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Tjandranegara v TST 4 Mile Ltd (previously Patu No. 27 Ltd) [2025] PGSC 6; SC2696 (10 February 2025)

SC2696


PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SCA NO. 129 OF 2024


BETWEEN:
ELEANA TJANDRANEGARA
First Appellant


AND:
PATU NO. 27 LIMITED previously RAKU NO. 52 LIMITED
Second Appellant


AND:
NAIMA INVESTMENT LIMITED
Third Appellant


AND:
TST 4 MILE LIMITED previously PATU NO.27 LIMITED
First Respondent


AND:
JIMM TRADING LIMITED
Second Respondent


WAIGANI: SALIKA CJ, KANDAKASI DCJ, HARTSHORN J, MURRAY J, DINGAKE J
14 JANUARY, 10 FEBRUARY 2025


SUPREME COURT – PRACTICE AND PROCEDURE - whether leave to appeal is required – Supreme Court Act, s.14(3) -whether a judgment on liability with mesne profits or damages and loss of rent still to be assessed is an interlocutory judgment requiring leave of the court to appeal against it - objection to competency of appeal on ground that no leave to appeal was sought to file the notice of appeal.


SUPREME COURT – PRACTICE & PROCEDURE (per Kandakasi DCJ) – Objection to competency - Appeal against whole of the judgement – Part final and part interlocutory – Supreme Court Act ss4 and 14 – What is provided for - Lack of provision made for part final and part interlocutory decisions – Meaning and effect of – Whole judgment to be considered interlocutory with right of appeal to be exercised upon final decision in the matter - No appeals against part final and part interlocutory decisions neither with leave nor as of right permitted – Purpose or objective or legislature to avoid mischief or harm cause by ready resort to appeals or reviews.


Facts


The appellants were defendants in the National Court proceeding. After a trial, by notice of appeal, the appellants appealed against the “whole decision and judgment” which ordered in favour of the first respondent for the appellants to deliver possession of a certain property after 60 days failing which a writ of possession would issue. The judgment of the primary judge delivered after the trial also ordered that the cross claims were dismissed, that directions shall issue for the separate hearing of the first respondent’s claims for mesne profits, general
damages and loss of rent and that costs were reserved until the determination of that hearing. The first respondent objects to the competency of the appeal on the ground that no leave to appeal was sought when leave is required as the judgment appealed is an interlocutory judgment.


Facts (per Kandakasi DCJ)


In the trial Court (the National Court), the Respondents claimed ownership of a Property against the Appellants. They also claimed there was no valid lease or any legal right for the Appellants to be in possession of the Property and sought an order for vacant possession against the Appellants. Additionally on insufficiently pleaded pleadings, the Respondents also sought mesne profits, damages and lost of rentals. At the commencement of the trial, the appellants counsel sought and the trial court granted leave to the lawyers to cease acting for the appellants, denied the appellants time and opportunity for them to seek and secure the services of a new lawyer despite the second and third appellants being corporate entities which according to Or4,r5 of the National Court Rules necessitated representation by a lawyer or a solicitor. At the end of the trial, the trial court found for the Respondents as owners of the Property and the Appellants had no valid lease or right to remain on the Property and order them to give vacant possession within 60 days from the date of the order. The trial court also found and held the respondents were entitled to mesne profits, damages and loss of rentals despite the lack of any proper foundation for that part of the claim and ordered such profits and loss and damages be assessed in a separate trial and order the issue of directions for that purpose. Aggrieved by those decisions the appellants appealed proceeding on the basis that the decision was final. The respondents objected on the basis that the decision was interlocutory which meant that the appellant had to seek and secure leave to appeal before appealing which it failed to do. According to the Respondents, that rendered the appeal incompetent. The Court heard the objection at which the parties argued for their respective positions.


Held:


1. To determine whether a judgment of the National Court is an interlocutory or a final judgment, the “order approach” should be continued to be adopted and followed. That is, the judgment or order should be assessed to determine whether it finally determines the matter or proceeding, finally disposes of the rights of the parties in the proceeding and finally determines all of the issues between the parties in the proceeding.


2. Here, the judgment appealed does not finally determine the matter, the proceeding, the litigation in the National Court. It does not finally dispose of the rights of the parties in the proceeding and does not finally determine all of the issues between the parties in the proceeding.


3. Under the “order approach” and the “application approach” the judgment appealed is not a final judgment. It is an interlocutory judgment.


4. As the judgment appealed is interlocutory, leave to appeal is required but has not been sought or obtained. As the appeal has been commenced by a notice of appeal, without leave where leave is required the appeal is incompetent and should be dismissed.


5. The objection to competency of the first respondent is upheld and the notice of appeal is dismissed.


Held (per Kandakasi DCJ):


  1. The starting point is a consideration of the provisions of ss 4 and 14 of the Supreme Court Act (SC Act) as what is in fact provided for and what is not provided for.
  2. Sections 4 and 14 provide for:
  3. Appeals from a part final and part interlocutory decision is not provided for in ss 4 and s14 of the SC Act, purposely to avoid mischief that can be caused by ready appeals against such decision which has the potential of denying justice, when the parties have the right of appeal or review intact to be exercised at the end of the trial process where a final decision is delivered.
  4. It is now settled law that, the orders approach is the correct approach or test to apply to determine whether a decision is final or interlocutory for the purposes of s14 (3) of the SC Act except for the exceptions under s14 (3) (b) (i) and (ii) and any thing additional that might be added by the Rules of the Court that may be promulgated by the judges: Approved and applied Steven Punagi v. Pacific Plantation Timber Ltd [2011] 2 PNGLR 92, SC1153; Lady Cragnolini v. Henry Leia (2023) SC2464 and others
  5. The decision in the present case was a part final and part interlocutory decision in respect of which there can be no appeal until a final decision that finally concludes the matter. Hence, the appeal was held incompetent and consequently dismissed.

