SC2542

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO.5 OF 2020 (IECMS)

BETWEEN:
KINOKA FEO
Appellant

AND:
BENJAMIN SAMSON, REGISTRAR OF TITLES
First Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:
NANCY KALEBO
Third Respondent

AND
MAINO LUCAS
Fourth Respondent

Waigani:  David J, Geita J & Dowa J
2022:  16th December
2024:  14th February

OBJECTION TO COMPETENCY – objection made under Order 11 Rule 28 of the Supreme Court Rules 2012 – failure to comply with mandatory requirements – Order 7 Division 5 Supreme Court Rules 2012– want of compliance with time limitation to lodge appeal – s.17 Supreme Court Act – Order 10 Supreme Court Rules - whether non- compliance fatal to the competency of the appeal.

PRACTICE AND PROCEDURE – objection to competency of appeal – Order 10 rule 3 (b)(i) and (ii) Supreme Court Rules 2012 – compliance with Supreme Court Rules mandatory – rules not complied with – objection upheld – appeal dismissed.

PRACTICE AND PROCEDURE – mode of appeal – one cannot simply substitute mode of appeal under file prefix SCA to SCM for a lost remedy of appeal – both are mutually exclusive and not alternative or successive.

Cases Cited:

Bakani v Daipo (2001) SC659
Bakani v Daipo [2002] SC699
Geita v Samson [2019] SC1878
Haiveta v Wingti [1994] PNGLR 189
Kukari v Polye [2008] SC907
Turia v Nelson (2008) SC949
National Capital Ltd v Bakani [2014] SC1392
Neville v National Executive Council of Papua New Guinea [2015] SC1431
Nipo Investments   Limited v Nambawan Super Limited [2017] SC1642
Papua New Guinea Law Society v Cooper [2016] SC1553

Legislation: 

Supreme Court Act, Chapter No. 37
Land Registration Act, Chapter No.191 
Supreme Court Rules 2012

Counsel

Mr Johannis Poya, for the Appellant
Mr Anave Megaraka Ona, for the Fourth Respondent 

JUDGMENT

14th February 2024

1.	BY THE COURT:  INTRODUCTION:  Before the Court is an appeal against part of the judgment of the National Court of Justice (National Court) constituted by Makail J (the Primary Judge) delivered on 21 April 2020 namely, Terms 3 and 4 of the formal orders (the Formal Orders) made (the Primary Decision) in proceedings OS (JR) No.494 of 2018, Kinoka Feo v Benjamin Samson, The Independent State of Papua New Guinea, Nancy Kalebo and Lucas Maino (Judicial Review Proceedings) concerning a dispute about the title over a property described as Allotment 125 Section 51, Granville, National Capital District and contained in State Lease Volume 43 Folio 115 (the Property). 

BACKGROUND

2.	The National Housing Corporation (the NHC) was the original holder of the title over the Property.

3.	The Third Respondent’s late husband, Christopher Kalebo (Christopher) subsequently entered into a tenancy agreement with the NHC and rented the Property.  On 9 May 2007, the NHC offered to sell the Property to Christopher under their Cash Sale Scheme for K94,710.00 on the condition that he paid 10% deposit and associated costs and completed it before transferring the title to him.  On 22 May 2007, Christopher accepted the offer and paid K9,821.00 which covered the 10% deposit and associated costs.  Unfortunately, Christopher passed away on 15 December 2009 and the sale to him was not completed. 

4.	About five years later on 24 September 2014, the NHC offered to sell the Property to the Appellant for K336,875.00 on condition that he paid the deposit required and associated costs before completing the sale and transferring the title to him.  On 24 September 2014, the Appellant executed a contract for the sale of the Property to him with the NHC and the next day on 25 September 2014 paid the purchase of K336,875.00 in full.  

5.	In the meantime, the Third Respondent claiming an estate or interest in the Property lodged a caveat to forbid registration of instruments affecting that estate or interest in the Property.   The Managing Director for the NHC intervened and on 26 October 2016 made representations to the Secretary of the Department of Lands and Physical Planning in writing for the caveat to be lifted which was done and this then paved the way for the registration of instruments transferring the title to the Appellant which occurred on 6 April 2017.   As the Third Respondent and her family had failed to vacate the Property despite numerous requests to do so, the Appellant successfully instituted eviction proceedings in the District Court and on 9 November 2017 obtained an order to evict them. 

