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Maladina v Independent State of Papua New Guinea [2018] PGSC 71; SC1738 (2 November 2018)

SC1738

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO: 34 OF 2018

BETWEEN:
JIMMY MALADINA
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Dingake J
2018: 20^th June & 21^st August

Counsel:

Mr. E Asigau, for the Appellant
Mr. H Monei, for the Respondent

Cases Cited:

Oberia v Charlie (2005) SC 801

Sir Julius Chan v Ombudsman Commission (1999) PNGLR 240

Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788

2 November, 2018

1. DINGAKE J: This is the appellant’s application for leave to appeal filed on the 22^nd of March, 2018.
2. The appellant seeks, if leave is granted, to appeal against the decision of the National Court (per Polume-Kiele J) refusing an application by the Appellant for default judgment.
3. The application is made pursuant to Section 14 3 (b) of the Supreme Court Act and Order 7 Rule 3 and 4 (Sub-division 2) of the Supreme Court Rules.
4. The brief background facts related to this application are that on or about the 21^st of May, 2015, the appellant/applicant was convicted by the National Court for conspiring with some persons to defraud the National Provident Fund Board of Trustees of the sum of K2,650,000.00 by fraudulently increasing the construction costs of the National Provident Fund Tower situated at Douglas Street, Port Moresby, contrary to Section 407 of the Criminal Code, which amount, it was alleged, he subsequently applied to his own use or the use of others contrary to Section 383 A of the Criminal Code.
5. Upon conviction, pending sentence, by the National Court, the applicant paid to the State the sum of K2,650,000.00.
6. On appeal to the Supreme Court the convictions were quashed and the applicant was not found guilty.
7. Following the acquittal, the applicant instituted proceedings against the respondent for restitution for the amount of K2,650,00.00 to the State. The State did not enter any defence and the application for default judgment, failed, hence this application.
8. It would seem that the Court refused the default judgment on a number of grounds, including the following:

8.1 That it would seem on the evidence that the money sought to be claimed was not paid by mistake;

8.2 That on the evidence it seems the drawer of the cheque was not the applicant but Isles, I-s-l-e-s, Builders and Construction, Kokopo Branch and that if any person was entitled to this money, it would be the drawer of the cheque, being Isles Builders and Construction.

9. The Court was of the view that the question of the rightful claimant of the amount claimed has to be determined.
10. The Court also found that the applicant had not made out a case for Summary Judgment.
11. In considering an application for leave to appeal, the relevant tests to guide the Court were stated in the often cited case of Oberia v Charlie (2005) SC 801.
12. The Court in the above case stated the pre-requisites as including the following:
    • (a) Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?
    • (b) Does the Appellant have other recourse in the court below?
    • (c) Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?
    • (d) Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
    • (e) Will substantial injustice be caused by allowing the decision to stand?
    • (f) Has cause been shown that the trial process should be interrupted by an appeal.
13. The onus is on the applicant to show that there is an arguable case or prima facie case that the decision was wrong in principle and that substantial injustice would be done by leaving the erroneous decision unrevised on appeal.
14. In the case of Sir Julius Chan v Ombudsman Commission (1999) PNGLR 240, in relation to an application for leave to appeal against any interlocutory order, the Court stated as follows:
    • “So to obtain leave to appeal an interlocutory judgment, it is not simply a matter asserting there is an arguable case; that there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but also that the error affects a party’s substantive rights or will prevent the proper determination of the issues. That is, there is error in the interlocutory judgment that goes to jurisdiction.”
15. There are plenty of authorities that support the proposition that in determining an application for leave to appeal, the Court must take into account the strong presumption of correctness which attaches to the decision involving the exercise of discretion in a civil case on a procedural matter within the Court’s jurisdiction (Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788).
16. Upon considering the material placed before me, the submissions of the parties, it seems to me that this application cannot succeed because the ruling was within the discretion of the Court and no patent error has been shown to exist. The decision does not have any final bearing on the rights of the parties. The Court below indicated that it needed to be satisfied who exactly is the rightful claimant of the money being claimed by the applicant as the applicant is not the drawer of the cheque.
17. On the whole, I am satisfied that the applicant has failed to show that there is an arguable case, that the decision was wrong in principle or in any way manifestly unreasonable or unjust. The appellant has not shown that any substantial injustice would occur if the application for leave to appeal is refused.
18. For all the above reasons, I refuse to grant leave to appeal. The appellant shall pay costs to the Respondents.

___________________________________________________________
Pacific Legal Group: Lawyers for the Appellant

Office of the Solicitor General: Lawyers for the Respondent