JJ) is on point. At paragraph 52 of the judgment, the Court held that, no material error or defect in an origination process in the Supreme Court can be cured by amendment. In so doing, the Court reiterated earlier decisions on point as in the cases of Lucas Dekena v. Nick Kuman (2018) SC1715 (per Kandakasi, Geita & Lindsay JJ) and James Lovika& 79 Others v. Carl Malpo& The State (2019) SC1895 (per Kandakasi DCJ, Bona & Shepherd JJ).


21. On the other hand, the cases that have allowed for amendments outside the 40 days limitation include the decision in Rolf Schubert v. The State (supra). In their joint judgment, Prentice CJ and Andrew J said:


“We should like at the outset to voice our disapproval of this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court. We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal, in which case it will invariably be struck down by s. 27 of the Supreme Court Act 1975.”

(Emphasis supplied)


22. In the same case, Raine J whist deciding to grant an application to amend the appellant’s grounds also pointed out:


“Despite all the above matters, I have formed the view that leave can be granted here, but the profession must not regard this as a precedent.”
(Emphasis supplied)


23. It is clear to me that, even in cases where amendmentswere allowed, that was done not readily but only on being satisfied that there were special circumstances making each of the cases exceptional. Amendments allowed under the special circumstance and exceptional case were mostly, in cases where the liberty or life ofpersons convicted of offenceswereat stake. The civil cases that followedlater in time, as in the case of Mirenbean Enterprise Ltd and others, did not give any consideration to the fact that, they were dealing with non-criminal cases and the considerations ought to be different. That failure to so consider in my view, prevented the Court in those cases from considering the particular circumstances in the criminal cases which warranted the grant of amendments in each of the cases outside the 40 days limit. In the civil cases, the kind of special circumstances that existed and made the cases exceptional did not exist and hence, in my respectful view, did not warranted amendments outside the time limits placed by s. 17 of the Act. I also note that none of the cases, appear to have carefully considered and decided with good reason as to how the Court could override the limitations placed by s. 17 of the Act by effectively allowing an appeal on a new ground outside the 40 days limitation. The cases in which the Supreme Court decided to grant amendments outside the 40 days were in criminal cases. This was mainly because persons convicted of criminal offences’ life or liberties were at stake. The same considerations do not apply in civil cases. Until I am persuaded with good reason that the limitation under s. 17 of the Supreme Court as reinforced by O.7, r. 26 of the Court Rules is subject to the Court’s discretion, I subscribe to the view that no amendment outside the 40 days limitation under these provisions can be allowed.


(c) Slip rule application


24. Turning now to the application to amend Covec’s original application for leave to make a slip rule application, I note this is the first case of its kind. Order 11, r. 32 governs slip rule applications. One of the most important principles to consider always in the context of slip rule applications is the public policy consideration which requires finality in litigation. What this means is that, once a final decision has been arrived at by a court of law, that should spell the end of the matters in controversy between the parties, subject only toone’s right of appeal and review where that is available. Slip rule applications are available in limited cases for a revisit of a final decision of the Supreme Court. This is a recent development at leastfor PNG.


25. One of the earliest cases on slip rule is the decision of the Supreme Court in Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea [1994] PNGLR 78(per Los, Brown &Sakora JJ), stated this principle in terms of:


“...the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a Court has good reason to consider that in its earlier judgment it has proceeded on a misapprehension as to the facts or the law. As this Court is a final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be, an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court, nor is it to be exercised simply because a party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and a misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases.”


26. Basing upon such earlier decisions of the Supreme Court, the principles governing slip rule applications have now become well settled in our jurisdiction. In the five-member Supreme Court decision in Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063 (per Sakora, Batari, Lenalia, Davani, Hartshorn JJ) the Court after a review of the various authorities on point, settled the following as the principles that govern all slip rule applications:


“(a) There is a substantial public interest in the finality of litigation.

(b) On the other hand, any injustice should be corrected.

(c) The Court must have proceeded on a misapprehension of fact or law.

(d) The misapprehension must not be of the applicant’s making.

(e) The purpose is not to allow rehashing of arguments already raised.

(f) The purpose is not to allow new arguments that could have been put to the Court below.

(g) The Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.”


27. As the full Court noted in the Trawen v. Kama (supra) case, most applications for slip rule have been unsuccessful. This is because, as the Court reasoned, “the requirements for making a successful application are very onerous”. This calls for careful consideration and conviction on the part of applicants that their proposed slip rule applications have merit, in that, they meet all of the requirements for a grant of slip rule applications. The requirement for the Court to be satisfied that, before setting aside its previous decision, it made a clear and “manifest, not an arguable, error of law or fact on a critical issue”, dictates a serious exercise of care and attention.