6.	On 7 April 2016, the NHC entered into another contract with the Third Respondent for the sale of the Property to her for K94,710.00.

7.	 The Third Respondent then commenced proceedings in the National Court against the Appellant, the First and Second Respondents and Oswald Tolopa, Secretary for the Department of Lands and Physical Planning in proceedings WS No.7 of 2018 (the Further National Court Proceedings) to set aside the Appellant’s title on the basis of fraud.  The status or outcome of the Further National Court Proceedings was not known at the time of making the Primary Decision.   

8.	While the Further National Court Proceedings were on foot, the Third Respondent made representations to the First Respondent to cancel the Appellant’s title to the Property on the basis of fraud. This resulted in the First Respondent issuing a summons in the form of a letter to the Appellant dated 5 March 2018 to deliver up his title within fourteen days pursuant to s.160(1) of the Land Registration Act, Chapter No.191. 

9.	Despite the belated service of the summons after the fourteen days period, the Appellant’s lawyers wrote to the First Respondent by letter of 28 March 2018 apprising him that; the Appellant obtained a valid title to the Property through a purchase of the Property facilitated by a contract of sale with the NHC; and that the Third Respondent had instituted the Further National Court Proceedings which was pending before the Court.   That letter was late as on 27 March 2018, the First Respondent had cancelled the Appellant’s title and registered the Third Respondent as the holder of the title. 

10.	Two days later on 29 March 2018, the Third Respondent sold the Property to the Fourth Respondent for K650,000.00 facilitated by a contract for sale of land and instrument of transfer dated 1 October 2017 respectively.   The purchase was financed by the Bank of South Pacific Limited secured by a registered mortgage over the title registered on 20 June 2018. 

11.	In the Judicial Review Proceedings, the Appellant relied on fraud to set aside the First Respondent’s decision to cancel his title and registration of the Third Respondent as the holder of the title.

12.	In the Primary Decision, the National Court through the Formal Orders; upheld the Judicial Review Proceedings in part, (Term 1); set aside the First Respondent’s decision of 27 March 2018 to cancel the Appellant’s title to the Property (Term 2); remitted the matter to the First Respondent to rehear the matter  according to law under Sections 160 and 161 of the Land Registration Act forthwith (Term 3); and that the Fourth Respondent remain the title holder of the Property until ordered otherwise: (Term 4).

13.	Ideally an appeal ought to have been filed within the time limitation prescribed by s.17 of the Supreme Court Act, Chapter No.37 and be in congruence with Order 10 of the Supreme Court Rules 2012 before the appeal could be properly grounded before the Court. 

14.	An appeal from orders made under Order 16 of the National Court Rules are required to be instituted by a notice of motion pursuant to Order 10 Rule 1 of the Supreme Court Rules.  The notice of motion must; have annexed copies of all documents which were before the Judge of the National Court whose decision is appealed and a copy of the order made, certified by the Judge’s Associate or the Registrar (Order 10 Rule 3(a) and (b); be in accordance with Form 15 (Order 10 Rule 3(c); be signed by the appellant or his lawyer (Order 10 Rule 3(d)); and be filed in the Registry (Order 10 Rule 3(e)).

15.	An appeal was instituted by way of a Notice of Appeal on 28 May 2022 and the appeal was registered as SCA No.31 of 2020 (IECMS) (590-591 OB).  This can be discerned from the letter from Poya Legal Services, Lawyers for the Appellant, to the Assistant Registrar, Supreme Court dated 26 June 2020 (593 OB), when the Assistant Registrar, Supreme Court was informed that a Theresa from the Supreme Court Registry had called Mr. Poya about the appeal who advised that the appeal should have been commenced by notice of motion and not by notice of appeal as it was an appeal from a decision of the National Court involving a judicial review matter.  A copy of the Notice of Appeal has not been produced in materials before the Court.

16.	Consequently, on 5 June 2020, the Appellant through Mr. Poya instituted the appeal under consideration which was registered as SCM No.05 of 2020 (IECMS) (595-596 OB).  The notice of motion purportedly annexed copies of all documents which were before the primary Judge.  A copy of the order made purportedly certified either by the primary Judge’s Associate or Registrar is found at p.462 OB and it is one of the grounds of the objection to competency of the appeal.

17.	Predicated on these two purported appeals, the Appellant has appealed the Primary Decision on two main grounds and these are:

1.	The Primary Judge erred in fact and in law by finding that no evidence of fraud was adduced at the hearing to meet the requirement under s.33 of the Land Registration Act when in fact the Appellant had adduced evidence of fraudulent dealings between the Third and Fourth Respondents.

