SC2636

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 67 OF 2021

BETWEEN:
HON TABOI AWI YOTO, MP in his Capacity as
the Chairman of the Fly River Provincial Executive Council
First Appellant

AND:
PROVINCIAL EXECUTIVE COUNCIL
of the Fly River Provincial Government
Second Appellant

AND:
ROBERT ALPHONSE KAIYUN
Third Appellant

AND:
AQUILA SAMPSON
First Respondent

AND:
NATIONAL EXECUTIVE COUNCIL
Second Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani:  Kangwia J, Polume-Kiele J & Wawun-Kuvi J
2024: 01st October

CIVIL JURISDICTION - Objection to competency of notice of motion instituting appeal. 

Cases Cited:
Gadiki v Lagea [2019] SC1876
State & Ors v Kalaut & Anor (2022) SC2246
Bakani v Doipo [2002] SC699
Sare v Moutu (2019) SC893
Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408
Nipo Investments Ltd v Nambawan Super Ltd (2017) SC1642
Hegele v Yawe & Ors; SCM 4 of 2019
Palaso v Elliot (2020) SC2020

Counsel:
P. Tamutai, for the First and Second Appellants
G. Kult, for the First Respondent
L. Kandi, for the Second and Third Respondents

01st October 2024

1.     BY THE COURT: This proceeding is an objection to competency of the Appellants notice of motion instituting the appeal pursuant to Order 11 Rule 28 (a) and Order 7 Rule 15 of the Supreme Court Rules. The Court below upheld the First Respondent’s application for judicial review of the decisions which revoked the purported appointment of the First Respondent as Administrator for Western Province and instead appointed the Fourth Appellant as Administrator. Aggrieved by the decision of the Court below the Appellants filed a notice of motion instituting the appeal. The notice of motion instituting the appeal is the subject of the objection to competency. 
2.     In support of the objection to competency after abandoning ground 4 of the objection it is submitted that the notice of motion does not comply with the mandatory requirements of Order 10 appeals and is incompetent. The cases of Gadiki v Lagea [2019] SC1876; State & Ors v Kalaut & Anor (2022) SC2246 and Bakani v Doipo [2002] SC699 are referred to as supporting the mandatory requirement of Order 10 appeals.  
3.     In respect of the remaining grounds of the objection, it is submitted that the notice of motion is incompetent for want of form, contravenes Order 10 Rule 3 of the Supreme Court Rules, falls outside of the requirements of s 14 (1) of the Supreme Court Act, and pleading facts without obtaining leave.  
4.     It is submitted that because of the mandatory requirement of Order 10 appeals, the noncompliance of the mandatory requirements renders an appeal incompetent and liable to dismissal. 
5.     In the present case the notice of motion instituting the appeal fails to satisfy the mandatory requirements and the appeal should be dismissed as incompetent.  They rely on the cases of Sare v Moutu (2019) SC893 and Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408; Nipo Investments Ltd v Nambawan Super Ltd (2017) SC1642; Hegele v Yawe & Ors; SCM 4 of 2019 and Palaso v Elliot (2020) SC2020 as supporting the requirement to comply with the respective mandatory requirements of Order 10 Rule 3. 
6.     On behalf of the respondents Ms. Tamutai in unison with Mr Kandi argue the contrary and submit that the appellants have satisfied all the necessary requirements in the notice of motion and the objections raised are incapable of rendering the appeal incompetent and should be dismissed with costs. 
7.     An objection to competency of an appeal as in the present case is concerned only with the competency of the appeal pursuant to Order 7 Rules 15 of the Supreme Court Rules which states as follows:
 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 of the notice of appeal or application for leave to appeal— (a) file an objection in accordance with Form 9; and
 
8.    As this provision does not provide any room for objection to competency on anything other than the competency of an appeal an objection to the competency of an appeal rides on the back of an appeal that has been filed. 
9.    In the present objection to competency, without reproducing the submissions in support of the objection and those in contention, it suffices to state here that in support of the objection to competency, forceful arguments have been presented on the compliance or otherwise of the mandatory requirements of Order 10 (3) of the Supreme Court Rules and s 14 of the Supreme Court Act. The submissions have been ably refuted in counter submissions as misconceived and baseless.
10.     Despite the forceful arguments on the mandatory requirements of the Rules we have not been led to how the rules are to be complied. However, Mr Kandi in his submission refers to s 27 (1) of the Interpretation Act as a possible guide on how rules can be complied with. In the absence of any provision in the Supreme Court Act and Rules on how rules can be complied with, we are inclined to be guided by what s 27 (1) of the Interpretation Act prescribes because the Interpretation Act recognises all Acts and Rules which include the Supreme Court Act and Supreme Court Rules as legislative enactments for interpretation purposes. 

