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Marape v O'Neill [2016] PGSC 3; SC1486 (24 February 2016)

SC1486

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 87 of 2014

BETWEEN:

HON. JAMES MARAPE in his capacity as Minister for Finance
Appellant

AND:

HON. PETER O'NEILL in his capacity as Prime Minister
First Respondent

AND:

HON. ANO PALA, Attorney General & Minister for Justice
Second Respondent

AND:

PAUL PARAKA trading as Paul Paraka Lawyers
Third Respondent

AND:

ROYAL CONSTABULARY OF PNG
Fourth Respondent

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fifth Respondent

AND:

MATTHEW DAMARU, as the Director of National
Fraud & Anti-Corruption Directorate
Sixth Respondent

AND:

TIMOTHY GITUA, as the Deputy Director National
Fraud & Anti-Corruption Directorate
Seventh Respondent

Waigani: Hartshorn, Makail and Sawong JJ
2015: 17th November,
2016: 24th February

Objection to Competency of the Appeal

SUPREME COURT – practice and procedure – objection to competency of appeal – sixth and seventh respondents object to appeal – objection is made on the basis that appeal is incompetent by virtue of the principles of issue estoppel and res judicata, abuse of process and grounds of appeal are frivolous and vexatious - objections do not question court's jurisdiction to hear the competency of the appeal but rather raise questions as to the merits of the appeal - objection to competency dismissed - Order 7 Rule 15 Supreme Court Rules 2012

Cases cited:

Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185
PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717
State v. John Talu Tekwie (2006) SC843
Jeffrey Turia v. Gabriel Nelson (2008) SC949
Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1056
Joseph Nandali v. Curtain Bros Ltd (2012) SCA No 14 of 2011 (Unnumbered and Unreported Judgment 4th May 2012)
Coca Cola Amatil ( PNG) Ltd v. Joshua Yanda (2012) SC1221
Counsel:

Mr. R. Leo, for the Appellant
Mr. M.M. Varitimos QC and Mr. D. Kipa, for the First Respondent
Mr. J. Umbu, for the Second and Fifth Respondents
Mr. R. Kasito, for the Third Respondent
Mr. I.R. Molloy and Mr. N. Tame, for the Fourth Respondent
Mr. G. M. Egan and Mr. M. Nale, for the Sixth and Seventh Respondents

24th February, 2016

1. BY THE COURT: This is a decision on an objection to the competency of this appeal. It is made by the sixth and seventh respondents (objectors'). Apart from the third respondent who did not take a position, the application is opposed by the other parties (opposers').
   

The appeal

2. This is an appeal from a decision of the National Court that refused an application for interlocutory orders by consent. The orders that were sought were amongst others that members of the Royal Papua New Guinea Constabulary (Police) be restrained from arresting the appellant and first respondent herein, and that senior members of the Police be restrained from taking any action against other members of the Police involved in the investigation into the payment by the fifth respondent herein of legal bills of the third respondent herein.
3. A notice of appeal dated 3rd July 2014 was filed on 7th July 2014 in which the appellant claims that the primary Judge erred in law and/or mixed fact and law on thirteen grounds.

The objection to competency

4. The objection is made pursuant to Order 7 Rule 15 Supreme Court Rules 2012. Ground 1.1 of the objection was withdrawn. The remaining objections in essence are that:
   1. the appeal is incompetent by virtue of the principles of issue estoppel and res judicata as the issues in the appeal have been sufficiently dealt with;
   2. the appeal is an abuse of process as it concerns and is from a civil proceeding that is being used to stay the criminal process;
   100. no reasonable grounds of appeal are stated in the notice of appeal, or the grounds are frivolous and vexatious.
5. . The objectors' submit that:
   1. the courts' should not readily interfere with police carrying out a criminal investigation and that the purpose of the National Court proceeding from which this appeal emanates does that;
   2. the real reason for the institution of the National Court proceeding was to obtain an injunction restraining the appellant's arrest, although on its face the main cause of action was for a taxation of bills of costs. This constitutes an abuse of process;
   100. the notice of appeal is an abuse of process as the entity, Royal Constabulary of PNG, does not exist, was not a party to the National Court proceeding and so cannot be a party to the appeal, and the Attorney General and the State were not parties to the National Court proceeding at the time the appeal was filed and so cannot be parties to the appeal;
   4. the appellant and first respondent did not come to the Supreme Court with clean hands when they sought injunctive relief.
6. The opposers' submit that amongst others:
   1. in an objection to competency of appeal, a respondent is not entitled to raise matters that question whether an appeal should succeed;
   2. the matters raised in the objection are matters that should properly be heard on the hearing of the substantive appeal.

