SC2704
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO  19 OF 2024 (IECMS)

BETWEEN:
PAUL MARKUS UNAS
Appellant

AND:
ROY MUMU in his capacity as Board Chairman of the Board of NATIONAL MARITIME SAFETY AUTHORITY
First Respondent

AND:
PETER HUMPHREYS, KAPAI CHOLAI, CAPTAIN KARO YAMA, JOHN WOHIEMANI, in their capacity as the Board of Directors of National Maritime Safety Authority
Second Respondent

AND:
MATHEW WOWONI in his capacity as the Acting Managing Director and Chief Executive Officer of National Maritime Safety Authority
Third Respondent

AND:
NATIONAL MARITIME SAFETY AUTHORITY
Fourth Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

WAIGANI:    DAVID J, NUMAPO J, CARMODY J
25  NOVEMBER 2024; 28 FEBRUARY 2025

SUPREME COURT – PRACTICE AND PROCEDURE – Judicial Review Appeal - Objection to competency – Requirement to annex to notice of motion a certified copy of the order - Nature of certification - Mandatory requirement - Objection Upheld – Appeal dismissed – Order 10 rule 3(b)(ii) of the Supreme Court Rules 2012 – Majority decision

Cases cited
Madang Timbers Ltd v Kambori [2009] PGSC 18; SC992
National Capital Limited v Bakani (2014) SC1392
Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642
GR Logging v Dotoana [2018] PGSC 34; SC1690
Fayana v Waipo [2023] PGSC 36; SC2389
Sarea v Moutu [2019] PGSC 112; SC1893
Vitolo v Mararea Land Group Inc [2024] PGSC 92; SC2615
Summit Development v Chan [2016] N6390

Counsel
B.  Poki for the appellant
S.  Ranewa for the first to fourth respondents						

JUDGMENT

1.	DAVID J and CARMODY J: Before this Court is a Notice  of  Objection  to  Competency  filed  by  the  First  to  Fourth  Respondents.  The Respondents contend that  the  appeal  instituted  by  an  Amended  Notice  of  Motion  filed  on  10  June  2024  is  not  competent  as  it  fails  to  comply  with  Order  10  rule  3(b)(ii)  of  the  Supreme  Court  Rules  2012  (“the  SCR”).
  
2.	That provision requires the Amended Notice of Motion to have annexed to it “a copy of  the  order  made, certified  by  the  Judge’s  Associate  or  the  Registrar”. The Respondents’ Objection is that the document annexed to the Amended Notice of Motion fails to comply  with  that, they say, mandatory  requirement.  

BACKGROUND

3.	The substantive appeal  is  with  respect  to  the  decision  of  the  National  Court,  made on 10 April 2024, to  dismiss  the  Appellant’s  judicial  review  proceedings. For the  purposes  of  this  Court  the facts relating to those proceedings are not relevant.

4.	The Respondents’ Notice of Objection to Competency states:

OBJECTION is made pursuant to Order 7, Division  5,  rule  15(a)  and  Order  11,  Division 14, rule 28(a) of the Supreme Court Rules 2012 (Miscellaneous  Amendments)  Rules  2022, on  the  following  grounds:

1.	The  Court Order annexed to the Amended Notice of Motion dated and filed on 10th  June  2024, document no. 14, is not certified by the  Judge’s  Associate  or  the  Registrar  contrary to the mandatory requirement of  Order 10  Rule 3  (b(ii) of the Supreme  Court  Rules

5.	The Respondents rely on National Capital Limited v.  Bakani (2014) SC1392 and Vitolo v Mararea Land Group Inc [2024] PGSC  92; SC2615.  Their case is that a copy of the order bearing the Registrar’s signature made when settling and entering the judgment is not a copy “certified by the Judge’s Associate or the Registrar”.  

6.	The Appellant accepts, in written submissions before this Court, that compliance with Order 10 rule 3(b)(ii) is mandatory.  However, his case is that the order is appropriately certified. The dispute, therefore, is confined to the issue of what is the requisite certification. The Appellant’s arguments are twofold.  

7.	First, the Appellant takes issue with the Notice of Objection to Competency itself and contends that it is vague and defective on the face of it.  Reliance is placed on the affidavit of Belinda Poki filed on 16 July 2024. Ms Poki asserts that the Notice “does not specify or identify which court order annexed to the Amended Notice of Motion” is the subject order. The Notice of Objection to Competency states that the subject order is “The Court Order annexed to the Amended Notice of Motion dated and filed on 10th June 2024, document no. 14, …”. The Amended Notice of Motion and annexures, being document 14, identifies the order the subject of the appeal in paragraph 1. Paragraph 4 (b) states the order is annexure (b). Annexure (b) is the relevant order. We do not find that the Notice is vague and defective.

8.	Secondly, the Appellant relies on a line of authorities such as Madang Timbers Ltd v  Kambori  (2009)  PGSC18; SC992  and  Fayana  v  Waipo  [2023]  PGSC  36;  SC2389. In those cases, it was held that the Notice complied with Order 10 rule 3(b) (ii):  

(a)	as the National Court Act, the National Court Rules, the Supreme Court Act and the Supreme Court Rules do not provide for any particular mode of certification or form of certificate; and
  
(b)	as the Registrar’s signature on the order accorded with the Oxford English Dictionary’s definition  of  “certified”  in  that  the  Registrar  had  “made  certain”  that  that  was  the  order  made  by  the  presiding  Judge  thus  satisfying  Order 10  rule  3(b)(ii).

THE OBJECTION TO COMPETENCY

9.	Objections to competency are governed by Orders 7 and 11 of the SCR.  Order 11, Division 14, Rule 28 provides that objections to competency are governed by Order 7, Division 5 in addition to appeals – “Appeals” being the heading attributed to Order 7. Order 7, Division 5, Rule 15 (a) is in relation to the filing of a Notice of Objection to Competency.  

10.	The Appellant’s judicial review appeal is governed by Order 10 of the SCR.  Order 10 is applicable to judicial review orders made pursuant to Order 16 (Applications for Judicial Review) of the National  Court  Rules  1983  (“NCR”).

11.	Order 10 Rule 3 states:

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.			
(this Court’s underlining)

WHAT IS CERTIFICATION?

12.	The “certification” of a document is a long-established legal procedure by which an authorised person signs and, in many cases, affixes a seal, to a document with a notation attesting to the document being a true  copy  of  the  original  document. A common notation is “Certified to be a true copy of the original seen by me”.

