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Kalaut v Thompson [2015] PGSC 78; SC1551 (23 March 2015)

SC1551

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 47 OF 2011

BETWEEN:
SYLVESTER KALAUT
First Appellant

AND:
ANTHONY WAGAMBIE, as the Commissioner of Police
Second Appellant

AND:
ROYALE THOMPSON
Respondent

Waigani: Mogish, Gabi and Kariko JJ.

2011: 30 August

2015: 23^rd March

SUPREME COURT - PRACTICE AND PROCEDURE – Objection to competency of appeal– whether Court’s jurisdiction validly invoked – if one ground properly invokes jurisdiction, appeal competent

Cases cited:
Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC 1221
Gigmae Taemae v MVIL (2011) SC112
Haiveta v Wingti (No 2) [1994] PNGLR 189
Henao v Coyle (2000) SC655
Jeffery Turia v Gabriel Nelson (2008) SC949
Ramu Nico Management (MCC) Ltd v Farina Siga (2010) SC1056
South Pacific Equities & Investments Ltd v Toup Goledu (2009) SC 962
Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201
Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 113
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Counsel:

Mr J Nalawaku, for the Appellants
Mr I Molloy and Mr F Griffin, for the Respondent

DECISION

23^rd March, 2015

1. MOGISH J & KARIKO J: This is an objection by the respondent to the competency of the appeal.

2. After the Court heard and reserved its decision and before the decision could be delivered, Gabi, J a member of the Court sadly passed on. In those circumstances, the parties have exercised their entitlement under section 3 of the Supreme Court Act and they have agreed for the remaining members of the Court to deliver their decision. This we do now.

Background

3. By way of background, the respondent filed an Originating Summons in the National Court whereby she sought to permanently stay as an abuse of process, proceedings or proposed proceedings in the District Court based on three (3) Informations drawn up by a Superintendant Sylvester Kalaut of the Police alleging criminal offences against her.

4. The trial judge heard the matter and on 14 April 2011 granted the orders in favour of the respondent which decision the appellants Superintendant Kalaut and the Police Commissioner then appealed against.

Issue

5. The issue for determination in this application is whether this appeal is competent, that is, whether this Court’s appellate jurisdiction been validly invoked?

Relevant principles

6. In Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 Kearney DCJ stated the principle as to what is the nature of an objection to competency as: “An objection to competency is really an objection to the jurisdiction of the Court to entertain the point”. The Supreme Court has approved this statement in many subsequent cases including Jeffery Turia v Gabriel Nelson (2008) SC949 and Ramu Nico Management (MCC) Ltd v Farina Siga (2010) SC1056.

7. This principle was recently explained by the Supreme Court in Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC 1221. At paragraph 7, the Court stated: “If a notice of appeal were to contain but one ground and that ground did not validly invoke the court's jurisdiction the appeal would be incompetent. Whereas here, there are multiple grounds of appeal specified in the notice and one of those grounds is correctly conceded to be valid the court's appellate jurisdiction has validly been invoked, even though there may be other grounds which, had they stood alone, would not have meant that a notice containing them had validly invoked the court's appellate jurisdiction.” Later at paragraph 25, the Court stressed that “If, though, by reference to one at least of the grounds of appeal, it can be seen that the court’s jurisdiction has validly been invoked, the case is not one for an objection to competency.” See also Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201.

Grounds of appeal

8. The following are the grounds of appeal:

“(1) The trial judge erred in law and in fact in stating at paragraph 102 of the judgment that “the Courts must be protected from abuse. This is a case where the Court system has been abused by the filing of charges and the arrest of the Plaintiff which has only resulted in serious embarrassment to her” when the evidence before the Court showed that no proceeding has been filed or commenced in the District Court against the Respondent.

(2) The trial judge erred in law in making a finding at paragraph 37 of the judgment that because the charge on the Information omitted the words “willfully” and “false” which are essential elements of the offence under Section 11 of the Summary Offences Act, the charge is bound to fail or cannot be proved beyond reasonable doubt when such omission can be cured by operation of Section 30(2) and Section 32 of the District Court Act when the case is properly presented before the District Court and prosecuted through the committal process.

