Kalasim v Mond [2006] PGSC 38; SC828 (14 March 2006)

SC828

PAPUA NEW GUINEA
[In the Supreme Court of Justice at Waigani]

SCA 136 of 2004

BETWEEN:

CHIEF INSPECTOR ROBERT KALASIM
First Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND:

AINA MOND, APA GRAI, ALPONES SIWI KOGLUA,
BAUNDO MOGONO AND ANDREW KONMA on their own
behalf and on behalf of all members of the Auakane,
Morumbagawamo, Tamgoyani, Okondie and
Awauglakane Clans of the KAMANEKU TRIBE more
particularly named in Schedule "A" of the Writ of Summons
filed in the proceedings WS No. 434 of 1997
First Respondents

AND:

TANGANE KOGLWA and all those people named in
Columns 2 and 3 of schedule "B" of the Writ of
Summons filed in the proceedings WS No. 434 of 1997
Second Respondents

AND:

GIGBAI KOGLWA by his next friend ALPHONSE
SIWI KOGLWA and all those infants by their next
Friends named in schedule "C" of the Writ of Summons
Filed in the proceedings WS No. 434 of 1997
Third Respondents

AND:

UMBA SIWI and those persons named in schedule "D"
of the Writ of Summons filed in the proceedings
WS No. 434 of 1997.
Fourth Respondents

AND:

GUNDU UMBA and all those persons named in
columns 2 and 3 of Schedule "E" of the Writ of Summons
filed in the proceedings WS No. 434 of 1997.
Fifth Respondents

AND:

KUNDUANE SIWI by his next friend UMBA
SIWI and all those infants named in Schedule "F" of
The Writ of Summons filed in the proceedings
WS No. 434 of 1997.
Sixth Respondents

Waigani: Kapi CJ., Injia DCJ., Hinchliffe J.
29th November, 1st December 2004, 14th March 2006

Practice & Procedure – Notice of Objection to Competency – Whether the grounds raised are issues of competency or merits considered – Notice of Objection to Competency may be dealt with when raised under Part 3 order 7, Division 5, Rule 14 of Supreme Court Rules or at any other time before judgment at the discretion of the Court.

G. Garo for the Appellants/Respondents
K. Kua with N. Kuman for the Respondents/Applicants

Cases cited:

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112.
The Hon. Patterson Lowa and Others -v- Wapula Akipe and Others (SCA 19 of 1991, SCA 31 of 1991, SCA 36 of 1991 and SCA 60 of 1991) (Unreported judgment of the Supreme Court dated 7th August, 1991 SC 430),
Fly River Provincial Government v Pioneer Health Services Ltd (Unreported Judgment of the Supreme Court dated 24th March 2003, SC705).
Jimmy Ono v The State (Unreported Judgment of the Supreme Court dated 4th October 2002, SC698),
Kepa Wanaege v The State (Unreported Judgment of the Supreme Court dated 1st April 2004, SC742).
MVIT v James Pupune [1993] PNGLR 370,
MVIT v John Etape [1994] PNGLR 596,
Peter Peipul v Sheehan J & Others (Unreported Judgment of the National Court dated 25th May 2001, N2096),
PNGBC v Jeff Tole (Unreported Judgment of the Supreme Court dated 27th September 2002, SC694),

Legislation cited:

Supreme Court Act
Supreme Court Rules

14th March 2006

BY THE COURT: This hearing relates to two Notices of Objection to Competency: (1) Application for Leave to Appeal filed on 5th October 2004 (2) Notice of Appeal also filed on 5th October 2004 against the decision of the National Court dated 26th August 2004.

The brief background to these applications is this. In a writ of summons (WS 434 of 1997) several hundred people (977 in total) (Respondents) claimed damages for property destroyed during a police raid on 29th May 1991 against Chief Inspector Robert Kalasim and the State (Appellants).

The Appellants did not file a Notice of Intention to Defend nor did they file a Defence.

Default Judgment against the Appellants was entered by consent on 17th December 1997.

Subsequently, the matter came before Manuhu AJ (as he then was) to assess the damages. The Appellants were represented by Mr B. Ovia of Solicitor General's Office. The evidence before the National Court consisted of several hundred affidavits by the Respondents. These affidavits were admitted without any objection by counsel for the Appellants with the exception of four affidavits. The National Court after considering the arguments, admitted the four affidavits as well.

Counsel for the Appellants elected not to cross examine any of the Respondents on their affidavits.

