SC2540

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 21 OF 2023  

BETWEEN: 
MARTIN LANDU
First Appellant

AND
BILL ADAMS in his capacity as the next friend, heir and successor of his deceased mother Late Ato Bernadette Adams
Second Appellant

V

HITRON LIMITED
First Respondent

AND
HARRIET KOKIVA as REGISTRAR OF COMPANIES
Second Respondent

AND
CLARENCE HOOT in his capacity as the Managing Director of the INVESTMENT PROMOTION AUTHORITY for and on behalf of the INVESTMENT PROMOTION AUTHORITY
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Toliken J, Liosi J & Anis J
2024: 29th February, 8th March

OBJECTION TO COMPETENCY – Objection premised on want of standing, want of compliance with mandatory provisions under Order 10 Rule 3(b)(i)(ii) and (c), want of compliance with Order 10 Rule 4(a), and want of compliance with Order 7 Rules 9(c) and 10 – Supreme Court Rules as amended – consideration - ruling

Cases Cited:

Ken Mondiai v. Wawoi Guavi Timber Company Ltd (2007) SC886
Madang Timbers v. Kambori (2009) SC992
Peter Neville v. National Executive Council of PNG (2015) SC1431
Rai v. Imbuni (2021) SC2080
Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC962
Betty Palaso v Paru Elliott (2020) SC2030

Counsel:

J Napu, for the Appellants
P Tabuchi, for the First Respondent
Nil appearances by the Second & Third Respondents
K Kipongi, for the Fourth Respondent

8th March 2024

1.	BY THE COURT:  We heard the first respondent’s Notice of Objection to Competency filed 18 September 2023 (the Application) on 29 February 2024.  The Application challenged the competency of the appellants’ Supreme Court Notice of Motion filed 22 August 2023 (SCM).  

2.	We reserved our ruling thereafter to this March’s sittings.  However, we have waived that and moved the date forward; and we note that the parties have been notified of today’s ruling.

BACKGROUND

3.	The appellants filed a judicial review proceeding in the National Court described as OS (JR) 95 of 2022, Martin Landu and Or v Hitron Limited and Ors (JR proceeding).  Briefly, the appellants had intended to challenge or compel the second respondent to exercise her powers under s.395A of the Companies Act 1997 and amend the records of the first respondent so that their names could be added as shareholders.  After they had obtained leave but prior to the judicial review hearing, the first respondent applied to dismiss the proceeding premised on, amongst other reasons, abuse of process.  On 14 July 2023, the primary Court granted the first respondent’s application and dismissed the JR proceeding.

4.	The appeal stems from that decision.

PRELIMINARY OBJECTIONS

5.	The appellants raise various objections to the competency of the Application.  We will address them now.

6.	The appellants first claim the Application is premised on sources or jurisdictions that are invalid.  The Application cites its sources, namely, Order 11 Rule 28(a) and Order 7 Rule 15 of the Supreme Court Rules 2012 as amended (SCR).  The appellants submit the correct source that should have been invoked was Order 11 Rule 9 of the SCR and s.185 of the Constitution.  The appellants refer to and rely on this Court’s earlier rulings in Ken Mondiai v. Wawoi Guavi Timber Company Ltd (2007) SC 886 and Madang Timbers v. Kambori (2009) SC992, in support of their submission.

7.	In response, the first and fourth respondents submit that the above cases considered and decided on the issue premised on the old Supreme Court Rules which has since been amended by the SCR in 2012.  They submit that under the SCR, the correct rules to insert as sources in a notice of objection to competency of an appeal that is filed under Order 10, are Order 7 Rule 15 and Order 11 Rule 28(a).  They refer to and rely on the case of Peter Neville v. National Executive Council of PNG (2015) SC1431 in support of their submissions.

8.	We uphold the submission by the first and fourth respondents.  The case law on point is Peter Neville v National Executive Council (supra).  The Supreme Court therein stated at [18 – 20] as follows:

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. The Rule states:

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);

(b) Order 7 Division 19 (Time, and want of prosecution)."

19. This Rule was promulgated in the SCR, 2012 which came into force on 19th December 2012. It is a Rule of general application.

20. Order 7 Division 5 (Rules 15 to 19) of the SCR regulates the filing of an objection to competency of an ordinary civil appeal. Order 7 Rule 15 in particular requires a respondent who objects to the competency of an appeal to within 14 days after service on him of a notice of appeal file an objection in accordance with Form 9 and serve a copy of the objection on the appellant.