(3) The trial judge erred in law in conducting a trial of the matter on the erroneous belief that Information of the charge have been filed in the District Court when evidence showed otherwise thereby the trial amounted to abuse of the Court process.

(4) The trial judge erred in law and in fact in making orders against the First Appellant to pay the cost of the whole proceedings based (among others) on a statement at paragraph 33 of the judgment that “if the Court’s processes are abused, the filing and pursuit of litigation by those who are able to do so, against accused persons, would be used as a tool by the instigator of the charges to either satisfy a personal desire to exact revenge or to restore lost pride or for many other personal reasons. And of course, these personal reasons will not be made known to the Court so long as the instigator of the charges, is on the face of it, seen to be complying with process” when the First Appellant at all material time was acting in the normal course of his official duties as a police officer and there was no evidence to show the First Appellant had a personal desire or reasons to arrest and charge the Respondent and neither the First Appellant’s conduct in investigating and arresting the Respondent amounted to a frolic of his own that warrant personal liability.

(5) The trial judge also erred in law and fact in ordering the First Appellant to pay the whole cost of the proceeding when the First Appellant was acting in the lawful execution of his duties thereby protected from personal liability under Section1 and 2 of the Organic Law on the Relief of members of disciplined Forces from the Responsibility for Consequences of Carrying out a Lawful Order.

(6) That the trial judge erred in law in permanently staying or halting a police criminal investigating and laying of charges which is a Constitutional function of police under Section 197 of the Constitution and on the basis of Rimbink Pato v Anthony Manjin & Others (1999) SC 622, thereby tantamount to acting ultra vires its powers.

(7) The trial judge erred in law and in fact in taking into account irrelevant considerations and evidence that was not before the court such as paragraphs 49, 50, 51 and 77 of the Judgment in arriving at her decision.

(8) The trial judge erred in law and in fact in stating to at paragraph 99 of the judgment that “I find the actions of Superintendent Kalaut to be a gross abuse of process, where he has abused his position as a Police Prosecutor to file proceedings against the Plaintiff. Even as I hand down this decision, I do not know if Superintendent Kalaut has filed the 3 Information that he drafted because one and half weeks after he arrested the Plaintiff, he had yet to file the information. It speaks of the Superintendent being unsure of what to do” when Superintendent Kalaut was already restrained by an interim Injunction taken out on 3^rd April 2011, restraining him from proceeding further with the criminal process.”

Relief sought

9. The relief sought in the Notice of Appeal are:

“(1) An order that the National Court proceeding in OS. No. 154 of 2011 was an abuse of Court process in that there was no proceeding in the District Court against the Respondent to stay.

(2) An order that the police investigation, arrest and charging of the Respondent was a normal police function under Section 196 of the Constitution not subject to control by the Court and the subsequent conduct of hearing and permanent stay of the three (3) Information of the First appellant against the Respondent was ultra vires its powers.

(3) An order uplifting and quashing the decision of the National Court made on 14^th April 2011 permanently staying the criminal charges and prosecution of the Respondent as an abuse of process and contrary to Section 197 of the Constitution.

(4) An Order that the charges in the three (3) Information be allowed to proceed through the normal committal process.

(5) A further order that the First Appellant is not personally liable to pay the cost of the National Court proceedings by operation of Sections 1 and 2 of the Organic Law on the Relief of Members of Disciplined Forces from the Responsibility for Consequences of Carrying out a Lawful Order and further that the First Appellant was acting in the execution of his ordinary duty as police officers.

(6) Cost of the appeal be paid by the Respondent

(7) Time be abridged.

• (8) Such other or further orders the Court deems appropriate in the circumstances of the Appeal.”
  

Notice of objection to competency

10. The respondent’s grounds of objection to the competency of the appeal state:

“(1) The substantive relief sought by the Appellants in the Notice of Appeal was not sought in the National Court where it could have been pursued by way of cross-claim brought with leave under Order 4 Rule 34 of the National Court Rules. Consequently the Notice of Appeal is incompetent in that the substantive relief sought is tantamount to raising a cross-claim when no such claim was made in the National Court.

