SC1879

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 28 OF 2018

BETWEEN
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Appellant

AND
PETER GAIAN & 82 ORS
Respondents

Waigani: Hartshorn J, Polume-Kiele J, Liosi J
2018: 29th October
2019: 18th November

PRACTICE AND PROCEDURE – Objection to competency – Supreme Court Rules, 2012; Order 7 Rules 9 (c), and 10 – Objections must raise issues concerning the jurisdiction of the Court or the validity of the appeal

Cases Cited:

Waghi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
Yakham & The National v. Merriam & Merriam (1997) SC533
PNG Forest Authority v. Securamax Ltd (2003) SC717
Turia McKay v Nelson (2008) SC949
Talibe Hegele v Tony Kila (2011) SC 1124
Coca Cola Amati (PNG) v. Kennedy (2012) SC1221
Michael Kuman & Ors v. Digicel (PNG) Ltd (2013)SC1232
James Marape v. Peter O’Neill (2016) SC1486
Lucas Dekena v Nick Kuman (2018) SC1715

Counsel:

Mr. G. Pipike, for the Appellant
Mr. H. Monei, for the Respondents

JUDGMENT
18th November, 2019

1. 	HARTSHORN J: I have read the draft judgment of Justice Polume-Kiele and agree with the decision to refuse the objection to competency. I have my own few comments. 
2. 	I refer to ground 3.2 of the Supplementary Notice of Appeal. This ground specifies that the trial judge failed to consider the fact that there were 82 plaintiffs claiming damages but that only 67 signed the authority to act. Only 67 were entitled to reasonable compensation and not the 82. Ground 3.4 specifies that there was a lack of evidence to support the claim for special damages, a lack of evidence as to the extent of the loss suffered by each plaintiff and of the personal details of each plaintiff, that the evidence was uncorroborated and that there were clear inconsistencies in the loss stated to have been suffered by each plaintiff when compared with the evidence of each plaintiff.
3. 	I am satisfied that the appellants have satisfied the requirements of Order 7 Rule 9(c) and 10 Supreme Court Rules in regard to grounds 3.2 and 3.4. Further, I am satisfied that this Court’s jurisdiction has validly been invoked. Consequently, the objection to competency should be refused. In this regard I refer to this Court’s decision in James Marape v. Peter O’Neill (2016) SC1486 and the decisions referred to by Polume-Kiele J.

4.	POLUME-KIELE J: Before us on the 29 of October 2018 was the respondents’ notice of objection to competency of the appeal. The Objections seeks to dismiss or strike out the appeal for alleged non-compliance with the requirements of Order 7 Rules 9 (c) and 10 of the Supreme Court Rules 2012 (abuse of court’s process). 

Facts
5.	The appellants appealed against a judgment delivered on 9 February 2018 by the National Court, Madang, in WS (HR) No. 18 of 2015, Peter Gaian for himself and Villagers of Bagildig Village, Sumkar District; and Wesley Don for himself and on behalf of the Villagers of Sildig Village, Sumkar District, in which the Court made orders for an award of a total sum of K3, 516, 754.50 in damages in favour of the respondents.
6. 	The appeal was commenced pursuant to s 14 (1) (a) (b) and (3) (b) (iii) of the Supreme Court Act, Chapter 37. 
7. 	A copy of the Supplementary Notice of Appeal is marked pages 135 to 140 of the Objections Book filed on 27 April 2018.

Objection to competency

8. 	In regard to the objection to competency, the respondents argue that the appeal fails to comply with the requirements of Order 7 Rules 9 (c) and 10 which are in the following terms:

		“9 	The notice of appeal shall –
(a)	…
(b)	…
(c)	state briefly but specifically the grounds relied upon in support of the appeal; and
(d)	…
(e)	…
(f)	…
(g)	…

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 that 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”

9. 	A copy of the order made, certified by the Judge’s Associate or the Registrar is contained in page 12-13 of the Objection Book.

The Appeal

10. 	The appellants raised four (4) grounds of appeal. These are restated below:

“The learned trail judge erred in law (or mixed fact and law when his Honour upheld the evidence and the submission made by the Respondents when he:

“3.1	failed to allow the appellants to make proper submissions on the law in so far as the Respondents’ legal capacity was concerned as majority of the plaintiffs did not submit proper evidence to substantiate their claims for damages;

3.2	the trial judge erred in fact and law when he failed to consider the fact that although there were 82 plaintiffs claiming damages there were only 67 who signed the authority to act. In so far as assessment were, only the 67 plaintiffs were entitled to reasonable compensation and not all.

