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Mamtirin v Donnelly [2024] PGSC 158; SC2708 (2 August 2024)

SC2708

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 107 OF 2023

BETWEEN:
NUG MAMTIRIN
For and on behalf of himself as well as 271 retrenched employees of Telikom PNG Limited, in his capacity as President of PNG Communication Workers Union
First Appellant

AND:
MICHAEL LANGOGO
Treasurer of the PNG Communication Workers Union
Second Appellant

AND:
LYDIA DAVID
Women’s Representative of PNG Communication Workers Union
Third Appellant

AND:
PNG COMMUNICATION WORKERS UNION
Fourth Appellant

AND:
MICHAEL DONNELLY
CEO of Telikom PNG Limited
First Respondent

AND:
MAHESH PATEL
Chairman of Board of Directors of TELIKOM PNG LIMITED
Second Respondent

AND:
TELIKOM PNG LIMITED
Third Respondent

WAIGANI: HARTSHORN J, POLUME-KIELE J, CAREY J
25 JUNE, 2 AUGUST 2024

SUPREME COURT APPEALS –Civil Appeals – Practice & Procedure – Objection to Competency of Notice of Appeal –Question on non-compliance of Order 7 Rule 9 (c) and (e) and Form 8 of the Supreme Court Rules 2012 (as amended) – Grounds of Objection.

OBJECTION TO COMPETENCY — Objection made under Order 7 Rule 9 (c) and (e) —whether notice of appeal filed failed to comply with mandatory requirements — Order 7 Rule 9(b) & (e) — Supreme Court Rules 2012 (as amended) — want of pleading whether what was pleaded in the Notice of Appeal was where the background facts and nature of the case – lengthy Notice of Appeal – Non-Specificity of Grounds of Appeal – whether non-compliance is fatal to the competency of the appeal.

This is a matter relating to a Notice of Objection to Competency filed by the Respondents pursuant to the Notice of Appeal by the Appellants. The Respondents asserted that the Appellants did not comply with the Supreme Court Rules in their Notice of Appeal.

Held:

1. The Objection to Competency is sustained.
   
2. The Appeal is dismissed in its entirety.
   
3. The Appellant shall pay the Respondent’s costs of and incidental to this appeal, to be taxed if not agreed.
   

Cases cited
Jimmy Lama v NBD Investments Ltd [2015] SC1423
Wahgi Savings and Loans Society v. Bank of South Pacific Ltd (1980) SC185
Serowa v. Dowa (2023) SC2381

Counsel:
John Napu for the appellants
Frederick So for the respondents

JUDGMENT ON OBJECTION TO COMPETENCY

1. BY THE COURT: The Notice of Objection to Competency, filed on 16^th August 2023, was heard on 25^th June 2024. The application challenged the Supreme Court Notice of Appeal filed by the Appellants on 1^st August 2023.

BACKGROUND

2. The Appellants’ cause of action before the National Court (in the matter styled WS (HR) 12 of 2016) was for an alleged breach of an Enterprise Bargaining Agreement of 2010. The Court dismissed the claim by the Appellants on the 5^th of July 2023.

3. The Appellants, being aggrieved by that decision, filed this appeal. The Appellants’ Notice of Appeal (NOA) was filed on 1^st August 2023.

4. The Respondents were served the NOA by the Appellants on 4^th August 2023 and the Respondents filed their Notice of Objection to Competency on the 16^th of August 2023.

GROUNDS OF OBJECTION

5. There are 20 grounds of objection pleaded in the Application. The 20 grounds are quite lengthy and consideration was given to two summarized as follows:

(a) Want of compliance with Order 7 Rule 9 (c) and (e), Supreme Court Rules 2012 (as amended) (SCR);

(b) Alleged failure to plead with particularity each of the grounds of appeal – want of compliance with Order 7 Rule 10, SCR.

6. The Respondents rely on them and submit that the NOA is incompetent and should be dismissed in its entirety.

7. The Appellants contest the grounds of objection and submit that the objection is without basis and that the objection should be dismissed.

8. As summarized above, these 2 grounds will be addressed in dealing with the Objection to Competency.

ORDER 7 RULE 9 (c) and (e) OF THE SUPREME COURT RULES 2012 (AS AMENDED)

9. Order 7 Rule 9 SCR is as follows:

“9. The Notice of Appeal shall—

(a) state that an 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.”