(2) Further or alternatively to paragraph (1), the appellants are seeking substantive orders in their Notice of Appeal which the Supreme Court on appeal is not empowered to make in circumstances in which no such orders were sought in the National Court and having regard to the Supreme Court’s powers under section 16 (Decision, etc., on appeal) of the Supreme Court Act Ch. No. 37.

(3) In the further alternative to paragraph (1), the Appellants in their grounds of appeal and in the substantive relief claimed in the Notice of Appeal raise questions and seek relief which were not raised or sought in the National Court. Such matters may only be raised or sought in the Supreme Court with the leave of the Supreme Court. The Appellants have failed to apply for or obtain leave and consequently the Notice of appeal (or so much of it as raises new questions or relief) is incompetent.

(4) Further or alternatively, the grounds of appeal contained in the Notice of appeal, fail to specify with particularity the grounds relied on to demonstrate that they are against the evidence and the weight of the evidence and/or the specific reasons why they are alleged to be wrong in law and therefore these grounds of appeal are incompetent.

(5) Further or alternatively, the grounds of appeal contained in the Notice of Appeal, raise new grounds and issues that the appellants failed to raise and address in the national Court proceedings and thereby deprived the National Court and the Respondent of an opportunity to address those issues before the National Court.

(6) Further or alternatively, grounds (1), (3), (4) and (8) of the Notice of Appeal purport to raise questions of fact. Under section 14(1)(c) of the Supreme Court Act Ch. No. 37 an appeal on a question of fact lies to the Supreme Court from the national Court only with the leave of the Supreme Court. The Appellants have failed to apply for or obtain leave to appeal and consequently these purported grounds of appeal are incompetent.

(7) Further or alternatively, ground (6) of the Notice of Appeal asserts that the learned trial judge erred as stated therein in “permanently staying or halting a police investigating (sic) and laying of charges”. This ground is incompetent in that it misstates the orders made by the National Court which (as appears from paragraph (1) of the Notice of Appeal) did not stay or halt either an investigation or the laying of charges, but stayed three (3) District Court Informations as an abuse of process.

(8) Further or alternatively, ground (8) of the Notice of Appeal asserts that the learned trial judge erred as stated therein when Superintendant Kalaut was already restrained by an interim injunction taken out on 3 April 2011 restraining him from proceeding further with the criminal process. This ground is incompetent in that it misstates the terms of the interim injunction granted on 3 April 2011 (and subsequently extended) which did not restrain the First appellant from filing informations prepared by him in the District Court.”

Grounds of objection

11. The objections to competency of the appeal relate to the relief sought on the appeal and the grounds of the appeal.

Relief sought

12. The respondent objects to competency of the appeal by firstly arguing that the relief sought cannot be entertained on the appeal for reasons that:

(1) The substantive orders sought as relief were not claimed in the National Court;

(2) Section 16 of the Supreme Court Act which sets out how an appeal may be determined does not include the type of orders sought; and

(3) Leave has not been sought or obtained to make these new claims through the relief sought.

13. We do not consider these matters to be proper bases to challenge competency of the appeal as they refer to the relief sought rather than the grounds of appeal. In any case it is our view that the effect of the relief sought by the appellants is for this Court to reverse the decision of the National Court and give judgment that ought to have been made by the National Court, which are powers this Court may exercise under sections 16 (b) and (c) of the Supreme Court Act if the appeal is upheld. We also note that the appellants seek “Such other or further orders the Court deems appropriate in the circumstances of the Appeal”. This pleading is adequate because if the appeal is successful, this Court may make such additional orders as the justice of the case requires.

Questions of fact – failure to apply for leave

14. The respondent argued that Grounds of Appeal (1), (3) and (8) all raise questions of fact, suggesting that the trial judge erred in making a finding of fact that Informations had been laid in the District Court against Ms Thompson.

