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Botike v Setao Investment Ltd [2025] PGSC 67; SC2764 (29 August 2025)

SC2764

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 44 OF 2025 (IECMS)

BUDS BOTIKE – Chief Executive Officer of Nawaeb District Development Authority and Administrator of Nawaeb District
First Appellant

NAWAEB DISTRICT DEVELOPMENT AUTHORITY
Second Appellant

V

SETAO INVESTMENT LIMITED
Respondent

WAIGANI: MURRAY J, ANIS J, ELIAKIM J
25, 29 AUGUST 2025

OBJECTION TO COMPETENCY OF APPEAL – oral application requesting leave to amend notice of objection to competency of appeal – whether leave should be granted – Order 13 Rule15 – Supreme Court Rules (as amended to date) - if not, whether the notice of objection to competency of appeal is itself incompetent – Order 7 Rule 15 - Supreme Court Rules (as amended to date) – consideration - ruling

Cases cited
The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448
Patterson Lowa v Wapula Akipe [1991] PNGLR 265
PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717
Gregory Puli Manda v Yatala Limited (2005) SC795
Jeffrey Turia v Gabriel Nelson (2008) SC949
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Joseph Nandali v Curtain Brothers Ltd (2012) SC1483
Vitolo v Mararea Land Group Incorporated (2020) SC2006
Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553
Alred Kimbu v. Serah Pakira and 1 Or (2023) SC2387

Counsel
H Babe, for the appellants
C W Kaki, for the respondent

1. BY THE COURT: This was a hearing of an objection filed by the respondent against the competency of the Notice of Appeal. The Notice of Objection to Competency of Appeal was filed 2 June 2025 (the Objection).

2. However, at the start of the hearing, the respondent raised a preliminary matter. The respondent made an oral application before us for leave to amend the Objection. The oral application was contested by the appellants. The appellants argued that the Objection was incompetent and that they would raise that as a preliminary matter in response when the Objection is moved. We also raised matters in regard to the oral application which included whether the oral application was properly before us, whether the appellants had been informed of the respondent’s intention to make such an application and also matters concerning jurisdiction of the Court.

3. We decided then to hear the oral application first, and subject to our ruling on the application, also consider whether the Objection itself was incompetent. We heard arguments from the parties and adjourned the matter to today for ruling.

BACKGROUND

4. Briefly, the appeal stems from a final decision of the National Court that granted judgment in the sum of K1,387,550 in favour of the respondent. The National Court proceeding is described as OS No. 251 of 2023 – Setao Investment Limited v. Buds Botike and 1 Or (2023) (OS 251/23). The claim was for damages for breach of a road rehabilitation and maintenance contract that was executed between the parties on 2 March 2021. The appellants raise 3 grounds of appeal in their Notice of Appeal filed 14 April 2025 which include their claim that there was no cause of action against them because they were not parties to the contract. The substantive matter is pending.

5. We are, however, confined to the Objection.

ORAL APPLICATION

6. As stated, counsel for the respondent began his submission by making an oral application for leave to amend the Objection. As a preliminary matter, we enquired whether the respondent should have filed a formal application and also whether the notice of such an intention was conveyed to the appellants to which counsel replied that no formal application has been filed and also that he has not given notice of his client’s intention to apply for leave to amend the Objection to the appeal. Counsel for the appellants also confirmed this.

7. From interactions between us and counsel, Order 13 Rule 15 of the Supreme Court Rules (SCR) came to light, and now, upon further consideration, appears to be directly relevant for this purpose. It states,

Division 15.―Applications

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. [Bold lettering ours]

8. We observe that the oral application for leave to amend the Objection that is before us is interlocutory in nature. As such, and in view of the mandatory requirements stipulated under Order 13 Rule 15, it appears to us that the oral application is made contrary to or in breach of Order 13 Rule 15. An application such as an application for leave to amend a Notice of Objection to Competency of Appeal ought to have been filed using Form 4 and presented before the Duty Judge (or the listings judge) on a normal motions’ day.

