SC1784
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 129 OF 2018

BETWEEN
REV. MABATA ATA of MAVARA CLAN of ROKU VILLAGE
First Appellant

AND
KORE KORE GAUDI of MAVARA CLAN of ROKU VILLAGE
Second Appellant

AND
MABI MOMO for and on behalf of KURIU CLAN of ROKU VILLAGE
Third Appellant

AND
SARANI AHUTA for and on behalf of KURIU CLAN of ROKU VILLAGE
Fourth Appellant

AND
REI AUDA for and on behalf of TANOMOTU CLAN of ROKU VILLAGE
Fifth Appellant

AND
TABU INOGO for and on behalf of GAIBUDUBU CLAN of ROKU VILLAGE
Sixth Appellant

AND
GAUDI LOGAE, CHAIRMAN OF KURIU LAND GROUP INCORPORATION
First Respondent

AND
KURIU LAND GROUP INCORPORATION
Second Respondent

AND
DR. KEN NGANGAN as the ACTING SECRETARY FOR FINANCE
Third Respondent

AND
DAIRI VELE the ACTING SECRETARY FOR TREASURY
Fourth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Makail, J
2019: 5th & 12th April

PRACTICE & PROCEDURE – Application for leave to amend application for leave to appeal – Leave sought to include appeal from interlocutory judgment – Supreme Court Act – Section 14(3)(b) – Supreme Court Rules –  Order 11, rule 11 – Form 7

PRACTICE & PROCEDURE – Objection to competency – Objection to application for leave to appeal – Two modes of commencing Supreme Court appeal – Notice of appeal – Application for leave to appeal – Two distinctive modes of proceedings and must be commenced separately – Abuse of process to have both commenced in one proceedings– Supreme Court Rules – Order 7, rules 3, 4, 5, 6 & 7 

PRACTICE & PROCEDURE – Objection to competency – Objection to application for leave to appeal – Jurisdiction of single judge to determine objection to competency – Supreme Court Act – Section 10(1)(a)

Cases Cited:

Henzy Yakham & Ors v. Dr Stuart Merriam & Anor (1997) SC533
MVIL v. Niugini Nominees Limited (2014) SC1334
NCDC v. Central Provincial Government (2013) SC1289
Tom Amaiu v. Sir Albret Kipalan (2009) SC991

Counsel:

Ms. P. Tamutai with Ms. Ngombo, for Appellants
Mr. J. Posi, for the First and Second Respondents 
Mr. J. Aku, for Third Respondent
Mr. H. Maliso, for Fourth Respondent
No appearance, for Fifth Respondent

