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Poio v Puluku [2020] PGSC 59; SC1968 (2 July 2020)


SC1968


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA NO. 156 OF 2017


BETWEEN:
GEORGE POIO in his capacity as Porgera District Administrator and Acting General Manager for Porgera Development Authority
First Appellant


AND:
HON. LEO BILIP KUALA, MPA
as President of Porgera Rural Local-Level Government
Second Appellant


AND:
AKEN PULUKU
First Respondent


AND:
MANDE KAIMA
Second Respondent
AND:
JONES PAWE
Third Respondent


AND:
HENRY LARA
Fourth Respondent


AND:
REX EPENES NAKIPEN
Fifth Respondent


Waigani: Lindsay & Shepherd JJ
2018: 1st May
2020: 2nd July


APPEAL –Practice and Procedure – Objection to Competency of Appeal – Grounds of Objection: (i) non-compliance with Section 4(2) and Section 14(1)(c) of Supreme Court Act (ii) non-compliance with Order 7 Rule 8, Rule 9(e) and Form 8 of Supreme Court Rules 2012–whether Appeal incompetent and should be dismissed– grounds of appeal pleaded with sufficient particularity – no error of fact involved - leave to appeal not required – notice of appeal compliant as to form – Appeal competent - Objection dismissed. `
Held:


(1) To determine which parties must be named in an appeal to ensure compliance with Order 7 rule 9(e) and Form 8 of the Supreme Court Rules 2012, analysis should be made by the intending appellant as to which of the parties in the proceedings below have active interests which could be affected by the challenge on appeal to the order made by the court below.


(2) If parties not named in a notice of appeal assert that they have an active interest in the outcome of the appeal, they may apply for joinder.

(3) It is sufficient compliance with Order 7 rule 9(e) of the Rules for the parties to be cited by their names in the intituling of a notice of appeal. It is optional for the capacities in which they are cited to be included after their names.

(4) In the present case, the grounds of appeal were pleaded with sufficient particularity and the form of notice of appeal complied with the Rules. The appeal was not incompetent.


Cases Cited:
Papua New Guinea Cases:


Imambo Alo v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 1
Michael Kuman v Digicel (PNG) Ltd (2017) SC 1638
Jimmy Lama & Anor v NDB Investments Ltd (2015) SC1423
Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221
Pacific Equities & Investments Ltd v Teup Goledu ((2009) SC962
Jeffrey Turia v Gabriel Nelson (2008) SC949
The State v John Talu Tekwie (2006) SC843
PNG Forest Authority v Securimax Ltd (2003) SC717
Haiveta v Paias Wingti (No. 2) [1994] PNGLR 189
Cox v Cox (2012) SC1187
Talibe Hegele for and on behalf of the Yumbi Incorporated Land Group v David Yawe for and on behalf of the Lapilape Sogofani Incorporated Land Group & Ors Unreported decision of Makail, Logan and Polume-Kiele JJ in SCM No 04 of 2019 delivered 2 September 2019

Simon Kou & Ors v Simon Kaupa (2010) SC1021


Overseas Cases


British Launderers’ Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All ER 21


Legislation cited:
Supreme Court Act Chapter 37, sections 4(2), 14(1)(c), 42

Supreme Court Rules 2012, Order 7 rules 8, 9(c),10; Form 8.
Counsel:


Ms J. Nandape, for First Appellant
Mr P.H.Pato, for Second Appellant
Mr N. Saroa, for First and Third Respondents

Mr P. Harry, for Second and Fourth Respondents
No appearance for Fifth Respondent


02 July, 2020


  1. BY THE COURT: INTRODUCTION: Before this Court is an objection to the competency of the notice of appeal filed by the first appellant on 14 November 2017. The notice of objection was filed by the first and third respondents on 4 December 2017.
  2. The objection to competency of the appeal was heard by this Court on 18 May 2018. The Bench comprised Justice Kassman, Justice Lindsay and Justice Shepherd, whose decision was reserved.
  3. In early 2020 Justice Kassman’s judicial appointment expired before delivery of the Court’s reserved decision could take place. On 20 May 2020 counsel for the parties appeared before Justice Shepherd and informed the Court pursuant to Section 3 of the Supreme Court Act that it was their unanimous agreement that this appeal should continue before Justice Lindsay and Justice Shepherd and that the Court’s reserved decision on the competency of the appeal should be delivered by the remaining two judges.

The Appeal


  1. The dispute between the parties relates to the purported invalidity of the appointment of Aken Puluku, Jonas Pawe, Mande Kaima and Henry Lara to the board of the Porgera Local Level Government Special Purpose Authority, also known as the Porgera Development Authority (PDA).
  2. The PDA was established for the benefit of customary landowners within the Special Mining Lease (SML) area for the Porgera gold mine. The PDA manages, among others, the Porgera SML Landowners Trust Account and the Porgera SML Young Adults Trust Account which are funded from royalties derived from the operations of the Porgera gold mine.
  3. Messrs Puluku and Pawe representing the Porgera Rural Local Level Government and Messrs Kaima and Lara representing the Paiela/Hewa Rural Local Level Government, assert that they were validly appointed to the board of the PDA at meetings conducted by their respective LLGs which were held on 7 April 2017 and which had been called by Porgera Deputy District Administrator Mr Epenes Rex Nakipane (also named as Mr Epenes Rex Nakipane) on 5 April 2017. Mr Nakipane gave notice of the meetings for the two LLGs in the temporary absence of Porgera District Administrator Mr George Poio.
  4. The presidents of the Porgera Rural LLG and the Paiela/Hewa Rural LLG, Leo Bilip Kuala and Pera Mopa, have challenged the validity of those appointments which they say are void because only they as presidents of their LLGs have legal authority to call meetings for members of their LLGs to appoint representatives to the board of the PDA, which in this instance they did not do.
  5. Messrs Kuala and Mopa instituted proceeding OS No. 418 of 2017 in the National Court at Waigani on 21 April 2017 citing Messrs Puluku, Pawe, Kaima, Lara and the PDA as defendants. The principal claims for relief sought by Messrs Kuala and Mopa as first and second plaintiffs in OS No. 418 of 2017 were these:

  6. On 25 April 2017 Messrs Puluku and Kaima, asserting that they had been validly appointed as board members of the PDA, countered OS No. 418 of 2017 by commencing National Court proceeding OS No. 436 of 2017 against Mr Poio in his capacity as the Porgera District Administrator. Messrs Puluku as first plaintiff and Kaima as second plaintiff, citing the PDA as third plaintiff, sought orders:
  7. On 3 May 2017 Messrs Kuala and Mopa obtained an ex parte interim order in OS No. 418 of 2017 which restrained Messrs Puluku, Pawe, Kaima, Lara and Nakipane from performing any functions, duties or roles in connection with the PDA until a proper board is appointed in accordance with the Direction of Minister Hon. Sir Leo Deon dated 4 April 2017. The motion which sought this ex parte order was directed to be returnable before the Court on 23 May 2017 for inter partes hearing.
  8. On 3 May 2017 Messrs Puluku and Kaima obtained a corresponding ex parte interim restraining order in OS No. 436 of 2017 which prevented Mr Poio in his capacity as Porgera District Administrator and persons associated with him from calling new nominations for members of the board of the PDA pending the outcome of that proceeding. This ex parte order was granted the same day as Messrs Kuala and Mope obtained their ex parte order against Messrs Puluku, Pawe, Kaima, Lara and Nakipane and was similarly directed to be returnable before the Court on 23 May 2017 for inter partes hearing.
  9. On 21 June 2017 Nandape Lawyers acting for Mr Poio as the sole defendant in OS No. 436 of 2017 filed a motion in that proceeding seeking an order that the entire case be dismissed pursuant to Order 12 Rule 40(1) of the National Court Rules, alternatively seeking orders that the interim ex parte order made in OS No. 436 of 2017 on 3 May 2017 which restrained Mr Poio from calling for new nominations for members of the board of the PDA be set aside and that the PDA be removed as third plaintiff in that proceeding.
  10. On 23 June 2017 Mr Kaima as second plaintiff in OS No. 436 of 2017 obtained an ex parte interim order which restrained Mr Poio, MorepTero, Tony Mark [Ekepa], Maso Karipe, Ruben Nalepe and other members of the board of the PDA and PDA employees from conducting any transactions on the SML Landowners Trust Account and SML Young Adults Trust Account operated by the PDA with the Porgera branch of the Bank of South Pacific Ltd. The motion which gave rise to this ex parte order was directed to return before the Court for inter partes hearing on 4 July 2017.
  11. The effect of the ex parte order granted in OS No. 436 of 2017 on 23 June 2017 was that Porgera landowners could not receive their royalty payments which were otherwise payable to them by the PDA on a quarterly basis from the two BSP bank accounts specified in the order.
  12. After various adjournments, the two ex parte orders granted in OS No. 418 of 2017 and OS No. 436 of 2017 on 3 May 2017 and the ex parte order granted in OS 436 of 2017 on 23 June 2017 were listed for inter partes hearing by the primary judge, along with Mr Poio’s motion filed in OS No. 436 of 2017 on 21 June 2017 and several other motions, on 18 September 2017.
  13. Shortly after the commencement of the inter partes hearing on 18 September 2017, the primary judge ordered that proceedings OS No. 418 of 2017 and OS No. 436 of 2017 be consolidated and heard together.
  14. The transcript of what transpired during the course of the consolidated proceedings which were heard inter partes by the primary judge on 18 September 2017 is annexure JN2 to the affidavit of Judy Nandape sworn on 22 November 2017. From what we can ascertain from the transcript, it seems that there were 6 motions which initially were before the primary judge that day:

(1) return of the motion for the ex parte interim restraining order made in OS No. 418 of 2017 on 3 May 2017 whereby Messrs Puluku, Pawe, Kaima, Lara and Nakipane were restrained from making withdrawals or any transactions on the PDA’s bank account until a proper board of the PDA is appointed;

(2) return of the motion for the ex parte interim restraining order made in OS No. 436 of 2017 on 3 May 2018 which prevented Mr Poio in his capacity as Porgera District Administrator and persons associated with him from calling new nominations for members of the board of the PDA pending the outcome of that proceeding;

(3) return of the motion for the ex parte interim restraining order made in OS No. 436 of 2017 on 23 June 2017 whereby Mr Poio and others were restrained from making any withdrawals or other transactions on the two specified trust accounts operated by the PDA with the BSP pending further order of the Court;

(4) motion filed on 21 June 2017 in OS No. 436 of 2017 by Nandape & Associates for defendant Mr Poio seeking summary dismissal of that proceeding, alternatively that the interim ex parte restraining order made in OS No. 418 of 2017 on 3 May 2017 be set aside and that the PDA be removed as third defendant in that proceeding;

(5) motion filed on 24 August 2017 in OS No. 436 of 2017 by Nelson Lawyers for first plaintiff Mr Puluku seeking an order that Nandape Lawyers be disqualified from representing Mr Poio as defendant in that proceeding.