At the close of the Respondent's case, counsel for the Appellants elected not to call any rebuttal evidence.

After counsel for the Respondents made his submissions, counsel for the Appellants failed to make any submissions. The National Court gave counsel for the Appellants until 6th July 2004 within which to file written submissions in order for the Court to deliver its decision on 13th August 2004. The Court allowed counsel for the Appellants further time until 13th August 2004 within which to file written submissions.

By 13th August 2004, counsel for the Appellants failed to file any written submissions. On 26th August 2004, counsel for the Appellants sought further extension of time in which to file written submissions but the Court refused the application and delivered its decision on the same day.

The Appellants filed: (1) Notice of Application for leave to Appeal on 5th October 2004 and (2) Notice of Appeal on the same date against assessment of damages by the National Court.

The Respondents filed Notices of Objection to Competency against the Application for Leave to Appeal as well as the Notice of Appeal. It is these objections to competency that have been brought before us for determination.

Application for Leave to Appeal.

It is appropriate to deal first with the Notice of Objection of Competency to Application for Leave to Appeal. The grounds raised by counsel for the Respondents are similar in nature to the major grounds for objections raised in respect of the Notice of Appeal. The grounds of objection to the competency of the Application for Leave to Appeal are:

"1. The decision of Manuhu, AJ on 26 August 2004 was a final judgment as opposed to being an interlocutory judgment and therefore Leave is not required.

2. Even if Leave is required under any of the grounds in Section 14(3) of the Supreme Court Acts, ("Act") the decision of Manuhu AJ does not fall within any of the exception under Section 14(3) (b), (i) (ii) and (iii) of the Act.
   
3. Even if Leave is required, the Application for Leave is incompetent based on Supreme Court decisions in Fly River Provincial Government v. Pioneer Health Services – SC 705; MVIT v. Etape (1994) PNGLR 596; and MVIT v. Pupune (1993) PNGLR 370, in that all matters raised under paragraph 2(c) 1, 2, 3, 4, 5, 6, 7(a) to (e), 8, 9,(a) to (d), and 10 are matters tat were never raised at the trial for assessment of damages before Manuhu, AJ, namely:-
   
   • (1) The Appellant's Counsel who was present at the trial for the assessment of damages:-
     
     • (a) failed to cross-examine any of the Respondent's witnesses, and
       
     • (b) failed to call any witnesses in rebuttal of the Respondent's evidence, and
       
     • (c) failed to make any oral or written submissions on behalf of the Appellants at the trial; and
       
     • (d) failed to file and serve any written submissions within the original nor extended periods as ordered by the Court.
       
4. The Appellants are "estopped" from raising matters which were never raised and argued before Manuhu, AJ."
   

The first ground of objection is that the decision appealed from is a final judgment and therefore leave is not required. In response, counsel for the Appellants does not dispute that the decision appealed from is a final judgment. He submits that leave is sought on findings of fact alone under s 14 (1) (c) of the Supreme Court Act. In our view whether or not grounds raised are questions of fact alone and whether or not leave should be granted is a different issue and will come up for consideration when the Application for Leave is dealt with on its merits. Section 14 (3) (b) of the Supreme Court Act has no application in the instant case and we would dismiss it as having no merit.

The second ground raises other circumstances where leave may be required under s 14 (3) (i) – (iii) of the Supreme Court Act. None of these circumstances are applicable in the present case and therefore are not relevant.

The substantive issue is raised by ground 3 of the objection. Counsel for the Respondents submits that the grounds for Application for Leave raised under paragraphs 2 C (1) – (10) are incompetent in that these matters were never raised at the trial for assessment of damages before Manuhu AJ. The complaint is that Counsel for the Appellants who was present at the trial (a) failed to cross-examine any of the Respondents' witnesses (b) failed to call any witnesses in rebuttal of the Respondents' evidence (c) failed to make any oral or written submissions on behalf of the Appellants at the trial (d) failed to file and serve any written submissions within the original nor extended periods as ordered by the Court.