(underlining for reference)

10. The respondents submit that the NOA is not in accordance with Form 8 SCR and therefore offends Order 7 Rule 9(e) SCR. Order 7 Rule 9(e) provides that the NOA shall be in Form 8. The respondents submit that paragraphs 3.0 (a) to (k) of the NOA entitled “Background Facts” are not in accordance with Form 8 as there is no provision for “Background Facts”. Consequently, the NOA is incompetent, it is submitted.

11. The appellants submit that there is substantial compliance as “Background Facts” are similar to “Nature of the Case” as referred to in Form 7 which is for an application for leave to appeal. Further, the decision appealed was so brief, “Background Facts” were necessarily included for the benefit of the Court. Moreover, the respondent has not explained the prejudice they will suffer by the inclusion of the “Background Facts”.

12. As to alleged non-compliance with Order 7 Rule 9(c) SCR, the respondents submit amongst others, that the grounds of appeal lack specificity and do not state briefly the grounds relied upon in support of the appeal. This is because the purported grounds contain submissions which are not proper grounds of appeal.

13. The appellants submit that the entire objection is defective. The respondents understand the grounds, it is submitted. Further, the respondent has not raised any objections to the jurisdiction of the court to entertain the appeal: Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185.

CONSIDERATION

14. In Jimmy Lama v. NBD Investments Ltd [2015] SC1423, there were three
requirements indicated in relation to appeals which are as follows:

“The ground relied on in support ... must be stated briefly but
specifically.

...Notice must specify with particularity the ground relied on to
demonstrate that it is against the evidence or weight of the evidence.

...Notice must specify with particularity the ground relied on to
demonstrate the specific reasons why the judgment is alleged to be wrong
in law.”

15. First, that “Background Facts” are similar to “Nature of the Case” which is required in the Form for an application for leave to appeal, is not of relevance in our view, as to whether “Background Facts” may be included in a different Form which does not have provision for “Background Facts”.

16. Secondly, that “Background Facts” were included to assist the Court; we are not satisfied that it has been shown that in this instance that the “Background Facts”, constitute variations as the nature of the case requires as referred to in Order 1 Rule 8(ii) SCR, or constitute sufficient compliance as referred to in that Rule. Further, it is not an issue of any prejudice as submitted by the appellants, but a question of whether a mandatory Supreme Court Rule has been complied with.

17. As compliance with Order 7 Rule 9(e) is mandatory by use of the word “shall” and the NOA in this instance is not in accordance with Form 8, as referred to, the NOA should be dismissed.

18. Thirdly, as to failure to comply with Order 7 Rule 9(c) SCR, paragraph 4.0 of the NOA is entitled “Grounds for the Appeal”. There are then groups of paragraphs with the first paragraph of each group being numbered from 4.1 to 4.12. Each group consists of between 2 and 3 paragraphs and between 7 to 15 lines. If each group consists of one ground of appeal, it is not the position that each ground is stated briefly. Further, the second or third paragraph of each group or ground is a submission and not a proper ground of appeal or part of a ground of appeal which states specifically the ground relied upon.

19. As a consequence, we are not satisfied that the purported grounds of appeal satisfy the mandatory requirements of Order 7 Rule 9(c) SCR.

20. Fourthly, as to the submission that the respondents have not raised any objections to the jurisdiction of the court to entertain the appeal, the bases upon which objection is taken by the respondents are the failures to comply with mandatory Supreme Court Rules. We refer to Serowa v. Dowa (2023) SC2381 [99] – [101] in this regard. Given the above it is not necessary to consider the other submissions of counsel

21. The objection to competency is upheld and the appeal should be dismissed.

ORDERS OF THE COURT:

1. The Objection to Competency is upheld.
   
2. The Appeal is dismissed in its entirety.
   
3. The Appellants shall pay the Respondents costs of and incidental to this appeal, to be taxed if not agreed.
   

Ordered accordingly.
________________________________________________________________
Lawyers for the appellants: Napu & Company Lawyers
Lawyers for the respondents: Ketan Lawyers