11.     Section 27 (1) of the Interpretation Act is in the following terms:

27. Deviation from form.
(1) substantial compliance is sufficient.

12.     This provision in our respectful view provides the best guide on compliance of forms which is not available in the Supreme Courts Act and its Rules. Substantial compliance of form is sufficient in respect of complying with the mandatory prerequisite requirements of Order 10 (3) despite their mandatory nature. There can never be any conflict between the mandatory nature of the Rules and the requirement of s 27 (1) of the Interpretation Act if s 27 (1) is allowed to be relied on in objections to competency of an appeal.  This view is premised on the proposition that Rules are promulgated to give effect to what an Act prescribes hence a requirement in an Act prevails over a requirement in a Rule.    
13.     In the same vein when a requirement in Order 10 Rule 3 conflicts with s 27 (1) of the Interpretation Act, s 27 (1) of the Interpretation Act prevails because of the superior status the Act possesses.  
14.     The other advantages to be gained when s 27 (1) is allowed to prevail in objections to competency of appeals the flow on effect to prevent unnecessary objections to competency and allow room for the substantive appeal to progress to trial and be resolved.     
15.     Based on the foregoing, we are of the view that the present objection to competency is a relevant case to embrace s 27 (1) of the Interpretation Act as the appropriate guide in respect of compliance with the mandatory requirements of order 10 Rule (3). 
16.     With respect to the competing arguments on the mandatory requirements of Order 10 appeals our view is that the mandatory requirements only provide for what should be constituted in a notice of motion instituting the appeal. According to Order 7 Rule 15 an objection to competency can only be raised in an appeal, not the notice of motion instituting the appeal. It is an error of law and in abject breach of Order 7 Rule 15 to recognise and treat defects and shortfalls in a notice of motion instituting the appeal to vitiate the appeal when the enabling Rule does not provide for objection to competency of a notice of motion instituting the appeal. 
17.     An appeal is distinguishable with a notice of motion instituting the appeal. A notice of motion instituting the appeal is not the appeal but the process that facilitates an appeal.  Where any requirement of the notice of motion is not complied, it is amenable to amendment unlike a ground capable of rendering an appeal incompetent which is not amenable to amendment. 
18.    Therefore, noncompliance of a requirement in a notice of motion instituting the appeal would generally be incapable of rendering the appeal incompetent. 
19.    On the other hand, a ground capable of rendering an appeal incompetent in our view is where a ground sought to be relied on in the appeal is shown to have no merit. That is because an unmeritorious ground can never be cured by any amendment after it is filed.  
20.     On the same token where a person named in the appeal lacks standing or a non-existing entity is named as a party in the appeal, it would satisfy the requirement of an objection to competency of the appeal. This ground is also not amenable to an amendment after it is filed.
21.    The present objection to competency of the appeal does not fall into the category of the suggestions we pose. The allegations instead strongly support the incompetency of the notice of motion instituting the appeal. This in our respectful view is incapable of rendering the appeal incompetent.
22.     Despite that, the practice now and supported by numerous case law, is that the mandatory requirements in a notice of motion instituting the appeal have been erroneously shifted and made capable of rendering the appeal incompetent which in our respectful view is against the intent of Order 7 Rule 15. 
23.    Be that as it may, the submissions in favour of the objection to competency are centred on allegations of want of form, and noncompliance of requirements which in our view relate to defects and shortfalls in the notice of motion instituting the appeal and not the appeal that Order 7 Rule 15 prescribes to be the subject of the objection to competency.   
24.     On that basis alone our considered view is that the allegations supporting the objection to competency are farfetched and too remote from the appeal and incapable of rendering the appeal incompetent. There is also no evidence of noncompliance by the appellants of the mandatory requirements. There is however evidence of substantial compliance of the mandatory requirements which satisfies the prescription under s 27 (1) of the Interpretation Act that substantial compliance is sufficient.  
25.     Under the circumstances we refuse the objection to competency and dismiss it accordingly with costs to be met by the First Respondent. 
________________________________________________________________
Tamutai Lawyers: Lawyers for the First, Second & Third Appellants
Young and Williams Lawyers: Lawyers for the First Respondent		
M.S. Wagambie Lawyers: Lawyers for the Third & Fourth Respondents