13.	“Certification” can also refer to an authorised person or entity certifying as to a state of affairs.  For example:

a.	Order 7 rule 36(b) of the SCR provides for the settling of an appeal book and requires “a copy of the notes of evidence taken by the primary judge certified by his Associate or other authorised person” to be produced, if required, to the Registrar.  

b.	Order 7 rule 43(10) of the SCR requires a certificate by the lawyers or parties to the appeal that the appeal book has been examined and is correct.

c.	Section 25 (3)(b) of the Lawyers Act 1986 requires a certification from an appropriate overseas authority “that the applicant was admitted to practise in a country prescribed by the Rules made under the Admission Council”.

d.	Section 13 (2) of the Claims by and Against the State Act 1996 provides for the registrar, clerk or other proper officer of the court to certify, by way of a Certificate of Judgement,  that  a  party  obtained  a  judgment  against  the  State  in  his  favour.  

e.	Section 211 (4)(b) of the Capital Market  Act  2015  requires  a  statement  from  the  trustee  certifying  that  in  its  opinion  any  modification,  alteration  or  addition  to  a  deed  “does  not  materially  prejudice  the  interests  of  members  and  does  not  operate  to  release  the  trustee  from  any  responsibility  to  its  members”.  

14.	There are countless other examples. In some instances, a specific form is provided for the purposes of the certification. In others it is not.  Historically, the need for certification arose to prevent the use of fraudulent documents.  

THE ANNEXED ORDER

15.	In purported compliance with Order 10 rule 3(b)(ii) the Amended Notice of Motion  had  annexed  to  it  a  copy  of  a  court  order  bearing  the  words  in  bold  and  capitals  “BY  THE  COURT”  under  which  is  a  signature  beneath  which  is  recorded,  again  in  bold  and  capitals,  the  word  “REGISTRAR”.  There is a faint imprint of what appears to be the court seal to the left of the order. In addition, the cover sheet has a stamp bearing the document number (being 40), initials and the date 11 April 2024. 
  
16.	The third term of the order states: “Time for entry of these Orders be abridged to the date of settlement by the registrar which shall take place forthwith”.  The only other contents are the balance of the terms of the order, the date of the orders being 10 April 2024, the title, location and parties.  

17.	Given the dates 10 and 11 April 2024 on the order and cover sheet respectively it is clear that the Registrar signed the order almost immediately after it was pronounced in Court by the presiding Judge. 

18.	On the face of it there is nothing to distinguish the document from the standard order, whether it be signed by the presiding Judge or the Registrar, issued shortly after the pronouncement of the order by a Judge.  For the purposes of this judgment, we will describe the document as a “standard order”  meaning  an  order  in  the  standard  form  with  no  additional  certifying  notation.

PREVIOUS  DECISIONS  RE  ORDER 10 RULE 3 (b)(ii)

19.	Order 10 rule 3(b)(ii) has  been  considered  by  the  Supreme  Court  time  and  time  again. A  number  of  those  decisions  were  relied  upon  by  the  parties  in  their  submissions.  Those  decisions were  Madang  Timber  Ltd  v.  Kambori  [2009]  PGSC18;  SC992,  National  Capital  Limited  v.  Bakani (2014)  SC1392,  Nipo  Investment  Ltd  v.  Nambawan Super Ltd  (2017)    SC1642,  GR  Logging  v  Dotaona  [2018]  PGSC  34;  SC1690,  Fayana  v  Waipo  [2023]  SC2389  and  Vitolo  v  Mararea  Land  Group  Inc.;  [2024]  SC2615.

20.	Those cases demonstrate a divergence of views either in support of or against the contention that Order 10  rule  3(b)(ii)  requires  a  specific  certification  which  is  something  more  than  an  order  in  the  “standard  form”.  The precise nature of the divergence was expressed in Vitolo v  Mararea  Land  Group  (supra):

60.  We acknowledge there has been some controversy on the question of certification and  there  have  been  cases  that  have  taken  a  more  liberal  or  purposive  approach  as  opposed  to  a  strict  interpretation  of  Order  10  rule  3(b)(ii).

21.	We are mindful that this decision will be  yet  another  exposition  of  an  already  extensively  considered  provision of the SCR. For that  reason  we  have  endeavoured  below  to  identify  the  commonality  of  views  expressed  by  some  courts  in  support  of  both  the  liberal  or  purposive  approach  and  the  strict  interpretation  approach.  

Madang Timbers Ltd v Kambori [2009] PGSC 18; SC 992 – the more liberal or purposive approach.

22.	Madang  Timbers  is  a  leading  case  relied  upon  on  by  subsequent  courts  which  adopt  the  more  liberal  or  purposive  approach.  The  Court  considered  whether  to  make  a  direction  to  grant  leave  to  proceed  with  an  objection  to  competency  in  judicial  review  proceedings  there  being  no  express  provision  to  that  effect  at  the  time.

23.	One of the issues was the certification  of  the  order  the  subject  of  the  appeal.  The Court accepted the “standard  order” signed  and  entered  by  the  Registrar  as  being  in  compliance  with  Order 10  rule  3(b)(ii). The  Court  noted  that  the  Registrar  “had  signed  and  entered  the  orders  of  27th  November,  2008,  thereby  certifying  the  trial  judge’s  orders  announced  on 22nd  October,  2008  and  which  are  contained  in  his  published  reasons”.

24.	The  Court  placed  reliance  on  the  definition  of  the  word  “certified”  in  the  Oxford  Dictionary  as  meaning  “made  certain,  assured,  certainly  informed,  attested  by  certificate,  furnished  with  a  certificate”. The  Court  held  that,  given  the  subject  order  bore  the  Registrar’s  signature  that  meant  that  the  Registrar  had  “made  certain”  these  were  the  orders  of  the  trial  judge”.  Further  the  Court  relied  on  the  fact  that  the  relevant  legislation  did  not  provide  for  “any  particular  mode  of  certification,  more  particularly,  they  do  not  provide a form  of  certificate”. The  Court stated:

26.  …  We  find  that  there  is  merit  in  the  arguments  advanced  by  the  appellant  because  the  meaning  of  the  word  “certified”  in  the  Oxford  English  Dictionary  2nd  Edition,  to  be  “made  certain,  assured,  certainly  informed,  attested  by  certificate,  furnished  with  a  certificate”  meant  that  the  Registrar  “made  certain”  these  were  the  orders  made  by  the  trial  judge. This  is  endorsed  by  the  fact  that;  

(i)	The  National  Court  Act,  National  Court  Rules,  Supreme  Court  Act  and  Supreme  Court  Rules  do  not  provide  for  any  particular  mode  of  certification,  more  particularly, they  do  not  provide  for  a  form  of  a  certificate;

(ii)	The  Registrar  of  the  National  Court  signed  and  entered  the  orders  of  27th  November  2008,  thereby  certifying  the  trial  judge’s  orders  announced  on  22nd  October,  2008  and  which  are  contained  in  his  published  reasons.  We  also  point  out  that  the  respondents  are  not  genuinely  aggrieved  by  this  because  if  they  were,  they  would  have  exercised  the  option  available  to  them  under  Order  12  Rule  8(1)  of  the  NCR  to  apply  to  set  aside  or  vary  a  direction  for  entry  of  judgment,  before  the  judgment  was  entered,  or  even  after. They  did  not.  

