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Digicel (PNG) Ltd v Kuman [2024] PGSC 48; SC2578 (24 May 2024)

SC2578

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA 155 OF 2023


BETWEEN:
DIGICEL (PNG) LIMITED
Appellant


AND
MICHAEL KUMAN
Respondent


Waigani: David, Dingake & Wood JJ
2024: 25th March
2024: 24th May


SUPREME COURT – Hearing of Notice of Objection to Competency – non-compliance with Order 13 Rule 15 of the Supreme Court Rules as it failed to state that it was made pursuant to Order 7, Rule 15 of the Supreme Court Rules. The document did not cite a concise statement of the Court’s jurisdiction to grant the orders being sought, resulting in the Notice of Objection to Competency being dismissed.


Notwithstanding the Notice of Objection to Comptency was incompetent, for the sake of completeness, the Court considered the form of the Application for Leave to Appeal. While the document included two extra headings, that did not amount to substantial non-compliance in the use of the form in this case, nor did it cause any prejudice to the respondent. It may well be the situation in other cases that the addition of a heading or the variation to the structure of Form 4 will render that document incompetent, however, each case needs to be determined on its own merits.


Held:


The Notice of Objection to Competency is itself incompetent and is therefore dismissed.


Cases Cited:
Papua New Guinea Cases


Lukom Trading Ltd v Yuku (2023) SC2350
State v Kalaut (2021) SC2094
Vitolo v Mararea Land Group Incorporated (2020) SC2006


Counsel


Mr W. Mininga, for the Appellant
Mr C Gagma, for the Respondent


24th May 2024


  1. BY THE COURT: The matter before the Court was the hearing of the respondent’s Notice of Objection to Competency filed on 26 October 2023 (the Objection to Competency).

Background


  1. Before considering the Objection to Competency, it is first necessary to summarise the matters giving rise to the filing of the Objection to Competency.
  2. On 24 November 2022, the respondent (Michael Kuman) commenced National Court proceeding WS No. 474 of 2022 (the National Court proceeding) against the appellant/ applicant (Digicel (PNG) Limited), alleging a number of matters, including that he was the owner of the land upon which the appellant had constructed communication tower PO564 (the Tower). The respondent alleged that the appellant had entered into an agreement with John Maina Munom (Mr Munom) for the lease of the land to build and operate the tower, but that Mr Munom was not the owner of the land.
  3. In a previous proceeding commenced by the respondent, which is National Court proceeding WS No. 961 of 2011 (WS No. 961 of 2011), that proceeding was dismissed, following which there was an appeal to the Supreme Court, which was subsequently dismissed.
  4. Following the dismissal of that appeal, a land mediation took place on 24 December 2022 in which the appellant claims that it was agreed that the respondent was the owner of the land and that the Land Court at Kundiawa approved the mediation agreement.
  5. Mr Munom subsequently appealed the above decision of the Land Court to the District Court, however, that appeal was dismissed.
  6. On 14 August 2023, the respondent filed a Notice of Motion in the National Court proceeding in which he sought summary judgement against the appellant. On 28 August 2023, the appellant filed a Notice of Motion in the National Court proceeding in which it sought dismissal of the proceeding.
  7. On 4 September 2023, the above two Notices of Motion were heard by Deputy Chief Justice Kandakasi in the National Court proceeding, following which time His Honour made the following orders:
    1. For clarity and to enable the parties to comply with the previous Orders of the Court, the Court declares that the decision of the Local Land Court and/ or District Court as disclosed by Annexures A to C in the Affidavit of Mr. Michael Kuman sworn and filed on the 7 of June 2023 finally resolved the issue of customary land ownership upon which the Defendant’s tower stands on the land the subject of the proceeding.
    2. The Defendant is directed to refrain from taking any more issue and the person it is dealing with, Mr John Maina Munom, unless that person has successfully through the correct process at a formal order setting aside the orders and the decision referred to in the forgoing Order.
    3. Consistent with the Local and District Land Court, Mr John Maina Munom is refrained forthwith from further meddling, interfering with any negotiations or discussions between the Plaintiff and the Defendant unless he has successfully secured a proper Order setting aside the decision and orders referred to in term 1 of these Orders.
    4. All previous orders and directions are now extended for the parties engaged in meaningful settlement negotiations and have this matter resolved.
    5. On the question of how much and when does the period of calculating any damages commences, parties are directed to be guided by the Supreme Court decision in Rimbunan Hijau (PNG) Ltd.
    6. The matter is adjourned to 8 November 2023 at 9:30 am.
  8. For the purpose of this Judgement, we shall refer to the above Orders made by Deputy Chief Kandakasi as the ‘National Court Orders’.