3.4	the trial judge erred in fact and law when he made a general ruling on the amount of compensation for each of the different heads of damages without considering:

(i)	that there was no detailed evidence for special damages and no evidence to support the claim for special damages;

(ii) there was lack of evidence as to the extent of damages the plaintiffs suffered and lack of personal details of each plaintiffs’ claim that was un-collaborated;

(iii)	there were clear inconsistencies in the loss stated in the statement of claim for each of the plaintiff’s compared to their evidence.

3.5	The trial judge’s decision to award to the 82Respondents; Three Million, Five Hundred Sixteen Thousand, Seven Hundred Fifty Four Kina and Fifty Toea (K3,516,754.50) was unreasonable and excessive when he failed to consider that most of the evidence submitted by the respondents were not properly tendered into court and even the Valuation Report had a lot of inconsistencies and did not correspond with the evidence tendered in court.”

The objections to competency

11. 	The respondents raise7 grounds of objections to the competency of the appeal (referred to in page 5 to 10 of Appeal Book. I will summarise these objections as follows: -

(1)	….  all of the grounds 3.1.; 3.2; 3.4; and 3.5 of the Supplementary Notice of Appeal are too general and vague and do not specify the law and the error of law committed by the learned trial Judge and do not give specific reasons why the decision or finding or conduct of the trial judge were alleged to be wrong in law. All the grounds 3.1; 3.2; 3.4 and 3.5 of the Supplementary Notice of Appeal fail to comply with Order 7 Rules 9 (c) and 10 of the Supreme Court Rules 2012 and are therefore incompetent and should be dismissed or struck out.

(2)	…, Grounds 3.4 and 3.5 raised issue relating to the failure of the trial judge to allow the appellants to make “proper” submissions on the law in so far as to the legal capacity of the respondents and does not specify what law gives the appellant the right to make “proper” submissions regarding the legal capacity of the respondents on a trial for assessment of damages and how the trial judge err in applying or misapplying the law. This ground does not comply with Order 7 Rule 9 (c) and 10 of the Supreme Court Rules and is therefore incompetent. 

(3)	… Ground 3.2 alleges error of mixed fact and law in that there were 82 plaintiffs claiming damages but only 67 signed the authority to act, however, the appellants did not state what law governs the awarding of damages to the plaintiffs following a trial on assessment of damages and what are the specific reasons why the learned trial Judge erred in applying or misapplying that law or demonstrate with particularity how it was an error of mixed fact and law. This ground of appeal fails to comply with Order 7 Rule 9 (c) and 10 of the Supreme Court Rules and is therefore incompetent.

(4)	…Ground 3.4 alleges that the trial judge erred in mixed fact and law when he made a general ruling on the amount of compensation for each different heads of damages without considering the evidence properly however, this ground is to general and vague and does not specify the law or legal principles regarding assessment of damages and what different heads of damages are applicable or allowed by law and does not give specific reasons why it is alleged to be wrong in law as required by Order 7 Rule 9 (c ) and 10 of the Supreme Court Rules and is there incompetent and should be struck out.

(5)	… Ground 3.4 raises questions of fact only as it requires the Court to evaluate and reassess the evidence before the trial court for which leave is required under Section 14 (1) (c) of the Supreme Court Act 1975. However, no leave was obtained and therefore this ground of appeal is competent and should be dismissed or struck out

(6)	Ground 3.5 alleges that the learned trial judge decision to award damages to 87 plaintiffs was excessive and unreasonable when he failed to consider that the evidence submitted by the respondents were not “properly” tendered into court however this ground is too general and vague and does not specify the reasons as to why it is alleged to be wrong in law (if this ground of appeal alleges error of law only). This ground of appeal fails to comply with Order 7 Rules 9 (c) and 10 of the Supreme Court Rules 2012 and should be dismissed or struck out.

(7)	…, Ground 3.5raises questions of fact only as it requires Court to evaluate and reassess the evidence before the trial court for which leave is require under Section 14 (1) (c) of the Supreme Court Act 1975. However, no leave was obtained and therefore this ground of appeal is incompetent and should be dismissed or struck out. 

12. 	1 have reproduced the provisions of Order 7 Rules 9 (c) and 10 of the Supreme Court Rules for convenience. Order 7 Rule 9 reads: 
		“9 	The notice of appeal shall-
(a)	 state that the appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and

(b)	state whether the whole or part only and what part of the judgment is appealed from; and

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

(d)	state what judgment the appellant seeks in lieu of that appealed from; and

(e)	be in accordance with Form 8; and

(f)	be signed by the appellant or his lawyer; and

(g)	be filed in the Registry”.