27.  This ground will not render  the  appeal  incompetent or  does  not  demonstrate  that  the  Court  lacks  jurisdiction  to  hear  the  appeal.  

25.	The Court  held  that  the  order  had  been  certified  in  compliance  with  Order  10  rule  3(b)(ii).  

National Capital Limited v Bakani [2014] PGSC 34; SC 1392 – the strict interpretation approach

26.	In National Capital v  Bakani  the  relevant  issue  was  the  belated  annexure  of  the  certified  order  to  the  appellant’s  notice  of  motion. The Court noted that the National Court judgment was delivered on 18 November 2011.  The appeal was commenced by notice of motion filed on 22 December 2011.  A copy of the notice of motion was served on the  respondents  on 18  January  2012.  Annexed to that notice was a copy of the judgment including  the  order  of the court. It wasn’t until 4 April 2012 that the order was entered and  therefore  bore  the  signature  of  the  Registrar.  

27.	The  Court noted, at  paragraph 23, that:

…such  certified  copy  of  the  order  of  the  trial  court  is  to  be  annexed  to  the  notice  of  motion  before  the  notice  of  motion  is  filed…It  follows  that  the  certification  of  the  trial  court’s  order  that  is  required  under  r  3(b)(ii)  cannot  be  made  after  the  notice  of  motion  is  filed. To do so would be a serious  breach  of  r  3 (b)(ii).

28.	Throughout  the  judgment the Court  made frequent  reference  to  the  fact  that  strict  compliance  with  Order  10  Rule  (3)  was  mandatory  and  adopted  the  strict  interpretation  approach.  Reliance  was  placed  on  the  word  “shall”:
  
22.  …The  Rule  imposes  a  mandatory  requirement,  which  if  not  complied  with  will  result  in  the  appeal  being  invalid  and  incompetent…

and

24.  Notably, Order 10 r  3  starts  with  a  sentence  that  includes  the  word  “shall”,  which  subject  to  the  context  in  which  it  is  used,  prima  facie  means  that  the  whole  of  r 3  is  mandatory. Thus, when one reads r  3(b)(ii) in its proper context and ordinary meaning, it becomes very plain that first; the certification of a copy of the order of the trial court is to be done either by the Judge’s Associate or the Registrar and second; such certified copy of the order of the trial court is to be annexed to the notice of motion before the notice of motion is filed. So, when the notice of motion is filed it should already have annexed to it a duly certified copy of the trial court’s order. This requirement is mandatory. It follows that the certification of the trial court’s order that is required under r 3 (b)(ii) cannot be validly made after the notice of motion is filed. To do so would amount to a serious breach of r 3 (b)(ii). This indicates clearly the intention of the legislature regarding Order 10 r 3 (b)(ii). It must be strictly complied with as a mandatory regulatory provision. Thus, in the instant case, the mandatory requirements of r 3 (b)(ii) had to be strictly complied with in order for the appeal to be valid and competent. Having reached this conclusion, it follows that we must respectfully disagree with the view held in Madang Timbers Ltd v Kambori & Ors (supra) that a certification of a copy of the trial court’s order can be validly made after the notice of motion is filed. We also respectfully disagree that annexing the trial court’s judgment to the notice of motion and the subsequent entry and signing of the trial court’s orders by the Registrar would meet the requirements of rule 3 (b)(ii). … We  respectfully  adopt  and  affirm  the  views  held  by  the  courts  in  Haiveta  v.  Wingti  (No.2)(supra)  and  Dr  Arnold  Kukari  v.  Honourable  Don  Pomb  Polye  (supra)  that  Order  10  is  mandatory  and  its  requirements  must  be  strictly  complied  with.  

29.	Reliance has been placed on Bakani over the years because of the finding that the requirements of Order 10 are mandatory – a principle accepted by both the appellants and the respondents in the case before us. However, that Court was addressing the issue of the notice of motion having been filed annexing the trial court’s judgment to the notice and the subsequent settling and entry of the trial court’s orders by the Registrar. It did not consider the specific issue of the precise nature of the certification and made only a fleeting reference to that requirement. The Court’s focus was on when the certified order should be annexed to the notice of  motion.  For that reason it is of limited assistance in the  circumstances  of  the  case  before  this  Court.  

Nipo Investment  Ltd  v.  Nambawan Super  Ltd  (2017)    SC1642  –  the  strict  interpretation  approach

30.	Nipo Investment  is  also  of  limited  assistance  in  that  the  main  issue  for  determination  was  which  documents  were  required  to  be  annexed  to  the  notice  of  motion  pursuant  to  Order  10  rule  3(b)(i)  and  (ii).  The  Court  accepted  the  submissions  of  the  respondent  that  not  all  documents  before  the  trial  judge  were  annexed  to  the  notice  of  motion, a requirement of rule 3 (b)(i), and  held  that  the  errors  in  the  application  book  were  fatal  to  the  appeal.  The  objection  to  competency  was  upheld.
  
31.	The  issue  of  the  precise  nature  of  the  certification  was  not  addressed.  Nipo  Investment  did,  however,  address  the  issue  of  the  need  for  strict  compliance  with  the  Supreme  Court  Act  and  the  SCR.  The  Court  noted  that  the  Supreme  Court  “has  observed  on  multiple  occasions,  that  an  appeal  may  be  incompetent  if  it  does  not  comply  with  the  Supreme  Court  Act  and or  the  SCR:  Havieta  v  Wingti  (1994)  PNGLR  189,  Neville  v  National  Executive  Council  of  Papua  New  Guinea  [2015]  SC1431  at  [22],  Papua  New  Guinea  Law  Society  v  Cooper  [2016]  SC1553  at  [5].

32.	The  Court  did provide  a  helpful  explanation  of  the  concept  of  “fairness”  with  respect  to  mandatory  compliance  with  the  SCR.  This  is  an  issue  this  Court  will  return  to  in  this  judgment:

9.  In  this  case  the  material  before  the  Court…shows  that  Order  3  (b)(i)  and  (ii)  has  not  been  complied  with.  The  appellant  refers  to  fairness  in  its  submissions.  While  the  strict  interpretation  of  these  rules  can  lead  to  what  may  appear  to  be  a  harsh  result,  the  need  for  parties  to  comply  with  Rules  of  the  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  persuade  us  that  we  should  not  follow  those  authorities.

