SC2259

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 20 OF 2022 (IECMS)

BETWEEN:
RICHARD PUARA for and on behalf of SEBERE GESO INCORPORATED LAND GROUP
First Appellant

AND:
ROBERT KEITH for and on behalf of SEBERE KUKUMA INCORPORATED LAND GROUP
Second Appellant

AND:
OIL SEARCH LIMITED
First Respondent

AND:
DAVID MANAU – Secretary, Department of Petroleum & Energy
Second Respondent

AND:
HON. KERENGA KUA, MP, MINISTER FOR PETROLEUM & ENERGY
Third Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND:
TONY KILA for and on behalf of NANO WEBO INCORPORATED LAND GROUP
Fifth Respondent

AND:
JACK HUMIA for and on behalf of LAPILAPI INCORPORATED LAND GROUP
Sixth Respondent

Waigani:  Gavara-Nanu J, Batari J & Makail J
2022:  11th April & 14th July

PRACTICE & PROCEDURE – Application for interim relief – Objection to Competency – Supreme Court Act, Chapter 37, s. 5 (3) – Supreme Court Rules, 2012 (as amended); Order 11 Rules 25 and 26 – Mandatory statutory requirements – Non-compliance – Application incompetent – Inherent powers of the Court to dismiss – Application dismissed.

Cases Cited:

National Executive Council and Attorney General v Gilbert Toropo (2022) SC2193

Counsel:

E. Issacc, for the Appellants
M. Kombri, for the Fifth Respondent
J. Kolo, for the Sixth and Seventh Respondents
C. Kopunye, for the Eighth and Ninth Respondents

14th July, 2022

1.	BY THE COURT: By a notice of motion filed on 22 March 2022, the appellants seek the following orders:

(i)	Restraining orders; and 

(ii)	The judgment and orders given by a single judge of the Supreme Court on 28 March 2022 be quashed: and 

(iii)	Such further or other orders the Court deems appropriate.

2.	The notice of motion was filed under s. 5 (3) of the Supreme Court Act, Chapter No. 37, and Order 11 Rules 25 and 26 of the Supreme Court Rules, 2012 as amended (Rules).

3.	The application arises from an appeal filed by the appellants on 15 March 2022 against the decision of the trial judge given on 9 March, 2022, in respect of proceeding OS No. 170 of 2020.

4.	After filing the appeal, the appellants in an urgent application filed on 15 March, 2022, under to Order 13 r 14 (1), (4) and (7) of the Rules, sought dispensation of service of the application and supporting affidavits and further sought an order under s. 5 (1) (b) of the Supreme Court Act, to restrain the First, Second, Third, Fourth, Eighth and Ninth respondents from releasing any payments in respect of landowner-equity, royalties, and other benefits payable to the landowners of Moran PDL2; to any parties including Aporo Urri Resources Owners Association Inc (AUROA); until the determination by the Court of their appeal or further orders of the Court.  The terms of the initial relief sought were:

(i)	Pursuant to Order 13 Rule 14 (1), (4) and (7) of the Supreme Court Rules 2012, the requirement for service of the Notice of Appeal, this Application and supporting Affidavits be dispensed with.

(ii)	An Order Pursuant to s. 4 (1) (b) of the Supreme Court Act restraining the First, Second, Third, Fourth, Eighth and Ninth Respondents from releasing any payments in terms of landowner equity, royalties or other benefits payable to the landowners of Moran PDL 2 to any parties including Aporo Urri Resources Owners Association Inc (AUROA) until the Court’s determination of this appeal or further orders of this Court.

(iii)	The costs be in the appeal.

5.	In their original OS No. 170 of 2020 proceeding, the appellants sought withholding of payments of all equities and royalties to the landowners of Moran PDL2 with interests.   The trial judge having ruled against the appellants, the appellants appealed the trial judge’s decision.