  
RULING ON APPLICATION FOR LEAVE TO AMEND APPLICATION FOR LEAVE TO APPEAL
12th April, 2019
1.	MAKAIL, J:  In the pre Henzy Yakham days, a party appealing a decision of the National Court to the Supreme Court on grounds raising questions of fact, or law, or mixed fact and law was allowed to file a notice of appeal and where required, leave was sought at the hearing to appeal grounds raising questions of fact: see Section 4(2)(a), (b) & (c) and 14(1)(A), (b) & (c) of the Supreme Court Act.
2.	This all changed when the Supreme Court in Henzy Yakham & Ors v. Dr Stuart Merriam & Anor (1997) SC533 held that an appeal raising questions of law or mixed fact and law must be commenced as by notice of appeal in accordance with Form 8 of the Supreme Court Rules.  Where questions of fact are raised, leave is required by Section 4(2)(c) and Section 14(3)(b) and leave must be sought by way of an application for leave to appeal in Form 7 of the Supreme Court Rules.
3.	In this case there is no contest that on 17th August 2018 the appellants filed a notice of appeal.  Subsequent to that, on 22nd August they filed an application for leave to appeal in the same proceedings SCA No 129 of 2018.  By the application for leave, they seek leave to appeal grounds raising questions of fact.  Both the notice of appeal and the application for leave were filed within 40 days of the National Court decision as prescribed by Section 17 of the Supreme Court Act.
4.	They now seek leave to amend the application for leave to appeal to include leave to appeal an interlocutory ruling of the National Court refusing to join a party to the National Court proceedings.  The first and second respondents oppose leave submitting that it was made outside 40 days prescribed by Section 17 and thus, incompetent and secondly, it was in breach of the rule in Henzy Yakham’s case.
Jurisdiction of Single Judge
5.	A jurisdictional issue was raised as to whether a single judge may determine a competency issue arising from an application for leave to appeal.  Except for the contention that there is no expressed provision in the Supreme Court Act or Supreme Court Rules conferring jurisdiction on a single judge to determine an objection and secondly that the application for leave to amend was time barred under Section 17, the respondents accept that the objection to competency is made to the application for leave to appeal.  
6.	This being that case the appellants submitted and is accepted that a single judge of the Supreme Court is conferred jurisdiction under Section 10(1)(a) of the Supreme Court Act to determine an application for leave to appeal which includes the power to deal with any competency issues that may arise including objection to competency of the application for leave to appeal.  A single judge must be possessed with such power because competency issues go to addressing the question of a valid engagement of the Court’s jurisdiction by a party to determine the matter, in this case, the application for leave to appeal: Tom Amaiu v. Sir Albret Kipalan (2009) SC991 and adopted in NCDC v. Central Provincial Government (2013) SC1289 and MVIL v. Niugini Nominees Limited (2014) SC1334.
7.	It is on this basis that the objection to competency by the first and second respondents will be determined.  As to the objection that the amendment sought is being made out of time thus, time barred pursuant to Section 17, as there is no contest that the application for leave to appeal was filed within time, the time limitation of 40 days does not apply and it does not bar the appellants from applying for leave to amend the application for leave to appeal.
8.	The real issue is whether the application for leave to appeal was filed in breach of the rule in Henzy Yakham’s case.  To answer this issue, it should be noted that this is not a case of simultaneous filing of a notice of appeal and an application for leave to appeal but rather one of commencement of one proceeding by a notice of appeal and subsequently, introducing an application for leave to appeal. 
9.	According to Order 7, rules 3, 4, 5, 6 and 7 of the Supreme Court Rules there are two modes for commencing an appeal in the Supreme Court.  One is an application for leave to appeal and the other is a notice of appeal.  In the case of the former, once leave is granted, a notice of appeal must be filed within 21 days.
10.	These are two modes to commence an appeal in the Supreme Court and it is envisaged by the above mentioned rules that they be commenced separately and given separate court file references.  With respect, this was the distinction Amet CJ (as he then was) pointed out in Henzy Yakham’s case where he said:
“I should add quite clearly, that in the future applications for leave to appeal are to be filed separately in Form 7 and that there should be no presumption that such application will automatically be heard concurrently with or immediately before the hearing of the appeal in respect of grounds of appeal that do not require leave or if the only grounds of appeal are requiring leave that they can be heard in the terms of Order 7 Rule 3.  I repeat that applications for leave to appeal are expected to be heard and determined prior to the hearing of the actual appeal if leave should be granted.”
11.	In this case the appellants elected to file a notice of appeal and then because leave was required for some of the grounds of appeal, proceeded to file an application for leave to appeal in the same proceeding SCA No. 129 of 2018 with the Registry giving one court file reference for both.  This is an abuse of process.  It was a decision the appellants made and they are bound by it.  However, there should be and should have been two different court file references and court files opened for them.  It follows that the notice of appeal having been filed first in time is the proceedings by which the appellants will maintain and prosecute.  The application for leave to appeal is incompetent and will be struck out. Having reached this conclusion, it renders the application for leave to amend unnecessary and inconsequential.  
12.	The appeal will progress on the notice of appeal.  Cost of the application shall be paid by the appellants, to be taxed, if not agreed.
Ruling and orders accordingly.
_______________________________________________________________
Tamutai Lawyers:				Lawyers for Appellants
Rageau Manua & Kikira Lawyers:	Lawyers for First & Second Respondents
Manase & Co Lawyers:			Lawyers for Third Respondent
Twivey Lawyers:				Lawyers for Fourth Respondent