SC1139

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 01 of 2011

POKO KANDAPAKI
First Appellant

ALBERT MINAKASO
Second Appellant

TIMOTHY TIMA
Third Appellant

WEDO LIMITED
Fourth Appellant

V

ENGA PROVINCIAL GOVERNMENT
Respondent

Waigani: Cannings J, Gabi J & Yagi J
2011: 30th November & 6th December

PRACTICE AND PROCEDURE – objection to competency of appeal – Supreme Court Rules, Order 7 Rule 14 – nature of grounds of objection – merits of appeal – interlocutory judgment – issues not raised in trial Court – whether a proper ground of objection to competency.
 
The appellant filed an appeal against a final judgment of the National Court. The respondent objected to the competency of the appeal on grounds that the grounds of appeal lacked merit, new grounds sought to be introduced and leave to appeal not sought and obtained.

Held:

(1)	The grounds of objection relating to merit of appeal and new grounds are not proper grounds of objections.

(2)	The ground of objection relating to leave to appeal has no merit and is dismissed.

(3)	Objection to competency is dismissed.

(4)	Each party to bear own costs.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Folkes [1981] PNGLR 58
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
Jeffrey Turia v Gabriel Nelson (2008) SC949
Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370
Motor Vehicles Insurance (PNG) Trust v James Etape [1994] 596
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Peter Peipul v Justice Sheehan & Others (2001) N2096
Philip Takori and Others v Simon Yagari and Others (2008) SC905
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

OBJECTION

This was an objection to the competency of an appeal. 

Counsel

W Bigi, for the Third Appellant
P Potane, for the Respondent

06th December, 2011

1.	BY THE COURT: This is a hearing of an objection to the competency of the appeal. The appeal was filed by the third and fourth appellants and is against the whole of the judgment of the National Court given at Wabag in proceedings OS No 872 of 2005.

2.	The dispute between the parties relates to ownership of a large parcel of land registered as State Leases situated within the township of Wabag, Enga Province. The land comprises a number of adjoining allotments, described as Allotments 1 – 25, Section 34.

3.	The appellants entered the land and carried out certain improvements on the land including excavating and removing soil, constructing an access road and erecting a permanent fence.

4.	The respondent claimed a right to ownership over the land and therefore issued proceedings against the appellants in the National Court seeking, amongst others, a declaration that it has ownership rights over the land and an order that the appellants pull down and remove the permanent fence and peacefully deliver up possession.

5.	The National Court heard the dispute and made a decision in favour of the respondent. The decision was made on 1st December 2010. The third and fourth appellants being aggrieved have lodged an appeal against that decision.

6.	The appellants filed their appeal against the decision of the National Court on 6th January 2011. The notice of appeal states that the appeal lies without leave as the grounds of appeal raises issues of law and mixed fact and law and therefore pursuant to Supreme Court Act, s. 14(1) (a) and (b), leave is not required. In the notice of appeal the appellants raised 18 grounds of appeal. They are reproduced below:

"3.	Grounds

His Honour erred in both law and in fact as follows:

3.1	In his determination that the Plaintiff had a cause of action against all of the Defendants in the proceedings in OS No 872 of 2005, when clearly by law and in fact the Plaintiff had no such cause of action. The trial Judge failed and/or omitted to give reasons or cite any authority for his allowing the Plaintiff to maintain the proceeding OS No 872 of 2005 against the Defendants.

3.2	In his determination that the Plaintiff, albeit impliedly, had standing to commence proceedings in OS No 872 of 2005, in terms of the State Lease referred to in sub-paragraph 3.6 hereunder when the Plaintiff evidently did not as a matter of law. The trial Judge's reasoning in support of that view is ambiguous, uncertain and vague and hence incontestably bad in law.

3.3	In his determination that the Plaintiff was formerly known as the Department of Enga and is sometimes referred to as the Enga Provincial Administration, thereby confusing the separate identity of the Plaintiff, which is a legal entity, with that of Enga Provincial Administration, which is the mere name of the office of the Enga Provincial Administrator. The trial Judge has repeated this confusion of names throughout his judgement thereby rendering the judgment ambiguous, certain and vague with the end result that it cannot be sustained in law in the interest of justice.

3.4	In his determination by failing and/or omitting to address and determine the incidental question of law as to whether the Enga Provincial Administration is a separate entity and, therefore, one which has legal capacity to hold and dispose of property, and sue or be sued in its own name and style.

