SC2080
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 5 of 2019

BETWEEN:
SAUWAN RAI
Appellant

AND
CORNELIUS AKU IMBUNI 
Respondent

Waigani:  Mogish J, David, J and Shepherd, J
2020: 27th October
2021:   5th March

SUPREME COURT – Practice and Procedure - objection to competency of notice of motion on appeal from order made by National Court in judicial review proceedings –  jurisdiction of Supreme Court – Order 7 rule 15 and Order 11 rule 28(a) Supreme Court Rules – notice of objection to competency filed prior to filing of notice of motion on appeal – inherent jurisdiction of Supreme Court to deal with non-compliance with certain Supreme Court Rules where arguable grounds of objection to competency exist – whether failure to annex certified copy of National Court order appealed against to notice of motion is fatal to the appeal – whether grounds of appeal stated with sufficient particularity to identify errors alleged to have been committed by primary Judge – Order 7 rules 9(c) and 10 Supreme Court Rules – whether want of prosecution of appeal is a valid ground of objection to competency of notice of motion on appeal – certain grounds of objection to competency upheld and appeal dismissed.

Held:

(1)	The jurisdictional basis for the Supreme Court to entertain an objection to competency of an appeal from an order made by the National Court in judicial review proceedings is Order 7 rule 15 Supreme Court Rules.	

(2)	Order 11 rule 28(a) Supreme Court Rules is an auxiliary provision which allows objections to competency of notices of motion by way of appeal in judicial review and certain other proceedings to be filed and pursued in the Supreme Court pursuant to Order 7 rule 15 Supreme Court Rules.

(3)	Although the objection to competency in this instance was premature in that it was filed before the notice of motion by way of appeal was filed and was therefore technically non-compliant with Order 7 rule 15 Supreme Court Rules, the Court has a discretion to allow any issue as to jurisdiction to be raised, including competency of any appeal where a notice of objection has raised arguable grounds and the appellants are on notice of the grounds of the objection: Sarea v Moutu (2019) SC1893 applied. 

(4)	The requirement in Order 10 rule 3(b)(ii) Supreme Court Rules for a certified copy of the order of the National Court appealed from to be annexed to the notice of motion on appeal in judicial review proceedings is mandatory.  Failure to annex the certified copy of the order renders the notice of motion incompetent and is fatal to the appeal. 

(5)	Want of prosecution is not a valid ground of objection to competency as it does not question the jurisdiction of the Court to entertain an appeal. An application to dismiss an appeal for want of prosecution should be made pursuant to the separate procedure provided for in Order 11 rule 28(b) and Order 7 Division 19 Supreme Court Rules. 

Cases Cited:

Amet v Yama (2010) SC1064
Bakani v Daipo (2002) SC699
Hegele v Kila (2011) SC1124
Idumava Investments Ltd v National Fisheries Authority (2013) SC1273
Ipili Porgera Investment Limited v Bank of South Pacific Limited (2007) SC1322
Kalinoe v Paraka (2007) SC874.  
Kuk v O’Neill (2014) SC1331
Lama v NDB Investments Limited (2015) SC1423
Madang Timbers Ltd v Kambori (2009) SC992
Manda v Yatala Ltd (2005) SC795
Mondiai v Wawoi Guavi Timber Co. Ltd (2007) SC886
Mountain Catering Ltd v Punangi (2013) SC1225 
National Capital Limited v Bakani (2014) SC1392
National Superannuation Fund Ltd v Yawenaik Holdings Ltd (2018) SC1709
Neville v National Executive Council of Papua New Guinea (2015) SC1431
Nominees Niugini Ltd v Independent Public Business Corporation (2017) SC1646
Pacific Equities & Investments Ltd v Goledu (2009) SC962
Papua New Guinea Law Society v Cooper (2016) SC1553
PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717
Sarea v Moutu (2019) SC1893
Turia v Nelson (2008) SC949  
Wahgi Savings and Loans Society Ltd v Bank of South Pacific Ltd (1980) SC 185;

Counsel:

Mr  T. Injia, for the Applicant/Respondent
Mr P. Balos, for the Respondent/Appellant

DECISION 

5th March, 2021

1.	BY THE COURT:  This is a decision on an objection to competency.
  
2.	The appellant (Mr Rai) is aggrieved by the decision of the National Court made in proceeding OS (JR) No. 657 of 2015 on 3 December 2019 whereby registration of transfer of title to him of a real estate property at Allotment 14 Section 20, Boroko, NCD was cancelled.  Mr Rai filed a notice of motion (Motion) by way of appeal to the Supreme Court seeking orders to quash and set aside the National Court’s order so that title to the property could revert to him.  The respondent (Mr Imbuni) has countered this by filing a notice of objection (Objection) to the competency of Mr Rai’s motion.  Mr Rai has in turn challenged the competency of Mr Imbuni’s Objection.

MR RAI’S CHALLENGE TO THE COMPETENCY OF MR IMBUNI’S OBJECTION

3.	Mr Rai’s challenge to Mr Imbuni’s Objection was raised before us as a preliminary issue at the objections hearing.  The challenge was two-fold.  It was argued for Mr Rai that:

a)	the Objection is itself incompetent because it incorrectly invoked O.7 r.15 instead of O.11 r.28 of the Supreme Court Rules 2012 (SCR) as the jurisdictional basis for Mr Imbuni’s objection; and/or
b)	even if Mr Imbuni’s Objection could rely on O.7 r.15 SCR as its jurisdictional basis, the Objection is still incompetent because it offends O.7 r.15 SCR in that it was filed prematurely prior to service of Mr Rai’s Motion by way of appeal whereas Mr Imbuni should have waited until Mr Rai’s Motion was served and then filed his Objection within the 14-day period allowed by O.7 r.15 SCR. 