2.	The Primary Judge erred in fact and in law when he ordered that the Property remain in the name of the Fourth Defendant notwithstanding the fact that he had found that the process to cancel the Appellant’s title was unlawful and in breach of the process for production of instruments wrongly issued and cancellation and correction of instruments and entries under ss.160 and 161 of the Land Registration Act.    

18.	The Fourth Respondent initially filed his notice of objection to competency on 5 August 2020 (518-520 OB).  On 13 November 2020, leave was granted for the Fourth Respondent to amend his notice of objection to competency filed on 5 August 2020 (618-619 OB).  On 20 November 2020, the Fourth Respondent filed his amended notice of objection to competency (the Amended Notice of Objection to Competency) (620-622 OB). 

OBJECTION

19.	The Amended Notice of Objection to Competency pleads the following grounds:
	
1.	The appeal is flawed and incompetent as it is in breach of the requirement under Order10 rule 3(b)(ii) of the Supreme Court Rules in that the Judge's Associate or the Registrar did not certify the annexed copy of the final court orders made on 21 April 2020. 

2.    	The appeal is flawed and defective as it does not comply with the 
requirements of service under Order 10 Rule 4(a) and Order 7 Rules 12 and 13(b) of the Supreme Court Rules for a copy of the appeal to be served on the Associate of the Primary Judge. 

3.     The appeal is flawed and defective as the Notice of Motion that commenced this appeal was lodged with the IECMS for filing on the 5 June 2020 and not 28 May 2020 as shown on the cover page of the Notice of Motion which means that the appeal was filed outside the forty days’ time  limit for the filing of an appeal in the Supreme Court as required by s.17 of the Supreme Court Act.

4.    	At the time of commencing the appeal, all the court documents that were part of the Judicial Review Proceedings were not annexed to the Notice of Motion that commenced this appeal hence in breach of Order 10 Rule 3(b)(i) of the Supreme Court Rules.

5.	At the time of commencing the appeal a certified copy of the Formal Orders was not annexed to the Notice of Motion that commenced this appeal hence in breach of order 10 Rule 3(b)(ii) of the Supreme Court Rules. 

6.	The application for judicial review was upheld in part and orders in the judgment that are being appealed are interlocutory in nature and require leave of the court to appeal, but this appeal does not seek leave of the court to appeal which renders the appeal  incompetent as it is in breach of s.14(3)(b) of the Supreme Court Act and Order 10 rule 5 of the Supreme Court Rules.

7.	The Appellant’s contention that this appeal is an amendment of the initial and original appeal in SCA No.31 of 2020 renders this appeal defective as it was filed in breach of Order 7 Rule 25 of the Supreme Court Rules to file a supplementary notice of motion to amend SCA No.31 of 2020 and not as a new appeal.  

20.	At the hearing, the Fourth Respondent abandoned grounds 1, 2 and 6 and only pursued grounds 3, 4, 5 and 7. 

LAW ON OBJECTION TO COMPETENCY

21.    The law on objections to competency under Order 7 Rule 15 of the Supreme Court Rules is settled in this jurisdiction. In Turia v Nelson (2008) SC949, the Supreme Court in summarising the   principles to be applied when considering objections to competency stated this at paragraph 7 of the Judgment:
“A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185). For example, where the objection is based on one or more of the following grounds, the objection will, normally, properly be before the Supreme Court:
•	That the application for leave to appeal was not filed as a separate document, in cases where some of the grounds of appeal require leave and some do not (Yakham & The National v Merriam & Merriam (1997) SC533).
•	That the application for leave does not adequately state the nature of the case, the questions involved and the reason that leave should be given, as required by Order 7, Rule 2(c) of the Supreme Court Rules (Gigmai Awal v Salamo Elema [2000] PNGLR 288, Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894).
•	That the application for leave was, without leave, filed outside the 40-day period allowed by Section 17 of the Supreme Court Act (The State v John Tuap (2004) SC675).

•	That the application for leave refers to questions of law or fact not raised in the National Court (Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882).

•	That the applicant for leave does not have a sufficient interest in the subject matter of the National Court decision that it wishes to appeal against (Porgera Joint Venture v Joshua Siapu Yako (2008) SC691).”