3.5	In his determination that the Enga Provincial Administration is the Plaintiff in proceedings OS No 872 of 2005, and thereby insinuating that the names Enga Provincial Administration and Enga Provincial Government mean one and the same thing, for purposes of the proceedings OS No 872 of 2005 including the State Lease referred to in sub-paragraph 3.6 hereunder.

3.6	In his determination that the State Lease issued by the Minister to the Enga Provincial Administration by way of Direct Grant on the 28th June 1999 over all that parcel of land described as Allotments 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 25 and 26 (inclusive), Section 34, Wabag, Enga Province, was valid.

3.7	In his determination where His Honour failed and/or omitted to address and decide on the incidental and yet a critical question as to why the Enga Provincial Administration, as grantee/holder of the State Lease referred to in the sub-paragraph 3.6 above, was not or ought not to be a party or added as a party in the proceedings in OS No 872 of 2010.

3.8	In his determination by making a declarative order in favour of an Enga Provincial Administration who or which was neither party in the proceedings in OS No 872 of 2005 nor interested in any way with respect of the State Lease referred to in sub-paragraph 3.6 above. Alternatively, if the intended beneficiary of such declarative order was the Enga Provincial Government which also was not a party in the said proceedings, the trial Judge notwithstanding acted erratically and/or ultra vires in making such order.

3.9	In his determination that the Plaintiff, other than the Defendants, has a valid interest in all that parcel of land and referred to in sub-paragraph 3.6 above. The trial Judge failed and/or omitted to give reasons for his deciding so.

3.10	In his determination that the presence or absence of a Certificate of Occupancy was not relevant to the question of whether the direct grant of the State Lease referred to in sub-paragraph 3.6 above was valid. The trial Judge failed and/or omitted to give his reasons for deciding so.

3.11	In his determination that the Fourth Defendant's application to the Land Board was for subdivision and that Section 71 of the Land Act Chapter 185 applied thereto.

3.12	In his determination that in virtue of the law enunciated in Wandaki v Minister for Lands & Anor [1996] PNGLR 116 the Minister had a discretion under to Section 71 of the Land Act Chapter 185 which the Minister had duly exercised in rejecting the recommendations the subject of the minutes of the Land Board Meeting No 1879, as well as dispensing with the requirements under Section 12(2)(a) and (b) of the Land Act Chapter 185. 

3.13	In his determination that the Plaintiff, as opposed to the Enga Provincial Administration, had a valid title over that parcel of land referred to in sub-paragraph 3.5 above.

3.14	In his determination that the legal opinion of the then Attorney-General contained in a letter dated 21st January 2000 was inadmissible evidence and rejecting same without stating the reasons for his doing so.

3.15	In his determination that the Land Board recommendations made on 24th June 1992 the subject of the minutes of the Land Board Meeting No 1879 were induced by fraud on the part of the Third Defendant, when fraud was never pleaded in the relevant Originating Summons. Such finding was improper and not open to the trial Judge.

3.16	In his determination that the trial Judge relied entirely on the hearsay and contradictory evidences of Dr Samson Amean, Daniel Katakumb and Romily Kila Pat.

3.17	In his determination the trial Judge failed to give proper, fair and due consideration to the evidence of the Third Defendant.

3.18	The trial Judge, as the Resident Judge, in hearing and subsequently determining the proceeding in OS No 872 of 2005 did act contrary to and hence was in breach of a Consent Order dated 28th December 2005 under the same proceeding."

7.	The respondent filed a notice of objection to competency of the grounds of appeal on 14th February 2011. The objection is taken pursuant to Order 7 Rule 14 of the Supreme Court Rules.

8.	At the commencement of the hearing a preliminary objection was raised by the Third Appellant as to the competency of the objection filed by the Respondent. The objection came as a complete surprise to the Respondent and the Court. The Third Appellant contended that the Respondent's notice of objection was filed outside the 14 days period permitted by Order 7 Rule 14 of the Supreme Court Rules and therefore it was itself incompetent. After hearing the parties and deliberating on the issue we ruled that the notice was filed within the 14 days period and proceeded to hear submissions on the Respondent's objection to competency.

9.	There are ten grounds of objection. They are as follows:

"1.	Ground Number 3.1 is incompetent in that the issue of whether there was a cause of action was subject of two Notice of Motions filed by the Appellants which were both dismissed by the National Court. The Appellants ought to have sought leave of court and appealed against the interlocutory orders dismissing their Notice of Motions.