The filing of an Application for Leave to Appeal


  1. The appellant subsequently filed an Application for Leave to Appeal on 12 October 2023 against the above-mentioned decision of Deputy Chief Justice Kandakasi in relation to the National Court Orders (the Application for Leave). The Application for Leave states as follows:

APPLICATION FOR LEAVE TO APPEAL


APPLICATION will be made to the Supreme Court, Waigani, at 9:30am on the day of 09th November 2023.


  1. The appeal lies with leave.
  2. Nature of the case.
    1. On the 24 November 2022, the Respondent commenced proceeding WS No. 474 of 20222 (the Proceeding) against the Applicant seeking damages for, inter alia, alleged negligence, trespass, conversion and breach of Constitutional rights.
    2. The Respondent alleged in the Proceeding that:
      1. he was owner of the land upon which the Applicant had constructed a communication tower referred to as Tower PO564 (the Tower);
      2. the Applicant had entered into agreement with a John Maina Munom, for lease of the land to build and operate the Tower;
      3. Mr Munom was not the owner of the land;
      4. previous proceeding commenced by the Respondent (and others), proceeding WS No. 961 of 2011 was dismissed on the ground that there was a dispute over the ownership of the land;
      5. the appeal against the National Court’s decision dismissing proceeding WS No. 961 OF 2011 was dismissed by Supreme Court;
      6. following the dismissal of the appeal, a land mediation took place on 24 December 2020 and the Respondent was awarded the said land and the land court at Kundiawa had approved the Settlement order.
      7. Mr. Munom appealed against the decision of the Land Court to the District Court, but his appeal was dismissed.
    1. The Applicant denied that there was as land mediation as alleged or that if there was a mediation, no agreement was reached or entered into between the disputing parties, the Respondent and Mr Munom in accordance with the requirements of the Land Disputes Settlement Act, Ch. No.45.
    1. Mr. Munom denied that there was a land mediation or that an agreement was reached or entered into between himself (JM Munom) and the Respondent to resolve the land dispute.
    2. On 14 August 2023, the Respondent filed Notice of Motion in the Proceeding seeking the entry of summary judgement against the Applicant.
    3. On 28 August 2023, the Applicant filed Notice of Motion in the Proceeding seeking dismissal of the Proceeding.
    4. On 4 September 2023, the Proceeding came before His Honour, Kandakasi DCJ (the Trial Judge) for hearing of the parties’ applications.
    5. The Trial Judge inquired about the applications, the Respondent’s claim and the Applicant’s defence and made the following orders:
    1. For clarity and to enable parties to comply with the previous Orders of the Court, the Court declares that the decision of the Local Land Court and/or District Land Court as disclosed by Annexures A to C in the Affidavit of Mr. Michael Kuman sworn and filed on the 7 of June 2023 finally resolved the issue of customary land ownership upon which the Defendant’s tower stands on the land and subject to this proceeding.
    2. The Defendant is directed to refrain from taking any more issue and the person it is dealing with, Mr. John Maina Munom, unless that person has successfully through the court process at a formal order setting aside the orders and the decision referred to in the forgoing Order.
    3. Consistent with the Local and District Land Court, Mr John Maina Munom is refrained forthwith from further meddling, interfering with any negotiations or discussions between the Plaintiff and the Defendant unless he has successfully secured a proper Order setting aside the decision and orders referred to in term 1 of these Orders.
    4. All previous orders and directions are now extended for the parties to engage in meaningful settlement negotiations and have this matter resolved.
    5. On the question of how much and when does the period of calculating any damages commences, parties are directed to be guided by the Supreme Court decision in Rimbunan Hijau (PNG) Ltd.
    6. The matter is adjourned to 8 November 2023 at 9:30 am.
  3. Questions involved.

