SC2103
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 203 OF 2019

BETWEEN:
PHILIP OPA KORE
Appellant

V

PASTOR CHARLES LAPA, OBE
First Respondent

AND:
LIFE OUTREACH MINISTRIES INC.
Second Respondent

Waigani: Manuhu J, Anis J, Kassman J
2020: 14th December
2021: 14th May

OBJECTION TO COMPETENCY – Preliminary issue – whether objection incompetent – whether failure to state the source or jurisdictional basis in the notice of objection mandatory or fatal – whether failure to observe Order 7 Rule 15 and Order 13 Rule 15 of the Supreme Court Rules renders an objection to competency incompetent – whether the objection to competency should be dismissed – considering the grounds of objection – whether they raise questions of facts or questions of mixed fact and law – whether new grounds raised in the notice of appeal had not been raised or argued before the Court below – whether the ground ‘abuse of process’ may be raised in an objection to competency application as a valid reason or ground to challenge jurisdiction or competency of the appeal – whether the ground ‘abuse of process’ may be raised at the substantive hearing of the appeal

Cases Cited:

Joseph Nadali v. Curtain Brothers Ltd (2012) SC1483
Jeffery Turia v. Gabriel Nelson (2008) SC 949
Papua New Guinea Law Society v. Cooper (2016) SC 1553
Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC 692
National Superannuation Fund Limited v. Yawenaik Holdings Ltd (2018) SC1709
Whagi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
National Development Bank Ltd v Noka Builders Ltd (2020) SC1953
Dillingham Corporation of New Guinea Pty. Ltd. v. Constantino Alfredo Diaz [1975] PNGLR 262 
Michael Newel Wilson v. Clement Kuburam (2016) SC1489
Coca Cola Amitil (PNG) Ltd v Yanda (2012) SC1221

Legislation cited:

Supreme Court Act ss. 4(2)(C) & 14(1)(C)

Counsel:

P J Othas, for the Appellant
A D Lora, for the Respondents

14th May, 2021

1.	MANUHU J & ANIS J:  What we had before us on 14 December 2020 were both the substantive appeal and a notice of objection to competency of the appeal.  We decided to hear the notice of objection first, and after hearing, reserved our ruling to a date to be advised.

2.	This is our ruling.

BRIEF BACKGROUND

3.	The appeal stems from a decision of the National Court made on 3 September 2019.  At that time, both parties did not appear before the trial Court.  The trial Court then dismissed the proceeding for want of prosecution.  Attempts by the appellant to set aside the Court Order of 3 September 2019 was refused by the trial Court on 6 November 2019.  The appellant was aggrieved and has filed the present appeal.

4.	The claim in the National Court was for breach of contract for sale of a land in Western Highlands Province.  The land was described as section 11, allotment 48, Volume 1, Folio 207, Mt. Hagen, Western Highlands Province (the property).  The plaintiff sought, amongst others, specific performance of the contract.  He claimed that based on the agreement, he paid the defendants a total sum of K25,000 which represented a substantial payment for the property, which was priced at K45,000.  He said it was agreed that after he makes an additional payment of K11,000, the defendants would facilitate the transfer of the property to his name, with the balance to be settled thereafter.  He said the defendants had refused (i) to accept K11,000 and (ii) to transfer the property to his name.  These had formed the basis of his claim in the National Court.

PRELIMINARY ARGUMENT

5.	The appellant raised a preliminary issue.  He says the Notice of Objection did not plead the source or jurisdictional basis for this Court to hear the application. As such, he submits that the Objection to Competency is incompetent and must be dismissed.  The respondents did not directly respond to the issue, but rather, made submissions to the effect that the Notice of Objection was filed within time during the Court vacation period, that is, on 27 December 2019.

NOTICE OF OBJECTION

6.	The Notice of Objection to Competency was filed on 27 December 2019 (Objection).  The Objection begins as follows:

OBJECTION to the competency of this appeal will be made at the Supreme Court, Waigani at …… an on the …… day of …… 20

OBECTION is made on the following grounds:

7.	Order 7 Rule 15 and Order 13 Rule 15, of the Supreme Court Rules (SCR) are relevant for this purpose.  They read:

Division 5.—Objection to competency of appeal

15.  A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal—
(a)	file an objection in accordance with form 9; and
(b)	serve a copy of the objection on the appellant.

……

Division 15.—Applications

15. All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. With the exception of urgent applications, all other applications for interlocutory orders shall be made to the Duty Judge on a scheduled motions day. All applications shall be made in Form 4.