4.	As to the first ground of Mr Rai’s challenge, we observe at the outset that appeals from orders made in judicial review proceedings by the National Court are in a special class of their own and are required by O.10 r.1(1) SCR to be instituted by notice of motion, not by way of the ordinary notice of appeal in Form 8 prescribed by O.7 r.9(e) SCR. 

5.	Order 10 r.3(c) SCR prescribes that a notice of motion by way of appeal from the National Court to the Supreme Court in a judicial review matter must be in accordance with Form 15.  In this instance, there is no dispute that Mr Rai’s Motion filed on 10 January 2020 and set out at pp. 3 to 7 of the objection book (OB) conforms as to format with Form 15 SCR. 

6.	Mr Imbuni’s Objection filed on 28 May 2020 and set out at pp. 507 to 510 OB expressly states that it is made “pursuant to Order 7 Rule 15 of the Supreme Court Rules 2012”.

7.	Objections to competency of ordinary civil appeals to the Supreme Court are dealt with in Division 5 of Order 7 SCR.  Division 5 of O.7 comprises rules 15 to 19. Order 7 r.15 SCR provides:

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.

8.	Order 11 r.28 SCR allows the practice of objections to competency of ordinary appeals found in O.7 r.15 SCR to be applied to other originating processes instituted in the Supreme Court such as Order 10 appeals from decisions in judicial review proceedings instituted under O.16 of the National Court Rules (NCR). Order 11 r.28 SCR provides:

Division 14 – Other Rules of General Application
28.	The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:
(a)	Order 7 Division 5 (objection to competency of appeal);
(b)	Order 7 Division 19 (time and want of prosecution).
[underlining added]

9.	It is submitted for Mr Rai that because his Motion by way of appeal arises from judicial review proceedings, Mr Imbuni’s Objection to that Motion should have cited O.11 r.28 SCR, not O.7 r.15 SCR, as the source of the Supreme Court’s jurisdiction to entertain Mr Rai’s objection and that therefore Mr Imbuni’s Objection is incompetent and should be dismissed for that reason alone.  

10.	We disagree. Order 11 r.28 became operative when the SCR came into force on 19 December 2012.  The previous Supreme Court Rules 1984 (consolidated to 2011) contained no specific provision which allowed for an objection to competency as of right to be filed in respect of a notice of motion by way of appeal in judicial review proceedings instituted under O.16 of the National Court Rules.  This anomaly came to light in Mondiai v Wawoi Guavi Timber Co. Ltd (2007) SC886 (Kapi CJ, Davani & Lay JJ) where the Supreme Court held that no such objections to competency could be filed. That decision was followed by the Supreme Court in Madang Timbers Ltd v Kambori (2009) SC992 (Davani, Cannings, Kariko JJ), a case decided before the latest SCR came into force in 2012, which held that a respondent who was objecting to an Order 10 appeal under the Supreme Court Rules 1984 could apply to the Supreme Court for directions under s.185 of the Constitution or apply to the Supreme Court or a single judge of the Supreme Court under (then) O.11 r.9 for leave to file an objection to competency.  See also Hegele v Kila (2011) SC1124 (Cannings, David, Sawong, JJ) which approved the guidance on this issue given in Madang Timbers Ltd v Kambori.   

11.	This procedural anomaly was rectified when the SCR came into operation on 19 December 2012.  The SCR of 2012 repealed and replaced the former Supreme Court Rules 1984.   

12.	In Neville v National Executive Council of Papua New Guinea (2015) SC1431 (Gavara-Nanu, David & Murray, JJ), the Supreme Court, when considering an objection to the competency of a motion which had instituted an Order 10 appeal in a judicial review proceeding, said this at [18]:

Under the new SCR, a respondent to an appeal filed under Order 10 can now file a notice of objection to competency of such an appeal under Order 11 Rule 28 of the SCR.

13.	It is clear from our reading of the Supreme Court’s decision in Neville that substitution of the word “motion” for the word “appeal” where it appeared in the respondent’s notice of objection in reliance on O.11 r.28 SCR of 2012 in that case meant that the respondent’s notice of objection was competent as to form.  We adopt the same reasoning here. Mr Imbuni’s Objection is compliant with Form 9 for a notice of objection prescribed by O.7 r.15(a) SCR where the subject of the appeal is an Order 10 appeal from judicial review proceedings in the National Court.  

14.	Order 11 r.28(a) SCR is an auxiliary provision introduced into the SCR of 2012 which allows objections to competency of notices of motion by way of appeal in judicial review and certain other proceedings to be filed and pursued in the Supreme Court. By citing its jurisdictional basis as O.7 r 15 SCR, as permitted by O.11 r.28 by substituting the word “motion” for the word “appeal”, Mr Imbuni’s Objection in Form 9 is in conformity with the relevant provisions of the SCR and is therefore competent. 