9. There was a further reason or concern in relation to the oral application which we had thought was necessary and that it should have been met by the respondent, which was that the respondent should have notified the appellants of the application beforehand. However, this now seems inconsequential given the express requirements under Order 13 Rule 15 for interlocutory applications. We further observe that if an application is filed under Order 13 Rule 15, the applicable provisions for service are provided under Division 4, Order 11 of the SCR. The provisions for service would give a responding party the right to respond and be heard on an application that is filed under Order 13 Rule 15.

10. In conclusion, we refuse the oral application for leave to amend the Objection. We find that the oral application amounts to abuse of the court process; that it is improper; and that it breaches Orde 13 Rule 15 of the SCR.

COMPETENCY OF THE OBJECTION

11. This leads us to this next preliminary issue which is whether the Objection is itself incompetent.

12. The case law is settled in that a Notice of Objection to Competency that is filed must itself be competent: The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448; Patterson Lowa v Wapula Akipe [1991] PNGLR 265; PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717; Gregory Puli Manda v Yatala Limited (2005) SC795; Jeffrey Turia v Gabriel Nelson (2008) SC949 and Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962.

13. With that clarity, we refer to the objection raised by the appellants which is that the Objection does not plead a concise jurisdiction or source. We note that this fact was conceded to by the respondent which was why it had orally applied for leave to amend its Objection which we have rejected.

14. The relevant provision for filing an objection is Order 7 Rule 15 of the SCR which states:

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.

15. The appellants referred us to various case authorities to support their assertion that it is mandatory to plead the Court’s jurisdiction in the Objection. The cases referred to include Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962, Joseph Nandali v Curtain Brothers Ltd (2012) SC1483, Vitolo v Mararea Land Group Incorporated (2020) SC2006, Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553 and Alred Kimbu v. Serah Pakira and 1 Or (2023) SC2387.

16. These case authorities stand for the proposition that an applicant that files a Notice of Objection to Competency of Appeal must, as one of the mandatory requirements, plead the jurisdiction basis or source of the application, and that failure to do that is fatal and may result in the Notice of Objection to Competency of Appeal being dismissed as incompetent.

17. The respondent, in response and with respect, did not cite any relevant case authorities that rebuts the above proposition and the case authorities relied upon by the appellants. The respondent, however, argued that the Court has inherent jurisdiction under s.155(4) of the Constitution and also that it may, on its own volition, consider the competency issues that are raised in the Objection.

18. We note the submissions of the parties.

19. We, however, reject the submissions of the respondent. The Objection is incompetent because it fails to state the jurisdiction which would have been Order 7 Rule 15 of the SCR. The Objection, premised on the case law, is fatally flawed, invalid, and falls outside the jurisdiction of this Court. Consequently, arguments such as exercise of powers under s.155(4) of the Constitution or for the Court exercising its powers on its own volition, in our view, cannot or do not arise. If they were to be raised, they have to be properly raised either in an application or on a platform for us to consider. There is no such application or platform that the respondent can invoke to raise these arguments.

SUMMARY

20. In summary, we will uphold the preliminary objection raised by the appellants and dismiss the Objection filed 2^nd June 2025 as incompetent.

COST

21. We will order cost to follow the event to be taxed if not agreed.

ORDERS

22. We make the following orders:

1. The Respondent’s oral application for leave to amend its Notice of Objection to Competency of Appeal filed 2 June 2025 is refused.
   
2. The Respondent’s Notice of Objection to Competency of Appeal filed 2 June 2025 is incompetent and is dismissed.
   
3. The Respondent shall pay the Appellants’ cost of the application, which may be taxed if not agreed.
   

The Court orders accordingly

________________________________________________________________
Lawyers for the appellants: Hebrew Babe Lawyers
Lawyers for the respondent: Raynett & Kaki Lawyers