SC1840
PAPUA NEW GUINEA
[IN THE SUPEREME COURT OF JUSTICE]

SCA NO. 15 of 2018

BETWEEN
NELULU LAND GROUP Inc.
Appellant

AND
RIMBUNAN HUJAU (PNG) LIMITED
First Respondent

AND
PASSISMANUA INLAND TIMBER RESOURCES LIMITED
Second Respondent

Waigani: Yagi, Anis & Kaumi, JJ
2019: 24th June & 30th August

SUPREME COURT – Objection to competency – Order 7 Rule 15 – Supreme Court Rules – whether grounds pleaded raise questions of facts only – whether grounds pleaded were pleaded with clarity or particularity – Order 7 Rules 9 and 10 of the Supreme Court Rules, and section 14 (1)(c) of the Supreme Court Act Chapter No. 37

Cases Cited:
Papua New Guinea Cases

Jimmy Lama v. NDB Investments Ltd (2015) SC1423
Henganofi Development Corporation Ltd v Public Officers Superannuation Fund Board (2010) SC1025
Coca Cola Amatil (PNG) Ltd v. Marshall Kennedy (2012) SC1221

Overseas cases cited:

Zegarac v Dellios [2007] FCA FC 58

Counsel:

Mr S Javati, for the Appellant/Respondent
Mr I Shepherd, for the Respondents/Applicant

30th August, 2019

1.	BY THE COURT:	This is a hearing in relation to a notice of objection to competency of the appeal (the notice of objection) filed by the respondents.  The notice is contained in Tab 1 of the Amended Objection Book (AOB).  The AOB was filed on 1 November 2018.

BACKGROUND

2.	The dispute arose in relation to a certificate of title that was issued over a land, to the appellant.  The land area is described as Volume 33, Folio 44, Aliwo Passage (the land).  It is situated in Kandrian which is a District in West New Britain Province.  On 28 October 1996, the Land Titles Commission made a determination to the land.  A certificate of title was then issued over the land, to the appellant.  The appellant’s title to the land was subsequently challenged, that is, in proceeding WS 1113 of 1996.  The National Court, upon hearing the matter, quashed the appellant’s title to the land.  On appeal, the Supreme Court upheld the appellant’s appeal, and remitted the matter back to the National Court for rehearing.  Proceeding WS 1113 of 1996 remains dormant to this day.

3.	The appellant went on to file a second National Court proceeding, that is, WS 1170 of 2003.  The appellant sought damages for purported rents which it claimed were due and owed to it by the respondents, that is, for the use of the land over a certain period.  The appellant claimed these based on a purported earlier undertaking which it said it had had with the respondents on 21 December 1993.  On 21 April 2006, the National Court ordered proceeding WS 1170 of 2003 to be stayed pending determination of the issue concerning the title to the land.  The appellant then commenced a third National Court proceeding, that is, OS 452 of 2006.  The appellant tried to seek Court declaration that its title over the land was valid.  On appeal and on 19 December 2014, the Supreme Court dismissed proceeding OS 452 of 2006.  The Supreme Court also ordered consolidation of proceedings WS 1113 of 1996 and WS 1170 of 2003.

4.	Proceeding WS 1170 of 2003 was referred by the Registrar for summary determination on 7 October 2016.  It was later relisted for hearing on 9 December 2016.  On the said date, only the first respondent was represented.  The Court summarily dismissed proceeding WS 1170 of 2003.  The appellant later applied to set aside the Court Order of 9 December 2016.  The application was heard on 6 February 2017.  On 8 January 2018, the National Court refused to set aside its order of 9 December 2016.

5.	The appellant was aggrieved by the National Court’s decision of 8 January 2018, and has now appealed to the Supreme Court.  Its Notice of Appeal was filed on 16 February 2018 (NOA).

