SC1977
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 118 OF 2018

BETWEEN
SIMON WAMA for Himself and 42 Others of Erima, NCDC whose names appear on Schedule A to this Writ
Appellants

AND
HON. POWES PARKOP – Governor of National Capital District
First Respondent

AND
NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Second Respondent

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Third Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND
DEKENAI CONTRUCTIONS LIMITED
Fifth Respondent

Waigani:  Makail, J
2020: 16th & 24th July

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal questions of fact – Whether proposed grounds raised questions of fact – Supreme Court Act – Sections 14(3)(b) 

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal questions of fact – Proposed grounds raised questions of mixed fact and law – Leave not required but sought – Whether application for leave to appeal can be converted or treated as notice of appeal – Sections 14(3)(b) 

Cases Cited:

Henganofi Development Corporation v. Public Officers Superannuation Fund Board (2010) SC1025 
Timothy & Peter Neville v. The Independent Public Business Corporation & 2 Ors (2012) SC1193
Paul Bari v. John Raim (2004) SC768
PNGBC Limited v. Timothy and Peter Neville and the Privatisation Commission: SCA No 1 of 2002 (Unnumbered & Unreported Judgment of Hinchliffe, Sevua and Kirriwom JJ)
Rea Joseph v. Manu Sereva (2011) SC1152
Punangi v. Pacific Plantation Timber Ltd (2011) SC1153
Boyepe Pere v. Emmanuel Niningi (2003) SC711
Oio Aba v. Motor Vehicle Insurance Limited (2005) SC779
The Independent State of PNG v. John Tekwie (2006) SC843
Niuslik Holding v. Yapao Lawyers (2003) SC703

Counsel:

Mr. J. Kumura, for Appellants 
Mr. M. Mukwesipu, for First, Second & Third Respondents
Mr. T. Mileng, for Fourth Respondent
Mr. N. Pilamb, for Fifth Respondent 

RULING

24th July, 2020

1.	MAKAIL, J: Pursuant to powers conferred on a single Judge of the Supreme Court under Section 14(3)(b) of the Supreme Court Act, the Appellants have asked me to grant leave to them to appeal the decision of the National Court on two proposed grounds which they say raised questions of facts and leave is required.

2.	The appellants have also filed a notice of appeal raising three separate grounds of appeal which raised questions of mixed fact and law.

3.	In this application, the proposed grounds are:

“1.	The Court failed to consider the overwhelming evidence showing that the NCD Physical Planning Board had knowledge about the Appellants’ occupation of the subject land, Portion 279, for over 20 to 30 years, and more particularly by or before 1997 and had allowed them to erect buildings on it well before 12 months prior to the date of the Demotion Notice. Therefore, the Demotion Notice dated 18th February 2014 was supposed to be declared defective within the meaning of section 99 (3) of the Physical Planning Act and the demotion carried out pursuant to that notice unlawful.

The Court erred when it held that there was no direct evidence showing that the NCD Physical Planning Board had knowledge about the buildings on the land.

2.	The Court erred further when it held that the Appellants’ constitutional rights/human rights were not breached when evidence presented by the Appellants in their affidavits was overwhelmingly clear that the following constitutional rights/human rights were breached:

a.	The Appellants were treated harshly or oppressively, and not treated fairly (sections 41 and 36 of the Constitution).
b.	The Appellants homes were entered arbitrarily or unlawfully. (section 44 of the Constitution).
c.	The Appellants’ privacy was unlawfully breached (section 49 of the Constitution).
d.	The Appellants’ properties were compulsory acquired. (section 55 of the Constitution).”

4.	These proposed grounds arose from a human rights proceeding in the National Court whereby the appellants alleged that they were long-time occupants of a piece of land located at Erima in the National Capital District.  

5.	They were served with a Demotion Notice in breach of Section 99(3) of the Physical Planning Act which states that a Demolition Notice must be served within 12 months of the date when the operation (occupation) was first brought to the notice of the Physical Planning Board.  

6.	Thereafter, the respondents demolished and removed their dwelling houses, trade stores and other buildings from the land.