GR Logging Ltd vs Dotana [2018] PGSC 34; SC1690 – the more liberal or purposive approach

33.	GR  Logging  (supra)  was  one  of  the  few  cases  which  specifically  addressed  the  precise  nature  of  the  requirement  for  certification however consideration of the issue was necessarily limited. The  Court itself noted that  it  was  unable  to  judicially  consider  the issue  due  to  the  Fifth  Respondent’s  failure  to  file  a  notice  of  objection  to  competency.  Nevertheless,  the  Court  made  a  number  of  observations  by  way  of  obiter  dictum.  The  Court  applied  the  reasoning  in  Madang  Timbers:

44.  ...  we  note  that  Supreme  Court  authority  supports  the  principle  that  compliance  with  Order  10  Rule  3(b)(ii)  is  mandatory.  If,  as  the  fifth  respondent  claims,  there  is  a  conflict  of  authority  between Madang  Timbers and Bakani,  this  case  raises  a  very  serious  issue.  Such  an  issue  ought  properly  to  have  been  the  subject  of  a  notice  of  objection  to  competency  with  all  parties  given  the  opportunity  to  make  fulsome  submissions,  and  the  Court  given  the  opportunity  to  consider  whether  the  notice  of  objection  should  be  determined  separately  prior  to  the  hearing  of  the  appeal.  

1.	The  failure  on  the  part  of  the  fifth  respondent  to  follow  proper  procedure,  in  accordance  with  the Supreme  Court  Rules,  thus  preventing  proper  examination  of  the  issue  raised,  militates  against  a  grant  of  leave  to  object  in  these  circumstances.  

2.	Third  [sic]  and  perhaps  most  importantly,  the  basis  on  which  the  fifth  respondent  claims  that  the  appeal  is  incompetent  is  controversial.  At  the  hearing  of  this  appeal  Counsel  for  the  fifth  respondent  submitted,  in  essence, that  compliance  with  Order  10  Rule  3(b)(ii)  required  a  certification  “stamp”  or  statement  followed  by  the  signature  of  the  Judge’s  Associate  or  the  Registrar.  However  as  the  Supreme  Court  found  in Madang  Timber,  none  of  the National  Court  Act, National  Court  Rules, Supreme  Court  Act or Supreme  Court  Rules provides  for  any  particular  mode  of  certification,  and  more  particularly,  they  do  not  provide  for  a  form  of  a  certificate.  We  do  not  understand  this  finding  to  be  in  dispute.  Further,  although  aspects  of  the  decision  in Madang  Timber were  the  subject  of  criticism  in Bakani,  we  do  not  understand  that  the  Supreme  Court  in Bakani made  findings  as  to  the  meaning  of  “certified”  in  Order  10  Rule  3(b)(ii).  

3.	The  orders  of  the  primary  Judge  found  in  the  appeal  book  at  pages  701-704  bear  the  stamp  of  the  National  Court  of  Justice,  a  signature  which  appears  to  be  “for”  the  Registrar  (with  the  word  “JUDGE”  struck  through)  under  the  words  “BY  THE  COURT”  at  appeal  book  page  704,  and  what  appears  to  be  an  initial  and  date  on  page  703  of  the  appeal  book.  

4.	Prima  facie,  the  form  of  order  attached  on  page  704  bears  the  signature  of  the  Registrar  of  the  National  Court.  To  the  extent  that  the  meaning  of  “certified”  in  Order  10  Rule  3  (b)(ii)  is  not  defined  we  are  not  persuaded  at  this  stage  that  the  absence  of  a  stamp  including  the  word  “certify”  is  critical  to  “certification”  within  the  meaning  of  the  Rule.  Arguably,  the  form  of  order  with  the  signature  of  the  Registrar  satisfies  the  provisions  of  Order  10  Rule  3  (b)(ii).  

5.	Accordingly,  the  fifth  respondent  does  not  have  leave  to  object  to  the  competency  of  the  appeal.  

34.	We accept the observations made by the Court with respect to certification above as having some force flowing as  they  do  from  the  decision  in  Madang  Timbers (supra).  However we note, as quite properly did the Court, that that issue was not before the Court and no opportunity was  given  for  the  parties  to  make  fulsome  submissions. For that reason,  the  views  expressed  must  be  approached  with  some  caution.
  
Fayana v Waipo [2023] PGSC 36; SC2389 – the  more  liberal  or  purposive  approach

35.      The Court based its decision on Madang Timbers (supra) and accepted the annexed order as being duly certified. It reasoned that:

17.  While these case  authorities  emphasize  the  requirement  of  strict  compliance  with  Order  10  rule  3,  in  none  of  them  has  this  court  commented  on  the  meaning  of  certification  given  in  Madang  Timbers (supra)  or  otherwise  determined  its  meaning  and  method  of  compliance.  The  case  authorities  in  para.16  (e)  above  relate  to  a  different  issue  of  competence.  

18.Based  on  the  view  expressed  in   Madang  Timbers (supra)  and GR  Logging (supra),  and  the  fact  that  a  sealed  copy  of  the  Orders  under  Appeal  is  annexed  to  the  Notice  of  Motion,  the  respondents  have  not  advanced  any  argument  to  persuade  us  of  an  alternative  view  to  that  expressed  in   Madang  Timbers (supra)  as  to  the  requirement  and  meaning  of  certification  in  Order  10  rule  3  (b) (ii)  which  might  lead  to  the  conclusion  that  the  Notice  of  Motion  is  incompetent.  

19.The appellant  should  therefore  have  the  benefit  of  the  meaning  accorded  in  Madang  Timbers (supra)  as  we  have  not  been  persuaded  to  find  that  the  Notice  of  Motion  is  incompetent.  

35.	The  Court  also  relied  on  the  fact  that  in  National  Capital  Limited  v  Bakani  (supra)  what  was  required  by  way  of  certification  was  not  addressed:

13.  Relevantly, to the issue at  hand,  this  court  in National Capital  Limited (supra)  did  not  suggest  what  certification  in  Order  10  rule  3  (b)  (ii)  means  or  entails.

36.	This  Court  makes  the  same  observation.  Consideration  of  the  authorities  relied  upon  by  the  parties  demonstrates  that  very  few  cases  have  discussed  the  specific  requirements  for  certification.  

Vitolo  v  Mararea  Land  Group  Inc  [2024]  PGSC  92;  SC2615  –  the  strict  interpretation  approach

37.	Vitolo  v  Mararea  Land  Group  is  the  latest  relevant  decision  having  been  handed  down  in  August  2024.  The Court had before it two objections to competency - with respect to the issues of leave and certification. This  was  one  of  the  few  cases  which  considered  in  any  detail  the  specifics  of  the  subject  order  before  the  Court and what  “certification”, in  that  Court’s  view, meant.  

38.	As  was  done  in  Madang  Timbers  the  Court  turned  to  the  meaning  of  “certified”. It  considered  a  more  expansive  range  of  definitions  to  reach  the  conclusion  that,  with  respect  to  the  “certification”  ground,  the  objection  was  upheld:

55.	To  ‘certify’  according  to  the  Cambridge  online  dictionary  is  “to  officially  approve  of  something  after  testing  its  quality  and  proving  that  it  is  acceptable”,  The  Oxford  Learners  online  dictionary  defines  the  word  to  mean  “to  state  officially  especially  in  writing  that  something  is  true”.  The  Merriam-Webster  online  dictionary  defines  the  word  to  mean  “to  testify  to  the  truth  or  genuineness  or  something”.  The  Macquarie  Concise  Dictionary  (Revised  Third  Edition)  defines  the  word  as  “to  guarantee  as  certain;  to  give  reliable  information;  to  testify  or  to  vouch  for  in  writing”.