Cases cited


Akipa & Ors vs. Lowa & Ors [1990] PNGLR 502
Alfred Daniel v. Pak Domoi Ltd (2004) SC736
Battle v. Irish Art Promotion Centre Limited [1969] IR 252
BSP Financial Group Ltd v. Samuel Tupou (2023) SC2499
Diro v. Ombudsman Commission of Papua New Guinea (1991) N1385
Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ors as the Ombudsman Commission (2011) SC1118
Ian Augerea v. Patilias Gamato (2018) SC1745
Jack Kariko v. Ken Ngangan & Ors (2023) SC2422
Kappo Limited v. Hau and Ors (1997) SC520
Kule Layo & Ors v. Hon. Ano Pala (2024) SC2597
Lady Cragnolini v. Henry Leia (2023) SC2464
Maniosa Yakasa v. David Piso (2014) SC1330
Moran v. Lloyds (1981) 1 Lloyds Reports 423
MVIL v. Kauna Kiangua (2015) SC1476
National Capital District Commission v. Namo Trading Limited (2001) SC663
Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106
Oio Aba v. MVIL (2005) SC779
Paru Aihi v. Peter Isoaimo (2013) SC1276
Pinpar Developer Pty Ltd v. TL Timber Development Pty Ltd (2019) SC1892
PNG Power Ltd v. Grant Hoffmeister (2024) SC2665
PNGBC v. Jeff Tole (2002) SC694
Ruma Construction Pty Ltd v. Smith (1999) SC600
Salomon v. Salomon & Company Ltd [1897] AC 2
Simon Kauba & Ors v. Alphones Willie & Ors (2021) SC2162
Smith v. Ruma Constructions Ltd (2002) SC695
State v. Gelu, Solicitor General (2002) N2322
Steven Punagi v. Pacific Plantation Timber Ltd [2011] 2 PNGLR 92
The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013
Westly Nukundi Nukundj v. Steven Pim & Electoral Commission of Papua New Guinea (2025) SC2683
White v. Brunton [1984] 1QB 570
Yapi Giwi v. Jacob Popuna (2024) SC2686
Zachary Gelu v. Sir Michael Somare MP (2008) N3526


Counsel


Mr. I. Molloy and Mr. C. Joseph for the respondents/objectors

Mr. A. Donigi for appellants/respondents


  1. SALIKA CJ, HARTSHORN J, MURRAY J and DINGAKE J: This is a decision on a contested objection to competency of the purported notice of appeal in this proceeding. The objection is that the judgment sought to be appealed (judgment appealed), is an interlocutory judgment and so leave is required to appeal. This appeal, however, has been commenced by a purported notice of appeal in which it is stated that the appeal lies without leave. Consequently, it is contended that the notice of appeal is incompetent.

Background


  1. The dispute between the parties concerns real property. The first respondent (plaintiff) commenced proceedings in the National Court by writ of summons. It sought against each of the appellants (defendants) an order for possession of land, mesne profits or alternatively damages for trespass and loss of rent, interest and costs.
  2. After a trial, the Court entered judgment for the first respondent against the appellants, ordered delivery of vacant possession of the property, dismissed the cross claims, ordered that directions shall issue for the separate hearing of the first respondent’s claims for mesne profits, general damages and loss of rent and reserved costs until the determination of that hearing.

Consideration


  1. The questions for consideration are whether the judgment appealed is final or interlocutory and if the judgment appealed is found to be interlocutory should the notice of appeal be dismissed for being incompetent. These questions arise from s.14(3)(b) Supreme Court Act which relevantly provides that no appeal lies to the Supreme Court without leave of the Supreme Court, “from an interlocutory judgment made or given by the National Court ....”.
  2. The first respondent contends that the judgment appealed is interlocutory. The appellants contend otherwise. In their written submissions the appellants contend amongst others, that to determine whether the judgment appealed is final or interlocutory the principles set out in Steven Punagi v. Pacific Plantation Timber Limited [2011] 2 PNGLR 92, SC1153, in applying the “order approach” should be followed as that is “good law which is sound and logical”:[15]. In oral submissions counsel for the appellants maintained that the “order approach” should be followed and also conceded that the hearing before the primary judge was part heard.
  3. The appellants contend further that this case should be considered a rare case as was referred to in obiter dicta comment in Oio Aba v. Motor Vehicles Insurance Limited (2005) SC779. Those comments were concerning, “where the nature of the claims made in the originating proceeding are so distinct and separate, that final judgment on one is to be regarded as a final judgment, even though the other claims, are still to be litigated.”
  4. The question of whether a judgment is final or interlocutory may be difficult to determine, in the absence of a statutory provision or Rule providing a definition: see White v. Brunton [1984] 1 QB 570 at 572. In England and then in this jurisdiction there were two approaches to the determination of the question - the “order approach” and the “application approach”.
  5. A description of the two approaches is as described in Punagi v. Pacific Plantation Timber Limited (supra) at [6]:

“The ‘order approach’, being the effect in Shubrook v Tufnell [1882] UKLawRpKQB 118; (1882) 9 Q.B.D. 621 and Bozson v. Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547, that is that an order is final if it finally determines the matter in litigation; the issue of final or interlocutory depending upon the nature and effect of the order as made. The other approach is the ‘application approach’, being the effect of the decision in Salaman v. Warner [1891] UKLawRpKQB 85; [1891] 1 Q.B. 734, in which it was held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation.”


  1. For example, on the “application approach”, if an application was successfully made to dismiss for want of prosecution, the judgment or order would not be final because if the application had been unsuccessful the proceeding would have continued and would not have finally determined the litigation.
  2. The “order approach”, although not described as such, was followed in National Capital District Commission v. Namo Trading Limited (2001) SC663. The Court said at [6]:

“In our view, the test to be applied is whether the judgment and order is final in that it "finally disposes of the right of the disputing parties" or "there is no substantive issue(s) afoot that remains to be tried" (La Jarden Collected Agency Pty Ltd v Richard Hill; Ors Supra SC 597 [1998], or "because the order results in the rights of the parties in those proceedings being terminated or extinguished" (NCDC v PNG Water Ltd & Ors SC624 (199).”


  1. Ten years later in Punagi v. Pacific Plantation Timber Limited (supra), a five member Court considered which of the two approaches should be continued and adopted. After detailed consideration, the Court found that the “order approach” should be continued to be adopted in this jurisdiction. That is, that an order is final if it finally determines the matter in litigation: [9] – [10] Punagi v. Pacific Plantation Timber Limited (supra).
  2. As an example, at [11] the Court stated:

“...... a dismissal of an appeal for want of prosecution, is not an interlocutory judgment within the meaning of s. 14 (3) (b) Supreme Court Act, as it finally determines the matter in the National Court, it finally disposes of the rights of the disputing parties and it finally determines the issue between the parties.”


  1. The “order approach” has been followed in numerous Supreme Court judgments and recently in Kule Layo v. Ano Pala (2024) SC2597 and PNG Power Ltd v. Grant Hoffmeister (2024) SC2665: see also BSP Financial Group Ltd v. Samuel Tupou (2023) SC2499 at [4]; Yapi Giwi v. Jacob Popuna (2024) SC2686 at [10] – [13]; Ian Augerea v. Patilias Gamato (2018) SC1745 at [10] – [13] and Jack Kariko v. Ken Ngangan (2023) SC2422 at [5].
  2. In Kule Layo v. Ano Pala (supra) at [31] – [32] the Court stated:

“31. The test of whether an order is final or interlocutory in nature is settled by the Supreme Court in Punagi v. Pacific Plantation Timber Limited (2011) SC1153 .......