“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”. 
13. 	The principles governing objections to competency of proceedings have been considered by a number of cases including amongst others, see Michael Kuman & Ors v. Digicel (PNG) Ltd (2013) SC1232;Talibe Hegele v Tony Kila (2011) SC 1124;Turia McKay v Nelson (2008) SC949; Waghi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185; PNG Forest Authority v. Securamax Ltd (2003) SC717 and Yakham & The National v. Merriam & Merriam (1997) SC533. 

14. 	Furthermore, in the judgment of Lucas Dekena v Nick Kuman (2018) SC1715, the Court stated at paragraph 11 from the dissenting judgment of Kandakasi J (as he was then) in Michael Kuman & Ors v Digicel (PNG) Ltd (2017) SC1638 the following: 

“11 	Before dealing with the issues before us, we consider it important that we should remind ourselves and allow ourselves to be guided by the relevant principles of law on objections to competency of proceedings before this Court.  In the dissenting judgment in the matter of Michael Kuman & Ors v. Digicel (PNG) Ltd,91 Kandakasi J., discussed and summed up the relevant principles of law in the following terms:
“3.   Objections to competency of appeals, applications for leave to appealand references and or other applications or process brought to the Supreme Court is a well-trodden road in Papua New Guinea. The principles governing such objections are well settled. I note as did the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 (per Cannings, David and Sawong JJ), the “law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v. Nelson (2008) SC949, per Kirriwom, Cannings, Yagi JJ. These have been elaborated and complimented upon by other decisions.  According to these decisions, an objection to competency would properly be in Court if it raises issues that:

(1)	draws the Court’s attention to a question of jurisdiction: See Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v. Gabriel Nelson (supra) and Talibe Hegele v. Tony Kila (supra);

(2)	there are serious threshold issues concerning legality or viability of the appeal: See PNG Forest Authority v. Securamax Ltd (2003) SC717;

(3)	leave has not being sought and obtained separately in cases where some of the grounds of appeal require leave and some do not: See Yakham & The National v. Merriam & Merriam (1997) SC533, per Amet CJ, Kapi DCJ and Los J;

(4)	an application for leave or notice of appeal’s ground is false, misleading or is vague or not adequately stating the nature of the case, the questions involved and the reasons why leave should be given: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456, per Batari, David and Makail, JJ; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, per Amet CJ, Kapi DCJ and Sevua J; To validly plead the grounds they must briefly state but:

(a)	specifically make grammatical and legal sense and be intelligible;

(b)	if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that; and

(c) 	if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: See Jimmy Lama v. NDB Investments Ltd (2015) SC1423, per Cannings, Collier and Geita JJ;

(5)	an application for leave or notice of appeal has being filed outside the 40 days period allowed by s. 17 of the Supreme Court Act without leave of the Supreme Court: See The State v. John Tuap (2004) SC765, per Sawong, Mogish and Cannings JJ;

(6)	an application for leave includes questions of law or fact not raised in the National Court: See Chief Inspector Robert Kalasim v. Tangane Koglwa (2006) SC828, Kapi CJ, Injia DCJ and Hinchliffe J;

(7)	an applicant for leave does not have sufficient interest in the subject matter of the National Court’s decision that it wishes to appeal against: See Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691, per Kapi CJ, Kirriwom and Lay JJ;

(8)	the notice of appeal raises factual questions for which leave had not been first sought and obtained separately: Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431, per Gavara-Nanu, David and Murray JJ;

(9)	an application for leave has been filed unnecessarily, that is, where the objecting party points out that leave to appeal was not actually required and leave is being sought. Earlier decisions of the Court held this could not be a valid ground to object: See Boyepe Pere v. Emmanuel Ningi (2003) SC711, per Los, Kandakasi and Mogish JJ; Oio Aba v. MVIL (2005) SC779, per Injia DCJ, Sawong and Lay JJ; The State v. John Talu Tekwie (2006) SC843, per Salika, Lay and Gabi JJ. This later changed to make it a valid ground for objection to competency: See Paul Bari v. John Raim (2004) SC768, per Salika, Mogish & Cannings, JJ; Timothy Neville v. IPBC (2012) SC1193, per Salika, DCJ and Batari J. and Rea Joseph v. Manau Sereva (2011) SC1152, five-member bench comprising of Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ;