56.	As  variably  described,  what  is  clear  and  what  is  required  by  the  rule  is  for  a  person  with  the  requisite  authority  to  approve  the  genuineness  of  the  order  to  be  appealed  against,  a  process  to  be  undertaken  for  the  purposes  of  the  rule  by  a  Judges  [sic]  Associate  or  the  Registrar.”

57.	The  order  annexed  to  the  appellant’s  notice  of  motion  (OB  page  55)  is  an  order  with  a  court  seal  over  the  name  of  the  Registrar  with  what  purports  to  be  a  signature  (not  decipherable)  over  the  word  “Registrar”.  There  is  no  certification  in  the  sense  that  there  is  no  statement  or  acknowledgment  by  the  Registrar  that  the  order  annexed  to  the  motion  has  been  verified  as  being  the  order  made,  the  subject  of  the  appeal.  That  is  the  intent  of  the  rule.  It  is  not  a  mere  technicality  to  be  disregarded  lightly,  rather  one  designed  to  ensure  the  integrity  of  the  appeal  process.  

59.  If  the  legislature  had  intended  for  a  court  seal  accompanied  by  a  Registrar’s  signature  to  suffice  for  the  purposes  of  the  rule  there  would  be  no  need  to  include  the  words  “Judge’s  Associate”  as  an  alternate  certifier.

61.  In  GR  Logging  Ltd  v  Dotaona  the  Court  (Cannings,  Collier  &  Dingake  JJ)  said  at  [44]  that  arguably  the  form  of  the  order  with  the  signature  of  the  Registrar  satisfies  the  provision  of  Order  10  rule  3(b)(ii).  Respectfully,  we  are  of  the  view  that  the  rule  envisages  a  written  form  of  verification.  
39.	The Court held that, with respect to the certification ground, the appellants had failed to annex a certified copy of the order in compliance with Order 10 rule 3 (b)(ii).

Sarea  v  Moutu  [2019]  PGSC  112;  SC1893  –  the  strict  interpretation  approach

40.	There are other authorities which have considered Order 10 rule 3 (b)(ii) in addition to those relied upon by the parties. We have reviewed a number of those cases. They have not been referenced in this judgment as they offer nothing new. They have either relied on Madang Timbers (supra) or Bakani (supra) or can be distinguished on their facts. We note that a helpful analysis of a number of those authorities is set out in Fayana v Waipo (supra).

41.	For example in Sarea v  Moutu the Court was addressing the belated filing of a certified copy of the National Court order after the notice of motion had been filed. The notice of motion had been filed annexing a copy of the judgment. A minute of the order was settled and entered after the filing of the notice of motion.

42.	The Court stated “substantial compliance with the requirement is not sufficient” and “… if there is nothing that can be regarded as a certified copy of the  order  annexed  to  the  notice of motion” it  is “materially defective”. 

43.	In finding that the order was not certified in accordance with Order 10 rule 3(b)(ii) the precise nature of the requisite “certification” was not addressed.

CONCLUSION

44.	After careful consideration of the above decisions we have, respectfully, adopted the strict interpretation approach. We find that the order the subject of the appeal has not been certified in compliance  with Order 10 rule  (3)(b)(ii) for the following reasons:

(i)	The express wording of Order 10 rule 3 (b)(ii) provides that  the  notice  of  motion  “shall”  have  annexed  to  it  “a  copy  of  the  order  made,  certified  by  the  Judge’s  Associate  or  the  Registrar”.  “Shall”  denotes  strict  compliance.

(ii)	The punctuation used in Order 10 rule  3 (b)(ii) - the  insertion  of  the  comma  instead  of  a  full  stop  after  the  words  “a  copy  of  the  order  made” makes it clear  that  something  more  than  a  copy  of  a “standard  order” is required.

(iii)	The  fact that the Judge’s  Associate is also authorised  to  certify  the  copy  makes  it  clear  that  the  certification  is  something  separate  and  distinct  from  a  signature  by  a  Registrar  made  in  the  usual  course  of  settling  and  entering  a  “standard  order” being an act which an Associate is not authorised to perform.    

(iv)	The Registrar’s signature and seal on a “standard  order” is not a  certification  of  a  copy  of  an  order. Instead  it  forms  part  of  the  procedure  for  the  settling and  entry  of  the  order  pronounced  by  the  presiding  Judge.  It arises as a result  of  a  direction  from  the  Court. That  direction  is  found  in  term  3  of  the  subject  orders:  “Time  for  entry  of  these  orders  be  abridged  to  the  date  of  settlement  by  the  Registrar  which  shall  take  effect  forthwith.” Order 12 rules 20 and 21 of the NCR state:

20. Manner of Entry

(1)	Where the entry of a judgement or order is authorized, a party or, subject to sub-rule (2) the Registrar, may enter the judgment or order by filing a minute of it signed by the registrar or, in the case of an order, signed by the Judge or officer making the order.

(2)	The Registrar shall not exercise his powers under sub-rule (1) unless-
(a)	the Court so directs; or
(b)	a party so requests.

					21. Sealing

On entry of a judgment or order, the Registrar shall seal the minute of the judgement or order with the seal of the Court.

(v)	Even in  circumstances  where  there  is  no  “time  is  abridged  order”  the  Registrar’s  signature  and  court  seal is not  a certification  but,  as discussed, part  of  the  procedure  for  the  settling  and  entry  of  the  order. The distinction  being  that  a  “time  is  abridged  order”  fixes the time from which an order takes  effect.

(vi)	Importantly, the Registrar’s signature was not a certification by the Registrar that it was a true copy of the order made on 10 April 2024. There was no independent act of verification by the Registrar to ensure that the document was a true copy of the relevant order (that is, the order the subject of the appeal) – being, no doubt, the intention of Order 10 rule 3 (b)(ii).

(vii)	As stated in Vitolo (supra) the  requirement  for  certification  of  the  order  “… is not a mere technicality to be disregarded lightly, rather one to ensure the integrity of the appeal process.” The requirement is, arguably, analogous  to  the  procedures  found  in  Order  7 – Appeals - Divisions  11  to  15  of  the  SCR.  Those  provisions relate to the settling of the appeal book and address the  need  for  careful  consideration  and  selection  of  the  documents  “which  are  relevant  or  necessary”  for  the  purposes  of  an  appeal  –  Order  7  rule  43  (12).  The  Registrar,  together  with  the  parties  or  their  lawyers  collate  the  relevant  appeal documents  and  the  parties  or  their  lawyers  certify  that  the  appeal  book  has  been  examined  and  is  correct – Order 7 rule 43(10).

