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Finance Corporation Ltd v Panao [2009] PGNC 178; N3810 (6 November 2009)

N3810

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 186 OF 2008

BETWEEN:

FINANCE CORPORATION LIMITED
Appellant/Applicant

AND:

PETER PANAO
Respondent

Waigani: Paliau, AJ
2009: 3rd & 6th November

Cases cited:

John Peng v. The State [1982] PNGLR 331
Ted Abiari v. The State [1990] PNGLR 250
James Pari & Ors v. The State [1993] PNGLR 173

Counsel:

J. Bamin, for the Appellant/Applicant
B. Lakakit, for the Respondent

RULING

06th November, 2009

1. PALIAU, AJ: By a Notice of Motion filed on 23rd October 2009, the Appellant/Applicant sought orders pursuant to Section 229 of the District Court Act that it be allowed to adduce fresh evidence at the hearing of the appeal and any other orders the Court deems proper.

2. In its Motion, the Appellant/Applicant relied on the Affidavit evidence of Fatima Moses, sworn and filed on 9th October, 2009. It also relied on the affidavit evidence of Gajanan Barve, sworn on the 17th September 2009 and filed on 21st September, 2009.

3. The Respondent did not produce any evidence.

FACTS

4. The Appellant/Applicant is a licensed financial institution in the business of lending money to eligible borrowers. The Respondent was considered an eligible borrower and so a loan arrangement between them was put in place.

5. The dispute between the Appellant and the Respondent began when the Respondent obtained a loan of K 4, 000.00 and an additional loan of K 1, 000.00.

6. The K 4, 000.00 loan according to the Appellant/Applicant attracted an interest of K 2, 923.20 which amounted to the total loan repayable at K 6, 923.20. After three repayment installments the balance outstanding to be repaid by the Respondent stood at K 5, 884.75.

7. Whilst the above outstanding balance of K 5, 884.75 was still in place, the Respondent obtained an additional loan of K 1, 000.00 from the Appellant/Applicant. It is this additional loan of K 1, 000.00 that is the subject of the dispute between the parties.

8. The Respondent is contesting that he was given a loan of K 5, 115.25. This is inclusive of the K 4, 000.00 and K 1, 115.25 (K 115.25 was added by the Appellant/Applicant).

9. The Appellant/Applicant is however claiming that the Respondent has an outstanding loan of K 8, 048.68 yet to be repaid since he ceased repayment. A default penalty of K 260.00 was imposed, giving the total to K 8, 348.68.

10. The above amount arose as a result of the Appellant/Applicant applying a ‘one loan policy’ to the loans obtained by the Respondent. This meant that the Respondent was given a principal loan of K 7, 000.00 thus an interest of K 5, 115.60 was charged, bringing the total to be paid by the Respondent at K 12, 115.60.

11. The evidence that the Appellant/Applicant wishes to be allowed to adduce as fresh evidence is in relation to its ‘one loan policy.’ It was on the basis of this policy that the Respondent’s loan was increased to K 7, 000.00. As per the Affidavit of Fatima Moses the loan agreement for K 7, 000.00 was signed by the Respondent. However, due to photocopy error the Respondent’s signature did not appear at the bottom of the loan application form. The Appellant/Applicant claims that if that evidence was adduced in the Court below, the Magistrate would have decided otherwise.

ISSUES

12. The issues are:

(1) Whether the evidence the Appellant/Applicant wishes to be allowed to adduce is fresh evidence?

(2) If it is fresh evidence, whether it can be adduced or admitted at the hearing of the appeal?

13. If the answer to issue (1) is in the affirmative then we proceed to enquire into issue (2). If it is in the negative then that is the end of the matter because only fresh evidence can be allowed.

THE LAW

14. Section 229 of the District Courts Act, 1963, states that -

‘evidence other than the evidence and proceedings before the Court by which the conviction, order or adjudication was made shall not be received on the hearing of an appeal, except by consent of the parties or by order of the National Court.’

15. And Section 6(1)(a) of the Supreme Court Act, 1975, states that –

‘ (1) An Appeal to the Supreme Court shall be by way of rehearing on the evidence given in the Court the decision of which is appealed against, subject to the right of the Supreme Court –

(a) to allow fresh evidence to be adduced where it is satisfied that the Justice of the case warrants,.....’