15.	We mention in passing that Mr Rai’s counsel referred us to National Superannuation Fund Ltd v Yawenaik Holdings Ltd (2018) SC1709 (Hartshorn, Higgins & Frank, JJ) which appears to run counter to our finding that Mr Imbuni’s Objection is competent.  In National Superannuation Fund Ltd their Honours said at [6] and [7]:

6.	The Objection to competency of the 10th respondent cites Order 7 Rule 15 Supreme Court Rules.  It has been held however that this Rule does not have any application to an appeal by Motion under Order 10 Supreme Court Rules as in this case: Mondiai v Wawoi Guavi Timber (2007) SC 886; Barava Ltd v Giregire Estates Ltd (2008) SC858; Madang Timbers Ltd v Kambori (2009) SC992.  The correct rule is Order 11 Rule 28 Supreme Court Rules: Pacific Equities & Investments Ltd v Goledu (2009) SC862; Nandali v Curtain Bros Ltd (2012) SC1483 and Papua New Guinea Law Society v Cooper (2016) SC1553.
7.	As the objections 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.

16.	We are unsure as to why their Honours’ referred to O.11 r.28 SCR in National Superannuation Fund as being the correct rule for invoking the jurisdiction of the Supreme Court when objection to competency of an appeal in judicial review proceedings by way of notice of motion is made.  We say this because with the exception of Papua New Guinea Law Society v Cooper, a case which was decided in 2016 after the SCR of 2012 came into operation, all of the other cases referred to by their Honours in the above extract related to issues in connection with objections to competency made under the Supreme Court Rules 1984 at a time when O.11 r.28 of the SCR of 2012 was non-existent.  

17.	As for Papua New Guinea Law Society v Cooper, we consider it misleading to suggest that that case is authority for the proposition that O.11 r.28 SCR is the correct provision to cite in an objection to competency so as to invoke the jurisdiction of the Supreme Court to deal with an objection to a notice of motion by way of appeal in judicial review proceedings.  That case makes no reference at all to O.11 r.28 SCR as being the correct jurisdictional basis for making such an objection. What was said by the Supreme Court in that case at [11] was this:

11.	… The Court’s jurisdiction is not pleaded in the Objection to competency: See Nandali v Curtain Brothers Ltd (2011) SCA 14. This is a fatal error.

The case simply illustrates the principle that a notice of objection to competency of an appeal must itself be competent. The notice of objection must plead the appropriate provision and comply with the SCR to be valid.   We have found that the appropriate provision in this instance is O.7 r.15 SCR, not O.11 r.28. 

18.	For these reasons, the first ground of Mr Rai’s challenge to Mr Imbuni’s Objection is dismissed.

19.	As to Mr Rai’s second challenge, it was submitted that Mr Imbuni’s Objection was premature and therefore defective because it was filed and served on Mr Rai’s lawyers before Mr Rai’s Motion by way of appeal was filed and served on Mr Imbuni’s lawyers.  

20.	Mr Rai’s counsel points out that Mr Imbuni’s Objection was filed on 28 May 2020.  This was two days before formal service of Mr Rai’s Motion was effected on the office of Mr Imbuni’s lawyers on 1 June 2020.  It is clear that Mr Imbuni’s lawyers became well aware of Mr Rai’s appeal by Motion some time after the Motion was filed on 10 January 2020 but before it was formally served on Mr Imbuni or on their office.  It was argued for Mr Rai that the premature filing of Mr Imbuni’s Objection on 28 May 2020 offended the requirement in O.7 r.15 SCR that an objection to competency of an appeal must be served on the appellant “within 14 days after service on him of the notice of appeal”.  It was said that Mr Imbuni’s lawyers should have filed a notice of appearance in this appeal and then waited until formal service of Mr Rai’s Motion had been effected, following which it was submitted Mr Imbuni’s lawyers should then have filed and served Mr Imbuni’s Objection within the 14-day time limit allowed by O.7 r.15.

21.	Counsel for Mr Rai relies on several cases in support of the proposition that an objection to competency filed outside of the required 14 days for filing and service is incompetent and should be dismissed.  Cases cited for Mr Imbuni include Manda v Yatala Ltd (2005) SC795 and Kalinoe v Paraka (2007) SC874.
  
22.	In Manda, the Supreme Court (Injia DCJ, Hinchliffe, Mogish, JJ) in 2005, when considering the issue as to whether the Supreme Court has a discretion to allow a respondent to file a notice of objection to competency of an appeal outside the 14-day time limit required by O.7 r.14 Supreme Court Rules 1984 (the former equivalent of O.7 r.15 SCR) said this at page 5: 

The terms of Rule 14 … are explicit and couched in mandatory terms by virtue of the word “shall”.  In our view there cannot be any room for ambiguity.  Any objections to the competency of an appeal “shall” be filed “within 14 days immediately after service upon him of the Notice of Appeal”. There is no discretion in the Supreme Court to extend the fourteen days period.
…
In the present appeal, the respondents filed their objection one year and six months after being served with the copy of the Notice of Appeal.  Clearly they have breached the mandatory requirements of O 7 r 14 of the Supreme Court Rules.  They cannot as a matter of right raise the question of objection now.

23.	Against this strict approach are the decisions of the Supreme Court in Mountain Catering Ltd v Punangi (2013) SC1225 (Davani, Makail, Kassman, JJ) and Kuk v O’Neill (2014) SC1331 (Batari, Davani, Manuhu, JJ) which favour a more discretionary approach to O.7 r.15 SCR. 

24.	In Mountain Catering Ltd, the Supreme Court held that although the respondents  had belatedly filed and served their objection to competency outside the 14-day time limit under the former O.7 r.14, the Court nevertheless had a discretion in that instance to hear a late-filed objection to competency because the appellant had not established that it was prejudiced as the grounds of the respondents’ objection had already been argued but dismissed at National Court level. The Supreme Court said at [7]:

Where a respondent seeks to dismiss an appeal for being incompetent, O 7 r 14 of the Supreme Court Rules requires the respondent to file an Objection to Competency within 14 days after service of the appeal.  In this case, there is no dispute that that the respondents did not file and serve an Objection to Competency within 14 days of service of the appeal.  However, it is the position at law that in the exercise of its discretion, a Court can hear an objection that is raised after the expiration of the 14 days period:  Sir Arnold Amet v Peter Charles Yama (2010) SC1064.