(viii)	The  fact  that  no  provision  for  a  mode  of  certification  nor  a  prescribed  form  is  found  in  the  Supreme  Court  Act,  the  National  Court  Act,  the  SCR  or  the  NCR  does  not  lend  itself,  in  our  respectful  view,  to  the  conclusion  reached  in  Madang  Timbers  (supra)  as  there  are  other  requirements  within  the  SCR  for  certification  none  of  which  provide  a  mode  of  certification  or  a  prescribed  form.  

(ix)	For  example,  as discussed earlier,  Order 7 rule  36 (b) of  the  SCR  provides  for  the  settling  of  the  appeal  book  and  requires  “a  copy  of  the  notes  of  evidence  taken  by  the  primary  judge  certified  by  his  Associate  or  other  authorised  person”  to  be  produced,  if  required,  to  the  Registrar. Order 7 rule 43 (10)  of  the  SCR  requires  a  certification  by  the  lawyers  or  parties  to  the  appeal  that  the  appeal  book  has  been  examined  and  is  correct.  No  provision  for  the  mode  of  certification  or  prescribed  form  is  provided  in  either  case.

(x)	It is this Court’s view that a provision directed to the mode  of  certification  and  a  prescribed  form  would  be  superfluous  given  that,  as  earlier  explained, “certification” is a long  established  legal  practice well known to lawyers.

(xi)	Order 10 rule 3(c) requires the  notice of motion to “be  in  accordance  with  form 15”.  Form 15  similarly  requires  a  “certified  copy”  of  the  order to be annexed to the notice of motion.

(xii)	Finally s. 5 of the National Court Act provides that the National Court shall have two seals. Section 5 (1) provides for the first seal being a seal of the Court for sealing documents issued by the Court which are required to be sealed. Section 5 (2) provides for the second seal or stamp “for the authentication of Court documents”:

5. SEAL OF THE COURT
[4](1) The National Court shall have a seal of the Court for the sealing of all writs and other instruments and documents issued out of the Court and requiring to be sealed.

(2) In addition to the seal provided for by Subsection (1), the Court shall, for the purposes of authentication of Court documents, have a seal or stamp with which any summons, office copy, certificate, report or other document requiring authentication may be sealed or stamped.

45.	Section 38 of the Supreme Court Act (Ch No 37) is in identical terms. The seal or stamp provided for in s. 5 (2) of the National Court Act and s. 38 (2) of the Supreme Court  Act is to provide for authentication of Court documents by a seal, or stamp. The seal or stamp would necessarily be accompanied by a signature of the authorised person certifying the document to be a true and correct copy of the original.

46.	As  stated  earlier  the  issue  of  “fairness”  was  raised  in  Nipo  Investment.  The  exact  nature  of  the  appellant’s  concerns  with  respect  to  “fairness”  was  not  specified  in  that  case.  However  this  Court  envisages  difficulties  may  arise when consideration is given to the authorities discussed in this decision in  relation  to  mandatory  compliance  with Order 10  compared  to  authorities  such  as  Summit  Development  v  Chan  [2016]  N6390  which  espouse  a  more  liberal  application  of  the  Rules  in  certain  circumstances.  In  Summit  Development  the  Court  stated  that:

28.  Of  course,  one  needs  to  bear  in  mind  the  general  principles  that  Rules  are  not  an  end  in  themselves  but  are  a  means  to  an  end,  and  by  reason  of  which,  if  rigid  application  of  the  Rules  will  result  in  injustice,  including  the  denial  of  the  right  of  a  party  to  be  joined  …..then  such  rigid  application  of  the  Rules  should  be  dispensed  with,  if to do so is in the interest of justice…

47.	This Court has an objection to competency before it with respect to an appeal of a decision in judicial review proceedings. Judicial reviews are not appeals. They are concerned with, amongst other things, the failure of the decision maker to follow due processes and procedures. In SCR1 of 1990 [1990] PNGLR441 it was stated that  “Judicial  review  is  not  an  appeal  procedure.  Judicial review does not consider the merits of any decision that may  be  challenged.  Judicial review is only concerned with the validity of the decision;  the  subject  matter  of  the  decision  always  remains  in  the  discretion  of  the  relevant  authority,  otherwise  the  court  would  be  assuming  the  powers  delegated  to  others”.  

48.	Returning to the issue of fairness, and in the context of judicial review matters, it is our view that a Court cannot be seen to waive the requirements of strict compliance with Court Rules on  one  hand  and  then  criticise  a  relevant  authority  for  non-compliance  with  due  processes  and  procedures  on  the  other.

49.	Finally, it seems to us that in circumstances such as these where the issue of “certification” is known to be controversial lawyers should prepare material which meets the higher standard of the diverging views. An appellant should request, in a timely manner, a copy of the order the subject of the appeal to be “certified” by the Registrar or the Judge’s Associate as a true copy, prior to the filing of the Notice of Motion.

50.	In conclusion we uphold the Notice of Objection to Competency.  The amended Notice of Motion does not have annexed to it of a copy of the order certified by the Judge’s Associate or the Registrar in compliance with Order 10 rule 3(b)(ii) of the SCR.  The Notice of Motion is therefore materially defective. The appeal is dismissed.

51.	NUMAPO J (dissenting): This is a hearing of an objection to competency of an appeal filed by the 1st - 4th Respondents (hereinafter, “Respondents”). The State (5th Respondent) was not represented in Court nor was it represented although, the notice of appeal was served on them. 

52.	On 19th June 2024, the 1st – 4th Respondents filed a Notice of Objection to Competency of the Appellant’s Amended Notice of Motion filed on 10th June 2024.  

53.	The Objection to Competency alleged that the Court Order annexed to the Amended Notice of Motion dated and filed on the 10th of June 2024 is not certified by the Judge’s Associate or the Registrar contrary to the mandatory requirement of Order 10 Rule 3(b)(ii) of the Supreme Court Rules 2012 consolidated to Supreme Court (Miscellaneous Amendments) Rules 2022.

BACKGROUND

54.	The Appellant appeals the decision of the primary judge that summarily dismissed the National Court proceedings pursuant to Order 10 Rule 9A (15) (10) (b) and (20) (c) of the National Court Rules (NCR). 

55.	The appeal lies without leave pursuant to section 14 (1)(a) &(b) of the Supreme Court Act and Order 10 Rules 1(a) and 3 of the Supreme Court Rules (SCR).