7.	The appellants sought, amongst other orders, a declaration that the Demotion Notice was unconstitutional, and defective and damages. The trial judge held that the Demotion Notice was not defective, no constitutional rights were breached and dismissed the proceeding.

8.	Mr Kumura of counsel for the appellants submitted that proposed ground one raised a pure question of fact because the appellants tendered affidavits to establish their claim that they had been long-time occupants of the land, having moved onto it some 20 to 30 years ago and put up structures including dwelling houses, trade-stores, liquor shops and others.  These activities would and should have brought to the attention or knowledge of the respondents of the appellants’ occupation prior the issuance of the Demotion Notice.  

9.	It follows, he submitted, the finding by the trial judge that there was no direct evidence to show that the respondents had knowledge of the buildings on the land is contrary to the evidence of the appellants and raised a question of fact for the Supreme Court to consider.

10.	Counsel further submitted that the finding of knowledge is a question of fact and is pivotal to the question of whether the Demotion Notice is valid and enforceable against the appellants where the second respondent is bound by Section 99(3) of the Physical Planning Act to give notice within twelve months of the knowledge of the appellants’ occupation of the land.

11.	As to proposed ground two, Mr Kumura submitted that it is dependent on the first.  When the trial judge held that the Demotion Notice was not defective but in order, he dismissed the proceeding despite evidence by way of affidavits including attached photographs showing loss and damages suffered by the appellants as a result of the respondents’ actions and or omissions.

12.	Counsel for the respondents took one position led by counsel for the first, second and third respondents that the proposed grounds of appeal raised questions of mixed fact and law and leave is not required.

13.	In any event, they submitted that the proposed grounds are captured in the notice of appeal and it would be unnecessary for the appellants to obtain leave to rely on them at the appeal proper.  They went on to submit that the application for leave is misconceived and should be dismissed in its entirety, regardless of whether leave is not required.

14.	I accept the respondents’ submission that the proposed grounds do not raise questions of fact alone but mixed fact and law.  The question of fact which is intertwined with the question of law is this, the finding by the trial judge that there is no direct evidence to establish that the respondents had knowledge of the appellants’ occupation and buildings on the land did not require the trial judge’s assessment and evaluation of the evidence and decision to accept which version.  

15.	All he was required to consider and find and, find as he did, was whether the evidence tendered by the appellants by way of affidavits established that the second respondent had knowledge of their occupation and building of structures on the land prior to the issuance of the Demotion Notice.  

16.	The evidence which the trial judge was looking for and not forthcoming from the appellants was some form of written notice or communication by and from either themselves or someone to the second respondent in relation to their occupation and activities on the land.  This evidence was crucial but missing.

17.	If the finding was in favour of the appellants, then the legal question is whether the Demotion Notice was compliant of Section 99(3) of the Physical Planning Act.  This question will require a construction of Section 99(3).

18.	As rightly submitted by Mr Kumura, proposed ground two is dependent on the first one.  The question of loss and damages is one of mixed fact and law because it would require the trial judge and the Appellate Court to consider evidence based on the rules of evidence such as hearsay, relevance and corroboration and principles of assessment of damages including the current trend on awards for general damages, special damages and exemplary damages to name a few.

19.	Having concluded that the proposed grounds do not raise questions of fact alone, I find that the application for leave to appeal is misconceived and unnecessary.

20.	The next question is what becomes of the proposed grounds? Should they be allowed in the present form (application for leave) to progress to hearing proper or the application for leave should be dismissed in its entirety?

21.	Mr Kumura submitted that the appellants be allowed to progress their case to hearing proper in the present form.  Alternatively, the proposed grounds are adequately captured in the grounds in the notice of appeal and it would not be fatal to them if the present application is dismissed.

22.	Otherwise, they seek leave to amend the notice of appeal (copy was handed up in Court) to include the proposed grounds since they are out of time.  A further option is to ask the Court in its discretion to grant leave to amend the notice of appeal to include these proposed grounds now. 

23.	Counsel for the respondents put two possible options to the Court to consider.  First is the “hardline approach” which is to dismiss the application for leave and that will be the end of the matter.  Second is to allow the appellants to rely on the proposed grounds in the present form and progress them to hearing proper.