(6) motion filed on 11 September 2017 in OS No. 418 of 2017 by Harry Lawyers for second defendants Messrs Kaima and Lara seeking a variation of the ex parte interim restraining order made in that proceeding on 3 May 2017 to include Mr Poio as being a further person to be restrained, in addition to Messrs Puluku, Pawe, Kaima, Lara and Nakipane who were already restrained, from conducting any withdrawals or other transactions on the two BSP bank accounts of the PDA which were frozen by the order of 3 May 2017 pending appointment of a proper board of the PDA.

  1. After hearing counsel for the parties in the consolidated proceedings on 18 September 2017, the primary judge reserved the Court’s ruling. Her Honour delivered that ruling on 8 November 2017. The minute of the order of the Court of 8 November 2017 as signed by the Deputy Registrar and entered on 10 November 2017 is in these terms:

“ORDER

THE COURT ORDERS THAT:

  1. The First and Second Plaintiffs, together with Jones Pawe and Henry Lara are the appointed Board Members of the Porgera Local Level Government Special Purposes Authority pursuant to section 4 of the Porgera Local Level Government Special Purpose Authority Constitution and Council meeting dated 7 April 2017 Paiam Council Chamber.
  2. Consequential to Order 1 above, the Restraining Orders made on 3 May 2017 remains until the formalization of the First and Second Plaintiff’s appointments by the Department of Provincial and Local Level Government and Inter Government Relations.
  3. The entire relief sought in the OS No. 418 of 2017 Hon. Leop Bilip Kuala & Anor v. Aken Puluku & Ors filed on 21 April 2017 are refused.
  4. The Plaintiffs cost of the proceedings to be paid by the Defendant to be taxed if not agreed in OS NO. 436 of 2017.
  5. The Plaintiffs are to pay the Defendants costs of the proceedings in OS No. 418 of 2017 to be taxed if not agreed.
  6. The time for entry of these orders is abridged to the time of settlement by the Registrar, which shall take place forthwith.”
  7. We make the following observations regarding the terms of the order made by the primary judge on 8 November 2017:
  1. On 14 November 2017 Mr Poio, being aggrieved by the decision of the primary judge delivered in consolidated proceedings OS No. 418 of 2017 and OS No. 436 of 2017 on 8 November 2017, filed this present appeal.
  2. On 16 November 2017 Mr Poio obtained an ex parte order in the Supreme Court in this appeal staying the orders made by the primary judge on 8 November 2017 until further order.
  3. On 1 December 2017 Mr Nakipane, on becoming aware of this appeal, without delay filed an application for his joinder as fifth respondent, which application was granted by Injia CJ on 4 December 2017.
  4. A similar application for joinder to this appeal was promptly filed for Mr Kuala on 5 December 2017. After a number of adjournments not attributable to Mr Kuala, an order that leave be granted to Mr Kuala to be joined as second appellant was made by Injia CJ on 21 March 2018 on condition that Mr Kuala was not to raise new issues before this Court which had not already been raised in Mr Poio’s notice of appeal.

Grounds of Appeal

  1. The appeal is against the whole of the decision of her Honour Polume-Kiele J given at the National Court at Waigani on 8 November 2017. The notice of appeal states that the appeal lies without leave. The first appellant Mr Poio relies on 3 grounds of appeal, which are pleaded as follows:

“3. GROUND[S] OF APPEAL


  1. The Learned Trial Judge erred in law and procedurally when she failed to consider any of the arguments presented on behalf of the Appellant, both oral and written, in relation to the ex-parte restraining orders taken out by the Fourth Respondent on 23rd June 2017 in National Court proceeding OS No. 436 of 2017.
  2. The Learned Trial Judge erred in both fact and law when in the interlocutory part of her ruling of 8th November 2017, she made reference to and held that the decision was in relation to the Appellant’s motion for dismissal filed on 2nd June 2017 when in fact what was argued on 18th September 2017 and pending decision was the inter-partes hearing of the ex-parte restraining orders taken out by the Fourth Respondent in proceeding OS No. 436 of 2017.
  1. The Learned Trial Judge erred in law and procedurally when;

The Objection to Competency of the Appeal

  1. There are 4 grounds of objection by the first and third Respondents, which are reproduced below:

“A. Appeal Grounds


  1. Grounds 3A, B and C of the Appeal raise issues of fact only for which leave to appeal is required under Section 4(2) and 14(1)(c) of the Supreme Court Act.
  2. 2. Grounds 3A, B and C fail to raise any specific error of law or fact or mixed fact and law which is appealable to demonstrate the error of fact or law or mixed fact and law as required by the Order 7 Rule 9(c) and Rule 10 of the Supreme Court Rules.
  3. Grounds 3A, B and C fail to raise appropriate grounds of appeal with particularity in identifying and demonstrating error in the decision of the Court, the subject of the appeal. It there[fore] amounts to being frivolous, vexatious and an abuse of the courts process and is incompetent.

B. Want of Form


  1. Objection is also raised relating to the form of the appeal more particularly the following requirements:

i. parties to the appeal are improperly named and do not correspond to the proceedings appealed from in the National Court:

...

ii. paragraph 2 [of the Notice of Appeal] should state with leave as referred to above.”


Consideration of Grounds of Objection


  1. Order 7 Division 5 of the Supreme Court Rules (SCR) deals with objections to competency of appeals and objections to competency of applications for leave to appeal. Order 7 rule 15 SCR states that a respondent who objects to the competency of an appeal or the competency of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal – (a) file an objection in accordance with Form 9; and (b) serve a copy of the objection on the appellant.
  2. No issue was taken before us as to whether the filing, service and form of the objection in this instance was compliant with Order 7 rule 15 SCR. We have considered Order 7 rule 15 of the SCR, Form 9 SCR and the objection filed 4 December 2017. We are satisfied that the objection is compliant with Order 7 rule 15 SCR and Form 9 SCR and it is therefore competent.

