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Foe Association Inc v Manau [2023] PGSC 173; SC2520 (30 November 2023)

SC2520

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 20 OF 2023 (IECMS)

BETWEEN:
FOE ASSOCIATION INC.
First Appellant

AND:
JOHNNY YAWARI
as Chairman of the Foe Association Inc. and Damo Land Group Inc.
Second Appellant

AND:
JAMES RICKS IRIKUSA et al
Third Appellants
AND:

DAVID MANAU
Secretary Department of Petroleum and Energy
First Respondent

AND:
HON. KERENGA KUA, MP
Minister for Petroleum and Energy
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
FOE PDL 2 RESOURCES OWNERS ASSOCIATION INC.
Fourth Respondent

Waigani: Hartshorn J, Lindsay J, Auka J
2023: 28^th & 30^th November

SUPRME COURT – practice and procedure - Objections to competency of appeal

Cases Cited:

Betty Palaso v. Paru Elliott (2020) SC2030

Counsel:

Ms. J. Nandape, for the Appellants
Mr. R. Uware and Ms. E. Wungin, for the First, Second and Third Respondents
Mr. L. Kandi, for the Fourth Respondent

30^th November 2023

1. BY THE COURT: This is a decision on contested objections to competency of an appeal. The objections are made by the first, second and third respondents (state respondents) and are supported by the fourth respondent.

Background

2. In the notice of motion commencing their appeal the appellants state that they appeal a judgment of the National Court which dismissed the proceeding OS (JR) No. 259 of 2023. They also state that the judgment was given on 20^th July 2023.

Objection

3. The state respondents object to the competency of the appeal on five grounds. The jurisdictional bases for the objections are set out in the notice of objection and include Order 7 Rule 5 and Order 11 Rule 28(a) Supreme Court Rules. No issue was taken by the appellants with the jurisdiction relied upon.

4. One of the grounds is that Order 10 Rule 3(b)(ii) Supreme Court Rules has not been complied with. Order 10, rule 3(b)(i) & (ii) states:

“3. The notice of motion shall—

(a) ..................
(b) have annexed—

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and.....”. (Emphasis added).

5. One of the breaches alleged is that the purported order annexed to the notice of motion (purported order) is not a copy of the order made the subject of the appeal. The purported order is dated 25^th July 2023, albeit by handwritten alteration, whereas the notice of motion states that the order appealed is dated 20^th July 2023.

6. Counsel for the appellants informed the court that the purported order is supposed to be the order dated 25^th July 2023 and that the handwritten alterations were made by Supreme Court Registry staff to that effect. Further, counsel for the appellants informed that notwithstanding that the notice of motion states that the order appealed is the order of 20^th July 2023, it should have been stated in the notice of motion that the order dated 25^th July 2023 was also being appealed.

7. In Betty Palaso v. Paru Elliott (2020) SC2030 at [6] the Court stated:

“6. We accept the general proposition that Order 10, Division 1, rule 3(b)(i) & (ii) of the SCR is in mandatory terms and failure to comply with these provisions is fatal to the appeal: Felix Bakani v. Rodney Daipo (2001) SC659; Dr Arnold Kukari v. Hon. Don Pomb Polye (2008) SC907; National Capital Limited v. Loi Bakani (2014) SC1392; Nipo Investment Limited v. Nambawan Super Limited (2017) SC1642 and Talibe Hegele v. David Yawe & Ors: SCM No 4 of 2019 (Unnumbered & Unreported Judgment of 2^nd September 2019).”
8. Then at [8] and [9], the Court stated:

“8. As to the requirement to annex a certified copy of the order made by the National Court, the pertinent case is National Capital Limited v. Loi Bakani (supra). There, the Supreme Court said “.......we find that the failure by the appellant to annex a duly certified copy of the order made by the trial court to the notice of motion as required by Order 10 r 3(b)(ii) is indeed fatal to the appeal”. Accordingly, the objection to competency was upheld and the appeal was dismissed.

9. As recent as September last year, in Talibe Hegele v. David Yawe & Ors (supra) the Supreme Court reinforced the proposition that it is mandatory to comply with the requirements of Order 10, rule 3 of the SCR. A party who does not strictly comply with those requirements is liable to have their appeal struck out as incompetent.”

9. In this instance, it is clear that the purported order is not “a copy of the order made” which is stated as being appealed in the notice of motion. Consequently, the mandatory requirement of Order 10 Rule 3(b) (ii) Supreme Court Rules has not been complied with. We are satisfied therefore that this is fatal to this appeal. In this regard we rely upon the judgment in Betty Palaso (supra) and the other judgments cited therein. Given this it is not necessary to consider the other submissions of counsel.

Orders

10. The Court orders that:

a) The notice of objection to competency filed 5^th September 2023 is upheld.

b) This appeal is dismissed as being incompetent.

c) The appellants shall pay the costs of all of the respondents of and incidental to this appeal on a party party basis to be taxed if not otherwise agreed.

_____________________________________________________________
Nandape and Associates: Lawyers for the Appellants
Solicitor General: Lawyer for the First, Second and Third Respondents
M.S. Wagambie Lawyers: Lawyers for the Fourth Respondent