The questions involved relate to the Trial Judge’s decision to make the Orders referred to above and the questions for determination are set out in the proposed grounds of appeal below.


  1. Proposed grounds of appeal

If leave is granted, the proposed grounds of appeal are.


  1. The Trial Judge erred in law and fact by finding that the dispute over ownership of the land was determined and that the Respondent was the owner of the land when:
    1. there was no land mediation in accordance wit the requirements of the Land Disputes Settlement Act, Ch. No. 45 (the LDS Act) or if there was a mediation, such mediation failed;
    2. there was no agreement reached or entered into between the disputing parties, the Respondent and Mr. Munon, in accordance with section 18(1) of the LDS Act;
    3. Mr. Munom denied that there was mediation;
    4. in the Respondent’s Answers to Interrogatories, the Respondent stated that there was no mediated agreement between himself and
      Mr Munom;
    5. no proceeding was commenced before the Local Land Court, pursuant to the provisions of the LDS Act for the Local Land Court to deal with or determine the dispute.
  2. The Trial Judge erred in law and fact by finding that the Local Land Court Orders were valid and binding when;
    1. no proceeding had been commenced before the Local Land Court for the Court to determine the dispute;
    2. the jurisdiction of the Local Land Court was invoked to determine the dispute;
    3. there was no mediated agreement between the disputing parties, which agreement could have been referred to the Local Land Court for the court to approve pursuant to section 19 of the LDS Act.
  1. The Trial Judge erred in law and fact by failing to find that the Chuave District Land Dispute Settlement Committee (or the Mediation Committee), the body which purported to deal with the dispute and award ownership of the land to the Respondent:
    1. was not established by the LDS Act or by any legislation;
    2. had no power under the LDS Act or law to deal with or determine disputes over ownership of land and to make awards or orders.

and that its purported decision or award were nullity and of no legal effect.


  1. The Trial Judge erred in law and fact by relying upon the documents filed by the Respondent to support his claim that Mr Munom’s appeal was dismissed when the documents were irregular in that the documents purported to be from:
    1. the Local Land Court; and
    2. In the District Court of Justice Sitting in its Village Court Arrest Jurisdiction

when the land dispute was not referred to and no proceeding had been commenced before the Local Land Court or the District Court for the either Court to determine the land dispute.

  1. The Trial Judge erred in law and fact by making the orders referred to under (2)(h) above as the effect of the orders was to grant summary judgement for the Respondent when summary judgement was not appropriate in the circumstances, particularly when there were serious issues of law and the fact raised in the pleadings and the evidence of the parties.
  2. The Trial Judge erred in law by denying the Applicant natural justice or procedural fairness when:
    1. the Applicant’s lawyer was not given proper opportunity to present the Applicant’s case and or to make submissions;
    2. the Trial Judge dealt with the parties’ applications summarily, without allowing the parties’ lawyers proper opportunity to present the parties’ case and make submissions.
  3. The Trial Judge erred in law when He did not give sufficient and adequate reasons and /or did not engage with the Applicant’s submissions when He made the orders (referred to under 2(h) above).
  4. The Trial judge erred in law by making orders specifically against Mr John Maina Munnom, which orders were not sought by the parties to the Proceeding and without allowing or providing Mr Munom any opportunity to be heard.
  5. The Trial Judge erred in law by failing to uphold or grant the Applicant’s application for dismissal of the proceeding as it was clear that there was dispute over ownership of customary land and that the National Court was not the appropriate forum or did not have the jurisdiction to determine such dispute.
  1. Reasons why leave should be given

Pursuant to section 14 (3)(b) of the Supreme Court Act, Chapter No.37, leave is required to appeal against the National Court’s decision in the Proceeding as the decision is an interlocutory decision.


