PNG Law Reports 1994
[1994] PNGLR 189
SC465
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
CHRISTOPHER HAIVETA, LEADER OF THE OPPOSITION
V 
PAIAS WINGTI, PRIME MINISTER
OF PAPUA NEW GUINEA;
ATTORNEY GENERAL, AS NOMINAL DEFENDANT FOR THE HEAD OF STATE;
NATIONAL PARLIAMENT OF PAPUA NEW GUINEA (NO 2)
Waigani
Amet CJ Kapi DCJ Los Salika Jalina JJ
27 April 1994
18 July 1994
APPEALS - Objection to competency of appeal - Grounds of appeal raising questions of fact when leave to appeal not sought - Grounds alleging error of law need to be particularised - Grounds raising matters not part of trial judge's decision.
Facts
The respondents objected to the competency of the appellant's notice of appeal from the decision of the National Court in Haiveta v Wingti (No 1) [1994] PNGLR 160.
Held
1.       As there was no application for leave to appeal, grounds of appeal raising questions of fact were incompetent (s 4(1) Supreme Court Act Ch 37).
2.       Grounds of appeal concerning votes of no confidence and votes of confidence related to obiter remarks of the trial judge, which were not competent to be raised on appeal.
3.       Grounds of appeal concerning the application for a declaration that the date of appointment of the Prime Minister was that of his appointment following the 1992 general election, having been rejected by the trial judge on the basis that the application involved a hypothetical question, and there having been no appeal from that finding, the grounds in question were incompetent.
4.       Other grounds of appeal raising questions of law were sufficiently clear as to the reasons why errors of law were alleged, for the purposes of O 7 r 9 of the Supreme Court Rules, and so could proceed to a hearing.
Cases Cited
Haiveta v Wingti (No 1) [1994] PNGLR 160.
Lowa v Akipe [1991] PNGLR 265; [1992] PNGLR 399.
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112.
Counsel
J Yagi, for the appellant.
J Reeve, for the first respondent.
R Pato, for the second respondent.
J Briggs, for the third respondent.
18 July 1994
AMET CJ KAPI DCJ LOS SALIKA JALINA JJ: The appellant filed a notice of appeal in this matter on 3 December 1993. The respondents filed a notice of objection to competency of the appeal on 22 December 1993.
Subsequent to this, the appellant made an application for amendment of the notice of appeal. The amended notice of appeal is as follows:
"1.      The Appellant appeals from the whole of the judgment of his Honour Mr Justice Sheehan given on 25 November, 1993 at Waigani.
2.       The appeal lies without leave.
3.       Grounds:
A.       That the learned judge erred in finding as follows:
(i)       That there was no substantial evidence that the First Respondent had resigned on 24 September, 1993 rather than 23 September.
(ii)      The First Respondent placed the Prime Minister's signature, in a letter of resignation, with the Governor General on the evening of 23 September.
(iii)     That a vacancy occurred requiring the election of a new Prime Minister at the time when the First Respondent placed his signature on a letter of resignation with the Governor-General.
(iv)     That there was nothing in s 142 of the Constitution and in particular s 142(3) that gave any indication that the vacancy (the occasion for the appointment of a Prime Minister) arose when the Parliament was so informed.
(v)      That advice to the Speaker was advice to the House, since the Speaker had as his function the regulation of its proceedings.
(vi)     That s 142(3) provides that the Prime Minister shall be elected "the next sitting day" after a vacation.
(vii)    That the purpose of s 145 of the Constitution is to establish whether or not there is confidence in the Government.
(viii)    That there is nothing in s 145 of the Constitution or in the Constitution itself that prohibits the Government itself from seeking a Vote of Confidence in the Government.
(ix)     That Votes of Confidence are the converse of the provisions of s 145 of the Constitution.
(x)      That the converse of a Vote of No Confidence has always been possible under the laws of Papua New Guinea.
B.       That the learned Judge erred in not finding as follows:
(i)       That the resignation and the re-election of the first respondent as Prime Minister was calculated and designed to secure his re-election in such a way that no other member of the Parliament, particularly from the Opposition ranks, would contest the election of the Prime Minister at that time.
(ii)      That the Constitutional purpose of s 146 of the Constitution precludes its use to defeat the purpose of s 145.
(iii)     That the purpose of the resignation and re-election (of the first respondent as Prime Minister) was to avoid a future Vote of No Confidence and as such was contrary to the spirit of the Constitution and consequently invalid.
(iv)     That s 142 and s 145 of the Constitution or any other provisions of the Constitution did not enable the first respondent to secure a "Motion of Confidence" in himself as Prime Minister.
 (v)     That the Constitution did not enable the first respondent to resign for the express purpose of securing a "Motion of Confidence" in himself as Prime Minister.
 (vi)    That Votes of Confidence are not to be regarded as part of the laws of Papua New Guinea."