In our view, the order approach, .... adopted and applied in Punagi v. Pacific Plantation Timber Limited (supra) is sound and good law and (we are) inclined to adopt and apply (the) same in the case before the Court.”


  1. Then in PNG Power v. Hoffmeister (supra) at [6] and [7] the Court said:

“6. To determine whether a judgment of the National Court is interlocutory it is necessary to consider the nature and effect of the judgment and assess whether it finally determines the rights of the disputing parties and whether there are any substantive issues yet to be tried (NCDC v Namo Trading Ltd (2001) SC663, Daniel v Pak Domoi Ltd (2004) SC736, Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92).


Here, the order did not finally determine the rights of the disputing parties as it only determined the issue of liability and did not determine the substantive issue of the amount of damages, if any, awarded to the defendant.”


  1. We consider the judgment appealed in light of the two approaches.
  2. When the primary judge heard the trial in the proceeding, he was to hear the trial generally as there was no order for a split trial or an order for trial on liability only. This is pursuant to Order 10 Rule 3 National Court Rules which is as follows:

“3. Extent of trial. (33/4)

Proceedings shall, unless the Court otherwise orders, be set down for trial generally, that is to say, for trial of all the questions and issues arising on every claim for relief in the proceedings.”


  1. The primary judge, of his own volition, did not hear and determine all of the questions and issues arising in the proceeding. If the primary judge had heard the trial generally and considered all of the questions and issues arising on every claim for relief in the proceeding, this would have resulted in a final decision, pursuant to the “application approach”, as either way, it would have finally determined the litigation. Similarly, pursuant to the “order approach”, such a decision would have finally determined all of the matters in litigation between the parties. As the primary judge did not hear and determine all of the questions and issues arising on every claim for relief in the proceeding, the judgment appealed is an interlocutory judgment on both approaches.
  2. The judgment appealed is stated in the purported notice of appeal as being from the, “whole decision and judgment” of the primary judge. That judgment ordered amongst others, “Directions shall issue for the separate hearing of the plaintiff’s claims for mesne profits, general damages and loss of rent” and that, “Costs are reserved until determination of that hearing”.
  3. That costs were reserved is an indication that the primary judge did not intend that the judgment appealed finally concluded the proceeding. That costs are reserved until the determination of that hearing is confirmation of that intention.
  4. It is clear that the judgment appealed does not finally determine the matter, the proceeding, the litigation in the National Court, it does not finally dispose of the rights of the parties in the proceeding and does not finally determine all of the issues between the parties in the proceeding. Under the “order approach” and the “application approach” the judgment appealed is not a final judgment. It is an interlocutory judgment.
  5. The appellants contend that this case should be considered as a rare case as was referred to in obiter comments in Oio Aba v. MVIL (supra). In Oio Aba v. MVIL (supra), two judgments were cited when reference was made to rare cases. These judgments are Ruma Construction Pty Ltd v. Smith (1999) SC600 and Alfred Daniel v. Pak Domoi Ltd (2004) SC736.
  6. Ruma Construction v. Smith (supra) concerned a contract for the sale of land and damages. The Court considered whether a summary judgment with damages to be assessed is final or interlocutory. After referring to the two tests which may be applied, without referring to them as the “order” and “application” approaches, the Court stated that the judgment (appealed) finally disposes of the issues before the Court and there are no further issues left to be determined. This is notwithstanding that the judgment (appealed) ordered that damages were to be assessed and those damages remained to be assessed.
  7. In Daniel v. Pak Domoi (supra), the proceeding was concerned with ownership of freehold land and damages for destruction and loss of property on the land. The Court at [4] referred to the test to determine whether a judgment was final or interlocutory, as being the “application” approach, without referring to the test as such. The Court then made a determination that a summary judgment was a final order because of that Court’s interpretation of what it considered to be the plain meaning of Order 12 Rule 38 National Court Rules. This is notwithstanding that it was acknowledged and accepted that there was an order for assessment of damages and that the question of damages was to return to the court for assessment. The Court found that the order for assessment of damages was an interlocutory order. This was in the same proceeding in which it had found that there was a final order.
  8. Both of these cases are concerned with proceedings in which summary judgments were entered with damages yet to be assessed. The judgment appealed herein is not from a proceeding in which summary judgment was applied for or entered and so it is distinguishable from Ruma Construction v. Smith (supra) and Daniel v. Pak Domoi (supra). Further, the tests applied by the Courts in these two judgments in determining whether the summary judgments were final or interlocutory were not stated to be and were not with respect, a correct application of either the “order approach” or the “application approach”. In particular, the two cases are not a correct application of the “order approach” which was adopted by the five member Court in Punagi v. Pacific Plantation Timber Limited (supra) and decided 11 years and 7 years after Ruma Construction v. Smith (supra) and Daniel v. Pak Domoi (supra).
  9. Moreover, notwithstanding that the appellants in this instance contend that the “order approach” should be followed, to find that the judgment appealed is final and not interlocutory would be to depart from the judgment in Punangi v. Pacific Plantation Timber Limited (supra) and the Supreme Court judgments since, including PNG Power Limited v. Hoffmeister (supra) and Kule Layo v Ano Pala (supra). A finding that the judgment appealed was final would not be in accordance with the “order approach”.
  10. We are satisfied that the judgment appealed is not a final judgment and is an interlocutory judgment pursuant to the “order approach”. The appellants have not shown why the “order approach” should be departed from and not followed in this instance. A reason for such a departure is required to be shown as notwithstanding that the applicants contend that the “order approach” should be followed “as it is good law and is sound and logical”, the result that the appellants seek, that the judgment appealed is a final judgment, is not in accordance with the “order approach”.
  11. In Paru Aihi v. Peter Isoaimo (2013) SC1276 at [23] – [27], Kandakasi J. (as he then was) considered in detail principles and factors to be taken into account before the Supreme Court should depart from an earlier decision. In this instance, the appellants have not made submissions on those principles and factors apart from suggesting that Judges should make rules to correct ambiguities. As mentioned, we are not satisfied that the appellants have shown to this Court why the “order approach” should be departed from.
  12. The judgment appealed emanates from a proceeding in which the first respondent claims amongst others, three categories of relief in respect of the same property. The claims are not “so distinct and separate”. The claims are interrelated and concern the first respondent’s ownership of the property, the trespass of the property by and the refusal to deliver possession of the appellants and the mesne profits and unpaid rent for which they are liable.
  13. Summary judgment was not applied for or entered in the National Court proceeding from which this appeal emanates and so as mentioned, this case is distinguishable from the judgments in Ruma Construction v. Smith (supra) and Daniel v. Pak Domoi (supra). Further the judgment appealed is also an interlocutory judgment pursuant to the “application approach”, if that approach is considered.
  14. As the judgment appealed is interlocutory, leave to appeal is required but has not been sought or obtained. Further, an application for leave to appeal has not been filed in time pursuant to s. 17 Supreme Court Act. As the appeal has been commenced by a notice of appeal, without leave where leave is required, the appeal is incompetent as the jurisdiction of the Court has not been engaged. As the appeal is incompetent it should be dismissed: Punagi v. Pacific Plantation Timber Ltd (supra); PNG Power Ltd v. Hoffmeister (supra).
  15. Given the above it is not necessary to consider the other submissions of counsel.
  16. We would order as follows:
    1. The objection to competency of the first respondent is upheld.
    2. The notice of appeal filed 28th October 2024 is dismissed.
    1. The appellants shall pay the costs of the first respondent of and incidental to this proceeding.
  17. KANDAKASI DCJ: The Respondents object to the competency of this appeal. They claim the decision appealed against was an interlocutory decision by reason of which leave was required but was not sought and obtained. Whilst conceding only in part, the Appellants claim the main issues for trial were finally determined. They therefore claim they are entitled to appeal as of right.