56.	The 1st - 4th Respondents filed a notice of objection to competency of the appeal pursuant to Order 7, Division 5, Rule 15 (a) and Order 11, Division 14, Rule 28 (a)  of the Supreme Court Rules 2012 Consolidated to Supreme Court (Miscellaneous Amendments) Rules 2022 (hereinafter, the “Rules”) seeking to dismiss the appeal instituted through the Amended Notice of Motion filed on the 10th June 2024 for failing to annexed a Court Order to the appeal that is ‘certified’ by the Judge’s Associate or the Registrar as required by Order 10 Rule 3 (b) (ii) the SCR.

57.	The Respondents filed a formal notice of objection challenging the competency of the appeal on the basis of non-compliance of Order 10 Rule 3 (b) (ii) of the SCR.  

58.	In his submission, counsel representing the Respondents, Mr Steven Ranewa submitted that Order 10 Rule 3 (b) (ii) of the SCR is a mandatory requirement requiring that the notice of motion shall have annexed to it a copy of the Court Order made, ‘certified’ by the Judge’s Associate or the Registrar. 

59.	Mr Ranewa submitted that the copy of the Court Order annexed to the Amended Notice of Motion filed by the Appellant on the 10th of June 2024 was not certified by the Judge’s Associate or the Registrar rendering the appeal incompetent and should therefore, be dismissed. Appellant’s failure in annexing a certified copy of the Court Order, is contrary to the intent and spirit of Order 10 Rule 3 (b) (ii) of the Rules. 

60.	Counsel referred to some recent case laws with varying and contrasting views on the requirement of Order 10 Rule 3 (b) (ii) of the Rules with regard to certified copy of a Court Order to be annexed to the appeal. Our initial observation of these case laws is that the Courts in the past have taken different approaches in determining the requirement of Order 10 Rule 3 (b) (ii). Whilst some take a stricter approach in the interpretation of the Rules, others took a liberal view of it. 

61.	In response to the objection to competency, Ms Belinda Poki for the Appellant submitted that the objection is incompetent in that it does not specify the Court Order annexed to the Amended Notice of Motion hence, contrary to the mandatory requirement of Order 10 Rule 3(b) (ii) of the SCR. Furthermore, the ground of objection is ‘vague’ and ‘defective’ on the face of it and should be dismissed. Counsel, however, has not explained what she meant by vague and defective on the face of the record.

62.	Ms Poki further submitted that the form or process of ‘certification’ is not specifically prescribed or defined under the National Court Rules (NCR) or the Supreme Court Rules (SCR). Counsel referred to some recent case laws on point and made some comparative analysis on the interpretation and application of Order 10 Rule 3(b) (ii) of the SCR in the various decisions made by the Courts in the past. 

63.	Counsel urged the Court to adopt the liberal approach taken in Madang Timber Ltd v. Kambori [2009] PGSC18; SC992 which was adopted and applied later in the case of GL Logging v, Dotaona [2018] SC1690 on the requirement and meaning of the word ‘certification’ to mean certified by the Registrar to comply with Order 10 Rule 3 (b) (ii) of the SCR. 

64.	According to Ms Poki, if the Court apply the same principle as applied in the two cases above, it will find that the Court Order made on 10 April 2024 and filed on 11 April 2024 was sealed and signed (certified) by the Registrar in compliance with the mandatory requirement of Order 10 Rule 3 (b) (ii) of the Rules.

65.	On that basis, Ms Poki submitted that the Objection to Competency should be dismissed with costs and allow the Appeal to be heard.  

THE LAW

66.	The jurisdiction on objection to competency of appeal is derived from Order 7 Division 5 and/or Order 11 Rule 28(a) of the SCR.

67.	Order 7 Division 5 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 in any manner, including by service on the appellant’s lawyers in the National Court proceedings.

16. Any party may file affidavits.

17. (1) An objection of which notice has been given shall be determined by:
(a) in the case of an objection to a matter that is within the jurisdiction of a Judge, the Court, or any Judge; and
(b) in any other case, the Court.

          (2) An objection to competency shall be heard and determined before the substantive matter to which the objection relates is set down for hearing unless a Judge decided in a special case that it is in the interests of justice to set down the matters together. 

68. Upon hearing of an objection to competency the burden of establishing the incompetency of the matter, the subject of objection is on the party making the objection. 

69. If notice of objection is not given and the appeal or the application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal or the application for leave to appeal unless the Court or Judge on special grounds orders otherwise. 

70. Order 11 Rule 28(a) of the SCR provides: 

“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.”

71.	Order 10 Rule 3(b) (ii) of the SCR provides: 

3.	The notice of motion shall –

(a)	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.

SUBMISSIONS BY PARTIES

72.	The issue is; whether the Appellant has failed to comply with Order 10 Rule 3(b)(ii) of the Rules by reason of lack of proper certification of the Court Order by the Registrar.

73.	The Appellant stated that the Court Order annexed to the Amended Notice of Motion filed on 10 April 2024 was sealed and signed (or certified) by the Registrar of the National Court in accordance with the mandatory requirement of Order 10 Rule 3(b)(ii) of the Rules.

74.	The Respondents contended that the Court Order annexed to the Amended Notice of Motion filed on 10 April 2024 was not certified by the Registrar therefore, it is in breach of Order 10 Rule 3(b)(ii) of the Rules, rendering the appeal incompetent and therefore, it should be dismissed. 

75.	The Supreme Courts through the case laws have taken different approaches in interpreting Order 10 Rule 3(b)(ii). In some cases such as the National Capital Limited v. Bakani (2014) SC1392 followed by Nipo Investment Ltd v. Nambawan Super Ltd (2017) SC1642, the Courts said that substantial compliance with the requirement is not sufficient, there must be full compliance.

76.	The first case dealing with Order 10 Rule 3(b)(ii) was the Madang Timbers Ltd (supra), (Davani J, Cannings J, Kariko J) and commented on in GR Logging Limited (supra), (by Cannings J, Collier J, Dingake J) concerning the word “certified” as it appears in Order 10 Rule 3(b)(ii) that:

“…the word “certified” in the Oxford English Dictionary 2nd Edition, to be “made certain, assured, certainly informed, attested by certificate, furnished with a certificate” meant that the Registrar “made certain” these were the orders made by the trial judge. This is endorsed by the fact that (i) The National Court Act, National Court Rules, Supreme Court Act and the Supreme Court Rules do not provide for any particular mode for certification, more particularly, they do not provide for a form of a certificate; that (ii) the Registrar of the National Court signed and entered the orders of 27th November, 2008, thereby certifying the trial judge’s orders announced on 22nd October 2008 and which are contained in his published reasons.”