Counsel for the respondents submitted that objection to the competency of the original notice of appeal has not been resolved by the amended notice of appeal and, therefore, the whole appeal should be dismissed for incompetence.
Competency of an appeal may arise on several grounds. If an appellant was not a party to the proceedings in the Court below or was not a party aggrieved by a decision of Court below, he has no standing to institute an appeal.
An appeal may be incompetent if it does not comply with the Supreme Court Act Ch 37 (hereafter referred to as the Act) and the Supreme Court Rules (hereafter referred to as the Rules), which regulate appeals to the Supreme Court. The respondents have objected vigorously to the amended notice of appeal in both form and substance, pursuant to O 7 Div 5 of the Rules.
The issue of competence of an appeal remains open, and the Court may of its own discretion address it at any time before judgment. See Lowa v Akipe [1991] PNGLR 265 and Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112.
Objections by the respondents in this case fall under the following categories:
1.       Grounds 3A(i), 3A(ii), and 3B(i) raise questions of fact. Leave is required to appeal against such findings. The appellant has not sought leave and, therefore, these grounds are incompetent.
2.       Grounds 3A(iii) - 3A(vi) allege that the decision of the National Court was wrong in law, but they do not state the particulars of the error in law and, therefore, they should be dismissed as incompetent.
3.       Grounds 3A(vii) - 3A(x) and 3B(ii) - 3B(vi) relate to two issues: vote of confidence, which did not form part of the decision of the trial Judge, and vote of no confidence, which is no longer an issue on appeal.
GROUNDS 3A(I), 3A(II), AND 3B(I)
These grounds of appeal raise questions of fact. They relate to findings by the trial Judge that the Prime Minister forwarded his letter of resignation to the Governor-General on the evening of 23 September 1993.
The principal legislation governing the right of appeal, powers of the courts, and requirements of appeal procedures are the Supreme Court Act Ch 37 and the Supreme Court Rules, made pursuant to Constitution s 184.
Section 4(1) of the Act provides for the general right of appeal from the National Court:
"An appeal in accordance with this Act lies to the Supreme Court from a judgement of the National Court."
Section 14(1) of the Act specifically provides for civil appeals in the following terms:
"Subject to this section, an appeal lies to the Supreme Court from the National Court:
(a)      on a question of law; or
(b)      on a question of mixed fact and law; or
(c)      with the leave of the Supreme Court, on a question of fact."
Section 17 of the Act provides for the time of appealing:
"Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or a notice of his application for leave to appeal, as the case may be, in a manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application to him within that period of forty days."
The requirement of law is clear. Where no notice is given of application for leave to appeal and no leave has, in fact, previously been given, then a proposed ground of appeal on a question or questions of fact would be incompetent.
These grounds of appeal raised questions of fact. Counsel for the appellant conceded that Grounds 3A(i) and (ii) were clearly challenging findings of fact. The appellant has not made any application for leave to appeal against these findings of fact.
A notice of appeal, as is expressed in this case, is different in nature to an application for leave to appeal. A notice of appeal cannot be taken as an application for leave to appeal. See Tsang v Credit Corporation (PNG) Ltd (supra). The appellant has not sought leave within the 40 day period and has not applied to extend time in which to file an application for leave to appeal within the 40 days. The appellant is unable to cure the defect on these grounds of appeal. We would dismiss these grounds of appeal for incompetency.
GROUNDS 3A(III) - 3A(VI)
Counsel for the respondents submitted that these grounds of appeal were not given "in the manner prescribed by the rules of Court", as required by s 17 of the Act. In particular, they submitted that they do not comply with O 7 r 8 and r 9. Order 7 r 8 and r 9 are in the following terms:
"8.      The notice of appeal shall
(a)      state that an appeal lies without leave or that leave has been granted and or annex appropriate order to the notice of appeal;
(b)      state whether the whole or part only and what part of the judgment is appealed from;
(c)      state briefly but specifically the grounds relied upon in support of the appeal;
(d)      state what judgment the appellant seeks in lieu of that appealed from;
(e)      be in accordance with form 8;
(f)      be signed by the appellant or his lawyer; and
(g)      be filed in the registry.
9.       Without affecting the specific provisions of Rule 8, 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."
Counsel for the respondents submitted that O 7 r 8(c) prescribes that a notice of appeal shall "state briefly but specifically the grounds relied upon in support of the appeal" and, further, that O 7 r 9 stipulates that "it is not sufficient to allege that 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." Counsel further submitted that the requirements of the Rules, in accordance with which an appeal under s 17 of the Act must comply, are thus specific and clear and require distinct particularity. Any notice of appeal or grounds in a notice of appeal that do not satisfy these clear requirements of the Act and the Rules is, thus, incompetent.