25.	This more liberal approach was approved and repeated in Kuk where this Court observed at [8]:

In this case, there is no dispute that the respondent did not file and serve the Objection to Competency within 14 days after service upon his lawyers of the Notice of Appeal.  However, the position at law is that in the exercise of its discretion, a Court can hear an objection that is raised after the expiration of the 14 days period (see Sir Arnold Amet v Peter Charles Yama [supra]; Mountain Catering Ltd v Frederick Punangi [supra]. This inherent power of the Court carries with it the onerous responsibility to safeguard its processes and procedures against abuse.  The issue of competence has to do with legal and jurisdictional aspect of the court process. Salika DCJ, Batari and Davani JJ in Sir Arnold Amet (supra) held that more often than not, this concerns the validity of very proceedings before the Court, therefore allowing for an aggrieved party to raise it any stage of the proceedings.  But it must be a proper exercise of discretion relying on evidence before the Court, to demonstrate that there are indeed good and sound grounds warranting the hearing of the objection.

26.	In the more recent case of Sarea v Moutu (2019) SC1893 (Cannings, Hartshorn, Yagi, JJ), the Supreme Court expressly approved the liberal approach to the interpretation and application of O.7 r.15 SCR taken in Amet, Mountain Catering Ltd and Kuk as well as in the similar case of Nominees Niugini Ltd v Independent Public Business Corporation (2017) SC1646 where the same issue of non-compliance with the filing and service period of 14 days had been raised.  

27.	In Sarea, the Court made a finding that notices of objection to competency filed in that appeal were non-compliant with O.7 r.15 SCR because they were served almost 5 months late and they lacked an address for service as required by Form 17.  Notwithstanding that finding, the Court went on to hold at [10]:

Though the respondents have no right to have their objections heard, the Court still has discretion to entertain the objections.  The Court can also of its own volition at any time raise any issue as jurisdiction of the Court, including competency of an appeal. 
…
We have decided to exercise that discretion here, despite leave to argue the objections not being sought, as the notices of objection have raised arguable grounds and the appellants have been put on notice of the grounds of objections.  The objections will be heard and determined on their merits.

28.	In the present appeal, we note that Mr Rai seeks to have quashed the orders of the primary judge which set aside registration of Mr Rai’s title to the property and for the whole of the judicial review proceedings in the National Court in OS (JR) 658 of 2015 to be dismissed for abuse of process.  Mr Rai’s appeal is based on 4 grounds which question whether the primary judge erred in law by delving into allegations of fraud in the Registrar of Titles’ registration of the transfer of the subject property to Mr Rai.  The grounds of appeal also plead to the effect that Mr Imbuni’s application for judicial review in the National Court was not the proper procedure for obtaining the relief sought and that Mr Imbuni should instead have commenced his claim against Mr Rai and the Registrar of Titles to reverse registration of title to the subject property by way of writ of summons/statement of claim and not by way of judicial review.  

29.	The grounds for Mr Imbuni’s Objection in response to Mr Rai’s Motion by way of appeal are extensive.  Mr Imbuni relies on 7 grounds of objection, including the failure of Mr Rai’s Motion to have had annexed to it a certified copy of the National Court order in breach of the mandatory requirements of O.10 r3(b)(ii) and (c) SCR and Form 15; failure to have particularised the grounds of appeal relied on by Mr Rai to demonstrate that the decision of the primary judge was against the weight of evidence and the specific reason why that decision was wrong in law in breach of the requirements of O.7 r.9(c) and r.10 and O.10 r 3(a) SCR; and for delay in service of Mr Rai’s Motion in breach of O.7 r.13(a) and (b) SCR.  These are substantial grounds of objection. We consider that all of those grounds of objection warrant consideration by this Court.  

30.	Moreover, we observe that the decisions in Kalinoe and Manda related to circumstances where respondents had filed notices of objection to competency well after the 14-day period for filing and service had expired.  Those decisions did not address the situation we have here, which is the filing and service of an Objection to a Motion which had been filed but which was still pending formal service. As it transpired, formal service of Mr Rai’s Motion by way of appeal took place two days after the Objection was filed and served. Mr Rai has not demonstrated by affidavit evidence to our satisfaction how his appeal rights have been in any way prejudiced if Mr Imbuni’s objection were to proceed.  
  
31.	We accordingly adopt the more liberal approach to the application of O.7 r.15 SCR taken by the Supreme Court in Amet, Mountain Catering Ltd, Kuk, Nominees Niugini Ltd and Sarea and exercise this Court’s inherent jurisdiction to dismiss Mr Rai’s second challenge to Mr Imbuni’s Objection.   

32.	In short, we find that Mr Rai’s preliminary challenges to Mr Imbuni’s Objection are without merit.  Mr Imbuni’s Objection is properly before this Court. 