Ground A.1 of the Objection

Grounds 3A, 3B and 3C raise issues of fact only for which leave to appeal is required under Section 4(2) and Section 14(1)(c) of the Supreme Court Act.


  1. The first and third respondents, supported by the second and fourth respondents, rely for their objection to competency of this appeal on the affidavit of Mr Puluku sworn and filed 23 November 2017 and the supplementary affidavit of Judy Nandape sworn 22 November 2017 and filed 24 November 2017.
  2. The respondents submit that Mr Poio was adequately heard by the primary judge on 18 September 2017 on the issues which were raised by the interim ex parte restraining orders against Mr Poio granted in OS No. 436 of 2017 on 23 June 2017. The respondents argue that the content of pages 17 to 25 of the transcript of the proceedings before the primary judge is evidence of this.
  3. The first and third respondents submit that the question whether the primary judge failed to consider the evidence and submissions made for Mr Poio at the interlocutory hearing on 18 September 2017 is an issue of fact, not an issue of law, and that as the issues pleaded in Grounds 3A, 3B and 3C involve issues of fact alone for which leave was not sought or obtained, the notice of appeal is incompetent for being in breach of Section 4(2)(c) and Section 14(1)(c) of the Supreme Court Act and that the appeal should therefore be dismissed.
  4. The second and fourth respondents refer in their submissions to Imambo Alo v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 1 where the Supreme Court (Woods, Andrew, Sakora JJ) held that a notice of appeal containing grounds of appeal which specify questions of law, questions of mixed law and fact, and questions of fact alone should indicate specifically that leave is being sought in respect of questions of fact.
  5. In support of their submissions, the respondents also refer, among others, to Peter Neville v NEC (2015) SC1431, Henzy Yakham v Dr. Stuart Merriam (1997) SC533, Jimmy Lama v NDB Investments Ltd (2015) SC1423, Waghi Valley Savings & Loans Society Ltd v Bank of South Pacific (1980) SC185 and Michael Kuman v Digicel (PNG) Ltd (2017) SC1638. However, we find that these cases, while explanatory of the general principles which apply to objections to competency, do not address in any constructive way the basis for the respondents’ objection no. A.1 to the issues raised in Grounds 3A, 3B and 3C of the notice of appeal.
  6. The second and fourth respondents in their written submissions urge this Court to compare the arguments presented to the primary judge on 18 September 2017 as evidenced in the transcript of the proceedings of 18 September 2017 against the primary judge’s reasons for decision contained in her Honour’s written judgment delivered on 8 November 2017. The second and fourth respondents contend that if the primary judge failed to consider the arguments put to the Court on 18 September 2017, then this would be an error of fact, not of law, for which leave to appeal was required.
  7. We have made the comparison commended by the second and fourth respondents. We have reviewed from the transcript what transpired by way of submissions made to the primary judge at the interlocutory hearing which took place on 18 September 2017 against the content of the written ruling of the primary judge delivered on 8 November 2017. What was primarily argued before the primary judge by Ms Nandape for Mr Poio on 18 September 2017 was whether the ex parte restraining order which was made against Mr Poio in OS No. 436 of 2017 on 23 June 2017 should be extended or discontinued. We refer in particular to Ms Nandape’s submission to the primary judge, referring to OS No. 436 of 2017, which starts at line 35 on p. 26 of the transcript:

“MS NANDAPE:

... The only legal issue for the court’s determination is as to whether or not the ex parte order of 23 June 2017 should be set aside. We submit that it should be set aside for various reasons. Those reasons are outlined commencing paragraph – at page 6 of my written submission.”

We also refer to the address which Mr Pato, counsel for the first and second plaintiffs in OS No. 418 of 2017, made to the primary judge, which commences at line 39 on pp. 50-51 of the transcript:

“MR PATO:

... your Honour would note that most of the affidavit evidence material that my friends are all relying on, they one way or the other touch on the substantive matter which seems that all these issues about the restraining orders against the various accounts and all that can be resolved if the matter is progressed quickly to substantive hearing. It is an OS proceeding[.O]rders sought in the originating summons relate to the legality or otherwise of the appointment of certain parties named here. So, once that main issue is settled then all the issues about the funds, trust accounts, et cetera ... will all be resolved. So your Honour, I am of the view that the matter should be progressed quickly to hearing. Maybe at the end of these applications your Honour might have a look at a date in which the matter can be fixed for the substantive hearing because I have realised that all affidavit materials have already been filed and are before the court now.”

  1. When the transcript of the interlocutory hearing which took place before the primary judge on 18 September 2017 is compared against the primary judge’s written ruling, it is abundantly clear that the primary judge made substantive orders on 8 November 2017 which were contrary to the expectation of all parties’ counsel who had appeared before the primary judge on 18 September 2017.
  2. The submissions made for the first and second appellants in reply to the respondents’ objection no. A.1 are of more substance. The appellants both argue that grounds of appeal 3A, 3B and 3C raise issues of error of law and errors of mixed law and fact through procedural error and that therefore no leave to appeal was required.
  3. The first appellant Mr Poio submits that the primary judge failed to consider the arguments presented for him, both oral and written, on the return for inter partes hearing by the primary judge on 18 September 2017 of the ex parte order in OS No. 436 of 2017 obtained by Messrs Puluku and Kaima on 23 June 2017 which restrained Mr Poio and others from conducting any transactions on the PDA’s two trust accounts specified in that order. The appellants submit that instead of confining the Court’s ruling of 8 November 2017 to that interlocutory issue, the primary judge proceeded instead to grant all of the substantive relief sought by Messrs Puluku and Kaima in OS No. 436 of 2017 without any substantive hearing and that this was an error of law, a procedural error, on the part of the primary judge, not an error of fact.
  4. We observe that this contention by the first appellant is consistent with the transcript of Ms Nandape’s explanation to the primary judge as to which of the various motions before the Court on 18 September 2017 was being argued. We reproduce hereunder the relevant portions of that transcript, commencing at line 28 on p. 8:

“MS NANDAPE: ... that is why we are suggesting that for today we argue the ex parte interim – return of those interim ex parte orders. Any other motions that have been filed afterwards can be dealt with after the outcome of this as to whether or not the ex parte orders should continue.