2.	Ground Numbers 3.2 – 3.8 and 3.13 based on the issue of the Enga Provincial Administration not being a legal entity and can the Respondent hold interest in State Land through an instrumentality of the State ie Enga Provincial Administration are incompetent in that:

a)	The Appellants nor their lawyers failed to plead any defence in response to the Respondent's Statement of Claim [Paragraphs 4 – 7].
	
b)	The Appellants never argued or raised these issues during trial proper in the National Court as such it is unfair to the Respondent and it is an abuse of the Court process to raise these issues in the Supreme Court.

3.	Ground Number 3.9 is incompetent in that the direct grant issued pursuant to Section 71(d) of the Land Act was never challenged by the Appellants although the National Court proceeding was commenced in 2005. The trial Judge gave adequate reasons as set out in Paragraph 115 Pages 53 and 54 of the Judgment appealed against.

4.	Ground Number 3.10 is incompetent in that the presence or absence of a certificate authorising occupancy is not a condition precedent to a Direct Grant under Section 71(d) as such the trial Judge was justified in giving no reason at all. Refer to Paragraph 117 Page 54 of the Judgment appealed against.

5.	Ground Number 3.11 is incompetent in that it was said that it seems Section 71(3)(b) gave the Minister additional option to refuse the application. The determination wasn't made solely based on Section 71(3)(b). Refer to Paragraph 92 and Pages 45 and 46 of the Judgment appealed against.

6.	Ground Number 3.12 is incompetent in that the Law enunciated in Wandaki v Minister for Lands and Others (1996) PNGLR 116 was correctly applied where the Court held that the Appellants would have found it hard to challenge the Minister's discretion to refuse a recommendation based on wide ranging policy considerations.

7.	Ground Number 3.14 is incompetent in that legal opinion of any lawyer on the subject matter in dispute or issue is inadmissible evidence when the author is not called as a witness to be cross-examined as such the trial Judge was justified in giving no reason.

8.	Ground Number 3.15 is incompetent in that the reading of paragraphs 108 and 109 together one finds that the trial Judge did not make any finding of fraud but rather the conduct of the third Appellant was such to disentitle the Appellant's to claim any equitable interest priority over any subsequent equitable interest.

9.	Ground Number 3.16 and 3.17 are incompetent in that those two issues involving finding of facts only where leave ought to be sought or the trial Judge gave fair consideration to evidence added by both parties.

10.	Ground Number 3.18 is incompetent in that the issue of consent order was not raised prior to trial proper as such it is an abuse of the Court process for the Appellants to raise the issue when the decision did not favour them."

Submissions by the Third Appellant

10.	It was submitted on behalf of the Third Appellant that the grounds relied upon by the Respondent are not proper grounds of objection. The proper grounds of objection must pertain to the issue of jurisdiction. The grounds relied upon go to the merits of the appeal rather than jurisdiction.

Submissions by the Respondent

11.	Counsel for the respondent submitted that all the grounds in the notice of appeal are incompetent and therefore should be dismissed.

Principle of Law

12.	The relevant principles relating to objection to competency of an appeal based on Order 7 Rule 14 of the Supreme Court Rules are clear. In Jeffrey Turia v Gabriel Nelson (2008) SC949 the Supreme Court adopted and applied the principle in Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 and stated that a proper ground in respect to an objection as to the competency of an appeal is one that relates to jurisdiction. The Court also categorised 5 types of grounds that would satisfy the principle. In Turia (supra) the Court was dealing with competency of a leave application; however, in our view the principles are no different to competency in respect to a notice of appeal. The Court in that case stated at paragraph 7 of the judgment:

"A proper ground of objection to competency is one that draws the Court's attention to a question of jurisdiction (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185). For example, where the objection is based on one or more of the following grounds, the objection will, normally, properly be before the Supreme Court:

•	That the application for leave to appeal was not filed as a separate document, in cases where some of the grounds of appeal require leave and some do not (Yakham & The National v Merriam & Merriam (1997) SC533).

•	That the application for leave does not adequately state the nature of the case, the questions involved and the reason that leave should be given, as required by Order 7, Rule 2(c) of the Supreme Court Rules (Gigmai Awal v Salamo Elema [2000] PNGLR 288, Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894).

•	That the application for leave was, without leave, filed outside the 40-day period allowed by Section 17 of the Supreme Court Act (The State v John Tuap (2004) SC675).

•	That the application for leave refers to questions of law or fact not raised in the National Court (Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882).