22. 	In the present case, the grounds for the objections raised by the Fourth Respondent essentially are:

1.	The appeal was filed outside the forty days’ time limit for filing of appeals contrary to s.17 of the Supreme Court Act.
2.	The Appellant failed to annex copies of all documents, including certified copies of the order appealed against thereby breaching Order 10 Rule 3(b)(i) and (ii) of the Supreme Court Rules.
3.	The filing of SCM No 5 of 2020 purportedly replacing SCA No.31 of 2020 without leave was in breach of Order 7 Rule 25 of the Supreme Court Rules.  

ISSUES 

23. 	In our view the grounds of objection give rise to two main issues:

1.	Whether the appeal was filed outside of the 40 days period contrary to s.17 of the Supreme Court Act?
2. 	Whether the Appellant failed to comply with Order 10 Rule 3(b) of the Supreme Court Rules?

SUBMISSIONS OF PARTIES

24.	Written submissions were filed by the parties which were amplified by counsel’s oral submissions at the hearing and we have considered them.
	
25.	In summary, the Fourth Respondent submitted that:

1.	The appeal is flawed and defective as the notice of motion was filed outside the 40-day time limit for filing of an appeal contrary to s.17 of the Supreme Court Act.

2.	Of the two modes of appeals employed by the Appellant in SCA No.31 of 2020 and SCM No.5 of 2020, it was not open to the Appellant to merge the two as they are different with distinct appeal requirements. 

3.	The Appellant failed to take remedial steps either to amend, refile or to seek extension of time to ensure the appeal is filed within the time and maintained according to law as permitted by the Supreme Court Act and the Supreme Court Rules.

4.	At the time of commencing the appeal, copies of all documents that formed part of the Judicial Review Proceedings and a certified copy of the Formal Orders of the Primary Judge made pursuant to the Primary Decision were not annexed to the notice of motion thereby constituting a breach of Order 10 Rule 3 (b) of the Supreme Court Rules.

26.	In response, the Appellant submitted that:

1.	The appeal by Notice of Motion was filed within the 40 days and explained that the appeal documents were lodged with assistance of IECMS staff on 28 May 2020 and was registered as SCA 31 of 2020.The appeal filed as SCA No.31 of 2020 was an error made during lodgment. The error was made by the wrong selection of the mode of appeal at the time of uploading the documents in IECMS as the appeal documents filed by the Appellant was a Notice of Motion which are one and the same appeal documents as in SCM No.5 of 2020.  

2.	On 4 June 2020 Supreme Court clerks on discovering the anomaly in the mode of filing, advised the Appellant to rectify the anomaly to SCM mode of filing as he was appealing against a judicial review order and not from a civil appeal.
On 5 June 2020, he attended the Supreme Court Registry and discovered that the 28 May 2020 filing had been deleted so with the assistance of one Carol Albert, they relodged the appeal as SCM No.8 2020. On 25 June 2020 the appellant attended the IECMS and made a further amendment and eventually registered the new filing under SCM No.5 of 2020. The  appeal was filed within the 40-days period.  

3.	In respect of the second leg of the objections, the Formal Orders of the Primary Judge was certified by the Registrar on 29 April 2020 and annexed to the appeal at the time the appeal was filed. Likewise, copies of the documents which were before the National Court were all annexed to the Notice of Motion and   filed at the time of lodging the appeal, but due to them being voluminous and exceeding the IECMS requirements, (Two Volumes), it took time for them to be uploaded and were eventually filed in Court.

CONSIDERATION

Grounds 3 and 7 -Whether the appeal was filed outside of the 40-days contrary to s.17 of the Supreme Court Act?

27. 	We will deal with objection grounds 3 and 7 together as they are related.

28. 	Section 17 of the Supreme Court Act provides that where a person desires to appeal to the Supreme Court, he shall give notice of appeal, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days. The term “Judge” is defined under s.1(1) of the Supreme Court Act as a Judge of the Supreme Court.

29.	Order 10 Rule 1 of the Supreme Court Rules provides that appeals from orders made in applications for judicial review or for writ of habeas corpus under Orders 16 and 17 of the National Court Rules shall be instituted by a notice of motion.

