SC1140

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 187 of 2010

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 & 06th December

PRACTICE AND PROCEDURE – objection to competency of appeal – Supreme Court Rules, Order 7 Rule 14 – locus standi – whether a proper ground of objection to competency.
 
The first appellant filed an appeal against a final judgment of the National Court. The respondent objected to the competency of the appeal on the grounds that the first appellant lacked sufficient interest in the subject of the judgment appealed against, was guilty of an abuse of process and lacked standing.

Held:

(1)	The grounds of objection were without merit as the first appellant's interests were adversely affected by the order of the National Court.

(2)	Objection to competency is dismissed.

Cases cited

The following cases are cited in the judgment:

Poko Kandapaki & 3 Ors v Enga Provincial Government, unreported and unpublished Supreme Court judgment delivered at Waigani dated 06th December 2011
Kitogara Holdings Pty Ltd v National Capital District Commission [1988-89] PNGLR 346

OBJECTION

This was an objection to the competency of an appeal.

Counsel

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 similar to SCA No 01 of 2011 which ruling we have delivered just a while ago today. It is similar in almost every respect in that all the appellants were defendants and the respondent was the plaintiff in the Court below and the decision appealed against is the same. Many of the grounds of appeal are similar. The major difference being that the third and fourth defendants filed their appeal separately from the first defendant. In this case the first defendant (Poko Kandapaki) is the first appellant who filed the appeal on behalf of himself and the second appellant company.

2.	The appeal was filed by the appellant on 22nd December 2010 and is against the whole of the judgment of the National Court given at Wabag in proceedings OS No 872 of 2005.

3.	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.

4.	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.

5.	The respondent claimed 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.

6.	The National Court heard the dispute and made a decision in favour of the respondent. The decision was made on 1st December 2010. The appellant being aggrieved therefore lodged an appeal against that decision.

7.	The appellant filed his appeal against the decision of the National Court on 22nd December 2010. 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 leave is not required pursuant to s. 14(1)(b) of the Supreme Court Act. In the notice of appeal the appellants raised 16 grounds of appeal. They are reproduced below:

"3.	Grounds

His Honour erred as follows:

3.1	In his determination that the Minister had an option under S71 of the Land Act to refuse the application. [paragraph 92, page 45]

3.2	In his determination that the Land Board's recommendation did not give rise to an equitable interest in the land the subject of the proceedings. [paragraph 99, page 48]

3.3	In his determination that where a Minister fails to exercise a discretion or otherwise makes a valid decision that the failure to act is not open to judicial review whether under S155 of the Constitution or otherwise at law. [paragraph 94, page 46]

3.4	In his determination that the decision in Wandaki's case applied in the circumstances before the Court where Wandaki's case dealt with the duty to give reasons as opposed to the obligation to exercise a discretion and make a decision which is the very nature of an application for mandamus, a remedy on relief open to the Defendant/Appellant under S155.

3.5	In his determination that there was delay by the Defendants, and/or that such delay should be considered so unreasonable as to give rise to grounds to refuse the Fourth Defendant company equitable relief. [paragraph 100, page 48]

3.6	In his determination that the conduct of the Third Defendant should disentitle or was so unreasonable or egregious to disentitle the Fourth Defendant company from equitable relief. [paragraph 102, page 49]

3.7	In his determination that the Third Defendant misled the Land Board knowingly or otherwise, when on the evidence the Lands Department had conducted a full independent inspection of the works done and conditions fulfilled and so was not misled by anything the Third Defendant may have stated or submitted. [paragraphs 105 and 108, page 49]

3.8	In his determination that the Land Board was in fact misled. Such a finding was not properly the subject of evidence or sufficient evidence put before the Court and as such was not a finding open to the trial Judge. [paragraphs 103 and 108, page 49]

3.9	In his determination that there was basis to ignore the prima facie rule that an equitable interest first in time should prevail over any subsequent equitable interest. [paragraph 104, pages 49 and 50]

3.10	In his determination that the Third Defendant's financial situation was determinative of the financial position of the Fourth Defendant when the Third Defendant was only one of several shareholders of the Fourth Defendant. [paragraph 112, page 52]

3.11	In his determination that the Land Board required the Fourth Defendant to expend K695,000.00 in one year after leases were to be granted. [paragraph 112, page 52]

3.12	In his determination that the conduct of the Plaintiff and specifically the delay in challenging the Defendants interest or occupation and improvement of the subject land was not disentitling conduct regards that Plaintiff's equitable interest such as to render its claim invalid. [paragraph 113, page 53]

3.13	In his determination that S53 of the Constitution was not enlivened by the Defendants interest and occupation and improvements to the land the subject of the proceedings. [paragraph 118, page 54]

3.14	In his determination that S99 of the Land Act entitled the Plaintiff to apply or the Minister to grant a lease over land over which a prior equitable interest of a private party existed. [paragraph 129, page 58]

3.15	In his determination that there were no procedural or other deficiencies in the direct grant by the Minister to the Plaintiff which deficiencies were the subject of evidence or submissions in the trial. [paragraph 130, page 58]

3.16	In his determination that delay should disentitle the Defendant from relief where there is a patent error on record and where proceedings have been on foot for many years, and where both of the parties had been engaged in this dispute for many years prior to these proceedings commencement. [paragraph 135, page 59]

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

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

"1.	The first and second appellants who were nominal Defendants in the National Court proceedings lack sufficient interest in the subject matter of the judgment from which this appeal is lodged.

2.	It is an abuse of the Court process for the first appellant who did not plead any or his interest in the land subject of dispute in the defence filed nor did not file any affidavit asserting his rights or interest in the subject matter in the proceeding to file a separate Appeal as opposed to Supreme Court Appeal No 01 of 2011 filed by the third and fourth appellants.

3.	The first appellant lacks standing since there was no adverse finding or ruling made against the first appellant in the Court Judgment Appeal against."

Principles of Law

10.	We have considered the principles relating to objection to competency of an appeal in the related appeal SCA No 01 of 2011. We adopt what we said in that case:

"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) SC 949 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 and went on to categorise 5 types of ground that would satisfy the principle. The Court in Turia (supra) 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)."

11.	We now turn to consider the grounds of objection raised. As to ground 1, we reject the submission that the first appellant does not have a sufficient interest in the subject matter of the judgment appealed against. The first appellant was a party to the National Court proceedings and was not designated as nominal defendant. He is directly affected by the National Court orders. Ground 1 is rejected.

12. 	As to ground 2, there is no rule of law that a party who does not adduce evidence in the National Court is precluded from appealing to the Supreme Court. Even persons who were not a party to the National Court proceedings may, if they have sufficient interest in the decision of the National Court, appeal to the Supreme Court: Kitogara Holdings Pty Ltd v National Capital District Commission [1988-89] PNGLR 346. Ground 2 has no merit and is rejected.

13.	Ground 3 is a rehash of ground 1, and must be rejected as the order of the National Court was that the first appellant had no interest in the disputed land. That order was adverse to the interest of the first appellant, and gave him standing to appeal. Ground 3 is rejected.

14.	We find that none of the grounds of objection to competency can be sustained and we therefore dismiss the objection by the Respondent.

15.	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. However, here the successful party is the first appellant who failed to attend the hearing of the objection and who provided no assistance to the Court. As the respondent is unsuccessful in respect to the objection to competency, we order that the parties bear their own costs.

16.	The formal order of the Court is that the Respondent's notice of objection to competency is dismissed.

Pato Potane Lawyers: Lawyer for the Respondent