NOTICE OF OBJECTION

6.	The notice of objection is filed pursuant to Order 7 Rule 15 of the Supreme Court Rules.  The respondents present two (2) arguments.  Firstly, they argue that ground 1 of the appeal raises alleged errors of fact and not law.  They submit that leave to appeal was therefore required pursuant to section 14(1)(c) of the Supreme Court Act.  And they submit that the appellant had failed to seek leave before filing the NOA, therefore, they submit that the NOA is incompetent and should be struck out.

7.	Their second argument is this.  They submit that the remaining grounds, namely, grounds 2 to 5 in the NOA are incompetent and should also be struck out because they fail to satisfy the mandatory requirements under Order 7 Rules 9(c) &10 of the Supreme Court Rules.  They argue that the appellant failed to state specific particulars under each of the said grounds; they argue that the appellant also failed to state the reasons why the Trial Judge’s ruling was wrong and what the trial Judge should have found instead.  The respondents also argue that grounds 2 to 5 raise questions of fact and that leave was not sought and had before the appellant included them in its NOA.  As such, the respondents submit that grounds 2, 3, 4 and 5 should also be struck out as being incompetent.

ISSUES

8.	The issues are, (i), whether ground 1 in the notice of NOA raises questions of fact only or whether it raises questions of mixed fact and law, (ii), whether grounds 2 to 5 also raise questions of fact where leave is required but had not been sought, (iii), regardless of issue (ii), whether grounds 2 to 5 are vague without sufficient particulars, and (iv), subject to the Court’s determination of issues (i), (ii) and (iii), whether the Court should dismiss all, some or none of the 5 grounds that are pleaded in the NOA.

GROUND 1

9.	The NOA is located in Tab 3 of the AOB.  Ground 1 reads, and we quote:

1.	His Honour erred in law and fact in finding that there was no reasonable explanation as to why the Order for Summary Determination of 9 December 2016 was made in the absence of the Appellant when the Appellant had complied with the requirements of summary determinations in that:

(a)	The Appellant had filed two affidavits, the Affidavit Showing Cause of Wilson Kumbi and the Affidavit Showing Cause of George Guipita both filed on 6th December 2016, showing cause why the matter should not be summarily determined;
(b)	Both Affidavits were before the Court but were not considered when it made the decision to summarily determine the matter on 9th December 2016.
(Underlining ours)

10.	Does this ground raise questions of fact as allege by the respondents?  Before we look at this primary question, we note the following.  Firstly, the part of the ground that reads, when the Appellant had complied with the requirements of summary determinations in that…, as underlined above, in our view, makes it not a ground of appeal, but rather a submission with reference to evidence which the appellant is basing its argument on.  The appellant, in our view, has re-stated its argument that had been put before the trial Judge in its set-aside application.  We also note that there are also no specific references made under ground 1, in regard to the trial Judge’s findings that concerns matters of mixed fact and law, as required under Order 7 Rules 9(c) and 10 of the Supreme Court Rules.

11. Order 7 Rules 9(c) and 10 read, and we quote in part: 

9(c)	The notice of appeal shall…..state briefly but specifically the grounds relied upon in support of the appeal.  
……

10.	Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.  

12.	In our view, to merely allege error in law and fact by making references to filed affidavits without giving specific details, in a ground of appeal, is insufficient.  And we say that such practice or pleading must not be allowed in appeals that are filed under Division 3 of Order 7 of the Supreme Court Rules.  Fundamentally, we find that ground 1 infringes order 7 Rules 9(c) and 10 of the Supreme Court Rules.  

13.	We also note the following.  Ground 1(b) states and we quote, Both Affidavits were before the Court but were not considered when it made the decision to summarily determine the matter on 9th December 2016.  This to us, shows that the appellant is challenging the decision of the trial Judge of 9 December 2016 and not his decision of 8 January 2018, the latter is the subject of this appeal.  In other words, the said ground does not validly invoke the Supreme Court’s jurisdiction.  See the case of Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185.  Ground 1 of the NOA, in our view, is incompetent on these preliminary considerations.