OBJECTION TO COMPETENCY OF APPEAL
Grounds of Objection

33.	There are 7 grounds which form the basis of Mr Imbuni’s Objection to Mr Rai’s Motion.  We set out the text of those 7 grounds in full:

1.	The Motion does not comply with the mandatory requirements of O.10 r.3(b)(ii) and (c) and Form 15 of the SCR in that it does not annex a certified copy of the Court order made on 3 December 2019 in National Court proceeding OS(JR) No. 658 of 2015.
2.	Paragraph 1 of the Motion does not comply with O.7 r.9(a) and O.10 r.3(a) of the SCR in that it does not state whether the appeal lies without leave or that leave has been granted, it makes submissions on the law, is incomprehensible and vague and therefore incompetent.
3.	Paragraph 2(a) of the Motion fails to comply with the mandatory requirements of O.7 r.9(c) and 10 and O.10 r.3(a) of the SCR in that the ground makes no grammatical or legal sense and is incomprehensible; it does not plead with particulars the specific grounds relied on to demonstrate that the judgment was against the evidence or weight of evidence and the specific reason why it is wrong in law, and does not state what decision the trial judge ought to have made; and it merely makes submissions suggesting an alternative course that Mr Imbuni could have taken but did not.
4.	Paragraph 2(b) of the Motion fails to comply with the mandatory requirements of O.7 r.9(c) and 10 and O.10 r.3(a) of the SCR in that it makes no grammatical or legal sense and is incomprehensible, are submissions, and does not particularise the grounds relied on to demonstrate that the judgment was against the evidence or weight of evidence and the specific reason why it is wrong in law, and does not state what decision the trial judge ought to have made.
5.	Paragraph 2(c) of the Motion fails to comply with the mandatory requirements of O.7 r.9(c) and 10 and O.10 r.3(a) of the SCR in that it makes submissions and does not particularise the grounds relied on to demonstrate that the judgment was against the evidence or weight of evidence and the specific reason why it is wrong in law, and does not state what decision the trial judge ought to have made; and the submissions that Koitachi Ltd v Zhang and Ors (2007) PGS11 was not an appropriate case authority to be relied on by Mr Imbuni was not raised in the National Court and is incompetent.
6.	Paragraph 2(d) of the Motion fails to comply with the mandatory requirements of O.7 r.9(c) and 10 and O.10 r.3(a) of the SCR in that it only alleges that the judgment is wrong in law and does not particularise the grounds relied on to demonstrate that the judgment was against the evidence or weight of evidence and the specific reason why it is wrong in law, and does not state what decision the trial judge ought to have made.
7.	For want of prosecution pursuant to O.7 r.48(a) and O.10 r.4(a) of the SCR, due to Mr Rai’s failure to serve the Motion on Mr Imbuni after filing on 10 January 2020 without delay as required under O.7 r.13(a) and (b) of the SCR.

Consideration
Ground 1 of Objection to Competency

34.	Order 10 SCR deals with the procedure for appeals to the Supreme Court from orders made by the National Court in its judicial review jurisdiction (Order 16 NCR) and in the more rare circumstances when the National Court deals with writs of habeas corpus  (Order 17 NCR).  All such appeals must be instituted by Motion (O.10 r.1(a) SCR), not by notice of appeal.

35.	Order 10 r.3 SCR sets out the mandatory requirements relating to a notice of motion by way of appeal from orders made by the National Court under Orders 16 and 17 NCR.  Those requirements are as follows:

3.	The notice of motion shall –
(a)	show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 9; and
(b)	have annexed –
	(i)	copies of all documents which were before the Judge of the National Court appealed from; and
	(ii)	a copy of the order made, certified by the Judge’s Associate or the Registrar; and
(c)	be in accordance with Form 15; and
(d)	be signed by the appellant or his lawyer; and
(e)	be filed in the Registry. [underlining added]

36.	It is indicated at item 4(b) at line 29 on page 3 of Mr Rai’s Motion that a certified copy of the order of the primary judge which is the subject of this appeal is annexed to the Motion (page 6 Tab 2, Vol. 1, OB).

37.	However, counsel for Mr Rai concedes that a certified copy of the Court order made by the primary judge on 3 December 2019 in OS (JR) No. 657 of 2015 was not annexed to Mr Rai’s Motion filed on 10 January 2020.  What was annexed to Mr Rai’s Motion instead of a certified copy of the order made by the primary judge was the last page of the primary judge’s reasons for decision, which contains the terms of the order.   That last page is reproduced at page 505, Tab 4, Vol. 2, OB.  

38.	Counsel for Mr Rai submitted that the purpose for annexing a certified copy of the primary judge’s order to a notice of motion by way of appeal, as required by O.10 r.3(b)(ii) SCR, is so that the Court can be informed of the terms of the order appealed against. We were urged by counsel for Mr Rai to give a liberal or purposive interpretation to O.10 r.3(b)(ii) SCR as opposed to a literal or strict interpretation so as to find that annexing the last page of the primary judge’s judgment to the Motion was in this instance sufficient compliance with what is otherwise a mandatory requirement for a certified copy of the primary judge’s order to be annexed. 

39.	Against this, counsel for Mr Imbuni referred us to two case authorities which are diametrically opposed to the proposition that this Court can allow any deviation from a strict interpretation of the wording of O.10 r.3(b)(ii) SCR.