Counsel for the respondents submitted that these grounds are incompetent on two bases. Firstly, they do not state whether the decision is an error in law or in fact. Secondly, even if the grounds are drafted in a form which raises questions of law, they do not comply with O 7 r 9 of the Rules, in that the grounds do not specify the reasons why it is alleged that these grounds are wrong in law.
As to the first point, it is true that these grounds of appeal do not specifically state whether the error is in law or in fact. However, it is clear from the nature of the grounds expressed that they relate to errors in law. In fact, counsel for the respondents, in their submissions, understood these grounds of appeal as asserting errors of law.
The basis for the second ground of objection in relation to these grounds of appeal is found in O 7 r 9 of the Rules. There are two reasons for this rule. The first is, if an appellant alleges an error in law, he must specify the basis for this allegation in order to inform the respondent(s) the basis of the appeal so that they can prepare for proper arguments on appeal. The second reason is to inform the Court of the issues in law that would be argued by both parties on appeal. If a ground of appeal does not give these particulars in accordance with O 7 r 9 of the Rules, the grounds would be incompetent unless the appellant makes an application for leave to amend the grounds of appeal in order to comply with the requirements of the Rules.
We have examined each of the grounds of appeal and we have concluded that these grounds of appeal sufficiently provide reasons why it is alleged that the decision of the trial Judge was wrong in law. We are of the opinion that the issues of law raised by these grounds of appeal are clear enough, and we do not consider that the respondents would be prejudiced in preparing their arguments on the merits of the appeal. These grounds of appeal are competent.
GROUND 3A(VII) - 3A(X) AND 3B(II) - 3B(VI)
All these grounds of appeal relate to the question of vote of no confidence under s 145 of the Constitution. The question of a vote of no confidence became relevant because of an alternative declaration sought in the originating summons, as follows:
"2A.    Alternatively, a declaration for the purposes s 145(4) of the Constitution, that the date of appointment of the First Defendant as Prime Minister is the date of his initial appointment following the 1992 National General Elections."
In discussing the issue in Haiveta v Wingti (No 1) [1994] PNGLR 160 at 179, the trial Judge said:
"Section 145 provides for Parliament to remove a Prime Minister by a motion of no confidence. To my mind, the converse has always been possible. It simply has not been done before.
Votes of confidence are a common political tool in other parliamentary jurisdictions. If a government is under political threat or wishes to ensure the passage of a particular bill, snap votes of confidence may be called at any time. If a vote of confidence fails, then not only does the government fall, but there must be a general election. Thus, the particular, and perhaps salutary, effect to a vote of confidence (and votes of no confidence) in those countries is that a vote is called not only for or against the government but for the life of that Parliament itself and the seat of every MP in it. Every MP must, therefore, take such a vote seriously indeed.
The purpose of s 145 of our Constitution is to establish whether or not there is confidence in the government. There is nothing in that section or in the Constitution that prohibits the government itself from seeking such a vote. Accordingly, I find no merit in this submission of the plaintiff."
In this passage, the trial Judge discussed two concepts: a vote of no confidence and a vote of confidence. In our view, the two concepts are quite distinct in their effect and must not be confused. A vote of no confidence is regulated by s 145 of the Constitution, and a vote of confidence is expressly dealt with under s 105(1)(b)(ii) of the Constitution.
The vote of confidence has no bearing on the resignation of the Prime Minister. It was not necessary for the trial Judge to discuss the subject. In fact, it does not form part of the ratio decidendi of the trial Judge's decision. Therefore, it is not competent to raise the issue on appeal. We would dismiss grounds of appeal relating to the question of vote of confidence.
In relation to the question of a declaration under para 2A of the originating summons, the trial Judge concluded in the following terms at p 188:
"That leaves the declaration sought in para 2A, that the Prime Minister's appointment is not 24 September 1993 but the date of his first election following the 1992 General Elections. Having made the concession that the appointment was validly made on 24 September, this application is declined. It is, in any case, as the defendants submit, a hypothetical question, a matter not arising in the course of proceedings before this Court and, therefore, not within the jurisdiction of this Court or referrable under s 18 of the Constitution."
In our view, the real basis for declining the declaration sought under para 2A is that this was a hypothetical question which had not arisen at that point in time. The question of the date of the appointment of the Prime Minister under s 145(4) of the Constitution only arises where there is a vote of no confidence. Such a vote had not taken place at the time. The appellant did not appeal against this part of the decision. Having failed to raise this on appeal, the appellant cannot raise any issue relating to the question of vote of no confidence under s 145 of the Constitution. We would dismiss these grounds of appeal for incompetency.
The practical result of this ruling is that Grounds 3A(iii) - 3A(vi) in the amended notice of appeal will proceed to a hearing.
Cost of this application shall be cost in the appeal.
Lawyer for the appellant: Kirriwom & Compnay.
Lawyer for the first respondent: Warner Shand.
Lawyer for the second respondent: Pato Lawyers.
Lawyer for the third respondent: Blake Dawson Waldron.