14.	Even if we may be wrong in relation to the above, it is also our view that ground 1 in the NOA raises questions of fact.  The appellant alleges that the trial Judge had failed to have regard to its evidence as particularised under sub-paragraphs (a) and (b) of ground 1.  These evidence, namely, the affidavits of Wilson Kumbi and George Guipita, both filed on 6 December 2016, relate to facts that addressed the reasons for the delay in prosecuting proceeding WS 1170 of 2003 by the appellant.  The appellant is alleging that the trial Judge erred when he failed to consider the facts contained in the two affidavits.  

15.	Can the appellant raise question of fact in its notice of appeal?  We begin by referring to section 14(1)(c) of the Supreme Court Act.  It reads, and we quote in part:

Subject to this section, an appeal lies to the Supreme Court from the National Court…..with the leave of the Supreme Court, on a question of fact.  

16.	The case law is settled on this point.  We refer to the case of Jimmy Lama v. NDB Investments Ltd (2015) SC1423.  This Court held, and we quote in part:

 If a ground of appeal raises a question of fact (as distinct from a question of law or a question of mixed fact and law) leave to argue that ground must be granted by the Supreme Court pursuant to Section 14(1)(c) of the Supreme Court Act.  See also the case of Henganofi Development Corporation Ltd v Public Officers Superannuation Fund Board (2010) SC1025.
17.	When we look at the present case, it is our view that the appellant ought to have filed a separate application for leave to appeal against the decision of the trial Judge that was made 8 January 2018, that is, in regard to ground 1.  This is because we note that the said ground raises questions of fact, and pursuant to section 14(1)(c) of the Supreme Court Act, it is mandatory that leave must be sought and had, before ground 1 in the NOA can ever be considered on its merit by the Supreme Court in the substantive hearing.  We therefore find ground 1 of the appeal to be incompetent for this reason.

GROUND 2

18.	We now refer to ground 2.  It reads, and we quote in part: 

2.	His Honour erred in fact and law to finding that the Appellant had no good prospects of preventing the Court from ordering that the proceeding be summarily determined when there were affidavit before the Court giving a reasonable explanation for not being able to prosecute the matter in that:

a)	There was a Stay Order dated the 21st of April 2006 by Justice Salika (as he was then) in WS No. 1170 of 2003 and therefore the Appellant and the Respondents were barred from progressing the matter until the issue of the validity of the title held by the Appellant (Volume 33, Folio 44) over a passage of land and sea in the Aliwo Passage in the Kandrian District of West New Britain Province, was determined.

b)	There was a Supreme Court Decision of 19th December 2014 in the Supreme Court matter of SCA No. 4 of 2007 that consolidated this proceeding, WS 1170 of 2003 and another proceeding filed by the Second Respondent, challenging the validity of the title, identified as WS 1113 of 1996, and both these matter were not together respectively before the learned Judge when he made the ruling.

c)	The Appellant was unable to comply with the orders of the Supreme Court of 19th December 2014 to consolidate the two matters because, among other things, the court file of the matter described as WS No. 1113 of 1996, which was a Kimbe National Court matter could not be located at the Kimbe National Court Registry and the Second Respondents, who are the Plaintiffs in that matter, never assisted the Respondents to comply with the said Orders.

19.	The respondents submit that the ground fails to satisfy the mandatory requirements of Order 7 Rule 9(c) and 10 of the Supreme Court Rules in that they fail to specify, with any particularity, the ground relied on, the reasons why the trial Judge’s ruling with respect to this issue was wrong and what the trial Judge ought to have found instead.  The appellant submits that the ground raises both questions of mixed fact and law, and that it was sufficiently pleaded.