8.	The rules apply to (i) filing and (ii) what is required, of a notice of objection to competency of this nature.  These were regarded in Joseph Nadali v. Curtain Brothers Ltd (2012) SC1483.  The appellant therein objected to a notice of objection to competency filed by the respondent.  It submitted that the notice of objection did not, amongst others, contain the jurisdictional basis or that it did not plead Order 7 Rule 15 of the SCR.  In upholding the argument and dismissing the notice of objection to competency as being incompetent, this Court stated at paragraphs 4 and 5 of its decision:

4.  In the course of argument, the court made reference to Order 13 Rule 15 Supreme Court Rules which came into force after Pacific Equities (supra). This Rule relevantly provides:

“All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. …..”
 The word “Application” is defined in Order 13 Rule 1 as: 
“means any application as provided for under the Supreme Court Rules, Supreme Court Act, the Constitution and any other legislation.”

5.  Given the requirement of Order 13 Rule 15 and in the absence of argument as to why we should depart from the decision in Pacific Equities (supra), we are of the view that the notice of objection to competency should be dismissed as being incompetent.

CONSIDERATION

9.	We have considered the Objection, and it is correct to say that the Objection did not plead any jurisdictional basis for it to be heard by this Court.  So, the question to ask then is, whether this Court should dismiss the Objection as being incompetent for this reason.

10.	Apart from Joseph Nadali v. Curtain Brothers Ltd (supra), this Court in Jeffery Turia v. Gabriel Nelson (2008) SC 949, stated at paragraph 10:

10.  The objection to competency must itself be competent. If it does not comply with the Supreme Court Rules it will be dismissed, eg if filed outside the 14-day period allowed by Order 7, Rule 14 (Gregory Puli Manda v Yatala Limited (2005) SC795).

11.	In Papua New Guinea Law Society v. Cooper (2016) SC 1553 this Court stated at paragraph 8, the notice of objection must itself be competent.  It has to plead the appropriate provision and comply with the Supreme Court Rules.  Failure to comply would be fatal.  Also, and in Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC 692, when dismissing a notice of objection to competency as defective, this Court stated at paragraphs 7 and 8:

7.  The notice of objection should have expressly referred to Order 7, Rule 14 of the Supreme Court Rules as its jurisdictional basis. It should have also referred to Order 7, Rules 8(c) and 9 of the Supreme Court Rules, they being the provisions of the Rules that specify how the grounds of an appeal must be set out in a notice of appeal.

8.  These deficiencies in the notice of objection mean that it is itself incompetent and provide a sufficient reason to dismiss the objection.

12.	The final case to refer to for this purpose, is this Court’s decision in National Superannuation Fund Limited v. Yawenaik Holdings Ltd (2018) SC1709, where the Court, in rejecting the 2 notices of objections that had been filed, stated at paragraph 7:

7.  As the objections to competency do not cite the correct jurisdictional basis for making an objection to competency, (see Order 11 Rule 28 Supreme Court Rules), this court’s jurisdiction has not been invoked. Both objections to competency are therefore incompetent. Further, the objection of the first and eighth respondents’ is plainly not in accordance with form 9, as is required by Order 7 Rule 15(a) Supreme Court Rules, and is therefore incompetent. Given this, it is not necessary to consider the other submissions of counsel concerning the objections to competency.

SUMMARY

13.	No source or jurisdiction is pleaded in the Objection.  And stated above, the respondents did not provide any valid response or reply to the argument.  As such, we do not see any reason why we should depart from the established principle, which is, of the requirement to plead the Court’s jurisdiction in a notice of objection to competency of an appeal.  

14.	The Objection is itself incompetent and shall be dismissed with costs.

15.	We propose to make the following orders:

1.	The Notice of Objection to Competency filed on 27 December 2019 is dismissed.

2	The respondents shall pay the appellant’s costs of the application on a party/party basis to be taxed if not agreed.

3.	The matter is referred to the Listings Judge to allocate a hearing date for the substantive appeal.

16.	KASSMAN J:  For the purpose of my judgment, I will refer below to the Appellant Philip Kore as “Kore”, to the Respondents Pastor Charles Lapa and Life Outreach Ministries Inc. as “Lapa”, to the Notice of Appeal filed 13 December 2019 as “the Appeal” and to the Notice of Objection to Competency filed 27 December 2019 as “the Objection”.

17.	I have had the benefit of reading the draft judgment of my brothers Manuhu J and Anis J which, with respect, I agree.  I agree that Lapa’s failure to plead or state in the Objection the jurisdictional basis for this court to exercise jurisdiction rendered that document itself incompetent.  That is fatal to the Objection.  I agree with the discussion on this issue by my brothers. 

18.	I go further to address the grounds of the objection as we heard the arguments of the parties which, with respect, can be dealt with to give finality to the issues raised by Lapa.  