40.	In National Capital Limited v Bakani (2014) SC1392 the Supreme Court (Injia CJ, Gavara-Nanu, Kawi, JJ) held at [25] that annexing the judgment of the trial court to the notice of motion by way of appeal in lieu of a certified copy of the order appealed against was a serious breach of O.10 r.3(b)(ii) SCR such that the appeal in that case was incompetent and was dismissed on that ground alone. Their Honours said:
25.	Applying the principles enunciated in Haiveta v Wingti (No. 2) and Dr Arnold Kukari v Honourable Don Pomb Polye to this case, we find that the failure by the appellant to annex a duly certified copy of the order made by the trial court to the notice of motion as required by Order 10 r 3(b)(ii) is indeed fatal to the appeal.  The requirement under r 3(b)(ii) is that a duly certified copy of the order of the trial court must be annexed to the notice of motion before the notice of motion is filed in order for such appeal to be valid and competent.  Therefore, the annexation of the judgment of the trial court to the notice of motion, and the subsequent signing and entry of the orders contained in that judgment after the notice of motion had been filed, was in serious breach of r 3(b)(ii) effectively rendering the appeal invalid and incompetent. 

41.	This strict approach to the interpretation and application of O.10 r.3(b)(ii) SCR was unconditionally endorsed by the Supreme Court in Sarea.  When dismissing an appeal for non-compliance with r.3(b)(ii), the Supreme Court (Cannings, Hartshorn, Yagi, JJ) stated at [15]:

15.	We uphold [objection] ground (2) as the notices of motion clearly failed to annex a copy of the National Court certified by the Judge’s Associate or the Registrar. This is an essential requirement.  It is not complied with by annexing a copy of the judgment of the National Court (which is what happened here). Failure to comply with it cannot be remedied by filing a certified copy of the order after filing the notice of motion (which is what happened here).  Substantial compliance with the requirement is not sufficient.  The Supreme Court has taken a strict approach to Order 10 Rule 3(b)(ii), exemplified by cases such as National Capital Limited v Bakani (2014) SC 1392, Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642. Though there have been cases in which the issue has arisen whether the National Court order has been “certified” as required (see eg. Madang Timbers Ltd v Kambori (2009) SC992 and GR Logging Ltd v Dotoana (2018) SC1690), if there is nothing that can be regarded as a certified copy of the order annexed to the notice of motion, the notice of motion is materially defective and the appeal is rendered incompetent.  We find that to be the case here.

42.	We observe in the present case that Mr Rai’s lawyer and counsel, Mr Peter Balos, states at [8] of his affidavit filed on 24 June 2020 (page 573, Tab 11, Vol. 2, OB) that:
8.	On 12 December 2019 I finalized the Notice of Motion with its supporting Affidavit.  However we delayed the filing and waited lest any of the lawyers on record might lodge a draft Order with the Registry to be sealed and filed.

43.	We agree with counsel for Mr Imbuni that the onus is on an appellant to prepare his or her own appeal.  It is not for the respondent or any other party to prepare documents needed by an appellant which are mandatorily required by O.10 r.3 SCR for inclusion in the appeal documentation.  

44.	We accept that Mr Rai’s lawyer, Mr Balos, had difficulty in obtaining a certified copy of the primary judge’s National Court order of 3 December 2019, but the option was still available for Mr Balos to have applied to a single Judge of the Supreme Court under s.5(1)(a) of the Supreme Court Act for directions to aid him to obtain a certified copy of the order.  He did not do so but instead annexed to Mr Rai’s Motion a copy of the last page of the judgment of the primary judge in the expectation that this would satisfy the requirement of O.10 r.3(b)(ii).  This in our opinion was a fatal mistake which by itself has rendered this appeal incompetent and liable, on the case authorities we have cited, to dismissal on this ground of objection alone.  

Ground 2 of the Objection to Competency

45.	Ground 2 of the Objection to competency of the appeal has pleaded that paragraph 1 of Mr Rai’s Motion does not comply with O.7 r.9(a) and O.10 r.3(a) SCR because it did not state whether the appeal lies without leave or that leave has been granted, that it makes submissions on the law, is incomprehensible and vague and that therefore paragraph 1 is incompetent.  

46.	Counsel for Mr Rai submitted that this ground of objection is misconceived because this appeal was correctly instituted under O.10 SCR by Form 15 for appeals from the National Court in judicial review proceedings, not by Form 8 as would otherwise have been required by O.7 r.9(e) if this was an ordinary appeal.  

47.	Order 7 r.9 SCR sets out the various mandatory requirements for matters which must be contained in an ordinary notice of appeal: 

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.

48.	In contrast, Form 15, which is the correct form prescribed by O.10 r.3(c) to use for appeals in judicial review proceedings, does not require the notice of motion instituting the appeal to state whether the appeal lies without leave or that leave has been granted. 

49.	The only reference in O.10 SCR to leave to appeal is O.10 r.1(2) which provides;

1(2)	Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply.

50.	Order 7 Division 2 SCR comprises two rules, rules 5 and 6, which relate to the filing and service of notice of applications for leave to appeal. However the requirement in Form 8 for stating in ordinary appeals whether the appeal lies with or without leave is not imported by any of the rules in Order 7 SCR into the Form 15 prescribed by O.10 r.3(c) for appeals in judicial review proceedings.
 
51.	Counsel for Mr Rai referred us to the decision in Idumava Investments Ltd v National Fisheries Authority (2013) SC1273 where the Supreme Court (Injia CJ, Gabi, Sawong, JJ) dismissed an appeal on application by the respondent because the notice of motion by way of appeal in that case did not state whether the appeal lay with or without leave, nor did it state whether it was the whole or only part of the judgment that was being appealed from, and a certified copy of the National Court order had not been annexed to the Motion or affidavit in support of the appeal. 
 