20.	We have considered the arguments and also the ground.  There are difficulties we see with this ground of appeal.  Firstly, we find that the ground is too broad, vague and not intelligible.  We do not see that it is pleaded in accordance with the requirements of Order 7 Rules 9(c) or 10 of the Supreme Court Rules.  Secondly, we note that the ground refers to affidavit evidence without particularity.  The third thing we notice is this.  The ground is set out like an argument or a submission rather than a ground of appeal.  In Jimmy Lama v. NDB Investments Ltd (supra), the Supreme Court held in part, and we quote:

(1)	Order 7, Rules 9(c) and 10 of the Supreme Court Rules impose three requirements for a ground of appeal: (a) the ground must be stated briefly, but specifically (ie the ground must make grammatical and legal sense and be intelligible); (b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence; (c) if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.

21.	With these, we find that ground 2 is pleaded without regard to Order 7 Rules 9(c) and 10 of the Supreme Court Rules.  We will uphold the objection and dismiss this ground of appeal in the NOA.

GROUNDS 3 & 5

22.	We will deal with grounds 3 & 5 in the NOA together.  They are, and we quote:

3.	His Honour erred in fact and law in finding that the Appellant had no arguable case on the merits when he summarily determined the matter when there was affidavit evidence before the Court showing an arguable case on the merits in that:

(a)	The Appellant currently holds a title (Volume 33, Folio 44) over a passage of land and sea in the Aliwo Passage in the Kandrian District of West New Britain Province the validity of which is being challenged by the Respondents.

(b)	The National Court stayed the WS No. 1170 of 2003 (21/04/06) pending the determination of the issue of validity and subsequently the Supreme Court ordered the consolidation of these two matters to determine the issue of validity (19/12/14).

(c)	With the summary determination of this matter, the issue of the validity of the Appellants title remains outstanding and unresolved and the Appellants claim against the First Respondent is absolved without the matter going to hearing on the merits.

5.	His Honour erred in fact and law when he summarily determined the matter when there was evidence to show that he was acting against Orders made by the Supreme Court in that:

(a)	On the 19th of December 2014, the Supreme Court compromising Justice Lenalia, Cannings and Kassman in SCM No. 4 of 2007 ordered that WS No. 1170 of 2003 and WS No. 1113 of 1996 be consolidated so that the Respondents herein are included in the determination of the validity of the Appellants title and that there is “finality to this long outstanding and protracted litigation.”

(Bold lettering is ours)

23.	We refer to our bold letterings contained above in the 2 grounds of appeal.  We note that we had directed counsel for the appellant to these grounds and had inquired whether they refer to the National Court’s decision of 9 December 2016, that is, the order that summarily dismissed the proceeding, and not to the decision that is the subject of the appeal, that is, the Court’s decision of 8 January 2018.  We note that counsel had had difficulty in answering our query, and at times, appeared to have conceded that these grounds refer to the National Court’s decision of 9 December 2016 and not its decision of 8 January 2018.

24.	We note that grounds 3 and 5 obviously challenge the trial Judge’s decision to summarily dismiss the appeal on 9 December 2016.  However, we note that that is not what the appellant is appealing against in its NOA that is before the Supreme Court.  The appellant is appealing against the trial Judge’s latter decision of 8 January 2018.  In our view, those were two separate matters and applications that were heard and decided by the trial Judge at different occasions.  In the first occasion, the Court summarily dismissed the proceeding on 7 December 2016, and in the second occasion on 8 January 2018, the Court refused to set aside its order that summarily dismissed the proceeding on 7 December 2016.  

25.	Our conclusive findings therefore are as follows.  By filing the NOA, the appellant has summoned the Supreme Court to invoke its jurisdiction to specifically determine the trial judge’s decision of 8 January 2018.  Grounds 3 and 5, however, challenge the trial judge’s ruling in relation to a separate earlier application and not in relation to the decision that is the subject of the appeal.  Grounds 3 and 5 therefore do not validly invoke the Supreme Court’s jurisdiction for its consideration, and we again point to the Supreme Court’s decision in Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (supra), to support this first finding.  Our second finding is this.  The NOA and grounds 3 and 5 are brought under circumstances which the law simply does not allow to happen.  We will elaborate.  It is not permissible for one to appeal against a decision of a trial Court then proceed to challenge, in the actual grounds of appeal, a separate decision of the trial Court below that was made in a separate application or matter.  In the case Coca Cola Amatil (PNG) Ltd v. Marshall Kennedy (2012) SC1221, the Supreme Court stated at paragraph 9, and we quote:

