SC1878

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 9 OF 2019

BETWEEN:
GEITA IOVA GEITA
Appellant

-V-

BENJAMIN SAMSON – Acting Registrar of Titles
First Respondent

ROMILLY KILAPAT – Secretary Department of Lands
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

MR AND MRS EVAN (IVAN) PAKI
Fourth Respondent

PACIFIC MEDICAL CENTRE INC.
Fifth Respondent

DE TANA VETE LAND GROUP
Sixth Respondent

BILLY ENGAI GEGE OF ENEHAKO CLAN
Seventh Respondent

Waigani: Kirriwom, Yagi & Kariko, JJ
2019: 28th October & 1st November

PRACTICE AND PROCEDURE – objection to competency – appeal lodged out of time – computation of time - whether time runs during court vacation and public holidays – effect of appeal filed late – inherent jurisdiction of court to control its processes

Cases Cited:

Avia Aihi v The State [1981] PNGLR 81
Felix Bakani v Rodney Daipo (2001) SC659 
New Zealand Insurance Company Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
Nominees Niugini Ltd v IPBC (2017) SC1646 
Sir Arnold Amet v Peter Charles Yama (2010) SC 1064
State v Colbert [1988] PNGLR 138
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 113 
Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88
 
Legislation:

Constitution
Interpretation Act, Ch.2
Supreme Court Act, Ch.37
Supreme Court Rules 

Counsel:

Mr L Kaindi, for the Appellant
Ms I Mugagia, for First, Second and Third Respondents
Mr J Aku, for the Fourth and Fifth Respondents
No appearances for the Sixth and Seventh Respondents

JUDGEMENT

1st November, 2019 

1.	BY THE COURT:   The fourth and fifth respondents object to the competency of this appeal on the ground that the Notice of Appeal was filed out of time.

Facts

2.	The relevant facts are not in dispute and are that: 

•	The decision giving rise to this appeal was given by the National Court at Waigani on 19th December 2018; and
 
•	The appellant filed his Notice of Appeal challenging the decision on 29th January 2019.

Applicable law

3.	Pursuant to s. 17 Supreme Court Act, Ch.37 an appeal to the Supreme Court must be filed “within 40 days after the date of the judgement”. The provision also allows for time to be extended for filing the appeal upon application made within the same 40 days period. 

4.	In relation to computation of the 40 days period, it is settled that the phrase “within 40 days after the date of the judgement” simply means 40 days from when judgement is pronounced or given; Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88. State v Colbert [1988] PNGLR 138, New Zealand Insurance Company Ltd v Chief Collector of Taxes [1988-89] PNGLR 522, and Felix Bakani v Rodney Daipo (2001) SC659. An appeal not filed within the 40 days period or any extended time, is incompetent and the Supreme Court has no jurisdiction to entertain it; Avia Aihi v The State [1981] PNGLR 81, Wood v Watking (PNG) Pty Ltd (supra), State v Colbert (supra), and Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 113.  

Submissions

5.	The objectors (supported by the first, second and third respondents) submitted that 40 days, computed from the date of the judgement, lapsed on 27th January 2019, and so the Notice of Appeal was filed two days late, rendering it incompetent.

6.	In opposing the objection, the appellant relied on affidavits filed by certain employees of his lawyers and argued that:

(1)	He had a reasonable explanation for why the notice of appeal was filed late, and that is that the grounds of appeal could not be properly drafted earlier without the written judgement and the transcript of proceedings. These documents were not made available until well after the appeal period expired. Further, attempts to file the appeal in the few days before the expiration of the time-limit was frustrated by there being no Court Registry staff in attendance. 

(2)	In any case, the appeal was filed within time because the Court Vacation period or at least the public holidays (Christmas Day, Boxing Day and New Year) should not be included in the reckoning of the 40 days period.

(3)	Further, the Objection to Competency is itself incompetent as it was filed later than 14 days after service of the notice of appeal, contrary to the mandatory requirement under Order 7 Rule 15 Supreme Court Rules.  

Consideration

7.	By our calculation, the 40 days period lapsed on 28th January 2019 and not the day before. This means the Notice of Appeal was filed one day late.

8.	Any explanation for default in filing an appeal within time is irrelevant and not a consideration when applying s. 17 Supreme Court Act.  The case authorities stress that being out of time by whatever length of time or for whatever reason, does not affect the legal position that the Court has no jurisdiction to decide the appeal. The explanation may be relevant in an application for extension of time or an application for review under s. 155(2)(b) Constitution if that course is pursued, but certainly not in determining the issue before us. 

9.	At any rate, we find the explanation unconvincing and unsatisfactory. A diligent lawyer will take proper notes of all judgements, ex tempore or otherwise, sufficient to draft grounds of appeal if necessary. The evidence before us however shows the primary Judge read from his written judgement and he made available copies of the judgement to the parties then. In addition, a diligent lawyer would ensure that a court document that carries a filing deadline is filed in good time rather than just before the due date, and particularly during the Vacation period when the registry only opens for limited hours.  

10.	In relation to the submission regarding the Court Vacation, the Supreme Court has decided that the 40 days period runs during the period of the Vacation: New Zealand Insurance Co. Ltd v Chief Collector of Taxes (supra). 

11.	As to whether a Sunday or a public holiday is to be included in computing time for compliance, s. 11(4) Interpretation Act, Ch.2 states that those days shall not be taken into account where the period for compliance prescribed by statute does not exceed eight days. In the present case therefore where the period is 40 days, Sundays and the public holidays shall be included.

12.	In relation to the appellant’s last submission, we agree with his challenge to the competency of the Objection to Competency before us. However, the fact remains that the Court has no power to hear this appeal. 

13.	In the case of Nominees Niugini Ltd v IPBC (2017) SC1646, service of the Objection to Competency was also in breach of mandatory requirements of Order 7 Rule 15. The Court endorsed the statement in Sir Arnold Amet v Peter Charles Yama (2010) SC 1064 that the issue of competence concerns the jurisdiction of the court, including the validity of the proceedings, and can be raised and determined at any stage of the proceeding. The Court in Nominees Niugini Ltd v IPBC (2017) Nominees Niugini Ltd v IPBC (supra) went on to emphasize that the Courts have an inherent jurisdiction to check against abuse of their processes and procedures. As the issue of competence is always open at any stage of the proceeding, it does not matter whether a party has correctly raised it. In the present case, it is clear that the appeal was filed late and we therefore have no jurisdiction to hear it.  While the fourth and fifth respondents’ Objection to Competency may be incompetent, this Court shall not “shun away from its primary duty to uphold the rule of law”.

Conclusion

14.	We find the appeal incompetent for being filed out of time, and we dismiss it with costs against the appellant. However, we are not satisfied that costs on an indemnity basis is appropriate. 

 Orders

15.	The Court orders that:

(1)	The fourth and fifth respondents’ Objection to Competency is upheld.

(2)	The Notice of Appeal filed by the appellant on 29th January 2019 is struck out as being incompetent and this appeal is dismissed.

(3)	The appellant shall pay the first, second, third, fourth and fifth respondents’ costs of this appeal.
________________________________________________________________
M S Wagambie Lawyers: Lawyer for the Appellant
Office of the Solicitor-General: Lawyer for the First, Second and Third Respondents
Manase & Co, Lawyers: Lawyer for the Fourth and Fifth Respondents