SC2123
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 4 OF 2019

JIMMY CHARLIE for himself and on behalf of ENEHAKO INCORPORATED LAND GROUP (ILG Reg. No. 02 of 2014) as Interim Chairman and authorised Clan Representative
First Appellant

AND
ENEHAKO INCORPORATED LAND GROUP (ILG Reg. No. 02 File No. 17900)
Second Appellant

AND
ANDREW MALD
Third Appellant

AND
MR. AND MRS. EVAN (IVAN) PAKI
First Respondents

AND
PACIFIC MEDICAL CENTRE INC.
Second Respondent

AND
DI TENE VATA LAND GROUP INC.
Third Respondent

AND
MR. CHARLES MANDA, ACTING SURVEYOR GENERAL OF PAPUA NEW GUINEA
Fourth Respondent

AND
ROMILY KILA PAT in his capacity as Secretary for Lands and a Delegate of the Minister for Lands & Physical Planning
Fifth Respondent

AND
BENJAMIN SAMSON, in his capacity as the Acting Registrar of Titles, Department of Lands & Physical Planning
Sixth Respondent

AND
HON. BENNY ALLAN, MP, Minister for Department of Lands & Physical Planning
Seventh Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Respondent

Waigani: Hartshorn, Berrigan, Miviri JJ
2020: 24th & 27th November

SUPREME COURT APPEAL – practice and procedure – notice of objection to competency of appeal – objection filed on the grounds of non-compliance with Order 7, Rules 9 and 10 of the Supreme Court Rules 2012 and for failure to invoke court’s jurisdiction – all requirements under Order 7 rule 9 and 10 have been complied with – notice of competency dismissed

Cases Cited

Peter Neville v National Executive Council of Papua New Guinea (PNG) (2015) SC1432
Porgera Joint Venture v Joshua Siapu Yako (2008) SC916
Lama v NDB Investments Ltd (2015) SC1423 
Haiveta v Wingti (No 2) [1994] PNGLR 189
Coca Cola Amatil (PNG) Ltd v Yanda (2012) SC1221

References cited
Order 7, Rules 9, 10 and 15 of the Supreme Court Rules 2012

Counsel

J. Kolo, for the appellants
J. Aku, for the First and Second Respondents
M. Bebi, for the Third to Eighth Respondents 

RULING ON OBJECTION TO COMPETENCY OF APPEAL

27th November, 2020

1.	BY THE COURT: Before the Court is an objection to the competency of an appeal.  The appeal is against the decision of the National Court on 19 December 2018 summarily dismissing proceedings brought by the appellants claiming that the State Leases obtained in the form of Urban Development Leases (UDLs) issued by the Sixth and Seventh Respondents in favour of the Second Respondent were fraudulently and unlawfully acquired with intent to deprive the Appellants of their customary ownership of the subject land.

2.	The First and Second Respondents filed a notice of objection to competency on the grounds of non-compliance with Order 7, Rules 9 and 10 of the Supreme Court Rules 2012.  At the hearing the respondents also raised for the first time objection on the basis that the Notice of Appeal failed to identify the  judgement of the National Court which was appealed against for the purposes of s 4(2)(c) of the Supreme Court Act and submitted that it was consequently unclear why the appeal was properly made without leave for the purposes of s 14(1)(c) of the Supreme Court Act. 

3.	The appellants responded by raising the standing of the Second Respondent to the proceedings and further, by objecting to the objection to competency on the basis that the notice fails to state the jurisdictional basis of the objection in compliance with Order 7 Rule 15 of Supreme Court Rules.

4.	The Third to Eighth Respondents take no position on the issue of competency. 

OBJECTION TO THE OBJECTION TO COMPETENCY

5.	The appellants contend that the Second Respondent has no standing in these proceedings on the basis that the UDLs granted to it over the subject land expired on 5 June 2020 and to date have not been renewed or extended.    