Issues for determination


  1. Thus, the issue for the Court to determine obviously, is the appeal incompetent. To determine that question, it will be necessary to determine whether the decision the subject of this appeal is final or interlocutory. I will deal with these issues together but looking at the second issue first and based on the answer to that question, determine the first issue.

Relevant background and facts


  1. The relevant background facts leading to the appeal and the objection to its competency are not in any serious contest. The appeal arises from a decision of the National Court made on 20 September 2024 in WS No.518 of 2015 (Decision). That Decision resulted in the making of the following orders:

“1. Judgment is entered for the plaintiff against the defendants.

  1. The defendants shall deliver up possession of Allotment 22, Section 387 Hohola as contained in State Lease Volume 46, Folio 60 after 60 days from the date of this order, failing which a writ of possession shall issue.
  2. The cross-claims by the defendants are all dismissed.
  3. Directions shall issue for the separate hearing of the plaintiff's claims for mesne profits, general damages and loss of rent.
  4. Costs are reserved until determination of that hearing.”
  5. The claim by the Respondents per a statement of claim endorse to the writ was in the following terms:

“1. The Plaintiff is and was at all material times a company duly incorporated under the Companies Act 1997 and able to sue in its corporate name and style.


  1. The Second and Third Defendants are and were at all material times companies duly incorporated under the Companies Act 1997 and liable to be sued in their respective corporate names and style.
  2. The First Defendant is and was at all material times a director and the controlling mind of the Second and Third Defendants.
  3. The Plaintiff is and was at all material times the registered leasehold proprietor and entitled to possession of the land known as Allotment 22 Section 387 Hohola, being the whole of the land contained in State Lease Volume 46 Folio 060 and Allotment 23 Section 387 Hohola, being the whole of the land contained in State Lease Volume 46 Folio 059 (“the land”)

Particulars

The Plaintiff purchased the land, known then as Allotment 7 Section 387 Hohola, being the whole of the land contained in State Lease Volume 17 Folio 4327 and Allotment 11 Section 387 Hohola, being the whole of the land contained in State Lease Volume 13 Folio 3194, from the Papua New Guinea Banking Corporation Limited pursuant to public tender and a contract executed on or about 7 September 2001 and was registered as the proprietor on or about 6 September 2002. The State Leases were subsequently consolidated and renewed and the abovementioned two State Leases were issued pursuant to a registered plan of subdivision on or about 21 June 2011.


  1. The Defendant on her own behalf and/or on behalf of the Second and/or Third Defendants is in occupation of the land (or alternatively part of the land) as a trespasser and has failed and refused to deliver up possession.

Particulars

The Third Defendant held a sub-lease over part of the land which expired in July 2005 and has subsequently failed and refused to vacate.


  1. The Third Defendant has refused to pay rental to the plaintiff from 6 September 2002 until July 2005 at the rate of K200 per annum.
  2. The Defendants have been receiving rent for the land since July 2005 the amount of which the plaintiff cannot ascertain until after discovery and interrogatories.

AND THE PLAINTIFF CLAIMS against the Defendants and each of them:

  1. An order for possession of the land known as Allotment 22 Section 387 Hohola, being the whole of the land contained in State Lease Volume 46 Folio 060 and Allotment 23 Section 387 Hohola, being the whole of the land contained in State Lease Volume 46 Folio 059.
  2. Mesne profits at the rate to be determined after discovery and interrogatories per month from July 2005 until possession is delivered up or alternatively damages for trespass.
  3. Loss of rent from September 2002 to July 2005 at K200 per annum.
  4. Interest at commercial rates and as the court considers appropriate pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Ch. No. 52.
  5. Such further or other relief as the court considers appropriate.
  6. Costs.”

(Underlining supplied)


  1. As confirmed by the affidavit of Ms E. Heagi in her affidavit of 07 January 2025, the whole of the claim per the statement of claim went to trial. There were no amendments to the pleadings to include the relevant particulars for the claim for mesne profits, general damages and loss of rent despite the indication at [7] (for rentals only) of the statement of claim and relief 2 in the prayer for relief.
  2. In the learned trial Judge’s written reasons for the Decision, his Honour noted the issues for determination before him were:

“(1) Does the Plaintiff have valid title to the Property?

(2) Is the Lease valid?”


  1. On the first issue, his Honour determined that the plaintiff, TST 4 Mile Limited previously Patu No.27 Limited, the First Respondent had a valid title to the Property. In relation to the second issue, his Honour determined the Appellants did not have any legal right to be on the Property. His Honour, therefore, effectively held there was no valid Lease. Additionally, despite not noting as an issue the learned trial Judge had to consider and determine, he went on to dismiss a crossclaim by the Appellants for insufficient evidence and found that the plaintiff was entitled to mesne profits, general damages and loss of rent, to be heard and determined separately.
  2. In their notice of appeal, the Appellants state in at [1]:

“THE Appellants appeal from the whole decision and judgment of His Honour Justice Ere Kariko sitting as a judge of the National Court in its civil jurisdiction at Waigani made and given on 20 September 2024 in the proceedings titled WS No.518 of 2015...”