HER HONOUR: That has been what is – that is why you are here, Ms Nandape.

MS NANDAPE: That is correct. Thank you, Your Honour.

HER HONOUR: The court has just made some indication that this hearing is only with regard to whether or not the restraining orders should continue.

MS NANDAPE: Yes. Insofar as our client is concerned your Honour, our position is basically that we have no issue with the continuation of the interim ex parte orders that were taken out on 3 May 2017 in the proceeding that our client is involved in. Our client would prefer that – and I am sure that is the position taken out be the ---

HER HONOUR: Irrespective, Ms Nandape, whether your client has taken first proceedings or not, there are current proceedings in court in which he is restrained. You address that.

...

MS NANDAPE: Your Honour, we were just trying to advise the court of the position taken by our client. Our client is willing to allow the orders of 3 May to remain until the substantive hearing, but we will be challenging the orders taken out in June.

HER HONOUR: All right.

MS NANDAPE: This is the only ex parte order that we will be arguing against.”

  1. The first appellant argues that it therefore came as a surprise when the primary judge then changed tack when it came to delivery of the Court’s decision on 8 November 2017. Instead of ruling on whether the ex parte interim order made in OS No. 436 of 2017 on 23 June 2017 should be continued or dissolved, the primary judge prematurely ruled instead that the substantive declaratory relief sought by Messrs Puluku and Kaima in OS No. 436 of 2017 that they were validly appointed as members of the board of the PDA be granted and that the substantive relief sought by Messrs Kuala and Mopa in OS No. 418 of 2017 be refused. The other result of the primary judge’s ruling on 8 November 2017 was that it denied Mr Poio as the sole defendant in OS No. 436 of 2017 from being heard at any substantive hearing of that proceeding and of being a witness for Messrs Kuala and Mopa at any substantive hearing of proceeding OS No. 418 of 2017.
  2. We agree with the submissions of the appellants on this issue. The contention that the primary judge erred when what should have been a ruling on interlocutory matters was converted into a decision which, among others, summarily determined Mr Poio’s right to defend Messrs Puluku and Kaima’s claims against him in OS No. 436 of 2017 without a substantive hearing is clearly an allegation of error of law, not of fact. We dismiss this ground of objection.


Ground A.2 of the Objection


Grounds 3A, B and C of the appeal fail to raise any specific error of law or fact or mixed fact and law which is appealable to demonstrate the error of fact or law or mixed fact and law as required by Order 7 Rule 9(c) and Rule 10 of the Supreme Court Rules


  1. The first and third respondents argue that the first appellant has not shown any specific error of law or of fact or of mixed law and fact alleged to have been made by the primary judge in the exercise of the primary judge’s power and discretion. Having made that contention, we observe there is nothing at all in the oral or written submissions of the first and third respondents which addresses their objection A.2.
  2. The second and fourth respondents do however focus on objection A.2 in their written submissions. They refer to the following passage from Michael Kuman v Digicel (PNG) Ltd (supra) where Kandakasi J (as he then was) said that for a notice of appeal to be competent, the notice of appeal must plead grounds which:

“(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.”

  1. Firstly, we observe that none of Mr Poio’s grounds of appeal plead that the primary judge’s ruling was against the evidence or the weight of evidence. Secondly, in our view grounds 3A, B and C in the notice of appeal are all pleaded with sufficient particularity to disclose grounds of appeal on questions of law or, in the case of ground 3B, a ground based on questions of mixed law and fact. All of Mr Poio’s grounds of appeal relate to alleged errors of law or errors of law and fact made by the primary judge when her Honour determined the substantive claims in both OS No. 418 of 2017 and OS No. 436 of 2017 instead of making a ruling on interlocutory matters argued before her.
  2. We remind ourselves of what was also said in Michael Kuman v Digicel (PNG) Ltd by Logan J:

“A notice of appeal might fail to invoke the Court’s appellate jurisdiction if none of the grounds raised a question of law or mixed question of law and fact and pleaded only questions of fact for which no prior leave to appeal had been granted. Equally, a notice of appeal the specified grounds in which were, on a fair reading, incomprehensible would likewise fail to invoke the Court’s appellate jurisdiction. In all such cases, an objection to competency would be an appropriate procedure for a respondent to follow.” [emphasis added]

  1. We find that grounds 3A, B and C of the appellant’s notice of appeal are comprehensible and have been pleaded with sufficient particularity to alert the respondents to what they need to meet at the substantive hearing of the appeal. We dismiss the respondent’s objection A.2.

Ground A.3 of the Objection


The grounds raised in the appeal fail to identify, particularise and demonstrate any specific error(s) in the decision of the Court, the subject of the appeal thus is frivolous, vexatious and an abuse of the court process and is incompetent.