6.	It is well established that an appeal will be incompetent where the appellant lacks sufficient interest in the subject matter of the National Court decision against which it wishes to appeal:  Peter Neville v National Executive Council of Papua New Guinea (PNG) (2015) SC1432, approving Porgera Joint Venture v Joshua Siapu Yako (2008) SC916.  The decision must directly affect the rights of the appellant, and by extension, the rights of any respondent. 

7.	As explained in Porgera Joint Venture v Joshua Siapu Yako (supra) at [20] (emphasis ours):

“So that in order to be "aggrieved" by the decision of a court in a manner which grounds a right of appeal there must be a real and direct interest in the subject matter of the decision from which the appeal is taken. The decision appealed from must directly affect the rights of the appellant. Therefore there can be added to the list of examples of thresh-hold jurisdictional questions which can be addressed by an Objection to Competency, the issue of whether the appellant has sufficient interest in the subject matter of the decision under appeal. A person who was not a party to the National Court proceedings can still show that they are aggrieved by a decision and have sufficient interest to appeal if they are "directly affected": see SC 798 Yanto & Ors Piu & Ors (2005). However, even a person who is a party to proceedings in the National Court cannot have standing to appeal if the decision in the court below does not directly affect their rights or interests.”

8.	This does raise an interesting question as to the standing of the Second Respondent in these appeal proceedings.  The matter was not, however, fully argued before us.  Nor are we persuaded on the limited material that was before us on the matter of competency that the Second Respondent lacks interest in the subject matter of the appeal.  As a party to the proceedings in the lower court from which the decision appealed emanates it would appear, at least prima facie, that the Second Respondent has sufficient standing (SCM 16 of 2020 The State & Anor v Hon Beldon Namah & Ors, unreported, 16 November 2020), particularly given that the appeal has been brought against the decision of the lower court which was made in its favour.  It is presently unclear what rights or interests might be affected by a successful appeal against that decision.  Furthermore, it appears that the entitlement of the Second Respondent to an extension of its UDLs over the subject land, or alternatively the issue of State Leases in their place, is in dispute and the subject of separate appeal proceedings before the Supreme Court.  Even putting aside the issue of the Second Respondent’s standing, it is not clear on what basis it is contended that the First Respondents have no standing to bring the objection to competency.  

9.	The contention as to standing is dismissed.

10.	As to the jurisdictional basis of the objection to competency, a respondent’s right to object to the competency of an appeal is conferred by Order 7, Rule 15 of the Supreme Court Rules 2012.  

11.	On the face of it the notice of objection to competency clearly states the jurisdictional basis of the objection pursuant to Order 7 Rule 15.  Furthermore, the notice contends that the Notice of Appeal fails to comply with the mandatory requirements of Order 7 Rule 9(c) and Rule 10 of the Supreme Court Rules on the basis that each of the grounds fail to state briefly but specifically, with particulars, the ground relied upon in support of the appeal so as to demonstrate the reasons why the judgement or decision under appeal is alleged to be wrong in fact and law.

12.	The notice appears to be in order.  The appellants’ objections to the competency of the objection to competency are dismissed.

OBJECTION TO COMPETENCY OF THE APPEAL 

13.	The respondents contend that the Notice of Appeal fails to clearly identify the proceedings from which the judgement under appeal was made and the particular judgement under appeal in compliance with s 4(2)(c) of the Supreme Court Act. 

14.	There is no merit in this argument.  The Notice of Appeal complies with Order 7 Rule 9 (e), including Form 8.  The proceedings the subject of the appeal are clearly stated in the Notice of Appeal, as is the National Court judge, the date and the place of the decision.  

15.	It is also sufficiently clear from the Notice of Appeal that leave is sought from the whole of the decision of the National Court to summarily dismiss the entire lower court proceedings for, inter alia, lack of jurisdiction and lack of standing.
 
16.	It is well established that leave is not required pursuant to s 14 of the Supreme Court Act where a judgement is final, such that it finally determines the litigation or it finally determines certain issues between the parties:  Punagi v Pacific Plantation Ltd (2011) SC1153.