77.	The decision in Madang Timber case did not find support in the later of case of National Capital Ltd v. Bakani (2014) SC1392 (Injia CJ, Gavara-Nanu & Kawi JJ) where the Supreme Court emphasized strict compliance of Order 10 Rule 3(b)(ii) brought on by the use of the word “shall”, making it mandatory. The Court said the following:

“Notably, Order 10 Rule 3 starts with a sentence that includes the word “shall” which subject to the context in which it is used, prima facie means that whole of Rule 3 is mandatory. ….it becomes very plain that first; the certification of the order of the trial court is to be done either by the Judge’s Associate or the Registrar and second; such certified copy of the order of the trial court is to be annexed to the notice of motion before the notice of motion is filed. So when a notice of motion is filed it should already annexed to it a duly certified copy of the trial court’s order. This requirement is mandatory. It follows that the certification of the trial court’s order that is required under Rule 3(b)(ii) cannot validly be made after the notice of motion is filed. To do so, would amount to a serious breach of Rule 3(b)(ii). This indicates clearly the intention of the legislature regarding Order 10 Rule 3(b)(ii). It must be strictly complied with as a mandatory regulatory provision….Having reached this conclusion, it follows that we must respectfully disagree with the view held in Madang Timber Ltd v Kambori & Ors that the certification of a copy of the trial court’s order can be validly made after the notice of motion is filed. We also respectfully disagree that annexing the trial court’s judgment to the notice of motion and the subsequent entry and signing of the trial court’s orders by the Registrar would meet the requirements of r 3(b)(ii).” 

78.	 In the Madang Timber case, the trial judge’s orders were not annexed to the notice of motion as required under Order 10 Rule 3(b)(ii). The only thing annexed to the notice of motion was the judgment of the trial court including the orders of the court. The orders were subsequently signed and entered by the Registrar which the court held to have met the requirements of Order 10 Rule 3(b)(ii). The decision in Bakani disagreed and said that this is in breach of Order 10 Rule 3(b)(ii). 

79.	Although, the court in Madang Timbers found some defects in the notice of motion, it held that there was merit in the argument raised by the Appellant that the word “certified” in the Oxford English Dictionary 2nd Edition which means to be “made certain, assured, certainly informed, attested by certificate, furnished with a certificate” meant that the Registrar made certain these were orders made by the trial judge and endorsed by him as such. The court considered this to be sufficient to satisfy the requirements of Order 10 Rule 3(b)(ii). The court decided to apply the definition of the word “certified” in the dictionary because the National Court Act (NCA), the National Court Rules (NCR), the Supreme Court Act (SCA) and the Supreme Court Rules (SCR) did not prescribe any particular mode of the certification of the orders given by the trial court for the purposes of Order 10 Rule 3(b)(ii). This argument makes sense to me. The proposition finds support where the law is silent on the process of certification thereby opening the door wide on how Order 10 Rule 3(b)(ii) should be interpreted and applied. 

80.	 I say this, because in the Bakani case, apart from emphasizing the “strict compliance” of Order 10 r 3(b)(ii), the Court did not explain or specify what it meant by strict compliance and what process of certification is required in the absence of any prescribed process under the NCR or SCR to satisfy the “strict” compliance test of certification. It is not clear what the Court meant by strict compliance when it does not show what prescribed process or procedure that is to be applied and followed under the Rules to ensure strict compliance. Strict compliance is the requirement to comply with every letter of the law whilst substantial compliance means a person or entity has made a good-faith effort to meet the requirements of the law. The Court interpreted the word “shall” to mean strict compliance but as to how this mandatory requirement is given effect to and applied, is not clear. 

81.	Order 10 Rule 3(b)(ii) in its ordinary meaning, in my view, requires a separate certification by the Judge’s Associate or the Registrar certifying the Court Order as the correct and true copy of the Order made by the trial judge. In my considered opinion, certification does not have the same meaning and/or application as with the signature and/or endorsement made on the Court Order by the Registrar. Putting it simply, a Court Order signed and sealed by the Registrar is not certification and cannot be regarded as such.  Also, a copy of a judgment annexed to an appeal is not certification.

82.	 The Supreme Court in Sarea v Moutu (2019) SC1893 (Cannings J, Hartshorn J and Yagi J), dismissed a notice of motion instituting an appeal for being incompetent which had annexed to it a copy of the judgment. The Court held that.

“Though there have been cases in which the issue has arisen whether the National Court order has been “certified” as required (eg. Madang Timbers Ltd v. Kambori (2009) and GR Logging Ltd v. Dotaona (2018) SC1690), if there 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.” 

83.	 A good number of appeal cases have been dismissed for failing to annex to the notice of motions certified copies of the National Court orders. In Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2001) SC659, the appellants did not annex a copy of the National Court Order, and the application was refused by Gavara-Nanu J (as he then was). A second application was made by the appellants pursuant to section 10 (2) of the Supreme Court Act before a full three-men bench (Kapi DCJ, Injia J and Davani J) seeking extension of time to annex a copy of the National Court Order. It was also refused for similar reasons.  

84.	Appeals in the other cases were similarly dismissed as incompetent as the notice of motion instituting the appeal filed pursuant to Order 10 Rule 3 did not, in breach of Order 10 Rule 3(ii) have annexed to it a certified copy of the National Court (see: Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273; Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408; Nipo Investment Limited v. Nambawan Super Limited (2017) SC1642 and Palaso v. Elliot (2020) SC2939). The cases relate to different issues of competence. Some were dismissed because they did not plead the jurisdiction of the court that authorized its filing. Others were dismissed because the notice of motion did not have annexed to it a copy of the written submission of one of the parties.

85.	 In their respective submissions, Counsels for the appellant and respondents have not commented on the meaning of “certification” and explained what is required to satisfy the requirements of Order 10 Rule 3(ii) in the absence of clearly prescribed or defined process under the NCR and SCR. It appears that Madang Timbers seems to be the only case law that tries to give meaning to the word certification and method of compliance. 

86.	Whilst the Supreme Court in the National Capital Limited v Bakani (supra) and Nipo Investment Ltd v Nambawan Super Ltd (supra) emphasized strict and full compliance on certification, the court did not prescribe what specific process or procedure to employ that gives meaning to the word ‘certification.’ The situation is exacerbated further by the lack prescribed processes and guidelines under the NCR and SCR pertaining to certification. In the absence of such, I am left with no option but to give the appellant the benefit of the meaning accorded in Madang Timbers (supra). Respondents have not persuaded me of an alternative view to the one expressed in Madang Timbers as to the requirement and meaning of certification in Order 10 Rule 3(ii) which might lead to the conclusion that the notice of motion is incompetent. 

87.	For these reasons, I rule in favour of the appellant and dismiss the notice of objection to competency. The respondents shall pay the appellant’s costs and incidentals relating to the notice of objection to be taxed, if not agreed. 

ORDERS

Per: David J and Carmody J; Numapo J dissenting.

88.      The Court, by a majority, orders that:

1)	The objection to competency of the appeal is upheld.
2)	The appeal is dismissed as being incompetent.
3)	The appellant shall pay the costs of and incidental to the appeal including the objection, to  be  taxed, if not agreed.
________________________________________________________________
Lawyers for the appellant: Warner Shand	
Lawyers for the first to fourth respondents: Kawat Lawyers