28. Applicants exercising the kind of care and attention required would carefully choose their words and properly, succinctly and precisely plead the grounds for the application. Since slip rules concerns, strictly speaking, slips by the Court that are manifest on the face of the judgement and not an arguable error of law or fact on a critical issue, it should not be such a difficult task to easily identify possible grounds for a slip rule application. These could easily be done by aggrieved parties going through the judgment against their grounds of appeal and submissions actually presented to the Court at the hearing of an appeal or review. This task should obviouslybe a very easier task compared to working out possible grounds of appeal against a trial judge’s decision.


29. If aggrieved parties and their lawyers carefully discharge their duties before filing for leave to make a slip rule application, they would necessarily commence by properly pleading the proposed slips for the leave application. In this regard, parties and their lawyers need to be reminded that, having considered all things, all the Judges through the enactment of the Court Rules and by the provisions of O.11, r. 32 (1), decided to put a time limit of 21 days for slip rule applications. It follows therefore that, if an applicant duly discharges this duty, there would be no need for any amendment and the application would proceed to ahearing on its merits, without further unnecessary delay.


30. Allowing for applications for amendment of applications for leave to make a slip rule application especially one filed outside the 21 days period under r. 32 would offend against the substantial public policy interest in seeing finality in litigation. This is critically important, especially and more so, after a final court of appeal has come to a decision on the substantive merits of an appeal, as opposed to a court of first instance coming to a decision. At this stage, two courts of competent jurisdiction have dealt with the issues in the case. Hence, allowing applications to amendment applications for leave to make a slip rule application comes with the potential of licensing further delaysin reaching finality in litigation, unnecessary litigation at increased costs and the taking up of the Court’s very limited resources, time unnecessarily.


31. At the same time, I note as I did in Eki Investments Limited v. Era Dorina Limited; Era Dorina Limited v. Eki Investments Limited (2006) N3176 the object of amendments. They were enunciated as early as the seminal statement of Bowen LJ in Cropper v. Smith [1884] UKLawRpCh 91; (1884) 26 Ch.D. 700 at 710:


“Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. ...

I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Cou rt ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. ... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”


32. This statement of the law has been adopted and applied with approval in many cases in PNG. Woods J, cited these principles with approval in his decision in HJ Heinz and Hugo Canning Company Ltd v. Foods Pacific Ltd&Ors.(1999) N1867 and Komboro George v. MVIT [1993] PNGLR 477.Later, Gavara-Nanu J in The Papua Club Inc v. Nusaum Holdings Ltd & Or (2002) N2273reviewed some of the relevant authorities on point and correctly said amendments can be allowed:


(a) Where the amendment is to enable the Court to determine the real question in controversy between the parties; or

(b) Where the amendment is to correct any defect or error in the proceedings; and

(c) That such amendment will not cause real prejudice or injustice to the other party (ies); and

(d) That the application for such amendment is made bona fide and not mala fide; and

(e) That the other party (ies) can be fairly compensated with costs for such amendment.


33. Later the Supreme Court in Waine Kerowa v. Hargy Oil Palms Ltd (2012) SC1194, summed up the law in these terms:


“The power to grant leave is an exercise of judicial discretion and must be exercised based on proper principles of law...........the onus is on the appellant to establish that the proposed amendments are necessary to enable the Court to determine the real question in controversy between the parties, to correct any defect or error in the proceedings and that the amendments will not prejudice the other party: The Papua Club -v- Nusaum Holdings Limited (2002) N2273, Michael Kewa -v- Elias Kombo (2004) N2688, Komboro -v- MVIT [1993] PNGLR 477, Eki Investments Limited -v- Era Dorina Limited (2006) N3176 and Luke KyokalNiap -v- PNG Harbours Limited (2009) N3672.”


34. I consider a better compromise between the need for finality in litigation and the object of allowing amendments is to make allowance for amendments to slip rule applications, provided the applications for amendments are filed and served within the 21days limitation under O. 11, r. 32 (1). This is consistent with spirit of the provisions of s. 17 of the Supreme Court Act, O. 5, r. 14 and O.7, r. 26 of the Court Rules. The purpose or object of such a provision should be consistent with the object of amending pleadings and the purpose of slip rule applications. The object or the purpose of the amendment sought must be not to materially change the originating process. It must be to correct errors or mistakesapparent on the original documentation the applicant has filed and to add clarity to that which is already pleaded so as to enable the Court to see at once,a slip by itself in its judgment on a critical issue that is so manifested on the face of the judgement but,not an arguable error of law or fact.Additionally, to succeed in the application, the applicant must demonstrate to the satisfaction of the Court that the:


(a) amendment will not cause real prejudice or injustice to the other parties; and


(b) application is made bona fide and not mala fide; and


(e) other parties can be fairly compensated with costs for such amendment.