  1. At [3] of the Notice of Appeal, the Appellants plead several serious grounds for their appeal, which need not be cited in full. It is sufficient to mention amongst others that the grounds of appeal challenge the fairness and propriety of the whole trial process and its conduct. It is alleged that, the trial was forced to proceed without giving the appellants adequate opportunity to seek and secure the services of a new lawyer, sufficient opportunity for them to properly instruct a new lawyer and the new lawyer to properly represent them upon their then lawyer, Greg Shepherd of Young & Williams Lawyers ceasing to act for them on the day of the trial in Court at the trial. Given that the Second and Third Appellants are corporate entities, what the learned trial judge did here in my view, was contrary to Or.4, r5 of the National Court Rules which requires incorporated entities to “commence or carry on any proceedings” only through a lawyer or solicitor. Consequently, a corporation may not represent itself through non-lawyer employees, officers, or shareholders. Order 4, r5 reads:

“5. Right to sue in person. (4/4)

(1) Subject to Sub-rule (2), to Rule 6(1) and to Order 5 Rule 20(2) (disability), any person may proceed in the Court by a solicitor or in person.

(2) Except as provided by or under any Act, a corporation may not commence or carry on any proceedings otherwise than by a solicitor.”

(Underlining supplied)


  1. This is based on the well-known common law position established by the English Supreme Court in Battle v. Irish Art Promotion Centre Limited [1969] IR 252. That in turn flows on from the concept of corporate veil or the separate legal personality a company acquires from its shareholders, promoters, and officers upon incorporation as established initially by the English case of Salomon v. Salomon & Company Ltd [1897] AC 2. This principle of law applies in PNG: See Kappo Limited v. Hau and Ors (1997) SC520, per Kapi DCJ; Los and Salika JJ (as they then were); see also Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106, per Kandakasi J (as I then was) and Pinpar Developer Pty Ltd v. TL Timber Development Pty Ltd (2019) SC1892, per Kassman, Nablu and Berrigan JJ., as to the circumstances in which the corporate veil can be lifted.
  2. Given that position of the law, forcing the trial to proceed without the Second and Third Defendants being legally represented by a lawyer or solicitor instructed by them, questions the propriety of the whole trial and its outcome.

Nature of the Decision


  1. I now turn to a consideration of the issue raised in the objection as to the nature of the Decision, whether it was final or interlocutory. The starting point is s4 and s14 of the Supreme Court Act (SC Act). Section 4 provides for appeals against decisions in both the civil and criminal matters in the following terms:

“4. RIGHT OF APPEAL FROM NATIONAL COURT.

(1) An appeal in accordance with this Act lies to the Supreme Court from a judgement of the National Court.

(2) An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal–

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.”


  1. Section 14 makes additional provisions in respect of appeals arising out of civil proceedings. The provision reads:

“14. CIVIL APPEALS TO THE SUPREME COURT.

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court–

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court–

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except–

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions...”

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

(Underlining supplied)


  1. These provisions provide for appeals to the Supreme Court from the decisions of the National Court. In my view, these provisions do three things, namely: (1) completely prohibit appeals in certain cases; (2) allow for appeals with leave of the Supreme Court; and (3) appeals as of right in specified settings. In respect of civil matters, s14 (2) prohibits appeals against consent orders. Similarly, by s14 (1) (c) and (3) (a) – (c) appeals against decisions on pure factual questions and interlocutory decisions are prohibited except with leave of the Court. In respect of interlocutory decisions this prohibition and hence requirement for leave is with three exceptions. These are as stated in s14 (3) (b):

“(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver.

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions...”


  1. The last exception does not mention the kind of decision that is included in the exceptions. Instead, this provision is clearly authorising the Supreme Court to promulgate Court Rules to add to the list of interlocutory decisions that are considered final in nature. As learned counsel for the Appellants submits, the decision in Oio Aba v. MVIL (2005) SC779, per Injia DCJ, Sawong and Lay JJ., considered s14 (3)(b)(iii). That was in a case where the respondent, MVIL, successfully applied for a dismissal of the appellant’s claim for lack of notice under s5 of the Motor Vehicles (Third Party) Insurance Act. The appellant sought leave of the Court to appeal, proceeding on the basis that the decision was interlocutory and not final. The respondent objected, claiming the decision was final and therefore, no leave was required. In so doing, the respondent argued, the application for leave to appeal was contrary to s14 (3) (b) (iii) of the SC Act and the application for leave was incompetent.
  2. The Court held:

“The legislature has only set out the criteria for discovering the class or decisions of a final nature under Section 14(3)(b)(iii). When there are no such criteria the provision simply becomes irrelevant. There is no provision in the Supreme Court Rules prescribing cases in the nature of final decisions for the purpose of s.14(3)(b)(iii); that paragraph can therefore not have any application to this or other matter. It is a simple matter of construction of an Act of Parliament. As the Supreme Court said in Christian Revival Crusade v Eyo Taviviya ors (1999) SC610.


In our opinion until judges make rules in terms of s. (iii) of the Supreme Court Act the paragraph cannot be applied. That disposes of Section 14(3)(b)(iii) argument. The facts of the Application do not come within any other exceptions to the requirements for leave in that subsection.”


  1. After getting into more discussions. the Court went on to comment:

“To complete our comments, although not necessary for this decision, it is clear that where judgment has been entered, but the action remains on foot with the necessity for the parties to go back to Court to complete the action, such a judgment is interlocutory: [See NCDC v. Namo Trading Limited SC663, Los, Injia and Gavera-Nanu JJ; Alfred Alan Daniel v. Pak Domoi Limited SC736, Kapi DCJ, Injia DCJ and Jalina J; NCD Water & Sewerage Limited v. Sam Tasion SC696, Hinchliffe, Kirrowom and Davani JJ; and Ruma Construction Pty. Limited v. Christopher Smith SC600. But there are rare cases where the nature of the claims made in the originating proceeding are so distinct and separate, that final judgment on one is to be regarded as a final judgment, even though the other claims are still to be litigated: [See Ruma Construction Pty. Limited v Christopher Smith SC600 and see the analysis of this case in Alfred Alan Daniel v. Pak Domoi Limited SC736.]”