9.	We note that the argument and case authorities as raised by the appellants herein were also raised earlier before this Court in the case Rai v. Imbuni (2021) SC2080.  The Court, having rejected the submission, held on point as follows:

(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.

10.	The Supreme Court therein agreed with Peter Neville v National Executive Council (supra) on the issue.  At pp. 10 and 11, it gave its reasonings as follows:

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.

11.	The preliminary objection is therefore baseless, and we dismiss it.

12.	The appellants secondly claim that the Application is defective because the Objection Book filed 7 November 2023 (OB) did not attach a copy of the SCM.  When the argument was raised, we drew the appellants’ counsel’s attention to a sealed copy of the SCM at [92-100] of the OB.  The attached copy did not have the complete attachments.  We can see why because the attachments are in 4 Volumes as part of the Appeal Book for the matter.  In our view, what is attached to the OB is sufficient for this purpose.  This is not the actual appeal hearing of the matter.  And we note that it would be a voluminous exercise if the parties or the registry is tasked to reprint the 4 volumes of the SCM for each of the parties and members of the bench.  There is already one complete set filed which is available to us to consider if necessary.

13.	We note that counsel for the appellants did not press on with the argument when he realized that a sealed copy of the SCM, minus the attachments, was included in the OB.  So, for these reasons, we dismiss the second preliminary objection to the Application.

14.	The final preliminary objection raised is this.  The appellants claim the first respondent did not plead the law or jurisdictional basis for ground 1 of the Application.  Counsel referred to and relied on the case of Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC962.  We note that we drew counsel’s attention to the pleaded jurisdiction in the Application.  We also note that the pleaded ground of objection to the competency of the appeal is want of standing.  In our view, the ground is sufficiently pleaded.  We also find that counsel appears to have miscomprehended this distinction.  Thus, we find this objection not only baseless but misconceived and frivolous.

OBJECTION

15.	The first respondent pleads a total of 13 grounds of objection.  They may be summarized into 3 categories as follows:

(i)	Lack of standing and or capacities of the appellants and consequence (Ground 1 of the Application);

(ii)	Non-compliance with mandatory requirements of Order 10 of the SCR (Grounds 2-4 of the Application);

(iii)	Appeal grounds failing to meet the mandatory requirements of Order 7 Rule 9(c) and 10 of the Rules (Grounds 5-13 of the Application).

MANDATORY COMPLIANCES

16.	We prefer to begin our findings with category (ii).  There, the first respondent raised various alleged breaches or want of compliances of what it claimed were mandatory administrative processes under the SCR.

17.	Order 10 of the SCR reads in part:

ORDER 10—APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES

Division 1. - Institution of appeal

1.	(1)  An appeal under this Order shall be instituted by a notice of motion.

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

2.	The notice of motion and all subsequent proceedings shall be entitled “In the Supreme Court of Justice” and shall be entitled between the party as appellant and the party as respondent.

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 ours]

18.	The first respondent claims not all the National Court documents that were before the primary Judge whose decision is the subject of this appeal were annexed to the SCM.  The first respondent submits that is in direct breach of the mandatory requirement under Order 10 Rule 3(b)(i) of the SCR.  In response, counsel for the appellants made submissions to the effect that he believes that all the documents that were before the primary Judge whose decision is the subject of the appeal were annexed to the SCM.  However, we observe that the appellants were unable to confirm that either in their submissions or by adducing evidence on the matter.  One document in particular which was alleged to have been excluded is Court Document No. 65, Affidavit of Walo John filed 2 June 2023.  Counsel for the first respondent Mr. Tabuchi referred us to his affidavit filed 18 September 2023.  The affidavit is included at [8] of the OB.  It is clear to us that the said evidence had been filed and was before the primary Judge that heard the first respondent’s motion to dismiss.  The affidavit was brought to the attention of the primary Judge which is evident in the extracted transcript of proceedings which is annexed to Mr. Tabuchi’s affidavit.  This evidence is not refuted by the appellants.

19.	We therefore find as a matter of fact that not all the Court documents that were before the primary Judge who heard the first respondent’s motion to dismiss were annexed to the SCM in the 4 volumes that are filed.