(10)	the appeal, leave or review or an application or a process before the Court fails to strictly comply with the mandatory procedures and requirements of the Supreme Court Rules: See National Capital Ltd v. Loi Bakani (2014) SC1392, per Injia CJ, Gavara-Nanu and Kawi JJ; Dr Arnold Kukari v. Don Polye & Ors (2008) SC 907, per Kapi CJ, Gavara-Nanu and Cannings JJ.; Ipili Porgera Investments Ltd v. Bank South Pacific Ltd  (2007) SC1322; Felix Bakani v Rodney Daipo SC659; Haiveta v. Wingti (No.2) [1994] PNGLR 189 and Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112).  Any such defect cannot be fixed by any amendments as the originating process is not properly before the Court. This is not an exercise in the court nitpicking, but is something that goes into the validity of the process: See In the Matter of Section 19 of The Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006) (2007) SC917; Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249 and Special Reference by Morobe Provincial Executive (2010) SC1089.

4.    It is also clear that, the above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court raising questions of the Court’s jurisdiction to deal with a matter brought before it.  At the same time, it is clear that, following grounds of objection are not proper grounds for taking an objection as to the competency of a matter before the Court:

(1)	That an application for leave to appeal was not served on the respondent: See Gigmai Awal v. Salamo Elema (supra), where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties;

(2)	That the proposed grounds of appeal referred to in an application for leave to appeal, lack merit. This is to say, where an objection raises an argument around the grounds of appeal having any merit or are not likely to succeed is not a proper ground to object because such arguments can only be raised at the hearing of the substantive matter. See The State v. John Talu Tekwie (2006) SC843; and PNG Forest Authority v. Securimax Ltd (2003) SC717.” 

15. 	The above list is not exhaustive and is a useful guide to questions which are raised for determination by the Court. 

16. 	The overarching consideration presently before this Court is to ask whether the appeal is properly before the Court. This is because failure to meet the requirements amounts to an abuse of the process of the Court and is incompetent. The outcome resulting in dismissal of the whole process. 

17. 	In regard to this present case, the respondents say that the appeal grounds are too general and vague and do not specify the law or error of law committed by the learned trial Judge. The grounds of appeal do not give specific reasons why the decision or finding or conduct of the trial Judge were allegedly wrong in law. Thus, all grounds of appeal fail to comply with Order 7 Rules 9 (c) and 10 of the Supreme Court Rules 2012 and are therefore incompetent and should be dismissed or struck out.

18. 	The appellants argue however, that the process is properly before the Court.  They say that an objection [to competency] is materially and as a rule that expressly provides, “to the competency of an appeal” not to the notice of appeal and therefore, the objections raised must fail because if there exists just one ground of appeal which invokes the Court’s jurisdiction, the notice of appeal can safely proceed to a hearing (see Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221). The decision in Coca Cola Amatil (PNG) Ltd may be seen to have departed from the principle of strict compliance by providing a concession that if the notice of appeal contains at least one ground by which the Court’s jurisdiction is validly invoked, all of the grounds survive the objection to competency application. I am of the view that the appellants are able to rely upon the decision of the Court in Coca Cola Amatil (supra). It has not been departed from by a Supreme Court comprising more than three members and to my mind the reasoning in the judgment is sound. The respondents say that ground 3.2 alleges error of mixed fact and law in that there were 82 plaintiffs claiming damages but only 67 signed the authority to act. This was not in accordance with the law and therefore is improper and is a ground that invokes the Court’s jurisdiction even if all the other 3 grounds lack merit.

19. 	After having heard counsel and after perusing the grounds of appeal, I emphasize the importance of the distinction and recognize that the objections must go to the competency of the appeal, not the grounds of appeal per se.Here the notice of appeal contains four grounds of appeal.  I find that Ground 3.2 of the appeal invoked the Court’s jurisdiction. 

20. 	I am satisfied that ground 3.2 is sufficiently particularized to satisfy Order 7 Rule 9 (c) and 10 of the Supreme Court Rules and further that this Court’s jurisdiction has validly been invoked. Consequently, following Coca Cola Amatil (supra), it is not necessary to consider the other grounds of appeal. The objection to competency should be dismissed with costs. 

21. 	LIOSI J: I agree with the judgments of Hartshorn J and Polume-Kiele J and have nothing further to add.

Orders:

(1)	The respondents’ objection to the competency of the appeal is dismissed.

(2)	The respondents shall pay the appellant’s costs of and incidental to the hearing of the objection to the competency of the appeal, to be taxed if not agreed.
___________________________________________________________________
Office of the Solicitor General: Lawyers for the Appellant                                     
G P Lawyers:  Lawyers for the Respondents