  1. Orders sought
    1. The Applicant be granted leave to appeal.
    2. The Applicant have twenty-one (21) days or such further or other time as the Court or a Judge allows under Order 7 Rule 6 of the Supreme Court Rules to file a Notice of Appeal.
    3. The costs of and incidental to the Application for Leave to Appeal be costs in the appeal.
    4. Such further or other orders as the Court or a Judge of the Court considers appropriate.

The Objection to Competency

  1. In reply to the filing of the Application for Leave, the respondent filed the Objection to Competency, which states as follows:

NOTICE OF OBJECTION TO COMPETENCY


OBJECTION to the competency of this Application for Leave to Appeal will be made at the Supreme Court, Waigani at 9:30 am on the
day of ................................ 2023.


Objections is made on the following grounds:


  1. The Appellant/ applicant failed to comply with Order 7 rule 4(c) and form 7 of the Supreme Court Rules where the requirement was to set out the Nature of the case, questions involved and reasons why leave should be given. The applicant included extra headings. Proposed grounds of appeal, orders sought, thereby contravene Order 7 rule 4 (c) and form 7 of the Supreme Court Rules.
  2. The proposed grounds of appeal pleaded under paragraphs 4 (a) to (i) are basically raising issues of customary ownership dispute whilst relying on the affidavit of John Maina Munom. The issues of ownership were settled by the Land mediation and endorsed by the district land Court. Court correctly noted that the Digicel tower is on Gunorobaro land belong to the respondent. Mr Maina Munom referral application was about a land known as Monotu Land. The district court made a finding Monontu land was not the subject of this dispute, the dispute was Gunorobaro land where the Digicel tower is located. The lawyer for the applicant raised that issue of ownership as they created it through one John Maina Munom and not the Digicel (PNG) Ltd. The applicant recognized Michael Kuman as the owner after having conducted one month of search at Kundiawa District Court.

This not the appropriate forum to raise issues of customary land ownership, only the local land court has the jurisdiction as such the Supreme Court lack jurisdiction to deal with customary land ownership.


DATED the 26 day of October 2023.


_________________
Camillus M. GAGMA
Of Gagma Legal Services
Lawyers for the Respondent


Relevant provisions of the Supreme Rules


  1. Order 7, Rules 3 and 4 of the Supreme Court Rules provide as follows:

‘3. Where an appeal from a judgment lies to the court only with leave, an application shall be determined after an oral hearing.

4. An application for leave to appeal shall be made by filing a notice in writing and shall—

(a) be entitled "In the Supreme Court of Justice" and shall also be entitled as between the party as appellant and the party as respondent; and
(b) show that an appeal lies with leave; and
(c) state the nature of the case, the questions involved and the reason why leave should be given; and
(d) show an address for service of the party giving the notice; and
(e) be in accordance with form 7.’

  1. Order 7, Rules 15 to 19 of the Supreme Court Rules provide as follows:

‘15. A respondent who objects to the competency of an appeal or 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.

16. Any party may file affidavits.

17. An objection of which notice has been given shall be determined by the court at or before the hearing of the appeal or of the application for leave to appeal as the court thinks proper.

18. Upon the hearing of the application the burden of establishing the competency of the appeal is on the applicant.

19. If notice of objection is not given and the appeal or the notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the court on special grounds orders otherwise.’


The appellant’s submission that the Objection to Competency is incompetent

  1. The appellant’s lawyer submitted that the Objection to Competency was incompetent and relied on Order 13, Rule 15 of the Supreme Court Rules, which provides as follows:

    ‘15. All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. With the exception of urgent applications, all other applications for interlocutory orders shall be made to the Duty Judge on a scheduled motions day. All applications shall be made in Form 4.’
  2. The appellant’s lawyer also referred to the definition of ‘Application’ in Order 13 Rule 1 of the Supreme Court Rules, which means ‘...any application provided for under these rules, the Act, the Constitution and any other legislation.’ In this regard, Mr Mininga submitted that the Objection to Competency falls within this definition of Application, and in doing so, he relied on the Supreme Court decision in State v Kalaut (2021) SC2094, in which the Court stated as follows:

    ‘20. The word “Application” is defined in Order 13 Rule 1 of the Supreme Court Rules and it:

“means any application as provided for under these rules, the Act, the Constitution and any other legislation.”