(d) Present case


35. In the present case, as already noted, Covec submits that amongst others, the proposed amendments will enable the Court to determine two very critical legal issues. The first is whether the Court has committed a slip in awarding damages for River Training Costs estimates in the sum of K2, 110, 034. 07 contrary to the Environment Act 2000? The second is, whether the Court has made a slip in awarding double compensation for the same damages when it awarded two lots of damages (1) K1, 828,998.50 for value of the materials extracted from the Respondent's land and (2) K2, 110, 034. 07 for the value of the environmental damage? In so doing, and as already noted, Covec submits that the original slip rule application filed on 24thFebruary 2020, does not include the nature of the slips it now wishes to raise. Counsel also submits that the original application is too general, vague and obviouslydefective and wanting. Therefore, the proposed amendments are necessary to correct the defect to clarify the specific slips or errors and or omissions committed by the Court. Further, counsel goes on to argue that, the amendments will not prejudice Kama because his slip rule application is related to the proposed amendments. Thus, the interest of justice requires leave to be granted to correct or rectify these obvious defects in Covec’s original application and to render the application competent to invoke this Court’s jurisdiction.


(e) Proposed amendments


36. I first note that Covec’s application to amend was filed on 12th March 2020. That was 37 days after the Court handed down its decision on the substantive appeal and 16 days after the expiry of the 21 days limitation under O. 11, r.32 (1). Covec, offered no explanation based on evidence disclosedin an affidavit as to why, it took it that long to come to Court with its application to amend. Also, it has given no explanation as to how and why it failed to include in its original application all its now alleged slips. Secondly, I note the amendments sought, if granted will allow Covec to substantially depart from its original application with new and more elaborate alleged nature of slips it wishes the Court to correct.


37. Going through the proposed draft amended application shows the following (going by the order in which the document reads):


(1) Paragraph 1 - original speaks of the judgment the subject of the original application. The proposed amendment seeks to plead the orders that were made by the Court out of the judgment to which the alleged slips arises. I see no problem with this proposed amendment because it tries to clarify the decision and the orders that were made by the Court. In any case, it is not an alleged slip by the Court.


(2) Paragraph 2 – original is headed as “Ground” which is sought to be replaced with “Nature of Slip”. Order 11, r.32 (2) requires a slip rule application to “set out the nature of the slip and the finding that the applicant contends the Court should have made.” Kama submits the application as originally pleaded is incompetent and the application to amend is seeking to remedy it. As already noted, Covec itself in its counsel’s submission concedes to this. I find the original application states the alleged slips and treats them as if they are grounds of an appeal. This is a material defect which affected the then stated as “grounds” and now stated as “nature of slip”. As will be demonstrate in some of the alleged slips, this defect has caused Covec to raise as slips but in fact matters that could constitute grounds of appeal, if such further process was available to it. The decisions in Application by Honourable Belden Namah (supra); Lucas Dekena v. Nick Kuman (supra) and James Lovika & 79 Others v. Carl Malpo& The State (supra), applies.


(3) Paragraph 2 (a) –originally, the paragraph as pleaded seeks to point out that the Court made an error when it did not give the parties an opportunity to make submissions on a judgment the Court referred to and relied on to arrive at parts of its judgment. The amendments sought has the potential of adding clarity to this ground.


(4) Paragraphs 2 (b) – as originally pleaded it seeks to point out that the Court made a slip or omitted to note that other persons were claiming interest through Kama and the award appears to be only for Kama and not the persons represented by him. The proposed amendment departs from what was pleaded and seeks to introduce an issue of customary landownership dispute so as to remove the matter from the National and Supreme Courts. This issue should have been first raised in the Court below and then taken up in this Court on appeal with the alleged other landowners being joined as parties. Covec did not raise the issue correctly first in the National Court and later take it up in the Supreme Court.There is a long line of authorities against a party being allowed to raise an issue for the first time in the Supreme Court without first raising it in the trial Court: see the decisions in Paru Aihi v. Peter Isoaimo (2013) SC1276 (per Kandakasi J (as I then was) Hartshorn and Yagi JJ.) and PNG Bible Church Inc v Carol Mandi (2018) SC1724(per Kandakasi J (as I then was), Toliken and Bona JJ.). No amendment will fix the problem that is inherent in the original ground. The attempt to include this in the slip rule application by amendment to the original application is, in my view, mischievous and not a bona fide application to amend. It is an attempt at adding a new alleged slip not by the Court, but a slip on Covec’s own part well outside time limitation imposed by O. 11, r. 32 (1) of the Court Rules.