Counsel for the Respondents advances the proposition that the Appellants are prevented from raising all these grounds because the Appellants did not plead any defence, called no rebuttal evidence and made no submissions in the National Court. For this proposition counsel relies on MVIT v James Pupune [1993] PNGLR 370, MVIT v John Etape [1994] PNGLR 596, Peter Peipul v Sheehan J & Others (Unreported Judgment of the National Court dated 25th May 2001, N2096), PNGBC v Jeff Tole (Unreported Judgment of the Supreme Court dated 27th September 2002, SC694), Fly River Provincial Government v Pioneer Health Services Ltd (Unreported Judgment of the Supreme Court dated 24th March 2003, SC705). He also relies on criminal cases Jimmy Ono v The State (Unreported Judgment of the Supreme Court dated 4th October 2002, SC698), Kepa Wanaege v The State (Unreported Judgment of the Supreme Court dated 1st April 2004, SC742).

All the cases cited deal with determination of appeals on the merits. They were not dealing with issues of competency as has been raised in the present case. Also none of the cases dealt with competency of an application for leave to appeal.

Mr Kua submits that the Supreme Court in an appropriate case, whether on an application for leave to appeal or on a notice of appeal, if an appellant/applicant relies on a ground that was not taken or raised in the court below, and the ground cannot be allowed to be taken on appeal, the Court should rule the particular ground incompetent on a notice of objection to competency. If that is the only ground relied upon, the application or the appeal should be dismissed on an objection to competence. He submits that such an application or appeal should be dismissed on a competency argument because it would save parties from incurring unnecessary costs in pursuing the appeal and only to find at the hearing of the appeal that the appellant/applicant could not raise the issue as incompetent for not raising it in the court below.

This proposition appears to us to be a common sense approach in appropriate cases. This proposition may apply in a limited number of circumstances. Let us illustrate. First, in a trial, a document may be admitted in evidence without any objection by the other party. If the other party subsequently questions the admissibility of the document on an appeal, he would have very little chance of succeeding on appeal. The reason is that if this issue was raised at the trial, the other party would have had the opportunity to address the issue of admissibility. It is unfair to raise this issue on appeal because the party relying on the document was not given an opportunity to address the issue at the trial.

Where a question of law is not raised in the trial and the facts do not give rise to the question of law, a party may not raise such a point of law on appeal. The reason is that such a point of law is irrelevant.

We are persuaded that the circumstances we have illustrated may be regarded as issues of competence and may be dismissed as incompetent. The examples we have given are not exhaustive.

There are other circumstances where a party has not participated fully in the trial such as in the present case, and the grounds of appeal may raise question of sufficiency of evidence or the weight to be given to uncontested evidence in the court below. These grounds may be more accurately categorized as dealing with the merits of the case.

However, we are equally persuaded that in appropriate cases, where there are no merits in the appeal on the basis that a party did not cross-examine, or called no rebuttal evidence, that such appeal should be dismissed summarily without having to go to the full hearing of an appeal. This is a question of the merits of the case. This category of cases is envisaged under s 11 of the Supreme Court Act and may be taken up under this provision. The application before us has not been made under this provision.

The question whether the grounds raised are questions of competence or merits may not have any practical consequence in terms of when it may be raised. The Court may consider the issue of competence earlier where notice of objection is raised (Part 3 Order 7, Division 5, Rule 14 of the Supreme Court Rules) or at any time before judgment (see Part 3 Order 7, Division 5, Rule 18 Supreme Court Rules) (see also The Hon. Patterson Lowa and Others -v- Wapula Akipe and Others (SCA 19 of 1991, SCA 31 of 1991, SCA 36 of 1991 and SCA 60 of 1991) (Unreported judgment of the Supreme Court dated 7th August, 1991 SC 430), Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112.

If all the grounds raised are incompetent in the sense we have discussed, such an application may be made at an earlier stage by way of objection to competency. However, if there are other grounds that may go to the merits, it may be appropriate to deal with them together. That is in the discretion of the Court.

In the present case, the grounds in the Application expressly allege findings of fact alone and therefore require leave of the court under s 14 (1) (c) of the Supreme Court Act. Whether or not they are questions of fact and whether leave should be granted is a different point and this will be determined when the Application for Leave to appeal is heard on the merits.

We have considered all the grounds for which leave is sought and they all relate to the merits of the application. The fact that counsel for the Appellants did not cross-examine, called no evidence or and made no submissions in the trial may have some bearing on whether leave should be granted. Those are questions of merits of the Application for Leave to Appeal and therefore should be left to be dealt with on the merits.

Notice of Appeal

The general grounds of objection (grounds 1 (1) – (3)) are the same as the grounds set out in the Objection to Competency in respect of Application for Leave to Appeal. We have dealt with these issues and we adopt the same principles in respect of the same grounds alleged here.