52.	However we observe that no reasons were advanced by the Court in the decision in Idumava Investments Ltd as to why the absence of any statement in the notice of motion as to whether the appeal lay with or without leave meant that the notice of motion was thereby non-compliant with the requirements of O.10 r.3 or Form 15 and therefore incompetent. The Court was more concerned with other aspects of non-compliance of the notice of motion with the mandatory requirements of O.10 r.3 when ruling that the appeal should be dismissed.

53.	We note that counsel for Mr Imbuni did not dwell on ground 2 of the Objection in his written submissions.  He mentioned ground 2 in his oral submissions but he did not advance any argument to support ground 2.  

54.	We accordingly agree with counsel for Mr Rai that ground 2 of the Objection was misconceived on present procedural law, given the apparent differences in the SCR between those provisions in O.10 and O.7 which relate to leave to appeal and the difference in the matters prescribed for inclusion in Form 15 as opposed to those required to be set out in Form 8.  If there is any substance in procedural law to the proposition that a notice of motion in Form 15 must contain a statement that the appeal lies without leave or that leave has been granted, this is an issue that can be properly argued with full submissions before this Court on another occasion.  For present purposes we uphold Mr Rai’s challenge to ground 2 of the Objection.  Ground 2 of the Objection fails.

Grounds 3 to 6 of the Objection

55.	Grounds 3 to 6 of the Objection allege that grounds of appeal 2(a), (b), (c) and (d) pleaded in the Motion do not comply with O.7 r.9(c) and r.10 and O.10 r.3(a) SCR because those grounds of appeal:

•	make no grammatical or legal sense and are incomprehensible
•	fail to particularise the specific grounds of appeal to demonstrate that the judgment appealed against was against the evidence or the weight of evidence 
•	fail to demonstrate the specific reason why the judgment appealed against was wrong in law
•	are in the form of submissions or arguments 
•	are not proper grounds of appeal within the meaning of O.7 r.9(c) and r.10 and O.10 r.3(a) SCR.

56.	Order 10 r.3(a) SCR provides:

3.	The notice of motion shall –
(a)	show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 9; …

57.	Order 7 r.9(c) SCR is in mandatory terms and requires that a notice of appeal shall “state briefly but specifically the grounds relied upon in support of the appeal”.
58.	Order 7 r.10 SCR amplifies what is required by O.7 r.9(c) when pleading grounds of appeal in a notice of appeal by providing as follows: 
 
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.

59.	Order 10 r.3(a) SCR requires the same degree of particularity when pleading grounds of appeal in a notice of motion in judicial review proceedings as is required by O.7 r.9 SCR, augmented by O.7 r.10, in ordinary appeals. The Courts have therefore taken a strict approach to the interpretation and application of these rules to Order 10 appeals.

60.	In Bakani v Daipo (2002) SC699 (Kapi DCJ, Injia, Davani, JJ) the Supreme Court said this on page 9:

Unlike ordinary appeals, an appeal under Order 10 is a special category of appeal.  It is an appeal from a decision of the National Court under the review jurisdiction in Order 16 of the National Court Rules.  This review jurisdiction of the National Court is available to a person aggrieved by the decision of statutory administrative or quasi-judicial tribunals.  The enabling statutes often contain provisions pronouncing the finality of the decision and preclude appeals.  Therefore, the procedural requirements for invoking the review jurisdiction are stringent. The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted.  Likewise, the procedural requirements of Order 10, in particular Order 10 r 3 are also restrictive and onerous.  They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant. 

61.	In Pacific Equities & Investments Ltd v Goledu (2009) SC962 (Davani, Cannings, Manuhu, JJ) the Supreme Court, when referring to those provisions which were equivalent to Order 7 Rules 9(c) and 10 in the earlier Supreme Court Rules 1984, observed at [18]:

	18.	If the notice of appeal fails to meet those requirements, the Supreme Court has discretion to strike out the offending ground(s) of appeal.  Examples of cases where it did that are Haiveta v Wingti (No. 2) [1994] 189, Henao v Coyle (2000) SC655 and NCD Water and Sewerage Ltd v Tasion (2002) SC696.  Alternatively, the Court could dismiss the entire appeal as incompetent.  If, for example, all of the grounds set out in a notice of appeal were defective in that they failed to comply with the requirements of Order 7, Rules 8(c) and 9, the natural conclusion to draw would be that the appeal is incompetent.

62.	The Supreme Court in Lama v NDB Investments Limited (2015) SC1423 (Cannings, Collier, Geita, JJ), said at [19] in connection with Order 7 r.9(c) and 10 SCR of 2012, the equivalent of O.7 r.8(c) and r.9 in the Supreme Court Rules 1984:

	19.	The Supreme Court explained in Haiveta v Wingti (No. 2) [1994] PNGLR 189 that these requirements exist for two reasons:
•	the respondent must be informed of the basis of the appeal so they can prepare their arguments; and
•	the court must be informed of the issues to be determined.

63.	 In Lama, the Supreme Court also cited Ipili Porgera Investment Limited v Bank of South Pacific Limited (2007) SC1322 (Injia DCJ, Cannings J) and observed at [20] that any ground of appeal must make grammatical and legal sense and be intelligible.  If the ground does not meet that requirement it will be incompetent. 

64.	In the present case counsel for Mr Imbuni submits that ground 2(a) of the Motion is in the form of an argument or a statement and is not a proper ground of appeal  Ground 2(a) does not state briefly and specifically what error of law the primary judge is alleged to have committed “in failing to review the procedure or process followed by the Registrar to transfer of the ownership of the property known as Section 20 Allotment 14 contained in State Lease Volume 5 Folio 171 from Philip Imbuni to Sawan Rai on 14 May 2013 and instead delved into allegations of fraud raised against the Appellant being a non-government body when such allegations of fraud raised against the Appellant should have been properly pleaded with clear and sufficient particulars and prosecuted by a Writ of Summons and a Statement of Claim as enumerated in Open Bay Timber Ltd v Dekena [2013] PNGNC 81; N5109”.