19.	Turning to Grounds 1 and 2 of the Objection, I agree with counsel for Kore that Lapa has misunderstood grounds 3.1 and 3.2 of the Appeal.  In the Objection, Lapa claims grounds 3.1 and 3.2 of the Appeal raise issues of fact for which leave to appeal is required pursuant to section 4(2)(C) and section 14(1)(C) of the Supreme Court Act.  I set out the relevant parts of those provisions:

Section 4 – Right of Appeal from National Court
(2)	  An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal … (c) with the leave of the Supreme Court, on a question of fact.

Section 14 – Civil appeals to the Supreme Court
Subject to this section, an appeal lies to the Supreme Court from the National Court …  (c) with the leave of the Supreme Court, on a question of fact.

20.	The issues raised for this court are whether grounds 3.1 and 3.2 raise issues of fact alone, for which leave is required.  If I find they raise issues of mixed fact and law, leave is not required and Grounds 1 and 2 of the Objection must fail.

QUESTION OF FACT / QUESTION OF MIXED FACT & LAW

21.	In a decision of the Supreme Court in Whagi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, Kapi J, as he then was, said addressing the issue as to what are questions of fact and law are difficult to determine.  His Honour adopted the discussion on this question by Lord Denning in British Launderers’ Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All E.R, 21 where Lord Denning said at pages 25 and 26:

“On this point it is important to distinguish between primary facts and the conclusions from them.  Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document.  Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding.  The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them.  If and so far as these conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts. … If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination by a trained lawyer – as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer – the conclusion is a conclusion of law …” 

22.	Kapi J, as he then was, went on to say “Where primary facts are found (which cannot be challenged on appeal except by leave of the court) the question of law is what is the proper conclusion to be drawn from those facts.  It has been shown in decided cases that where inferences or conclusions are drawn from primary facts which cannot reasonably be drawn, then this is an error of law.”

23.	The statement by Lord Denning mentioned above was also referred to by Prentice DCJ, as he then was, in Dillingham Corporation of New Guinea Pty. Ltd. v. Constantino Alfredo Diaz (1975) PNGLR 262 at p.270.

24.	In National Development Bank Ltd v Noka Builders Ltd (2020) SC1953 the Supreme Court said at the paragraph 11 of the judgement:

“… in regard to the submission that the grounds of appeal raise issues of fact only, from a perusal of the grounds of appeal, none of them raise issues of fact only.  We concur with the submission of NDB which is that the grounds of appeal allege an error in the exercise of discretion by not giving weight or sufficient weight to various facts or circumstances, or that in the circumstances the decision is plainly unjust.  The submission that the discretion thereby miscarried, is an issue of law and/or mixed fact or law.”  

25.	I set out in full Grounds 3.1 and 3.2 of the Appeal:

“3.1.	The learned primary Judge erred in law and in fact in holding in his brief oral judgement order that there was no reasonable explanation given by the Appellant in his application to set aside ex parte orders when:
(a)	there was sufficient evidence through the respective Affidavits In Support of Philip Opa Kore and Isaac Mel both filed on 25th September 2019, providing cogent and reasonable explanation as to:
(i)	why the previous order striking out the proceeding was allowed to be entered in the absence of the applicant.  The reason 	provided were such as public 	notice indicating that His Honor Makail J. would not sit until 12th September 2019, court clerks advising parties that Justice Allen David would not sit either in 	the month of September 2019, etc.
(ii)	why all parties in the proceeding did not attend court on that day the orders were made ex parte.  The reasons given there among other things were that His Honor would not sit until 12th September 2019.
(b)	there was sufficient evidence through the supporting affidavits of Philip Kore and Isaac Mel both filed on the 25th September 2019, that the National Court proceeding was not wanting prosecution as the Appellant was diligently prosecuting it.

3.2.	The learned primary Judge erred in law and in fact in dismissing the Appellant’s Further Amended Notice of Motion filed on 31st October 2019, with costs and confirming the orders of 3rd Septembe4 2019, despite the fact that the Appellant satisfied the three legal principles on setting aside ex parte orders as enunciated in the case of Thomas Rangip v- Peter Loko (2009) N3714.  These principles are:
(a)	Why the judgement or order was allowed to be entered in the absence of the applicant.
(b)	if there is a delay in making the application to set aside, a reasonable explanation as to the delay, and
(c)	that there is a reasonable explanation for the proceeding not being prosecuting with due diligence.”