20.	Before we decide on whether we should exercise our discretion in regard to the Application, we will consider the next ground of objection under category (ii) which is similar.  The first respondent claims the SCM was not filed in compliance with Form 15 thus is in breach of the mandatory requirement under Order 10 Rule 3(c) of the SCR.  The appellants deny that claim and submit that the SCM was filed in compliance with Form 15.

21.	We have had the benefit of considering the SCM and Form 15.  We set out a sample Form 15 as follows:

O.10 Rule 3(c)

Form 15
GENERAL FORM NOTICE OF MOTION

IN THE SUPREME COURT OF JUSTICE	S.C.M. No. of 20	
	A.B Appellant	
	C.D. Respondent	

NOTICE OF MOTION

1.  THE Appellant appeals from the whole (or if from part specify part) of the Order of (specify National Court or National Court Judge) given on (specify day) at (place).

2.  GROUNDS (specify each particular ground by paragraph).

3.  ORDER SOUGHT (state what Order appellant seeks in lieu of order appealed from).

4.  ANNEXES are:—
(a)  Copies of all documents before National Court in sequence.
(b)  Certified copy of Order.

5. AFFIDAVIT in support of this Motion is sworn by (name) on the (date).

Dated:

Sgd _____________________
(To be signed by appellant or his lawyer)

22.	We observe various disparities when we compare the form with the SCM.  Contrary to Form 15, the SCM has a total of 6 numbered paragraphs.  The added paragraph in the SCM is the inclusion of a new paragraph 2 where it is pleaded that the appeal lies without leave of the Court.  The second main disparity in the SCM is under the first paragraph where paragraph 1 is split into 1(a) and 1(b).  These additional inclusions are not consistent with the paragraph 1 under Form 15.

23.	So, in summary, we have found the appellants to breach Order 10 Rules 3(b)(i) and 3(c) of the SCR.  Are these breaches mandatory and fatal to the SCM?  Our first impression after observing the wordings of Order 10 is in the affirmative.  But it is not just our impression or view.  This Court has held on many occasions that compliance with the requirements of Order 10 of the SCR are mandatory and that failure to observe them will render an appeal incompetent.

24.	In Betty Palaso v Paru Elliott (2020) SC2030 at [6], this Court stated:

“6.  We accept the general proposition that Order 10, Division 1, rule 3(b)(i) & (ii) of the SCR is in mandatory terms and failure to comply with these provisions is fatal to the appeal: Felix Bakani v Rodney Daipo (2001) SC659; Dr Arnold Kukari v Hon. Don Pomb Polye (2008) SC907; National Capital Limited v Loi Bakani (2014) SC1392; Nipo Investment Limited v Nambawan Super Limited (2017) SC1642 and Talibe Hegele v David Yawe & Ors: SCM No 4 of 2019 (Unnumbered & Unreported Judgment of 2nd September 2019).”

25.	Earlier in 2002, in Felix Bakani v, Rodney Daipo (2002) SC699, this Court stated:

"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 decisions 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."

[Underlining ours]

26.	We concur with these decisions, that is, on the interpretation and application of Order 10 Rule 3(b)(i) and (c) of the SCR.  And we see no valid reason to depart from them or to rule otherwise.

SUMMARY

27.	In summary and in view of our findings on the 2 grounds of objection under category (ii), we are minded to and will uphold the Application.  The SCM is incompetent for the stated reasons.  It will be dismissed with costs. 

REMARK

28.	Premised on our findings, it is not necessary to consider the other grounds of objections save for this remark.  Having considered the grounds of appeal, we note that they are written in general and vague terms.  We also note that they all contain submissions and statements which we find hard to comprehend.  There appear to be clear breaches committed by the appellants in the drafting of the grounds of appeal, that is, premised on the requirements under Order 7 Rules 9(c) and 10 of the SCR.  Thus, it is safe to say that we would have also dismissed the SCM for this reason.

ORDERS OF THE COURT

29.	We make the following orders:

(1)	The Supreme Court Motion filed herein under Order 10 of the Supreme Court Rules 2012 as amended is dismissed as incompetent.

(2)	The appellants shall pay the 1st and 4th respondents’ costs of the appeal which may be taxed on a party/party basis if not agreed.

________________________________________________________________
Napu:	Lawyers for the Appellants
Young & Williams:	Lawyers for the First Respondent
In-house Counsel:	For the Second and Third Respondents
Solicitor General’s Office:	Lawyers for the Fourth Respondent