16. In my view Section 229 of the District Courts Act and Section 6(1)(a) of the Supreme Court Act are saying the same thing in so far as adducing of fresh evidence is concerned, in an appeal from a District Court to the National Court and from the National Court to the Supreme Court. In an appeal from the District Court to the National Court, fresh evidence can only be allowed by consent of the parties or by an order of the National Court. Whereas in an appeal from the National Court to the Supreme Court, this is subject to the right of the Supreme Court to allow fresh evidence if it is satisfied that the justice of the case warrants it.

17. What then is the meaning of fresh evidence? The Supreme Court in our jurisdiction has settled the law in relation to the admission of fresh evidence. Fresh evidence as alluded to under Section 6(1)(a) of the Supreme Court Act 1975, means evidence 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 and which could not by reasonable means have come to his knowledge before that time. Not only that but the Court must be satisfied that the justice of the case demands admission of such evidence. These requirements were settled in the Supreme Court cases of John Peng v. The State [1982] PNGLR 331; Ted Abiari v. The State [1990] PNGLR 250 and James Pari & Ors v. The State [1993] PNGLR 173.

18. The above requirements in my view are also equally applicable to admission of fresh evidence in an appeal to the National Court from the District Court. Thus, I am bound to apply the Supreme Court decisions in the present case before me.

APPLYING THE LAW TO THE FACTS

19. The Appellant/Applicant seeks to admit evidence of a Loan Application Form which a photocopy of which was admitted in the lower Court without the Respondent’s signature at the bottom of the form (see page 105 of the Appeal Book) apparently for reason of photocopy error. It is being claimed that the form was signed by the Respondent for the amount of K 7, 000.00. By an Affidavit of Fatima Moses, the in house lawyer representing the Appellant/Applicant in the lower Court she stated that it was only after the conclusion of submissions by Counsel that she realized that the signature of the Respondent was missing. If that evidence was adduced in the Court below, the Magistrate would have decided otherwise.

20. Was this evidence fresh evidence within the meaning of Section 229 of the District Court Act and Section 6(1)(a) of the Supreme Court Act and met the requirements of the Supreme Court decisions?

21. It is evident that the loan applicant form was in evidence at the lower Court. This is clear from the Affidavit of Fatima Moses and Gajanan Barve. The form was annexued to Gajanan Barve’s affidavit as well as annexure “C”. This is also a photocopy but shows clearly the signature of the Respondent at the bottom left hand corner of the form. To say that the copy of the form that was put in evidence at the lower Court did not contain the signature of the Respondent due to photocopy error is quite absurd.

22. In any evident, it is the duty of counsel relying on such evidence to make certain that every information pertaining to such evidence is intact, as I believe this is the Appellant/Applicant’s main evidence. It was not as if the evidence was not made available, it is rather the negligence on the part of the counsel to exercise due diligence to make sure that the signature was intact in the loan application form.

23. Furthermore, in its Statement of Claim (page 100 of the Appeal Book), the Appellant/Applicant did plead that the Respondent did sign the Loan Application Terms and Conditions for the amount of K 7, 000.00. It is therefore incumbent on the part of the Counsel when adducing evidence to prove this, must make certain that the signature was intact in the Form.

24. I am therefore not satisfied that the Appellant/Applicant has not met the requirements that the evidence they so wish to adduce is fresh evidence. It is not evidence that has come to light since the hearing or trial, or not evidence which has come to the knowledge of the Appellant/Applicant since that hearing or trial and which could have by reasonable means have come to its knowledge before that time.

25. My answer to Issue (1) is negative. The evidence the Appellant/Applicant wishes to have it admitted is not fresh evidence. I will therefore not inquire into Issue (2) because only fresh evidence can be allowed to be admitted, but only if justice of the case warrants admission.

26. The Appellant/Applicants Notice of Motion filed on 23rd October 2009 is therefore dismissed with costs in favour of the Respondent.

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Fincorp Legal: Lawyers for the Appellant/Applicant
Michael Thoke Lawyers: Lawyers for the Respondent