Objection to competency – law

7. The wording of Order 7 Rule 15 Supreme Court Rules 2012 is clear. It concerns an objection to the competency of an appeal or of an application for leave to appeal. As this Court said in Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185, an objection to competency:

".... is really an objection to the jurisdiction of the Court to entertain the point...."

8. . As mentioned in Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1056, this decision has been referred to with approval in the cases of State v. John Talu Tekwie (2006) SC843 and Jeffrey Turia v. Gabriel Nelson (2008) SC949 amongst others.
9. . More recently in Joseph Nandali v. Curtain Bros Ltd (2012) SC1483, the Court said:

"Unless the effect of a notice of objection to competency is that, if upheld, this Court has no jurisdiction at all to entertain the appeal as instituted by the notice of appeal, the objection must be dismissed."

and in Coca Cola Amatil ( PNG) Ltd v. Joshua Yanda (2012) SC1221 the Court said:

"The importance........ of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised."

Whether a claim of abuse of process raises a valid objection to the competency of appeal

10. . The opposers' submit that the objectors' claims of abuse of process, do not raise valid objections to the competency of the appeal. They rely upon the case of Ramu Nico v. Eddie Tarsie (supra) which was a decision on an objection to competency. At para 24 the Court said:

"We agree with the submission of counsel for the Appellants that a claim of abuse of process is distinct from and does not raise an objection to competency. Given this, it is not necessary to decide if the appeal is an abuse of process or that the appellants are estopped."

11. Here, the objectors' submit upon various grounds why the appeal is an abuse of process. They do not however in our view, adequately address whether the claim of abuse of process is able to be raised successfully as an objection to the competency of an appeal.
12. . Reference was made by the opposers' to the decision of PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717, a decision of Sakora J sitting as a single judge of this Court, in support of their contention that a claim of an abuse of process is a valid objection to competency. We note that His Honour in the fourth paragraph of his conclusion states that other circumstances in which an appellate court may strike out a Notice of Appeal include where the notice does not state any reasonable ground of appeal or is otherwise frivolous or vexatious or an abuse of power. This statement was however made in relation to an appellate court in the exercise of the inherent power to control its own proceedings, and not as to the court's power when dealing with an objection to competency. When dealing with an objection to competency His Honour said that:

"The issue of competency does not entail determining the merits or otherwise of the grounds relied on for the appeal. These are matters for the substantive appeal...."

13. . We do not find PNG Forest v. Securimax (supra) to be of assistance to the objectors'.
14. . Reference was also made by counsel for the objectors' in his reply to Ramu Nico v. Eddie Tarsie (supra). He submitted that it is not authority for the proposition that a claim of an abuse of process cannot be raised in an objection to competency application. Following our consideration of the decision, we respectfully disagree.
15. . Further, counsel for the objectors' did not indicate why this court should depart from the decision in Ramu Nico v. Eddie Tarsie (supra) and in that regard we note that we should not likely depart from an earlier decision of this Court.
16. . As in our view a claim that an appeal is an abuse of process does not question the court's jurisdiction to hear an appeal and does not go to the competency of appeal, we agree with the decision in Ramu Nico v. Eddie Tarsie (supra) on that point.

Whether other objections raise valid objections to competency

17. . In our view all of the objections of the objectors' do not question this court's jurisdiction to hear the appeal, and do not go to the competency of the appeal but rather raise questions as to the merits of the appeal. Consequently the objection to competency should be dismissed.

Orders

18. . The Orders of the Court are:
    1. The notice of objection to competency of this appeal of the sixth and seventh respondents filed 8th of April 2015 is dismissed;
    2. The sixth and seventh respondents shall pay the costs of the appellant, first respondent, second respondent, fourth respondent and fifth respondent of and incidental to the said notice of objection to competency.

____________________________________________________________
Leo Lawyers: Lawyers for the Appellant
Twivey Lawyers: Lawyers for the First Respondent
Saulep Lawyers: Lawyers for the Second and Fifth Respondents
Paraka Lawyers: Lawyers for the Third Respondent
Tame Lawyers: Lawyers for the Fourth Respondent
Jema Lawyers: Lawyers for the Sixth and Seventh Respondents