  1. The first and third respondents contend that the grounds of appeal fail to raise appropriate grounds of appeal with sufficient particularity to identify and demonstrate error in the decision of the primary judge. It is argued that the notice of appeal is therefore frivolous, vexatious and an abuse of the court process and is incompetent.
  2. The first appellant Mr Poio submits that the grounds of the appeal properly identify, particularise and demonstrate the errors in procedure and law of the decision of the primary judge. That the notice of appeal is not frivolous, vexatious or an abuse of the court process. In support of this submission, Mr Poio’s counsel referred to Jimmy Lama v NDB Investments Limited (2015) SC1423, Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221, Pacific Equities & Investments Limited v Teup Goledu (2009) SC962, Chris Haiveta v Paias Wingti (No.2) [1994] PNGLR 189 and British Launderers’ Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All ER 21.
  3. The second appellant Mr Kuala argued that the grounds of appeal plead errors of law and mixed fact and law. That there is no ambiguity. That the grounds of appeal are not frivolous or vexatious and are not inappropriate. That even if these grounds were to be considered frivolous or vexatious and are inappropriate, which proposition is denied, these grounds cannot be raised as a ground in an objection to competency of an appeal. In support of this submission, the second appellant referred to Jeffrey Turia v Gabriel Nelson (2008) SC949.
  4. The court in Jeffrey Turia v Gabriel Nelson, which His Honour Kandakasi J (as he then was) adopted and applied in Michael Kuman v Digicel (PNG) Ltd, held that it is not a proper ground of objection that the proposed grounds of appeal are unmeritorious, frivolous or vexatious. The Supreme Court in The State v John Talu Tekwie (2006) SC843 and PNG Forest Authority v Securimax Ltd (2003) SC717 held that such arguments can only be raised at the hearing of the substantive matter.
  5. Having considered the respective oral and written submissions of counsel for all parties, we reject the argument that grounds 3.A, B and C raised in the appeal fail to identify, particularise and demonstrate any specific errors in the decision of the Court. We find that these grounds are not vague or incomprehensible. They have been pleaded with sufficient clarity to inform the respondents of what they need to prepare to answer grounds 3.A, B and C in the notice of appeal. In so doing, the Court has been informed of the issues to be determined on appeal: Haiveta v Wingti (No. 2) [1994] PNGLR 189; Cox v Cox (2012) SC1187. Grounds 3.A, B and C of the appeal are therefore not frivolous, nor are they vexatious or an abuse of the court process. We dismiss this ground of objection.


Ground B.1.i of the Objection as to form


Parties to the appeal are improperly named and do not correspond to the proceedings appealed from in the National Court


  1. All four respondents submit that the appeal is incompetent because the notice of appeal failed to correctly name the parties and that this is in breach of Order 7 Rule 8 SCR which provides:

“8. The notice of appeal and all subsequent proceedings shall be entitled “In the Supreme Court of Justice” and shall be entitled as between the party as appellant and the party as respondent”.

  1. The first and third respondents argue that the notice of appeal should have included all parties who were named in consolidated proceedings OS No. 418 of 2017 and OS No. 438 of 2017. The fact that interlocutory applications had to be made to this Court by Mr Kuala to be joined as second appellant and for Mr Nakipane to be joined as fifth respondent to this appeal is, it is argued, indicative that Mr Poio’s notice of appeal was in breach of Order 7 rule 8 SCR for failure to properly or correctly state the names of all parties involved in the appeal and that the notice of appeal is therefore defective as to form and should be dismissed. The respondents contend that because Messrs Kuala, Nakipane, the PDA and others named in the consolidated proceedings in the National Court should have been named in the notice of appeal at the outset but were not, this is a fundamental flaw as to form which has divested this Court of jurisdiction and has rendered the notice of appeal incompetent.
  2. The first and third respondents, backed by the second and fourth respondents, also point to the fact that in OS No. 436 of 2017 Mr Poio is cited as “George Poio in his capacity as Porgera District Administrator” whereas in the notice of appeal he is named as “George Poio - Porgera District Administrator & Acting Manager of the Porgera Development Authority”. The respondents argue that the addition of the words “& Acting Manager of the Porgera Development Authority” in the intituling of the notice of appeal is a serious breach of Order 7 rule 8 SCR which renders the notice of appeal void.
  3. The respondents also argue that the notice of appeal should have named Messrs Kuala and Mopa in their respective capacities as presidents of the Porgera LLG and Paiela/Hewa LLG as parties in the notice of appeal but these LLG presidents were not included as parties at the outset. The naming in the notice of appeal of Messrs Puluku, Pawe, Kaima and Lara as first, second, third and fourth respondents without citing in what capacity they were being named as respondents was also said to be seriously defective as to form in breach of mandatory requirements in Order 7 SCR thereby warranting dismissal of the notice of appeal.
  4. In support of these submissions, the second and fourth respondents refer to the observations made in Kandakasi J’s dissenting judgment in Michael Kuman v Digicel (PNG) Ltd that a failure to meet the strict requirements of the Supreme Court Act and the Supreme Court Rules amounts to incompetency by reason of which an appeal or other process before the Supreme Court can be dismissed. While we concur with that general proposition, the Kuman case is of no assistance when addressing the issue as to whether the present notice of appeal is incompetent for want of form for not having named all parties and their respective capacities in exactly the same terms as they were named in consolidated National Court proceedings OS No. 413 of 2017 and OS No 426 of 2017 and for having added an additional capacity to the title of the first appellant in the intituling of the notice of appeal.
  5. Of more assistance is the Supreme Court decision in Talibe Hegele for and on behalf of the Yumbi ILG v David Yawe for and on behalf of the Lapilape Sogofani ILG & Ors in SCM No. 04 of 2019 delivered by Makail, Logan and Polume-Kiele JJ on 2 September 2019. Here the appellant sought to appeal against a National Court decision which granted an application for judicial review of a Provincial Court decision. The first respondent filed an objection to competency of the appeal in the Supreme Court arguing that the appellant did not strictly comply with Order 10 rule 3 SCR because a party to the Provincial Land Court proceedings had not been named as a party in the judicial review proceeding in the National Court or in the subsequent appeal to the Supreme Court. Because of the judicial review by the National Court of the Provincial Land Court decision, the appeal to the Supreme Court was by way of the special notice of motion procedure under Order 10 SCR rather than by notice of appeal in accordance with the rules in Order 7 SCR which regulate ordinary appeals. However, Order 10 rule 3(a) SCR expressly incorporates “where appropriate” the requirements found in Order 7 rule 9 SCR, including the requirement in Order 7 rule 9(e) that the appeal document be in accordance with the prescribed form. This is Form 8 in the case of ordinary appeals and Form 15 in the case of appeals from judicial review proceedings.
  6. We set out their Honour’s observations in the Talibe Hegele case regarding the requirement for an appellant to name active parties in an appeal document:

