Niko v Sawaga [2004] PGSC 35; SC734 (3 February 2004)

SC734

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 107 OF 2002

BETWEEN:

TOMOILE NIKO of the GAMWAOLA CLAN NARIAN& Six (6) Others
-Applicants-

AND:

GWAMA SAWAGA for himself and on behalf of the
SIUN ASSOCIATION & FOUR (4) OTHERS
-Respondents-

WAIGANI: Injia, DCJ
2003: December 12
2004: 3 February

SUPREME COURT – Leave to appeal granted by Supreme Court – – No order made by Court at time of grant of leave, to treat Notice of Application for leave to appeal as Notice of Appeal – No Notice of Appeal filed within twenty-one (21) days after grant of leave– Application to treat Notice of application for leave to appeal as Notice of Appeal - Whether Notice of application for leave to appeal should be treated as Notice of Appeal – Supreme Court Rules, Order 7 rule 5.

Cases cited in the judgment:
Henzy Yakam v. Dr. Merriam & Others SC533 (1997)

Counsel:
R. Thompson for the applicant
B. Meten for the First respondents
C. Narakobi for the Second, Third, Fourth and Fifth respondents

3rd February 2004

INJIA, DCJ: This is an application under O7 r5 of the Supreme Court Rules, seeking an order that the Notice of Application for Leave to Appeal filed on 19th November 2002 be treated as a Notice of appeal. The motion was filed on 24th October 2003 and it is supported by the affidavit of Mr. Goodwin George Poole sworn on 24th October 2003. The application is opposed by the respondents. They rely on the affidavit of Mr. Burnie Meten sworn on 2nd December 2003.

The background of this application in brief are that on 12th June 2003, the Supreme Court consisting of the former Chief Justice Sir Arnold Amet CJ; Kapi Dep. CJ (as he was then) and Justice Salika heard three (3) related interlocutory applications on the same matter, one of which was an application for leave to appeal. The court reserved its decision to be handed down on a date to be advised. On 15th August 2003, Sir Arnold Amet’s term as the Chief Justice expired. On the same day at 3.25p.m. Justice Salika handed down the unanimous decision of the Court. In attendance to receive the judgment was Mr. Meten for the First respondent and Mr. Lai who stood in for Mr. Narakobi for the other respondents. There was no appearance for the appellants. His Honour announced the Court’s decision and indicated the written judgment would be ready for collection in the following week. The Court granted the application for leave to appeal and dismissed the other two related applications. The judgment was made available sometimes in the second or third week of September. A copy of the judgment was given to the Registration Clerk employed by the appellant’s lawyers, by someone in the National Court registry, on 17th September, 2003 this was some thirty-two (32) days after the decision was announced by Justice Salika.

Mr. Poole of White Young & Williams, Lawyers for the appellants, says in his affidavit that he made several enquiries at the Registry as to when the judgment would be handed down and he was told that the former Chief Justice was taking time out at Loloata Island writing judgments and that he would be informed in due course when judgment was ready to be handed down. He received no notification from the respondents’ lawyers or the Court that the judgment was scheduled to be handed down on 15t August. It was on 17 September 2003, when his Registration Clerk produced the judgment received from the Registry that he knew that the judgment was handed down on 15 August 2003. Therefore, they were unable to file the Notice of Appeal within the twenty-one (21) days as required by O7 r5.

The explanation from the respondents’ lawyers is that they were contacted by Justice Salika’s Associate to attend Court to receive the judgment sometimes in the second week of September.

O 7 r 5 of the Supreme Court Rules provides:

"When leave to appeal has been granted, the Supreme Court may treat the Notice of application for leave as Notice of Appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow."

The appellants having previously unsuccessfully moved before Kapi CJ a motion seeking extension of time to file a Notice of Appeal, now makes the present application under the first option in O7 r5, that is, this Court treat the Notice of Application for Leave as the "Notice of Appeal." I raised with counsel the preliminary issue whether the application should go before the full bench of the Supreme Court or before a single judge, given that leave to appeal was granted by the full bench of the Supreme Court. The respondents in their written submission initially argued that a single judge has no jurisdiction. But in Court both parties agreed that I should deal with the application. In my view, the terms "Supreme Court", "Court" or "Judge" are used interchangeably in O 7 r 5 to refer to a judge of the Supreme Court. The jurisdiction of a single judge to deal with an application for leave to appeal is conferred by S.10(1)(a) of the Supreme Court Act. It is a corollary of this power for a single judge to deal with any consequential matters arising from the grant of leave and this includes the power of the single judge to treat the Notice of Application for Leave to Appeal as Notice of Appeal under O7 r5, with or without the invocation of the prospective appellant.

But it is clear from O 7 r 5 that the power under the first option is exercised by the same Supreme Court, (be it single judge or the full Court) which granted the leave, at the same time leave is granted. If for some reason the applicant is unable to obtain such an order, at the time leave is granted, then the second option under O7 r5 is that the applicant has twenty-one (21) days to file a Notice of Appeal. The third option under O7 r5 is that if for some reason, the applicant is unable to file a Notice of Appeal within that twenty-one (21) days, then the applicant may do so within such time as extended by the Court or judge, upon application. The three options must be read together to render consistency in the application of this rule. The first option cannot be read in isolation to the second and third option.

His Honour Kapi Dep. CJ (as he was then) in Henzy Yakam v. Dr. Merriam & Others Unreported Supreme Court No. SC533 (1997) expressed the same view:

"Under O7 r5 the Rules provide that where leave is granted, the Court may treat the notice of application for leave as the notice of appeal in which case there would be no need to file a separate notice of appeal. If this order is not made, the appellant would be required to file a notice of appeal within 21 days after the date on which leave was granted."

In the present case, the applicant’s contention is that the purpose of O7 r5 is to safeguard the substantive rights and interests of successful applicants for leave to appeal. The Supreme Court found that the application disclosed legitimate grounds of appeal which should be fully argued on appeal and this Could should grant the application. The present application is necessitated by the lack of information of the delivery of the judgment on 15 August 2003 and subsequent publication of the judgment outside the twenty-one (21) days.

The respondents submit that the applicants exhausted their rights under the second option. In relation to the third option the application was dismissed by Kapi CJ on 16/10/03. The present application should not be granted because the time for making the order was 15/8/03 when leave was granted, before the same Court which granted leave.

Whilst I sympathize with the applicant’s difficult position in terms of being notified by the Court of the date of decision, the time at which and the Court before which an application to treat the Notice of Application for leave as the Notice of Appeal should be made has lapsed, though through no fault of the applicants. The issue of notification of the date of judgment, lack of knowledge of the delivery of the judgment and the delay in filing the Notice of Appeal would have been properly raised in the earlier application for extension of time to appeal before Kapi CJ, which His Honour dismissed. Those matters cannot form a proper basis for the Court’s exercise of its power under the first option in O7 r5. For these reasons, I dismiss the application with costs.
______________________________________________________________
Lawyer for the Applicant : White Young & Williams
Lawyer for the Respondents : Narakobi Lawyers