30.	The present appeal involves a decision from an application for judicial review under Order 16 of the National Court Rules. The Formal Orders of the Primary Judge was made on 21st April 2020 pursuant to the Primary Decision. The 40th day lapsed on 31st May 2020. The Appellant filed his appeal by Notice of Motion on 28th May 2020 according to IECMS registry entries. It was registered as SCA No 31 of 2020. As we understand from the Fourth Respondent, SCA No.31 of 2020 remains unserved and unprosecuted at the time of the hearing of this objection. In response the Appellant explains that the appeal filed as SCA No.31 of 2020 was an error made during lodgement. The error was made by the wrong selection of the mode or category of appeal at the time of uploading the documents in IECMS as the appeal documents filed by the Appellant was a Supreme Court notice of motion which is one and the same appeal document as that lodged in SCM No.5 of 2020.  

31.	It was not until 4th June 2020, when the errors were pointed out to the Appellant which prompted him to take corrective measures. In his haste to remedy his errors he made another error by filing and relodging his new appeal registered as SCM No.8 of 2020.  There is no further information on the progress and status of the appeal,  SCM No.8 of 2020.

32.	On 25th June 2020, the Appellant was advised by the Registry staff that the appeal documents were successfully relodged on 5th June 2020 under the Supreme Court Motion category and registered as SCM No 5 of 2020. The Court file confirms that SCM No.5 of 2020 was indeed filed on 5th June 2020. 
 
33. 	We note the Appellant’s explanation   that the appeal via Notice of Motion was lodged in time but was erroneously filed under the Supreme Court Civil Appeal (SCA) category causing hiccups and resulting in the expiry of the appeal period. We also note the Appellant’s argument that the present appeal SCM No 5 of 2020 is no “different” from the appeal in SCA No.31 of 2020 and therefore he is entitled to rely on the original date of filing for the purpose of meeting the statutory 40-days requirement.

34. 	However, unfortunately, we do not share the Appellant’s views and do not follow his line of argument.  SCA No.31 of 2020 and SCM No.5 of 2020 are two separate and distinct appeals. One cannot run with one and upon detecting errors resort to the other one and vice versa.  An appeal must be lodged in the Registry using the correct prescribed mode for commencing an appeal.  Any amendment required to rectify any defect in the originating document of an appeal must be done either with leave or as permitted under the Supreme Court Act and the Supreme Court Rules without which any other process adopted may be defective. 

35. 	The evidence shows the Appellant was in constant communication with the Registry staff. On 29th May 2020, the Appellant’s lawyers received an email advice from the Registry that the appeal was registered as SCA No.31 of 2020. It appears the Appellant’s lawyers did not keep themselves abreast of the Supreme Court appeal mode or category selected and or used for the registration of the appeal.  If they paid some attention, they would have detected the error there and then. It seems the Appellant’s lawyers were oblivious to the fact of incorrect registration of the appeal under the Supreme Court Appeal (SCA) category rather than Supreme Court Motion (SCM) only to be told of the error by the Registry staff after the lapse of the statutory period. 

36.	It is reiterated that if indeed a notice of motion were filed to institute the appeal within time and had it been erroneously registered as SCA No.31 of 2020, it was open to the Appellant to take remedial steps before expiry of the statutory period by fresh lodgement or re-registration in the correct category. The Appellant could have attended on the Registry to correct the situation at least by 31st May 2020.  This was not done.  On the other hand, if a notice of appeal is filed, it is for an appellant to file a supplementary notice of appeal before the date of appointment to settle an appeal book without leave pursuant to Order 7 Rule 25 of the Supreme Court Rules.  However, Order 7 Rule 25 does not apply to appeals under Order 10 of the Supreme Court Rules.   This is because Order 10 Rule 4 of the Supreme Court Rules specifically expresses other rules that apply to Order 10 appeals and Order 7 Rule 25 is not one of them. 

37.	The Appellant refiled the documents on 5th June 2020, about 5 days after the lapse of the 40 days period although the physical documents show the date of filing as 28th May 2020.  In our view this is not possible when the documents were uploaded through IECMS on 5th June 2020.  It is inconsistent with the IECMS filing system, misleading and irregular.
 
38.	We reject the arguments that the errors or delays in the filing of the appeal was attributed to counsel being new to the IECMS or glitches in the IECMS or delays caused by Registry staff. We are not persuaded that the computation of time should run from the date of filing of SCM No. 31 of 2020 vis. 28 May 2020 for the purpose of regularising the appeal in SCM 5 of 2020. 

39.	In the end and what is clear though is that the notice of motion was filed outside of the 40-days period contrary to s.17 of the Supreme Court Act:  Bakani v Daipo (2002) SC699. The Supreme Court explained the law in Geita vs Samson (2019) SC1878 at [3]:

“Pursuant to Section 17 of the Supreme Court Act Ch. 37 an appeal to the Supreme Court must be filed within 40 days after the date of the judgment. The provision also allows for time to be extended for filing the appeal upon application within the same 40 days period.”