17.	That is clearly the case here.  Accordingly, we are satisfied that the appeal properly lies without leave.  

18.	Order 7 Rules 9 and 10 provide (emphasis ours): 

9. The notice of appeal shall—

(a) state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and
(b) state whether the whole or part only and what part of the judgment is appealed from; and
(c) state briefly but specifically the grounds relied upon in support of the appeal; and
(d) state what judgment the appellant seeks in lieu of that appealed from; and
(e) be in accordance with form 8; and
(f) be signed by the appellant or his lawyer; and
(g) be filed in the registry.

10. Without affecting the specific provisions of Rule 8, 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.

19.	In Lama v NDB Investments Ltd (2015) SC1423 the Supreme Court held that (emphasis ours):

“(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.

(2) 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.

(3) In determining an objection to competency it is appropriate to assess each ground of appeal in terms of the nature of the objection to it.”

20.	The purpose of these requirements is obvious.  A respondent must be informed of the basis of the appeal so that they can prepare their arguments, and the court must be informed of the issues to be determined:  see Lama (supra) affirming Haiveta v Wingti (No 2) [1994] PNGLR 189.

21.	As the Supreme Court made clear in Coca Cola Amatil (PNG) Ltd v Yanda (2012) SC1221:  

“If, though, by reference to one at least of the grounds of appeal, it can be seen that the court's jurisdiction has validly been invoked, the case is not one for an objection to competency.”

22.	It must be said at the outset that the Notice of Appeal is not well drafted.   Nevertheless, it cannot be said that it is “so completely incomprehensible as to make it impossible to discern that the court's jurisdiction has been validly invoked”.  Nor can it be said to “raise issues completely unrelated to the judgment appealed from” such that the appeal should be struck out as incompetent:  Coca Cola Amatil (supra). 

23.	In particular, whilst they could have been more clearly expressed, we are of the view that the following grounds do identify the specific finding which is being challenged, namely the finding that the National Court lacked jurisdiction, and the reasons why that finding was wrong in law and in fact for the purposes of Order 7 Rule 9(c) and Rule 10:

Ground 4:  “The National Court erred in law and in fact in holding that the proceeding raises a dispute as to ownership of customary land which precluded the jurisdiction of the National Court to hear and determine the proceedings in WS No 951 of 2015 when it raises serious allegations of fraud and illegal acquisition of the First and Second Appellants’ customary land in breach of the statutory process and procedures under the Land Act 1996 and Land Registration Act.”

Ground  5: “The National Court erred in law and in fact to give proper weight to the evidence before the Court in holding that it had no jurisdiction to determine the proceeding in the court below when there was no dispute as to the ownership of customary land known as Central Claim 88 out of which Portion (Giboea), subject of the proceeding is derived or created.” 

24.	Similarly, the following ground does identify the specific finding that is challenged, namely that the plaintiffs lacked standing, and the specific grounds relied on to demonstrate why that decision was wrong in fact and law.

Ground 6:  “The National Court erred in law and in fact in holding that the Plaintiffs lack the necessary standing or locus standi to bring the case before the Court against the weight of the evidence before the Court below when the First Plaintiff as the elected representative of his clan and the registered legal entity in the Second Plaintiff namely Enehako Incorporated Land Group Inc. had the legal capacity to challenge the manner in which the State acquired their customary land without their knowledge, authority and consent and subsequently converting same into state lease in the form of Urban Development Leases (UDLs) which was then granted to PMC.”

25.	Accordingly, the objection to competency is dismissed.  We make the following orders.

ORDERS 

(1)	The objection to competency is dismissed.

(2)	The appeal is adjourned to the listings judge for directions. 

(3)	The respondents shall pay the appellant’s costs of the objection to competency on a party-party basis, which shall, if not agreed, be taxed.  
__________________________________________________________________

Lawyers for the appellants	:	Kolo & Associates	
Lawyers for the first and second respondents	:	Manase & Co. Lawyers	
Lawyers for the third to eighth respondents	: 	Solicitor General’s Office