6.	The single judge of the Supreme Court in the decision given on 28 March 2022 dismissed the appellants’ initial application which was made under s. 5 (1 (b) of the Supreme Court Act, to restrain the First, Second, Third, Fourth, Eighth and Ninth respondents, from paying the equities and royalties to the landowners of Moran PDL2 and others until their appeal was fully determined.  The single Supreme Court judge held that the appellants lacked standing.

7.	This application is made under Order 11 Rules 25 and 26 of the Rules.  The applicant is seeking following orders:

(i)	The appellants’ application for restraining orders be granted; and 
(ii)	The judgement and orders which the learned Judge gave on 28th March 2022, be quashed.
(iii)	Such further or other orders which the Honourable Court deems appropriate.

8.	The respondents argued that this application is incompetent because it does not comply with the requirements of the amended Order 11 r 26 of the Rules, which provides that orders sought before this Court be same as those sought before the single Supreme Court judge.  It was submitted that the orders sought before this Court are different to those sought before the single Supreme Court judge. Furthermore, the appellants have relied on fresh material deposed in the affidavits they filed.

9.	The respondents submitted that the fatality of this application is in the orders sought before this Court which are different to those sought before the single judge of the Supreme Court, which were dismissed. The amended Order 11 r 26 of the Rules reads: 

“Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceeding seeking the same orders as were sought before the single judge.”

10.	The old Order 11 r 26 of the Rules reads:

“Proceeding under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the Rules under that order with necessary modifications shall apply.”

11.	At the hearing of this application, counsel for the appellants conceded that the appellants have mistakenly treated this application as an appeal based on the old Rule 26. This mistake is reflected clearly in the manner this application was pleaded.  The grounds of this application have been pleaded as if they are grounds of appeal. That clearly is an error of law as conceded by counsel for the appellants.  The concession is fatal to the application.  Thus, the error effectively renders the application incompetent.

12.	Apart from erroneously pleading the application as an appeal, the application is also in clear breach of the mandatory requirements of the amended Order 11 r 26 of the Rules, which provides that orders sought in this application be same as those sought before the single judge of the Supreme Court. In this application the orders sought are clearly different to those sought before the single Supreme Court judge. 

13.	The counsel for the appellant also conceded that he was not aware of the amended Order 11 Rule 26 but argued in protest that the lawyers for the respondents should have alerted him about the amendment to Order 11 Rule 26 of the Rules before the hearing of this application.  We reject this argument because amended Order 11 r 26 raises a point of law which the counsel for the appellants is supposed to have known.  A similar issue arose in National Executive Council and Attorney General v Gilbert Toropo (2022) SC2193.  The Supreme Court said:

“Duty to be competent

Before we proceed to discuss the issue, we quickly underscore that a lawyer has a duty under Rule 3 (c) of the Professional Conduct Rules 1989, “to be competent” in performing his or her professional activities.

This all-important obligation unavoidably requires a lawyer to maintain the required knowledge and skill, and this includes keeping abreast of changes in the law and its practice.

The amendment to Rule 26 was gazette some 8 months ago and it has now been in force for 3 months.  Notice of the Supreme Court (Miscellaneous Amendments) Rules 2021 is posted on the NJSS website, so there is no excuse for counsel not being aware of the recent changes to the Supreme Court Rules.” (Our underling).

14.	We respectfully agree with the observations by the Supreme Court in Toropo and adopt them. 

15.	This application being made under s. 5 (3) of the Supreme Court Act, it should have been a fresh application, but the appellants treated the application as an appeal.  This is an error of law as we said above and as conceded by the appellants.  

16.	Given the finding of the Court that the application is incompetent for the reasons given, it is not necessary for the Court to consider the merits of the application.

17.	The application is dismissed with costs.

Orders accordingly.
________________________________________________________________
Emmanuel Lawyers: Lawyers for the Appellants
Kombri & Associates Lawyers: Lawyers for the Fifth Respondent
Kolo & Associates Lawyers: Lawyers for the Sixth & Seventh Respondents
MRDC Legal Division: Lawyers for the Eight & Ninth Respondents