(Underlining supplied)


  1. To date, as far as I am aware, no specific rule has been promulgated by the Supreme Court and is in the Court Rules that adds to the list of exceptions under s14 (3) (b) of the SC Act. Had the Judges promulgated such rules pursuant to s14(3)(b)(iii) and sufficiently met the intent and purpose of that provision, there would be much clarity and little or no arguments around what decisions are “in the nature of final decisions” for the purposes of s14 (3)(b). The Judges Rules Committee should now be urgently tasked to work on a draft set of rules to fulfill the requirement under s14 (3)(b)(iii) of the SC Act and present it to the Judges for promulgation.
  2. This lack of clarity has led to many conflicting decisions of the Supreme Court. Some of the decisions have looked at the nature of the order or the “orders approach” to determine if the decision sought to be appealed against is final and if yes, the appellant can appeal as of right. Other decisions have looked at the nature of the application or the “application approach” that is to say, the kind of application or proceedings or process that led to the decision sought to be appealed against. With that approach, if the process through which the decision in question was arrived at was interlocutory, that would render the decision or judgment, interlocutory and no right to appeal as of right will accrue. Hence, leave needs to be first sought and obtained before lodging an appeal against such decisions.
  3. The 5-member Supreme Court decision in Steven Punagi v. Pacific Plantation Timber Ltd [2011] 2 PNGLR 92, SC1153, per Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ., considered these two approaches and decided in favour of the nature of the order approach. At [8] the Court in a unanimous decision observed:

“In our jurisdiction, there have been decisions of this court that favour both approaches. The Supreme Court in Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119 and The Ship ‘Federal Huron’ v. Ok Tedi Mining Ltd [1986] PNGLR 5, favoured the application approach. Other decisions have applied both approaches, for example: National Capital District Commission v. PNG Waterboard Ltd & Ors (1999) SC624; PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717 and Alfred Alan Daniel v. Pak Domoi Ltd (2004) SC 736. By far the majority of decisions, however, have favoured the order approach. Some of those decisions are: Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145; L. A. Jarden Collector Agency Pty Ltd & Anor v. Masket Iangalio & Anor (1998) SC597; Philip Takori & Ors v. Simon Yagari & Ors (2008) SC905; Oio Aba v. Motor Vehicles Insurance Ltd [2005] SC779; Raymond Liu & Anor v. Daul Emoto & Ors (2009) SC1032; Peter Yama v. PNGBC Ltd (2008) SC922; NCDC v. Namo Trading Ltd (2001) SC663 and Application by John Maddison & Anor (2009) SC984.”


  1. The Court went on to note at [9] that:

“The order approach has been described as right in logic: Salter Rex & Co v. Ghosh [1971] 2 Q.B. 597, and as being the sound and convenient test by the Privy Council in Haron bin Mohd Zaid v. Central Securities (Holdings) Bhd [1982] 2 All ER 481.

(Underlining supplied)


  1. Then at [10] the Court opinioned:

“Following a review of the various authorities, we are satisfied that the order approach is the one that should continue to be adopted in this jurisdiction. We agree with the comment of this court in Oio Aba (supra) that the decision in Shelley’s case (supra) does not continue to be good law.”

(Underlining supplied)


  1. Applying the order approach to the case before it, the Court decided the decision sought to be appealed against was a final decision. The decision in question dismissed proceedings in the related proceedings in the National Court for want of prosecution. That entitled the appellant to appeal as of right, but leave was sought. The Court held, that rendered the appeal incompetent and had it dismissed.
  2. Numerous subsequent decisions of the Supreme Court adopted and applied the decision in Punagi v. Pacific Plantation Timber (supra). Aside from single member Supreme Court decisions, this includes the decisions in Jack Kariko v. Ken Ngangan & Ors (2023) SC2422, per David, Hartshorn, Shepherd JJ., Simon Kauba & Ors v. Alphones Willie & Ors (2021) SC2162, per Batari, Yagi, and Bona JJ., Kule Layo & Ors v. Hon. Ano Pala (2024), SC2597, per Polume-Kiele, Pitpit and Dowa JJ; and Lady Cragnolini v. Henry Leia (2023) SC2464, per Salika CJ, David, Yagi, Kassman and Murray JJ.
  3. These were all unanimous decisions of the Court. Applying the order approach, the Court in the first case, held an order granting leave for amendments to the originating process did not finally determine the National Court proceeding. It was therefore an interlocutory decision for which leave was required. In the second case, liability was resolved by default judgment and a full trial and judgment concluded the then only remaining issue of damages. The Court expressed the view that, after the decision on damages there was nothing more to be attended to and resolved in the relevant proceedings. Given that, the Court dismissed an objection to competency claiming the decision was interlocutory. In the third case, the decision sought to be appealed against was a decision granting an application for joinder of a party. The Court adopted and applied the decision in Punagi v. Pacific Plantation Timber Ltd (supra) as a sound and good law. The Court applying the “order approach”, held, the decision to order for joinder was not a final order disposing of the rights of the disputing parties. Rather, it was an interlocutory judgment within the meaning of s14(3)(b) SC Act and consequently, leave to appeal was required. Finally, in the fourth case, a 5-member Court unanimously decided to adopt and apply the decision in Punagi v. Pacific Plantation Timber Ltd (supra). In its own words, the Court adopted and applied the decision in Punagi v. Pacific Plantation Timber Ltd (supra) in these terms:

“On the basis of this fundamental distinction [between the decision in Thomas Barry v. Joel Luma and the case before it] the Court in Thomas Barry v Joel Luma (2017) SC1639 found that the proceeding was determined on the merits and therefore going by the authoritative decision in Steven Punagi v. Pacific Plantation Timber Ltd (2011) SC1153 the merits of the claim had been brought to finality hence the appropriate recourse was by an appeal process. In other words, the gist of the decision in Thomas Barry v Joel Luma (2017) SC1639 stands for the proposition that where an order dismissing a substantive proceeding is made on merits, that proceeding is brought to an end or finality and therefore cannot be restored by an interlocutory process.”