(5) Paragraph 2 (e) –is a new alleged misapprehension of the law in relation to the principles governing award of damages. This paragraph introduces the concept of double punishment in a case where this Court had arrived at two separate awards for two separate heads of damages, that were pleaded and contested. That was not a slip on the Court’s part. Instead, it was a deliberate judgment of the Court. Besides, the way this alleged slip is pleaded may be proper for an appeal against the decision of this court if that was an available remedy. It does not constitute a misapprehension of the law by the Court on a critical issue that is so manifested on the face of the judgement calling for correction and not an arguable error of law or fact.


(6) Paragraph 2 (f) (i) and (ii) – (v) and (vi) are also new alleged misapprehension of the law. They seek to introduce allegations of acts of God, other persons or authorities like the Office of Environment and Conservation Authority and the State being responsible for the damages Kama claimed and was resolved by the final judgement of this Court. Covec did not raise this issue before both the National Court and this Court on appeal. Covec’s appeal was mainly against the award of damages. It is therefore raising an issue for the first time as an alleged slip by this Court, when the slip was of its own making. Seeking to introduce an issue as a slip and by way of an amendment is in my view,mischievous and mala fideas it goes against clear law excluding a party from raising an issue in the Supreme Court for the first time: see the decisions in Paru Aihi v. Peter Isoaimo (supra) and PNG Bible Church Inc v Carol Mandi (supra) for examples of cases on point.


(7) Paragraph 2 (f) (iii) and (vii) – are new alleged misapprehension of the law. These paragraphs seek to introduce alleged new slips. But a closer examination of each of them clearly show these alleged slips are questioning the deliberate judgements of the Court, especially in how the Court treated the evidence before it and came to its decision. As the decision of this Court in Rimbunan Hijau (PNG) Ltd v. Enei (2019) SC1859(per Salika DCJ, Kandakasi J (as we then were) and Toliken J.), clearly pointed out, the slip rule procedure is not available for these kinds of complaints against a final Supreme Court decision.

(8) Paragraph 2 (g) (i) – (vi) – are new alleged misapprehensions of the evidence that was before the Court on Kama’s damages. Closure looks at these paragraphs, shows clearly that Covec is questioning the Court’s deliberate judgments or decision on each of these points. As noted above, the slip rule procedure is not available for these kinds of complaints.


(9) Paragraph 2 (f) [second (f)], (g) [second (g)], (h), (i) and (j) – are new alleged slips. A closure examination of each of these alleged slips show they really are arguments against the Courts deliberate decision on the appeal. They could form grounds for an appeal but not for slip rule applications. The decision in Rimbunan Hijau (PNG) Ltd v. Enei (supra) applies here.


38. In addition to each of the problems highlighted in respect of each of the proposed new alleged slips, Covec has offered no explanation as to why it could not have these alleged slips included in its original application. During submissions, counsel for Covec sought to meet that absence of explanation by reference to his client changing its lawyers. However, there is no evidence from Covec disclosing when it changed its lawyers, and how that impacted against it getting all of the alleged slips included in its original application. Also, to the extent that, Covec has come well outside the 21 days limitation under O.11, r. 32 (1) and by its own submissions, it was required to establish by appropriate evidence the existence of special circumstances making its case an exceptional one and that leave should be granted for it to include the alleged new slips. The foregoing discussion on the law on including new grounds of appeal after the expiry of the first 40 days under s.17 of the Supreme Court Act, make this requirement clear, in view of the fact that Covec has filed its application to amended well outside the 21 days limitation under O.11, r. 11 of the Court Rules. Unfortunately, Covec failed to discharge that obligation as well.


39. Further, no evidence by appropriate affidavit evidence has been adduced by Covec, which should Kama will not be prejudiced by the grant of the application. It is not enough for counsel for Covec merely submitting, Kama will not be prejudice, without the support of any evidence and hence a proper factual foundation for such a submission.


40. Having regard to all of the foregoing, I am of the view that, no case has been made out by Covec for this Court to allow it to amend its original slip rule application. Accordingly, I order its dismissal with costs to the Respondent to be taxed, if not agreed.
________________________________________________________________
Guardian Legal Services: Lawyers for the Appellant
Gagma Legal Services: Lawyer for the Respondents

[1]Document No. 38
[2]Document No.46

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