Ground 2

This ground relates to filing of the Notice of Appeal outside 40 days in accordance with s 17 of the Supreme Court Act. Counsel for the Respondents did not take up this ground in the amended written submissions nor did he take it up in his oral submissions. We find that the Notice of Appeal was filed within 40 days of the pronouncement of the judgment. We would dismiss this ground of objection.

Ground 3.1

This ground raises the issue of liability of the policemen involved and the State. Liability was not an issue before the trial judge and therefore this matter cannot be raised on appeal. We would dismiss this ground as incompetent.

Ground 3.2

This ground raises issues of admissibility of evidence. Counsel for the Appellants did not raise this issue at the trial. Had he raised this in the trial, the Respondents would have run the trial differently and address the issue of admissibility. It is unfair to raise this on appeal. We would dismiss this ground as incompetent and dismiss it.

Ground 3.3

This ground raises the issue of no evidence as to findings by the trial judge that houses and properties were burnt or destroyed by policemen. This is a question of law or mixed fact and law and therefore do not require leave. The ground is competent.

Ground 3.4

Whether or not policemen burnt and destroyed the properties is a question of liability. This was not an issue at the trial and therefore cannot be a ground of appeal. This ground is incompetent.

Ground 3.5

This ground raises issue of admissibility of affidavits. No objection was taken at the trial and the Respondents did not have the opportunity to address it. It would be unfair to raise it on appeal. This ground is incompetent.

Ground 3.6

This ground raises the issue of vicarious liability of the State. This was not an issue at the trial. The ground is incompetent.

Ground 3.7

This ground raises the issue of vicarious liability and was not an issue at the trial. This ground is incompetent.

Ground 3.8

This ground raises issues of liability and this was not an issue at the trial. This ground is incompetent.

Ground 3.9

This ground raises the issue of liability. This was not an issue at the trial and therefore cannot be raised on appeal. It is incompetent.

Ground 3.10

There is no ground 3.10

Ground 3.11

This ground raises liability of the State so far as exemplary damages is concerned. This was not an issue at the trial. This ground is incompetent.

Ground 3.12

This ground raises the liability of the State. This was not an issue at the trial. This ground is incompetent.

Ground 3.13

This ground raises issues of liability. It is incompetent.

Ground 3.14

This ground relates to sufficiency of evidence on the description and value of property destroyed. These are questions of mixed fact and law and therefore do not require leave to appeal. This ground is competent.

Ground 3.15

This is a question of mixed law and fact relating to the liability of the State. This was not an issue at the trial and is incompetent.

Ground 3.16

In so far as this ground relates to evidence relating to damages, it is competent.

Ground 3.17

This ground raises admissibility of evidence. He did not raise these issues at the trial. He cannot raise them on appeal. This ground is incompetent.

Ground 3.18

This ground challenges the finding on the basis of no evidence on assessment of damages. This is a question of law or mixed law and fact. This ground is competent.

Ground 3.19

This ground relates to assessment of damages. It is competent.

Ground 3.20

This ground raises issues of assessment of damages. It is competent.

Ground 3.21

This ground is competent. It relates to assessment of damages.

Ground 3.22

This ground is competent. It relates to assessment of damages.

Ground 3.23

This ground is competent. It relates to assessment of damages.

Ground 3.24

This ground raises admissibility of evidence. This was not raised at the trial. It cannot be raised on appeal. This ground is incompetent.

Ground 3.25

This ground raises issues of admissibility. This was not raised at the trial. This ground is incompetent.

Ground 3.26

This is a ground relating to costs. Under s 14 (3) (c) of the Supreme Court Act leave is required if the appeal against a question of costs only. The ground of appeal relating to costs is amongst other grounds of appeal. It is not necessary to apply for leave. This ground is competent.

In summary, we would dismiss grounds 1 and 2 of the Objection to the Competency of the Application for Leave to Appeal and ground 3 to be considered on the merits.

In respect of the Notice of Appeal, we would dismiss the grounds 2, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.11, 3.12, 3.13, 3.15, 3.17, 3.24, 3.25 as incompetent and would allow the grounds 1, 3.14, 3.16, 3.18, 3.19, 3.20, 3.21, 3.22 as competent.

We will hear counsel on the issue of cost.

__________________________________________
Lawyers for the Appellants: PAUL PARAKA
Lawyers for the Respondents: POSMAN KUA AISI