65.	We agree with counsel for Mr Imbuni that ground 2(a) of the Motion does not state what those allegations of fraud were that the primary judge dealt with, how serious the allegations of fraud were and the specific error that the primary judge was alleged to have committed when dealing with those allegations of fraud.

66.	Ground 2(b) of the Motion is similarly lengthy. It is pleaded in these terms:

	2(b)		The National Court erred in law by holding the view that the Respondent can seek relief by way of certiorari to quash a decision made by a government body being the Registrar of Titles, based on fraud by the Appellant (registered proprietor) being a non-government body when allegations of fraud against the Appellant are not referable to public law principles and are outside of the scope of review by the National Court exercising its supervisory jurisdiction which is only limited to review the activities of a public body or decision-making process and/or procedure of an inferior decision-making authority.

67.	We observe that ground 2(b) of the Motion is in the form of an argument or a statement.  It does not meet the requirements of a proper ground of appeal prescribed by O.7 r.9(c) and r.10 SCR.  The statement is longwinded and when read in its entirety does not make grammatical sense.  Ground 2(b) does not challenge the primary judge’s finding of fraud against him and his accomplices, Yauwan Tagon and William Puio.
  
68.	We find that ground 2(b) of the Motion is defectively pleaded as it in effect asks the Court to ignore the primary judge’s findings of fraud against Mr Rai in the National Court, which were comprehensive, and instead makes general submissions on the law which are in themselves misconceived.  

69.	We make similar findings in respect of grounds 2(c) and 2(d) of the Motion.  Both of these grounds are in the form of statements or arguments. 

70.	Ground 2(c) of the Motion alleges that the primary judge “erred in law by placing reliance on Koitachi Ltd v Zhang [2007] PGSC11 in support of the view that the Respondent can seek relief by way of certiorari to quash a decision made by a government body being the Registrar of Titles, based on fraud by the Appellant being a non-government body”.   Ground 2(c) does not challenge the primary judge’s findings of fraud against him and his accomplices.  It lacks the particularity required by O.7 r.3(c) and r.10 SCR.

71.	Ground 2(d) of the Motion is vague and confusing. It reads:

	2(d)		The National Court erred in law by procedurally denying the Appellant’s right to defend (heard) with sufficient clarity and precision of issues of fraud raised against him.
This ground makes no attempt to demonstrate the error of law alleged to have been committed by the primary judge. It does not make grammatical or legal sense.

72.	We repeat that all four of these grounds of appeal, grounds 2(a), (b), (c) and (d) of the Motion, which are posed as statements or arguments, do not specify with the required degree of clarity and particularity how the errors in law alleged against the primary judge are said to be against the evidence and the weight of evidence. This defect in pleading is in breach of O.7 r.9(c) and r.10 SCR.  All of these four grounds are incompetent and must fail.

Ground 7 of the Objection

73.	Ground 7 of Mr Imbuni’s Objection asserts to the effect that Mr Rai’s Motion by way of appeal is incompetent for failure to have served the Motion without delay after filing on 10 January 2020 in breach of O.7 r.13(a) and (b) SCR.  Mr Imbuni seeks to have the appeal dismissed for want of prosecution on this ground.

74.	We reject the proposition that want of prosecution is a valid ground for challenging the competency of an Order 10 appeal. A proper ground of objection to competency is one that goes to the Court’s jurisdiction: Wahgi Savings and Loans Society Ltd v Bank of South Pacific Ltd (1980) SC 185; Hegele v Kila (supra); SC1124. Turia v Nelson (2008) SC949.  

75.	In PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717, Sakora J at page 6 held that an objection to competency must raise serious threshold issues concerning legality or viability or otherwise of a particular process.
   
76.	Want of prosecution does not question the jurisdiction of this Court to entertain an appeal. An application to dismiss an appeal for want of prosecution should be made pursuant to the separate procedure provided for in O.11 r 28(b) and O.7 Division 19 SCR (time and want of prosecution).   We reject ground 7 of the Objection.

CONCLUSION

77.	For the reasons given we have refused ground 2 and ground 7 of the Objection. However, we uphold grounds 1, 3, 4, 5 and 6 of the Objection. We are unanimous in the view that the breaches of the SCR through the failure to have annexed a certified copy of the order appealed against to the Motion by way of appeal and the failure of each of grounds 2(a), (b), (c) and (d) of the Motion to have pleaded with the requisite degree of particularity the errors of law alleged to have been made by the primary judge are such that the Motion is incompetent.  These are serious breaches which have divested this Court of jurisdiction to entertain the appeal.  The result is that this proceeding must be dismissed in its entirety.  Costs will follow the event. 

ORDER 

(1)	The objection to competency of the appeal is upheld.
(2)	This proceeding is entirely dismissed.
(3)	The judgment and orders of Thompson J of 3 December 2019 in OS (JR) No. 658 of 2015 are affirmed.
(4) 	The Appellant shall pay the Respondent’s costs of and incidental to the Appeal on a party/party basis, such costs to be taxed if not agreed.
Judgment accordingly.
_______________________________________________________________
Korerua & Associates Lawyers: Lawyers for the Appellant
Ashurst PNG Lawyers: Lawyers for the Respondent