(Underlining supplied)


  1. Based on the authorities discussed above, I am humbly of the view that, it is now settled law that, the correct approach to determining whether a decision or judgment is interlocutory for the purposes of s14 (3) (b) of the SC Act is the orders approach. This approach is logical, preferrable, just and fair because once an issue is finally determined, the parties will have no authority to reagitate the same issue. Similarly, a trial judge will have no authority to reconsider the same issue and come to a different decision or same decision. The correct recourse is through the appeal or review process: See Smith v. Ruma Constructions Ltd (2002) SC695, Kapi DCJ., Los J., and Kandakasi J (as I then was).
  2. Applying the orders approach to the present case, there can be no doubt that the decision on ownership of the Property in favour of the First Respondent and there being no valid lease were final. The same is the case for the consequential order for the Appellants to vacate the Property in 60 days from the date of the Order. There is nothing more to be said or done by the parties and the Court in respect of those matters or issues. These matters have been finally determined. Hence, if those were the only decisions made by learned trial Judge, there would be no controversy. The Appellants would be entitled to appeal as of right.
  3. However, we have a problem. The learned trial Judge also decided in favour of the Respondents being entitled to mesne profits, general damages and loss of rentals and directed these aspects be separately tried. In my considered view, that decision, with respect, was wrong. This was because there was a lack of any proper foundation in the pleadings with particulars. The statement of claim as reproduced at [5] above clearly bears witness to that. In PNGBC v. Jeff Tole (2002) SC694, per Amet CJ, Sheehan and Kandakasi JJ (as we then were) the respondent without more claimed damages with an undertaking in the pleadings to provide better and further particulars prior to trial in these terms:

“By reason of the matters aforesaid the Plaintiff has been deprived of his salary and allowances and benefits he would otherwise have earned, and he has thereby suffered loss and damage. Particulars will be provided after discovery and prior to trial.”


  1. The Court (per Kandakasi and Sheehan JJ) was of the view that:

“Such a pleading gives no advantage to a plaintiff, since he cannot add to his statement of claim without an actual amendment to his statement of claim. Also, such a pleading casts no onus or obligation on a defendant to clarify or enlarge a plaintiff’s case and it simply has no foundation in the Rules.”

  1. In that case, no such particulars were provided but at the trial, the trial judged allowed evidence and assessed damages for the plaintiff amounting to several thousands of Kina. The Supreme Court on appeal upholding the appeal held, that was no pleading at all. In that context, I summarised (with Sheehan J agreeing) the law on pleadings in the following terms:

“The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed. This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The list of such cases is long, but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only.


This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:


‘1. they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;

  1. they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and
  2. they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham (1982) 148 CLR 658 at 664.’”

(Underlining supplied)


  1. This summation of the relevant principles has been adopted and applied in many subsequent National and Supreme Court decisions. The decisions in MVIL v; Kauna Kiangua (2015) SC1476 (per Davani J.) and the one in Maniosa Yakasa v. David Piso (2014) SC1330 (per Lenalia, Murray and Logan JJ.), are examples of cases on point. A similar situation on the pleadings and outcome was the case in the matter of The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013, per Kirriwom and Kandakasi JJ (as we were then) and Batari JJ.
  2. In short, these authorities make it clear that unless there is foundation in a plaintiff’s pleadings, no evidence and damages or reliefs of matters not properly pleaded with particulars can be allowed. In the present case, clearly the Respondents breached the law on pleadings with its object or purpose. This questions the correctness of the learned trial judge deciding to deal with that part of the claim in the way he did. Given the lack of pleadings, it is difficult to see how the remaining part of the claim will proceed to trial and be completed in favour of the Respondents, unless amendments are sought and granted. That presents its own complications. A situation like the present case was presented in PNGBC v. Jeff Tole (supra). There, as already noted, the plaintiff, Mr. Tole, did not properly plead with particulars, certain damages he claimed and adopted pleadings similar to the present case. The Court held:

“The onus remained with Mr. Tole to properly plead and then prove what was in fact pleaded by way of damages. The moment he stepped outside the pleadings he went outside what was resolved by the default judgement. The Court in my view was therefore, left with only one of two options to take. The first was to proceed to assess damages and grant such relief as was properly pleaded for which default judgement was entered. The second was to allow an amendment to the pleadings and then adjourn the hearing to allow Mr. Tole to notify PNGBC of the additional claims and give PNGBC the opportunity either to admit or deny liability for that.


...

If a plaintiff seeks to step out of the pleadings, then he is obliged to amend the pleadings and then allow the normal process of pleadings to take place before there can even be a hearing and judgement on matters not in the original pleadings.”


  1. This clearly shows the unsatisfactory situation in respect of the part of the Decision in the present case that deals with the Respondents’ claims without proper foundation for mesne profits, or alternatively damages for trespass, loss of rents and interest at commercial rates. When that part of the claim and Decision goes back to the trial Court for trial and final determination, the Respondents will be stuck with what they have pleaded. The Appellants will be entitled to object to any evidence being led in respect of all those matters because of the lack of proper foundation in the pleadings. If the Respondents still wish to pursue that part of the claim, they will be obliged to apply for the relevant and necessary pleadings to be amended, to this time, properly plead them with all the necessary particulars. However, the final part of the Decision will be an impediment. But, if the Respondents agree to forego the whole Decision, they could get leave to amend their pleadings while the Appellants get a set aside of the whole Decision and an opportunity to respond to amended pleadings in the normal way. After the close of pleadings and all the usual interlocutory processes, the matter could then proceed to a trial on all matters with a final decision on all matters finally arrived at.
  2. Aside from the pleadings related issues, this is a case of mixed decisions that is part in the nature of final a decision and part in the nature of an interlocutory decision. Section 14 of the SC Act does not make any provision for these kinds of decisions. Was this a mistake by the legislature? But that cannot be, if we go by the well accepted principle of law that the legislature makes no mistake. Instead, it is the duty of the courts to interpret statutory provisions in a way that they harmonise with one another to give meaning and effect to the intention of the legislature: See Westly Nukundi Nukundj v. Steven Pim & Electoral Commission of Papua New Guinea (2025) SC2683 at [29] – [33]; State v. Gelu, Solicitor General (2002) N2322 and Akipa & Ors vs. Lowa & Ors [1990] PNGLR 502 at 503.
  3. The most relevant question then is. What was the legislature’s intention behind making no provision for mixed final and interlocutory decisions? The answer lies in what is in fact provided for in ss4 and 14 of the SC Act. Considering what are in fact provided for in the provisions as noted earlier in this judgment, it is clear to me that, the legislature did not make any provision for part final and part interlocutory decisions, because to use the words of the Court in Oio Aba v. MVIL (supra) “the action remains on foot with the necessity for the parties to go back to Court to complete the action”.
  4. Once what remains to be completed is completed, the court’s decision will ultimately become a final decision. Any party who is aggrieved by the whole of the decision in the case will be entitled to appeal as of right. Decisions of the type in question would be for example, decisions which:
  5. In my humble view, the legislature was deliberate in not providing for part final and part interlocutory decisions to avoid a serious problem or mischief from occurring. The problem or mischief is this. There would be ready appeals on all such decisions, some of them listed above. This would in turn seriously drag down the smooth conduct of trials and prompt final conclusions of cases in the trial courts. That would in turn, in some cases, lead to serious miscarriage of justice or denial of justice. The decision of the Supreme Court in Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ors as the Ombudsman Commission (2011) SC1118, per Salika DCJ, Kirriwom and Kandakasi, JJ (as we then were), although in the context of investigations into alleged leadership breaches, is illustratively relevant. There, the Court cited with approval at [51], Lord Dennings in his decision in the matter of Moran v. Lloyds (1981) 1 Lloyds Reports 423. That was in the context of preliminary investigations, in these terms:

“Today we have to deal with a modern phenomenon. We often find that a man (who fears the worst) turns around and accuses those – who hold the preliminary inquiry – of misconduct or unfairness or bias or want of natural justice. He seeks to stop the impending charge against him. It is easy enough for him to make such an accusation. Once made it has to be answered. So he says there is a tribal issue: and that it must go to trial. He knows that it will take months and months. So he gets that which he most wants – time – time to make his dispositions – time to put in his money in a safe place – time to head of the day when he has to meet the charges. And who knows? If he can stop the preliminary inquiry in its tracks, it may never start up again.”

(Underlining supplied)


  1. The Supreme Court considered at [52] the adoption and application of this passage and principle into our jurisdiction by Sheehan J., in Diro v. Ombudsman Commission of Papua New Guinea (1991) N1385 and Cannings J in Zachary Gelu v. Sir Michael Somare MP (2008) N3526.
  2. On its part, the Court at [53] – [54] in effectively adopting and applying the principle, added in respect of preliminary investigatory processes before authorities such as the Police or the Ombudsman Commission:

“They do not make final decisions on guilt or innocence and or penalties. Those are matters that are left to the ultimate decision making authorities like the courts in indictable criminal offences and a leadership tribunal for leadership breaches once appointed.


It is in the court or a final decision making authority like leadership tribunal, where the evidence gathered through the investigations gets tried and tested. It is there in these forums that an accused has all his constitutional and other rights, protection and appeal or review procedures that the justice system provides which an accused can avail him or herself of. These rights are not extinguished upon a decision to investigate, charge, commit an accused to stand trial or refer a leader to the PP and a request from him to appoint a leadership tribunal and such a tribunal being appointed. They remain intact until at the trial or hearing level and a final decision is arrived at.

(Underlining supplied)


  1. Most importantly, the Court then considered the competing interests of society and those accused of committing a criminal or leadership breach and the risks associated with the court’s ready intervention at [55] – [56]. Thereafter, the Court held, the ready intervention by the Courts should be weighed against the risks highlighted in Lord Dennings judgment and spoke against any ready intervention. Having done that in the case before it, the Court held at [58]:

“Carefully weighing the two sides and all of the cases cited above, we are of the firm view that, the interest of justice and the need to allow for the due process of the law to take its proper course for the greater good of society will be better served by the superior courts, that is the National Court and or the Supreme Court as the case might be, maintaining the age old tradition of not intervening.”

(Underlining supplied)


  1. Then ultimately at [59] the Court added:

“An intervention by the superior courts allows for instances, stopping the process only to restart it again. By then, the freshness of the evidence, availability of witnesses and interest in seeing justice being done gets lost and ultimately justice is not served. Justice can only be done without much delay and all steps that need to be taken being taken in a timely and orderly fashion. Otherwise, the converse of that is true. Justice delayed is justice denied with those who seek out to delay justice end up gaining. If those who are accused or implicated have nothing to hide they would readily allow the process to take its proper course. ... Most of the harm and damage is caused by people who choose to take all sorts of unnecessary issues with the process without merit most of the time, which results in unnecessary costs and delay. Usually, such steps are taken to divert attention from the real issues.”

(Underlining supplied)


  1. In my humble view, the risks highlighted above, equally apply to parties’ resorting to appeal or reviews in relation to interlocutory decisions of the types listed above and the Supreme Court readily entertaining them. They have the potential of substantially delaying a smooth running and conclusion of trials or the process in the trial courts. By the time the matter returns to the trial court after the completion of the appeal or review process, the freshness of the evidence, availability of witnesses or even the trial judge or an opposing party to continue with the trial, the interest in seeing justice being done, gets lost and ultimately justice would fail to be better served. This might bring home as a reality the phrase, “justice delayed is justice denied” with those who seek out to delay justice end up gaining.
  2. Given the risks, in my humble view, the legislature deliberately decided against making any provision for appeals neither as of right nor with the leave of the Court against a decision that is part final and part interlocutory, as in the present case. If, however, the intention was to the contrary, the legislature would have expressly provided for it as it has done in the case of appeals on a pure question of fact with leave and on a question of mixed fact and law as of right. The fact that the legislature has not done so means, appeals against part final and part interlocutory decisions are precluded from the appeal process neither as of right nor with leave of the Supreme Court until a final decision in the matter is made or arrived at. This gives the parties who are aggrieved by such decisions to do the best they can when attending to the remaining part of the case. If they succeed there, the need for any appeal is avoided or failing success there, appeal against the whole of the decision in the case. This would save both the parties and the Supreme Court time and costs they would outlay in pursuing an appeal on a part final and part interlocutory decision when the parties still have the right of appeal against the whole of a decision as of right at the end of the process.
  3. Applying the foregoing to the present case, the parties will still be required to return to the court to complete a hearing on the Respondents poorly pleaded claim for mesne profits, loss of rents and damages. Once that part of the pending aspects of the proceeding inclusive of the pleadings issue are concluded, any or all aggrieved parties will have the opportunity to appeal against the whole of the decision in the case. It would, therefore, serve the parties best interest and the interest of justice for them to return to the trial court and complete the remaining part of the claim promptly and finally, with their respective rights of appeal intact.

Decision on the issues and the appeal


  1. Considering all the foregoing, I am persuaded, and I agree with the Respondents that the decision delivered on 20 September 2024 by the learned trial judge in this matter was an interlocutory decision. That renders this appeal incompetent. Accordingly, I would uphold the objection to competency and dismiss the appeal. I would also order costs to follow the event.

Decision of the Court and Orders


  1. Based on the foregoing reasons, the decision of the Court is that the Notice of Appeal filed on 28 October 2024 is incompetent and consequently the Court orders:
    1. The Objection to Competency of the First Respondent is upheld.
    2. The Notice of Appeal filed 28th October 2024 is dismissed.
    3. The Appellants shall pay the costs of the First Respondent of and incidental to this proceeding.

________________________________________________________________
Lawyers for the appellants: Ama Wali Lawyers
Lawyers for the first respondent: Ashurst Lawyers


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