26.	I agree with counsel for Kore that Lapa has misapprehended these two grounds of appeal.  

27.	Ground 3.1 in the Appeal raised issues or matters of both fact and law.  Kore argues he provided the primary court with cogent evidence that there was reasonable explanation why he, and Lapa, were not at court on 3 September 2019 but the primary judge wrongly exercised his discretion in not accepting his explanation.  Further, Kore says there was sufficient explanation backed with evidence that the matter was not “wanting of prosecution”, but the learned judge erred in failing to exercise his discretion in favour of Kore to set aside the order of 3 September 2019 which dismissed the proceedings. 

28.	Kore is arguing he had evidence stating facts as to what occurred or what both parties did or failed to do prior to and leading up to 3 September 2019 when the court sat without both parties appearing.  Kore argues the conclusions to be drawn from those facts established a reasonable explanation for their absence from court on 3 September 2019.  Drawing the conclusions to establish a reasonable explanation are questions of mixed fact and law addressed by the primary court in the exercise of its discretion.  They were not purely questions of fact for the primary court to address.  The submission that the discretion thereby miscarried, is an issue of law and/or mixed fact or law.  Ground 1 of the Objection must fail.

29.	In Ground 3.2 of the Appeal, Kore also raises issues of mixed fact and law.  Kore argues the primary judge erred in failing to find that the legal principles applicable in an application to set aside ex-parte orders were all met by Kore but the primary judged erred in failing to exercise his discretion in favour of Kore to set aside the order of 3 September 2019 which dismissed the proceedings.  Identifying the legal principles applicable were matters for argument on the law.  Whether those legal principles were met when applying the facts to the applicable legal principles involved questions of fact and law for consideration by the primary court in the exercise of its discretion.  They were not purely questions of fact for the primary court to address on 6 November 2019 when the primary court refused to set aside the order of the court of 3 September 2019 which dismissed the proceedings.  The submission that the discretion thereby miscarried, is an issue of law and/or mixed fact or law for this court to address.  Ground 2 of the Objection must also fail.

30.	I also agree with the submissions of counsel for Kore in answer to ground 3 of the Objection.  Ground 3.3 of the Appeal states:

“The learned primary judge erred in law and in fact when he did not address the issue of prejudice submitted by the Appellant, which related to his moneys paid to the Second Respondent as a purchase price for the sale of the property subject of the proceedings.” 

31.	In Ground 3 of the Objection, Lapa argues Ground 3.3 of the Appeal raises a matter that was not raised and dealt with by the primary court and that is an abuse of process.  That is not a jurisdictional issue and should not be raised as a competency issue for this court.  The wording of ground 3 of the Objection speaks for itself which starts with the words “Ground 3.3 is incompetent”.  The Supreme Court has said repeatedly “An objection to competency goes to the jurisdiction of a court to entertain at all a particular proceeding which has been initiated in that court.”  Michael Newel Wilson v. Clement Kuburam (2016) SC1489.    

32.	The Supreme Court said in Coca Cola Amitil (PNG) Ltd v Yanda (2012) SC1221:

 “An objection under O.7, r.24 RSC is materially and as the rule expressly provides, “to the competency of an appeal”. not to the notice of appeal. … absence of merit may well result in the dismissal of those grounds but that dismissal will not occur because the appeal is incompetent but rather because particular grounds lack merit. The importance of this distinction and of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised.”    

33.	Lapa is challenging as incompetent a particular ground of the appeal.  Lapa is not permitted to do that by way of the Objection.  That can be dealt with on the hearing of the substantive appeal.  Ground 3 of the Objection must also fail.

34.	I also agree with the submissions of counsel for Kore in answer to ground 4 of the Objection. Here, Lapa argues “The whole Notice of Appeal is incompetent and amounts to an abuse of process as the claim in the National Court relates to specific performance of an alleged unwritten contract for the sale of a piece of land in an urban centre which is prohibited by section 4 of the Frauds and Limitations Act 1988.”  Lapa is not raising any jurisdictional issue in this ground of objection.  Abuse of process is an issue that may be heard and determined when the Supreme Court hears the substantive appeal.  Ground 4 of the Objection must also fail. 

35.	I have dismissed all grounds of the Objection.  The Notice of Objection to Competency filed 27 December 2019 is dismissed.  With respect, I agree with the final orders as proposed by my brothers.

ORDERS OF THE COURT

36.	The final orders of the Court are as follows:

1.	The Notice of Objection to Competency filed on 27 December 2019 is dismissed.

2	The respondents shall pay the appellant’s costs of the application on a party/party basis to be taxed if not agreed.

3.	The matter is referred to the Listings Judge to allocate a hearing date for the substantive appeal.
________________________________________________________________
Paul Othas Lawyers: Lawyers for the Appellant
Andano David Lorawi Lawyers: Lawyers for Respondents