SC1408
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 3 of 2013

BETWEEN:

RURAL TECHNOLOGY INFRASTRUCTURE LIMITED
Appellant

AND:

PARADISE FOODS LIMITED
First Respondent

AND:

HON. LUCAS DEKANA, Minister for Lands and Physical Planning
Second Respondent

AND:

ROMILY KILA PAT, a delegate of the Minister for Lands and Physical Planning
Third Respondent

AND:

SAM TASION, LADY WILHELMINA SIAGURU & THOMAS BULLEN as members of the PAPUA NEW GUINEA LAND BOARD
Fourth Respondents

AND:

HENRY WASA, Registrar of Titles
Fifth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Sakora, David and Hartshorn, JJ
2014: April 28th,
2015: February 4th

Objection to competency

Cases cited: 
Felix Bakani v, Rodney Daipo (2002) SC699 
Kukari v. Polye (2008) SC907 
Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221 
Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273

Counsel:
Mr. R. Habuka, for the Appellant
Mr. R. Mulina, for the First Respondent
Ms. I. Mugugia, for the other Respondents

4th February, 2015

1. SAKORA J: I have had the benefit of perusing the draft judgment circulated by my brother Justice Hartshorn on the objections to the competency of the appeal raised by the respondents. It seems to me that the mandatory requirements of the Supreme Court Rules, as to content and proper form of a Notice of Motion, have not been duly complied with as required, on the part of the appellant. In this respect, I respectfully concur with his Honour's conclusion and the reasons for this.

2. DAVID J: I have read the draft judgment of my brother Justice Hartshorn. I agree that the requirements of Order 10 Supreme Court Rules are mandatory and that in this instance they have not been complied with. I further agree with his Honour's reasoning and conclusion and have nothing further to add.

3. HARTSHORN J: This appeal is against a judicial review decision and was commenced by notice of motion pursuant to Order 10 Supreme Court Rules.

4. The first respondent supported by the other respondents objects to the competency of this appeal on amongst others the ground that the notice of motion initiating the appeal fails to comply with mandatory provisions of the Supreme Court Rules. The appellant opposes the objections to competency but did not make submissions on this ground.

5. The respondents submit that the appellant has not complied with Order 10 Rule 3 (b)(ii) Supreme Court Rules, as the notice of motion that initiated this appeal does not annex a copy of the order made by the National Court that is appealed.

6. Further, the respondents submit that Order 10 Rule 3 (c) Supreme Court Rules has not been complied with as the notice of motion initiating the appeal is not in accordance with form 15 Supreme Court Rules. This is because the notice of motion does not have included in it the details prescribed in form 17, as is required in the form 15 that is set out in the First Schedule to the Supreme Court Rules.

7. Order 10 Rule 3 (b) and (c) Supreme Court Rules are as follows:

"3. The notice of motion shall-
 
 (a) ……

 (b) have annexed-

 (i) copies of all documents which were before the Judge of the National Court appealed from; and

 (ii) a copy of the order made, certified by the Judges Associate or the Registrar; and

 (c) be in accordance with form 15; and ……"

8. I am satisfied from a perusal of the notice of motion initiating the appeal that it does not have annexed a copy of the National Court order appealed and does not have included the details prescribed in form 17.

9. The respondents submit that compliance with Order 10 Rule 3 (b) (ii) and (c) is mandatory as the word "shall" is used in the Rule. Reliance is placed upon the case of Felix Bakani v, Rodney Daipo (2002) SC699 a decision of the Supreme Court (Kapi DCJ and Injia J (as they then were) and Davani J).

10. In that case the Court said:

"Unlike ordinary appeals, an appeal under Order 10 is a special category of appeal. It is an appeal from a decision of the National Court under the review jurisdiction in Order 16 of the National Court Rules. This review jurisdiction of the National Court is available to a person aggrieved by the decisions of statutory administrative or quasi-judicial tribunals. The enabling statutes often contain provisions pronouncing the finality of the decision and preclude appeals. Therefore, the procedural requirements for invoking the review jurisdiction are stringent. The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural requirements of Order 10, in particular Order 10 r 3 are also restrictive and onerous. They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant."

11. In the case of Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273, the Supreme Court (Injia CJ, Gabi and Sawong JJ) reproduced the above passage and dismissed the appeal before it as amongst others, a certified copy of the National Court Order was not annexed to the notice of motion or affidavit in support of the appeal and so Order 10 Rule 3 (b) (ii) had not been complied with.

12. Further, in Kukari v. Polye (2008) SC907, the Court (Kapi CJ (as he then was), Gavara Nanu and Cannings JJ) in an objection to competency application, referred with approval to Bakani v. Daipo (supra) and dismissed the appeal before it as incompetent as the mandatory requirements of Order 10 Supreme Court Rules had not been complied with.

13. I am aware of the decision of Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221 (Lenailia, Kawi and Logan JJ) in which at para 18 reference is made to s. 42 Supreme Court Act and this Court's power to direct the practice and procedure in and in relation to a matter in the Supreme Court at any stage of the matter. In this instance however, as mentioned, counsel for the appellant did not make any submissions on this ground. So no reference was made to Cocoa Cola Amatil v. Yanda (supra) and this court was not referred to and no application was made in respect of s. 42 Supreme Court Act.

14. In these circumstances, and having regard to Bakani v. Daipo (supra), Kukari v. Polye (supra) and Idumava Investment Ltd v. National Fisheries Authority (supra), I am satisfied that the first respondent is entitled to the relief that it seeks. Given this finding it is not necessary to consider the other submissions of counsel.

Orders

a) this appeal is dismissed.

b) the appellant shall pay the respondents' costs of and incidental to this appeal.
_____________________________________________________________
Twivey Lawyers: Lawyers for the Appellant
Leahy Lewin Nutley Sullivan Lawyers: Lawyers for the First Respondent 
Office of the Solicitor General: Lawyers for the other Respondents