24.	They contended that these options were identified in the cases of Henganofi Development Corporation v. Public Officers Superannuation Fund Board (2010) SC1025 and Timothy & Peter Neville v. The Independent Public Business Corporation & 2 Ors (2012) SC1193. 

25.	I note in the former case, the Supreme Court was dealing with an objection to competency because the appellant had simultaneously filed a notice of appeal and application for leave raising identical grounds.  

26.	I further note that in the latter, the Supreme Court comprising of Salika DCJ (as he then was) and Batari J as remaining members of the Court considered the question of whether the decision in question was interlocutory or final and if leave was required after the respondents objected to the competency of the application for leave to appeal.  

27.	Their Honour reviewed past decisions of the Supreme Court on this issue and noted that there were two views expressed by the Supreme Court.  One view is that where an application for leave to appeal is filed and no leave required, the application for leave is incompetent and should be dismissed.  The cases that support this view are Paul Bari v. John Raim (2004) SC768 and PNGBC Limited v. Timothy and Peter Neville and the Privatisation Commission: SCA No 1 of 2002 (Unnumbered & Unreported Judgment of Hinchliffe, Sevua and Kirriwom JJ). Two more Supreme Court cases supported this view.  They are Rea Joseph v. Manu Sereva (2011) SC1152 and Punangi v. Pacific Plantation Timber Ltd (2011) SC1153. 

28.	The other view is that, where an application for leave to appeal is filed and no leave is required, the application for leave may be regarded, treated or converted into a notice of appeal and allowed to progress to hearing proper.  The cases that support this view are Boyepe Pere v. Emmanuel Niningi (2003) SC711; Oio Aba v. Motor Vehicle Insurance Limited (2005) SC779; The Independent State of PNG v. John Tekwie (2006) SC843 and Niuslik Holding v. Yapao Lawyers (2003) SC703.

29.	In the end, their Honours held that where no leave is required and an application for leave to appeal has been filed, the application cannot be turned into a notice of appeal.  The application is incompetent.  They reasoned that to allow the appellant to rely on the application for leave to appeal is contrary to the scheme of the things under the Supreme Court Act and SCR.

30.	I further note that while these Supreme Court cases were decided on the question of whether a judgement is interlocutory or final and in this case, the question posed is whether the proposed grounds of appeal raised questions of fact in both instances, the requisite test is whether leave is required.  That is, whether leave is necessary.   For this reason, I adopt the reasons expressed by their Honours and conclusion (decision) in Neville case (supra) and dismiss the application for leave to appeal.

Final Remarks

31.	Having reached this conclusion and noting that the appellants have also filed a notice of appeal and within time (40 days), the final issue is whether the grounds of appeal sufficiently captured the proposed grounds to enable the appellants to rely on them at the hearing proper.  

32.	If no, whether the appellants can seek leave to amend the notice of appeal to bring the proposed grounds over to and added to the grounds of appeal in the notice of appeal.

33.	I invited parties to file further submissions and have received written submissions from the respondents.  The first to fourth respondents submitted that once the application for leave to appeal has been dismissed, there is nothing further for the Court to engage in.  

34.	The fifth respondent was accommodating submitting that on the face of it, to amend the notice of appeal by supplementary notice of appeal would be time-barred under Order 4, rule 26 of the SCR as the appellants have gone past the 40-day time limitation. However, it submitted that is the appellants wish to add the two proposed grounds, they can but on a proper application to the Court.

35.	I uphold second part of the fifth respondent’s submissions.  The appropriate course to take is to leave the appellants to decide whether the proposed grounds are adequately captured in the grounds of appeal in the notice of appeal. If not, they can file an application for amendment of the notice of appeal and make out a case for grant of leave where necessary.

Order

36.	The application for leave to appeal is dismissed with costs.

________________________________________________________________
Kumura Lawyers:		Lawyers for Appellants
Mukwesipu Lawyers:	Lawyers for First, Second & Third Respondents
Solicitor General:		Lawyers for Fourth Respondent 
Mel & Hennry Lawyers:	Lawyers for Fifth Respondent