40.  	In conclusion, we are of the view that the Appellant failed to comply with s.17 of the Supreme Court Act and the non-compliance has rendered the appeal incompetent.

Grounds 4 and 5 - Whether the Appellant failed to comply with Order 10 Rule 3(b) of the Supreme Court Rules?

41. 	The second issue is whether the Appellant complied with the requirements of Order 10 Rule 3(b) of the Supreme Court Rules. Rule 3 reads: 
“The notice of motion shall—
(a)	 show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; 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.”

42. 	It has been held by the Supreme Court in a number of cases that a failure to comply with the mandatory requirements of Rule 3 (b) of the Supreme Court Rules renders the appeal incompetent:  Haiveta v Wingti (1994) PNGLR 189, Bakani v Daipo (2001) SC659, Bakani v Daipo (2002) SC699, Kukari v Polye (2008) SC907, National Capital Ltd v Bakani(2014) SC1392, Neville v National Executive Council of Papua New Guinea (2015) SC1431 at [22], Papua New Guinea Law Society v Cooper (2016) SC1553 at [5], Nipo Investment Limited vs Nambawan Super Limited (2017) SC1642.

43. 	In Nipo Investment Limited v Nambawan Super Limited (2017) SC 1642 at [9], the Supreme Court stated the need for compliance with the Rules of Court as follows:

“…. While the strict application of these rules can lead to what may appear to be a harsh result, the need for parties to comply with Rules of Court is not an exercise in pedantic technicality. The Rules ensure that the difficult and often complex process of litigation occurs in an ordered manner, meeting the expectations of the Court and all parties. This Court has been consistent in finding that breach of Order 10 rule 3 (b)(i) and (ii) is fatal to an appeal. Bakani v Daipo (2001) SC659, Kukari v Polye (2008) SC907 and National Capital Ltd v Bakani(2014) SC1392 remain good law, and no reason has been advanced to us to persuade us that we should not follow these authorities.”

44.	In the present case, the Fourth Respondent submits the copies of the documents before the trial judge and a certified copy of the order were not annexed to the notice of motion at the time of filing as required by Order 10 Rule 3(b).  The Fourth Respondent submits further that the Appellant sought leave of the Court to hand up the annexures in Court during directions hearing on 12th April 2021 which is indicative of the late filing of the documents.

45. 	The Appellant maintains that the two volumes containing copies of all documents which were before the National Court and a certified copy of the Formal Orders of the Primary Judge were all annexed to the notice of motion forming part of the appeal, but due to them being voluminous they were unable to file them on the same day. They were compressed and got them registered over a space of three to four days.

46. 	We have considered the documents filed and submissions of counsel and are not satisfied that the documents required under Order 10 Rule 3(b) were annexed to the notice of motion at the time of filing of the appeal. Having noted that the actions of the Appellant in trying to hand up the documents in Court during directions hearing in April 2021 gives the impression that the said documents were not filed with the notice of motion in the first place. Even if the documents were filed with the notice of motion, they were filed after 31st May 2020 being the last day for the filing of the appeal. The IECMS records in SCA No.31 of 2020 show the documents were first received on 3rd June 2020. The proceedings, SCM No. 5 of 2020, was registered on 5th June 2020. To that extent, we accept the Fourth Respondent’s arguments that the documents required under Order 10 Rule 3(b) were not annexed to the Notice of Motion when the appeal was first filed and even if they were filed, they were out of time. 

CONCLUSION
  
47. 	For the foregoing reasons, we conclude the appeal is incompetent. We will uphold the objection and dismiss the appeal. As only the Fourth Respondent participated in this appeal, he is entitled to have his costs of and incidental to the appeal paid by the Appellant, such costs to be taxed if not otherwise agreed.

ORDERS

48.	The formal orders of the Court are:

1.	The Fourth Respondent’s objections to competency is upheld.
2.	The appeal is dismissed in its entirety.
3.	The Appellant shall pay the Fourth Respondent’s costs of and incidental to this appeal, such costs to be taxed if not otherwise agreed.

Judgment and orders accordingly.

________________________________________________________________
Poya Legal Services: 	Lawyers for the Appellant
Ona Lawyers:  		Lawyers for the Fourth Respondent