15. Section 14(c) of the Supreme Court Act provides that an appeal on a question of fact lies to the Supreme Court from the National Court only with the leave of the Supreme Court. The Supreme Court has held that where leave to appeal is required and only a notice of appeal has been filed, the appeal is incompetent: Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 113; Haiveta v Wingti (No 2) [1994] PNGLR 189. If indeed leave is required for those grounds and such leave has not been obtained, than those grounds of appeal cannot be sustained. And if they were the only grounds of appeal, then the appeal would be incompetent.

Lack of particulars

16. The requirements of particularity in a ground of appeal are contained in O7 Rules 9 and 10 of the Supreme Court Rules, which state:

“9. The notice of appeal shall—

.............

(c) state briefly but specifically the grounds relied upon in support of the appeal; and

.............

10. Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.”

(Our underlining)

17. These rules (previously Rules 8 and 9) of the Supreme Court Rules have been judicially considered in a number of Supreme Court decisions, including Henao v Coyle (2000) SC655 and Pacific Equities & Investments Ltd v Toup Goledu (2009) SC 962 and more recently in the case of Gigmae Taemae v MVIL (2011) SC1121 where the Supreme Court noted that:
.

“7. The principles emerging from these authorities are that, three requirements must be satisfied. These are:

(a) The ground relied on in support of the appeal must be stated briefly and must be stated specifically (O.7 r8).

(b) If it is alleged that a judgment is against the evidence or the weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms. Instead the notice must specify with particularity the ground relied on to demonstrate that is against the evidence or the weight of the evidence.

(c) If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the grounds relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.

8. It is clear from authorities that if a notice of appeal fails to comply with those requirements, the Court has discretion to strike out the offending ground(s) of appeal.”
   

18. In Ground of Appeal (7), the appellants claims that the trial judge erred in law and in fact by considering irrelevant matters and evidence not before the court. Although reference is made to paragraphs 49, 50, 51 and 77 of the judgment, the respondent argues that the appellants do not specify what in each of those paragraphs constitutes an error by the primary judge. We are of the view that even if this ground of appeal offends Order 7 Rules 9(c) and 10 it does not necessarily render the appeal incompetent because there are other grounds of appeal to consider.

Misstatement of the judgment

19. The respondent contended that Ground of Appeal (6) misstates the terms of the National Court’s judgment, which permanently stayed proceedings in the District Court rather than permanently stay or halt a police investigation or the laying of charges as claimed by the appellants. It is our opinion that an argument that a judgment or part of judgment has been misstated, misread, misconstrued or misunderstood is a matter to be argued on the merits at the hearing of the appeal. It is not a matter that brings into question the Court’s jurisdiction to hear that ground of appeal. As the Court stated in Coca Cola Amatil (PNG) Ltd v Joshua Yanda (supra) at paragraph 22: “... whether or not an individual ground has no reasonable prospect of success in circumstances where the notice does otherwise validly invoke the court's jurisdiction is not a matter for an objection as to competency.”

Unchallenged ground of appeal

20. We note that no specific challenge was advanced in relation to Ground of Appeal (2) so we must assume that the respondent has conceded to one of the grounds of appeal being proper and that would mean that the appeal is competent.

Appeal against costs

21. Although the respondent argued that Ground of Appeal (4) questions a finding of fact we do not agree with that submission. To our minds, this ground together with Ground of Appeal (5) challenge the exercise of discretion by the National Court is ordering the payment of costs. As the appeal is not only against the order for costs, those grounds of appeal can be properly heard by this Court; see Gigmae Taemae v MVIL (supra). We consider Grounds of Appeal (4) and (5) should also be determined on their merits at the hearing of the appeal.

Conclusion

22. As at least one of the grounds of appeal properly invokes this Court’s jurisdiction, this appeal is competent and it should therefore proceed to hearing.

Orders

23. Accordingly, we order as follows:

(1) The objection to competency is dismissed.

(2) Costs shall be costs in the appeal.

(3) The matter is adjourned to the registry for listing for the hearing of the appeal.

________________________________________________
Namani Lawyers: Lawyer for the Appellants
Young & Williams Lawyers: Lawyer for the Respondent