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National Housing Corporation v Kipoi [2021] PGSC 116; SC2172 (7 December 2021)

SC2172

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 19 OF 2021 (IECMS)

BETWEEN:
NATIONAL HOUSING
CORPORATION
Appellant

AND:
DICK KOROWA KIPOI
Respondent

Waigani: Batari J, Hartshorn J, Makail J
2021: 25^th November, 7^th December

Objection to competency – whether appeal was filed in time

Counsel:

Mr. G. Konjib, for the Appellant
Mr. D. K. Kipoi, for the Respondent

7^th December, 2021

1. BY THE COURT: This is a decision on a contested objection to competency of an appeal. The only issue is whether this appeal was filed in time pursuant to s. 17 Supreme Court Act.

Background

2. In the National Court, the respondent was granted against the appellant and one other party, amongst others, declaratory relief and an order for specific performance of a contract of sale in respect of a certain property (decision appealed).

3. The appellant has purportedly appealed the decision appealed.

Objection to competency

4. The decision appealed was delivered on 15^th December 2020. The respondent submits that the appeal was filed out of time as it was filed on 26^th January 2021 when it should have been filed by 25^th January 2021. As a consequence, the appeal is incompetent as s. 17 Supreme Court Act, which requires a notice of appeal to be given within 40 days after the date of the judgment sought to be appealed, has not been complied with.

5. The appellant submits that its appeal was filed electronically through the IECMS system on 24^th December 2020. The appeal was accepted and an appeal number of SCA 209 of 2020 was allocated. A new SCA number being SCA 19 of 2021 was subsequently allocated by IECMS when the appeal was purportedly refiled. After the appeal was filed it was submitted for rejection by IECMS Registry staff. The appeal was then refiled within time and approved for registration as is evidenced by “Workflow Details” comments on IECMS records.

Consideration

6. The annexure evidence relied upon by the appellant for its submission that a notice of appeal was filed on 24^th December 2020 is hearsay. The printout to the affidavit of Abel Tol sworn 28^th September 2021 is not deposed to as being generated by Mr. Tol and the author of the printout is not identified. The two persons who are alleged to have assisted Mr. Tol did not give evidence. Further, the annexure “A” to Mr. Tol’s said affidavit is in the main indecipherable. As a result, little or no weight is able to be given to the content of Mr. Tol’s said affidavit. There is no other evidence before the court to the effect that a notice of appeal was filed on 24^th December 2020.

7. The evidence relied upon to the effect that the appeal was rejected, was refiled and was accepted is also hearsay. The annexure “G” to the affidavit of the respondent sworn 15^th June 2021 is deposed to as being generated by the respondent, but the author of the printout is not identified. Little or no weight is able to be given to this annexure. If however, some weight is given to the annexure and the comments purportedly made on 27^th January 2021 that, “The appeal is filed within time” and “Approved for registration.”, the staff of the court including the Deputy Registrar do not have the power to override a statutory provision. Indeed, without more, the Supreme and National Court do not have the power to override a provision of a statute.

8. The best evidence before this court as to the filing of the appeal is the notice of appeal which is recorded as being filed on 26^th January 2021. This is annexed to the affidavit of the respondent. The notice of appeal is a copy and purports to be sealed with the seal of the Supreme Court: s. 44 Evidence Act. The hearsay evidence relied upon by the appellant is insufficient to refute this. As the best evidence establishes that the notice of appeal was filed on 26^th January 2021, the appeal was filed out of time as it should have been filed by 25^th January 2021 to comply with s. 17 Supreme Court Act.

9. As to the submission of the appellant that the appeal was filed but was rejected by the Registry and the appellant was told to refile the appeal, even if the evidence was to that effect and the appellant was informed by the Registry that it was required to refile the appeal as the appellant had not given notice to appeal pursuant to s. 17 Supreme Court Act by virtue of the said rejection, the appellant was still required to refile the appeal within the requisite 40 day period. On the evidence before the court, this did not occur.

10. Consequently, we are satisfied that the respondent has successfully made out his objection to competency.

Orders

11. The Court orders that:

a) The objection to competency is upheld.

b) This proceeding SCA 19 of 2021 (IECMS) is dismissed.

c) The appellant shall pay the costs of the respondent of and incidental to this appeal to be taxed if not otherwise agreed.
__________________________________________________________________
Konjib and Associates Lawyers: Lawyers for the Appellant
The Respondent in person