9.	The same point was made in respect of a cognate rule in the Federal Court Rules by Jessup J in Zegarac v Dellios [2007] FCAFC 58 at [11] when his Honour observed that an appeal was incompetent within the meaning of that rule if it is brought in circumstances which “the law simply does not allow to happen”.

26.	Justice North, whose decision was the majority’s decision in Zegarac v Dellios [2007] FCAFC 58, also stated at paragraph 7, and we quote in part, If the notice is incomprehensible or entirely unrelated to the issues dealt with in the judgment, an appeal may be incompetent.  We find the views of North J and Jessup J relevant and persuasive we would adopt them herein.  In the present case, it is obvious to us that grounds 3, 5 and also ground 1 which we have addressed above in our judgment, are not related to or cover the decision of the trial Court that was made on 8 January 2018 which the appellant is appealing against, but rather, they apply to an unrelated decision, that is, the trial Court’s earlier ruling of 9 December 2016.

27.	In summary, we uphold the respondents’ objections in relation to grounds 3 and 5 in the NOA.  We will dismiss them accordingly.

GROUND 4

28.	We now refer to the final ground of appeal which remains to be considered, that is, ground 4 in the NOA.  It states, and we quote:

4.	His Honour erred in fact and law when he failed to find that it would not be interest of justice if the matter were to be summarily determined when there is affidavit evidence before the Court in that:

(a)	The issue of the validity of the Appellants title (Volume 33, Folio 44) over a passage of land and sea would remain unresolved and outstanding if matter was summarily determined.
(b)	Public policy and interest dictates that such issues of public interest, as in this matter, need to be resolved or determined in the interest of justice and public policy.

29.	The respondents repeat its submission that the ground offends Order 7 Rules 9(c) and 10 of the Supreme Court Rules.  The appellant on the other hand submits that the ground raises questions of law, and that it was sufficiently pleaded.  The appellant submits that the trial Judge had erred in the exercise of his judicial discretion.  

30.	We have considered the submissions and also ground 4 of the appeal.  In our view, we find this ground of appeal to be incompetent for the following reasons.  Firstly, we note that the ground consists of submissions, contentions or arguments and that it does not constitute an appeal ground as required under Order 7 Rule 9(c) and 10 of the Supreme Court Rules.  The appellant also refers to an affidavit therein without particularity.  Thirdly, we note that the ground can also be interpreted to say that the appellant is challenging the trial Judge’s decision of 9 December 2016 and not his decision of 8 January 2018, the latter which is the subject of this appeal.  This to us means that the appellant has not validly invoked the Supreme Court’s jurisdiction.  We would refer to and adopt here our earlier reasoning in the previous sub-heading on the subject matter.

31.	We would dismiss ground 4 of the NOA as incompetent.

SUMMARY

32.	We note that there are 5 grounds of appeal pleaded in the NOA.  Because we will strike out all the 5 grounds as being incompetent, it necessarily follows that the appeal will also be dismissed in its entirety.  We will order cost to follow the event.

THE ORDERS OF THE COURT

33.	We therefore make the following orders:

(i)	The respondents’ Notice of Objection filed on 26 February 2018 is upheld.

(ii)	We find all 5 grounds in the notice of appeal filed on 16 February 2018 incompetent and we strike them out.

(iii)	Consequently, the appeal is dismissed in its entirety.

(iv)	The appellant shall pay the costs of the respondents on a party/party basis which may be taxed if not agreed.
________________________________________________________________
Javati Lawyers:	Lawyers for the Appellant	
Ashurst PNG Lawyers: 	Lawyers for the Respondents