21. An objection to competency would fall within the meaning of “Application”.’

  1. We agree with the above reasoning in State v Kalaut (supra) that the Notice of Objection falls within the definition of ‘Application’ as per the definition in Order 13 Rule 1 of the Supreme Court Rules.
  2. In his submissions, Mr Mininga also referred to a number of Supreme Court cases, which have held that a notice of objection to competency must state the jurisdictional basis for the Supreme Court to grant the orders sought, including Vitolo v Mararea Land Group Incorporated (2020) SC2006 and State v Kalaut (supra). In Vitolo’s case (supra), it was stated by Manuhu, Hartshorn and Miviri JJ as follows:

‘5. The first issue for consideration is whether the objection to competency is itself incompetent as the jurisdictional basis relied upon for making the objection to competency has not been cited. In Papua New Guinea Law Society v. Cooper (2016) SC1553 (Manuhu J, Yagi J, Sawong J), the Court stated at [8]:

“.... the notice of objection to competency must itself be competent. It has to plead the appropriate provision and comply with the Supreme Court Rules. Failure to comply would be fatal.”

6. In National Superannuation Fund Ltd v. Yawenaik Holdings Ltd (2018) SC1709 (Hartshorn J, Higgins J, Frank J) the Court stated at [7]:

“As the objections to competency do not cite the correct jurisdictional basis for making an objection to competency, ....... this Court’s jurisdiction has not been invoked.”

7. Further, the Supreme Court cases of Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC692 (Davani J Cannings J Manuhu J) and Nandali v. Curtain Bros Ltd (2012) SC1483.html">SC1483 (Hartshorn J, Makail J, Logan J) are decisions of the full Supreme Court that were concerned with and affirmed the requirement to cite the correct jurisdiction, including in objections to competency.

8. Consequently, as the jurisdictional basis relied upon for making the objection to competency is not cited within the objection to competency, in accordance with the authorities to which we have made reference, the objection to competency should be dismissed.’


  1. On the basis that the Objection to Competency does not state that it is made pursuant to Order 7, Rule 15 of the Supreme Court Rules, we consider it has therefore not cited a concise statement of the Court’s jurisdiction to grant the orders being sought. For this reason, and based upon the above reasoning in Vitolo’s case (supra), which is referred to in paragraph 15 above, we find that the Objection to Competency is therefore incompetent and we order that it be dismissed.
  2. Notwithstanding that we have decided that the Objection to Competency shall be dismissed, we consider it necessary to deal with the form of the Application for Leave, which was raised by the respondent in paragraph 1 of the Objection to Competency and also in oral submissions by the respondent’s lawyer at the hearing on 25 March 2024. In this regard, the respondent submits that the Application for Leave contains two extra headings, namely ‘Proposed Grounds of Appeal’ at paragraph 4, and ‘Orders sought’ at paragraph 6, which it was submitted render the Application for Leave incompetent. Notwithstanding this, we note that the respondent did not refer the Court to any reported judgements in support of the argument as to why this rendered the Application for Leave incompetent.
  3. The respondent submits that the two extra headings are in contravention of the requirements of Order 7, Rule 4(e) of the Supreme Court Rules. We note that Order 7, Rule 4 of the Supreme Court Rules provides as follows, namely:

    ‘4. An application for leave to appeal shall be made by filing a notice in writing and shall—

(a) be entitled "In the Supreme Court of Justice" and shall also be entitled as between the party as appellant and the party as respondent; and
(b) show that an appeal lies with leave; and
(c) state the nature of the case, the questions involved and the reason why leave should be given; and
(d) show an address for service of the party giving the notice;
(e) be in accordance with Form 7, and
(f) be served forthwith on all parties in the proceedings the subject of the proposed appeal or the lawyers for each parties in those proceedings.’

.

  1. Form 7 of the Supreme Court Rules prescribes the format for the Application for Leave, namely:

APPLICATION FOR LEAVE TO APPEAL


IN THE SUPREME COURT
OF JUSTICE
SC APPEAL No of 20

A.B.
Applicant/
C.D.
Respondent


APPLICATION will be made to the Supreme Court, Waigani at . . . am on the . . . day of . . .for leave to appeal.