“...Order 7, rule 9(e) [SCR] prescribes that a notice of appeal must be in Form 8. One of the requirements of that form is that the proceedings be entitled as between named appellant and named respondent parties. That same requirement as to the naming of parties is evident in a notice of motion in Form 15, which Order 10, rule 3(3) prescribes as the appropriate form for the institution of an appeal of the present kind.

Neither Order 10, rule 3(c) nor Order 7, rule 9(e) themselves, nor the forms that they respectively prescribe expressly state which of the parties in the proceedings under appellant challenge must be joined as parties to the appeal. But the rules of court and the forms they prescribe must be read subject to the fundamental obligation, enshrined in s.59 of the Constitution, that judicial power must be exercised in accordance with the principles of natural justice. One of those principles is that a person whose interests may be affected b y an exercise of judicial power must be afforded an opportunity to be heard prior to the exercise of that power. Joinder of a person affected as a party to a judicial review proceeding offers that person an opportunity to be heard in that proceeding.


Read in light of this constitutional obligation, Order 10, rule 3(c) and Form 15 (as do Order 7, rule 9(e) and Form 8) necessarily contemplate that an appellant must name as respondents those of the parties in the proceeding below whose interests will be affected by the challenge to the order under appeal. That may or may not mean that each and every party to the proceeding below must be named either as appellant or respondent in an appeal. Exactly who must be named as parties in a given appeal, will require careful analysis of which of the parties in the proceeding below may have interests affected by a challenge to the order made by the court below.”

[emphasis added]

  1. We have considered which parties in consolidated National Court proceedings OS No. 418 of 2017 and OS No. 436 of 2017 have interests directly affected by the challenge to the primary judge’s subject decision. The parties involved in the National Court proceedings whose names were not cited in Mr Poio’s notice of appeal to this Court are Mr Kuala, Mr Mopa, Mr Nakipane and the PDA. However, Mr Kuala and Mr Nakipane have since been joined as parties on their own application. There is no evidence before us to suggest that when those joinder applications were made, any of the respondents objected to the joinder of Mr Kuala and Mr Nakipane on the basis that they should have been cited as parties in the notice of appeal right from the start. This leaves only the PDA and Mr Mopa from the consolidated National Court proceedings as parties who are absent from this appeal. The validity of the membership of the board of the PDA is a core issue which applies equally to OS No. 418 of 2017 and OS No. 436 of 2017. Until that issue is finally judicially determined, the PDA has always been incapable of being an active party in the National Court proceedings. As for Mr Mopa, he is Mr Kuala’s co-plaintiff in OS No. 418 of 2017. Had Mr Mopa wished to have been a co-appellant with Mr Kuala in this appeal, he could have applied with Mr Kuala when the latter made his successful application for joinder. Mr Mopa did not do so. But in any event, Mr Mopa’s interests are co-existent with the interests of Mr Kuala as second appellant.
  2. We iterate what was said by their Honours in the Talibe Hegele case that joinder of a person affected as a party to a judicial review proceeding offers that person an opportunity to be heard in that proceeding. We of course agree with that proposition but distinguish the Talibe Hegele case on the facts to the extent that no application for joinder in the Supreme Court appeal had been made by one of the parties affected by the relief sought in that appeal at the time of the hearing of the respondents’ objection to competency. The party in question was the representative of a clan involved in the Provincial Land Court proceeding. The clan representative was not named in the judicial review of the decision made by the Provincial Land Court, nor was that clan representative named in the subsequent appeal to the Supreme Court against the orders which were made by the National Court in the judicial review proceeding. The omission of that party from the judicial review proceeding and the subsequent appeal to the Supreme Court was a serious omission warranting dismissal of the appeal in the Talibe Hegele case, especially as we note that there had been no application for joinder by that party. It should have been obvious to the appellant that the representative of a clan who could be affected by the outcome of the judicial review and the subsequent appeal proceedings should have been cited at the outset as a party in both of those proceedings.
  3. In the present appeal by Mr Poio, it is correct, as asserted by the respondents, that Mr Kuala, Mr Mopa, Mr Nakipane and the PDA were not initially named as parties in Mr Poio’s notice of appeal. But all other parties in the consolidated proceedings whose rights could be affected by this appeal were named in the notice of appeal. Shortly after Mr Poio’s notice of appeal came to the attention of Messrs Nakipane and Kuala, each of them signalled their wish to be parties to this appeal by promptly filing their applications for joinder in early December 2017. We have already observed that there is no evidence before us to indicate that the two joinder applications were opposed by the respondents. This leaves only the PDA and Mr Mopa who are absent as parties to this appeal. We consider that any interest which the PDA may have in this appeal is dependent on the outcome of the appeal itself and that therefore the PDA as a separate legal entity could at no stage take any active role in the appeal. As for Mr Mopa, his interest is the same as that of Mr Kuala and has been protected by Mr Kuala’s joinder.
  4. Turning to the respondents’ contention that it was mandatory that the capacities of certain of the parties needed to have been stated in the intituling to Mr Poio’s notice of appeal using exactly the same wording as those parties had been described in the consolidated National Court proceedings, we deal first with the objection to the addition of Mr Poio’s capacity as Acting Manager of the PDA when named in the title to the notice of appeal. The appellants submit that respondents have not disputed that Mr Poio’s role includes that of Acting Manager of the PDA and that the respondents have not demonstrated any prejudice by that addition to the capacity in which Mr Poio has been named in the notice of appeal. The first appellant argues that the reason why Mr Poio’s title as Acting Manager of the PDA was added to the capacity in which he is named in the notice of appeal is because it is said that the issues in the substantive dispute revolve around the performance of Mr Poio’s role as Porgera District Manager and as the Acting Manager of the PDA and that it is only proper that he be addressed in that dual capacity.
  5. The respondents have argued that compliance with Order 7 rule 8 SCR (sic) is mandatory. They rely in this regard on Simon Kou v Simon Kaupa (2010) SC1021 where the Supreme Court (David J, Gabi J, Kariko J) held that the matters listed in Order 7 rule 8 SCR are mandatory requirements, failure to comply with any of which is fatal to the competency of an appeal. We observe that that case was decided under the former Supreme Court Rules 1984. Order 7 Rule 8 of those Rules has been re-enacted as Order 7 Rule 9 of the current SCR which came into force in 2012 and amended in 2013. So the respondents’ reference to Order 7 Rule 8 being mandatory as was held in Simon Kou v Simon Kaupa should be read as a reference post-2012 to Order 7 Rule 9 SCR. Be that as it may, one of the reasons why the objection in Simon Kou v Simon Kaupa was upheld was because the appellant had failed to comply with the equivalent of the current Form 8 by not pleading the relief sought in his notice of appeal in lieu of that which was appealed from and that therefore the notice of appeal was defective for want of form. That is a very different situation from the present appeal where Mr Poio has clearly pleaded that, among others, he seeks orders that the decision of the primary judge be quashed and that the ex parte restraining orders of 23 June 2017 be set aside.
  6. To the extent that the judgment in Simon Kou v Simon Kaupa stands for the proposition that want of strict compliance by a notice of appeal with the SCR renders an appeal incompetent, that judgment was not followed in Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (supra). In that case the Supreme Court (Lenalia, Kawi, Logan JJ) said, with reference to the decision in Simon Kou v Simon Kaupa:

“...the judgment, with respect, ignores the overarching effect of s.42 of the Supreme Court Act. While that section provides that practice and procedure in the Supreme Court shall be as specified in the rules of court, it expressly qualifies this by the statement, “except as directed by the Supreme Court at any stage of the matter”. The intent of the qualification is to allow the court to do justice in the circumstances of a particular case and so as to ensure that form does not triumph over substance. That is not to say that the rules of court are to be ignored; far from it; only that mere procedural irregularities may not be fatal in particular circumstances.”

[emphasis added]

64. Order 7 rule 9(e) SCR states that a notice of appeal shall be in Form 8. This is the general form prescribed by the Rules for a notice of appeal. Form 8 is a template which requires the parties to be described:

“A.B.
Appellant

C.D.
Respondent”

65. Order 7 Rule 8 in the current SCR does not stipulate that the intituling of a notice of appeal must include the capacities in which a party is cited. When Order 7 rules 8 and 9(e) SCR are read in conjunction with Form 8, it is clear to us that only the names of the parties must be cited in the notice of appeal, not the capacities in which the appellants have appealed or the capacities in which the respondents have been named as respondents. If an appellant wishes to add that information as to capacities, that is optional. It is not mandatory. It is sufficient compliance as to form that active parties are named and can be identified by the names cited in the intituling of a notice of appeal. To rule otherwise would, in the words of their Honours in Coca Cola Amatil (PNG) Ltd v Marshall Kennedy, allow form to triumph over substance in defiance of s.42 of the Supreme Court Act.

66. For these reasons we reject the respondents’ objection B.1.i that the form of the notice of appeal is incompetent. We find that the intituling in the form of Mr Poio’s notice of appeal did not breach the requirements of Order 7 rules 8 and 9(e) SCR or Form 8 SCR.

Ground B.1.ii of the Objection as to form

That paragraph 2 [of the Notice of Appeal] should state [that the appeal lies] with leave

67. This objection as to form raises the same issue as to whether leave to appeal was required. We have already addressed that issue in our consideration of ground A.1 of the respondents Objection. Leave to appeal in this instance was not required as no error of fact by the primary judge has been demonstrated. We refuse this last ground of objection.

Conclusion

68. In the result, we are satisfied for the reasons we have given that none of the grounds of objection to competency can be sustained in the particular circumstances of this case. The Objection by the respondents is dismissed. The appeal is competent and shall progress to substantive hearing.

69. The first and third respondents, having initiated the objection to competency, shall pay the costs of the first and second appellants. The second and fourth respondents, having supported the first and third respondents in the hearing of this objection, shall bear their own costs.

Order

70. The formal orders of the Court are:


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


2. The first and third respondents shall pay the first and second appellants’ costs of and incidental to the objection, such costs to be taxed if not agreed.


3. The second and fourth respondents shall bear their own costs of and incidental to the objection.


4. The appeal is adjourned to Monday 13 July 2020 for directions hearing before the Supreme Court Listings Judge or to such date and time as that directions hearing may be adjourned.

_________________________________________________________________

Nelson Lawyers: Lawyers for the First and Third Respondents
Harry Lawyers: Lawyers for the Second and Fourth Respondents
Nandape & Associates: Lawyers for the First Appellant
Parker Legal: Lawyers for the Second Appellant


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