•	That the applicant for leave does not have a sufficient interest in the subject matter of the National Court decision that it wishes to appeal against (Porgera Joint Venture v Joshua Siapu Yako (2008) SC691)."

13.	We now turn to consider the grounds of objection raised.

14.	In our view the grounds of objection may be summarised into 3 broad categories:

(i)	leave to appeal not sought and obtained;

(ii)	issue not raised in Court below; and

(iii)	merits of the ground.

Leave to appeal not sought and obtained

15.	Grounds 1 and 9 of the objection fall under this category. Ground 1 says that ground 3.1 of the appeal relates to interlocutory rulings and therefore leave is required. Section 14(3) (b) of the Supreme Court Act provides that leave to appeal is required where there is an appeal against an interlocutory judgment. This provision states:

"(3)	No appeal lies to the Supreme Court without leave of the Supreme Court -

(a) …………….

(b) 	from an interlocutory judgment made or given by the National Court except - 

(i)	where the liberty of the subject or the custody of infants is concerned; or

(ii)	in cases of granting or refusing an injunction or appointing a receiver; or

(iii)	in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) …………………"

16.	In this case, paragraph 1 of the notice of appeal states clearly that the appeal is against the decision of the National Court made on 1st December 2010. That decision is not an interlocutory but a final decision or judgment of the National Court. We dismiss this ground.

17.	Ground 9 alleges that grounds 3.16 and 3.17 of the notice of appeal are against findings of fact and therefore leave is required. On the face of it, the grounds appear to relate to finding of facts, however, in our view these are questions of mixed fact and law and therefore by virtue of s. 14(1)(b) of the Act no leave is required. In Chief Collector of Taxes v Folkes [1981] PNGLR 58 the Court stated that a question of mixed law and fact is a question of law because it involves drawing conclusion of facts based on inferences from secondary facts. It is the process of drawing the inferences that is a question of law. These grounds relate to the manner in which the trial Judge construed the evidence, drew inferences of facts and reached a finding of fact. We are satisfied that these grounds relate to questions of mixed fact and law. We also dismiss this ground of objection.

Issue not raised in Court below

18.	The ground falling under this category is ground number 10 of the objection. In our view this is not a proper ground to raise on competency as it does not go to the question of jurisdiction. The question as to whether a new issue should be allowed to be raised on an appeal goes to the merit of the appeal. 

19.	The law as to whether an appellant on an appeal is entitled to raise an argument or issue that was not raised at trial in the Court below was addressed in Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705. The Supreme Court said that a party is not entitled to raise any new or fresh issue or argument on appeal. This principle has been adopted and applied in many cases: see for example Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370; Motor Vehicles Insurance (PNG) Trust v James Etape [1994] 596; Curtain Bros (PNG) Ltd v UPNG (2005) SC788; Peter Peipul v Justice Sheehan & Others (2001) N2096; Philip Takori and Others v Simon Yagari and Others (2008) SC905. However, recently the Supreme Court in Papua Club Inc v Nusaum Holdings Ltd (2005) SC812 qualified the principle and stated that the exception to the general rule is where leave is granted by the Court.

20.	As this ground does not go to the question of jurisdiction, this ground is also dismissed.

Merits of the ground

21.	All other grounds of objection relate to the merit of the appeal. These grounds are numbered 2, 3, 4, 5, 6, 7 and 8. They do not relate to the issue of jurisdiction. These grounds are therefore dismissed.

Decision

22.	In the upshot we are satisfied that none of the grounds of objection to competency can be sustained and we therefore dismiss the objection by the Respondent.

Costs

23.	As regards the question of costs, it is a matter of exercise of the Court's discretion. The general principle is that costs follow the event, that is, the successful party is entitled to costs. This would mean that the Third Appellant would be entitled to his costs in defending the objection to competency. However, in this case we note that the Third Appellant failed to comply with the Court direction in relation to filing an extract of argument. He has also failed to give any notice in relation to his preliminary objection to competency of the respondent's objection to competency of the appeal in the sense that it was an attempt to ambush the respondent. In the circumstances we consider that it is just and fair that each party should bear their own costs.

Orders

24.	The formal orders of the Court are that:

(1)	The Respondent's notice of objection to competency is dismissed.

(2)	Each party shall bear their own costs.
__________________________________________________

Henao Lawyers: Lawyers for the Third Appellant
Pato Potane Lawyers: Lawyers for the Respondent