1. The appeal lies with leave;

2. NATURE OF THE CASE:

3. QUESTIONS INVOLVED:

4. REASONS WHY LEAVE SHOULD BE GIVEN:


Dated:
Sgd __________
(Applicant or his
lawyer)
FILED BY: (Form 17)


  1. In the Supreme Court decision of Lukom Trading Ltd v Yuku (2023) SC2350, one of the central issues in that case related to the reliance of a party upon Form 4 of the Supreme Court Rules, whereas the correct form to be used was Form 11. Manuhu, David and Anis JJ stated at paragraph 17 in that decision as follows:

‘17. Coming back to the query, that is, whether the appellant has used the correct form, we find that there was substantial compliance. This Court has on various occasions in the past accepted forms that substantially comply with the designated requirements. This Court in John Midan & Anor v Oscar Lisio (2010) SC1086 and Graham v Klatt (2022) SC2287 have regarded substantial compliance and want of prejudice, as relevant considerations.’

  1. In order to consider whether the Application for Leave is incompetent on this issue, we note that the document states, in part, the following:

    3. Questions involved

    The questions involved relate to the Trial Judge’s decision to make the orders referred to above and the questions for determination are set out in the proposed grounds of appeal below.’

    4. Proposed grounds of appeal

    If leave is granted, the proposed grounds of appeal are:

    (a) The Trial Judge erred in law and fact by finding .....’
  2. In this regard, paragraphs 4(a) to (i) of the document set out the proposed grounds of appeal. It was not necessary that the words ‘Proposed grounds of appeal’ be listed as a heading, and indeed, they could have simply formed part of the paragraph underneath the heading ‘Questions involved’. However, the manner of placement of this additional heading did not render the Application for Leave incompetent. This is because it is apparent that the words ‘Proposed grounds of appeal’ are intended to form part of the appellant’s case under the heading ‘Questions involved’. Indeed the words ‘Proposed grounds of appeal’ and paragraphs 4(a) to (i) of the document succinctly set out the appellant’s case in detail as to what errors it is contended were made by the trial Judge. We consider that the additional heading of ‘Proposed grounds of appeal’ does not cause any material confusion, nor does it cause any prejudice to the respondent, including that it would not impact upon the respondent’s understanding of the Application for Leave in any material way. We also consider the use of the heading ‘Proposed grounds of appeal’ did not amount to a situation in this case of substantial non-compliance with Form 4 of the Supreme Court Rules.
  3. In relation to the heading ‘Orders sought’, while that heading should not have been included in the Application for Leave, it is the practice, and indeed desirable at the end of the Form 4, that a party should list the orders being sought, in the event the Application for Leave to Appeal is granted. In this regard, we consider the reference to the heading ‘Orders sought’ did not amount to substantial non-compliance in the use of the form, nor did it cause any prejudice to the respondent.
  4. We should emphasise, however, that it may well be the situation in other cases that the addition of a heading or the variation to the structure of Form 4 may well render that document incompetent. For this reason, each case will need to be determined on its own merits.

Conclusion


  1. In conclusion, we consider the Notice of Objection to Competency is incompetent and should be dismissed. Notwithstanding this, the Court still has the power to consider the form of the Application for Leave, and we consider the addition of the headings, namely ‘Proposed Grounds of Appeal’ and ‘Orders sought’ did not constitute substantial non-compliance with Form 4 of the Supreme Court Rules or cause prejudice to the respondent. Even if a small degree of prejudice was caused to the respondent (which we do not consider has arisen), any such claim of prejudice would be negligible and could not give rise to an argument that the Application for Leave is incompetent.

Orders:

  1. We make the following orders:
    1. The Notice of Objection to Competency filed on 26 October 2023 is itself incompetent and is therefore dismissed.
    2. The respondent shall pay the appellant’s costs of and incidental to the hearing of the Notice of Objection to Competency, to be taxed if not agreed.
    3. Time shall be abridged.

Bradshaw Lawyers: Lawyers for the Appellant
Gagma Legal Services: Lawyers for the Respondent

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