Porgera Joint Venture v Yako [2008] PGSC 11; SC916 (13 May 2008)

SC916

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 63 OF 2005

PORGERA JOINT VENTURE
First Appellant

AND:

PLACER (PNG) LIMITED
Second Appellant

AND:

JOSHUA SIAPU YAKO for himself and on behalf
Of the members of his Wapini Sub Clan
Respondents

Waigani: Kapi, CJ, Kirriwom & Lay, JJ.

2005: 2 November
2008: 13 May

SUPREME COURT RULES 07 r14 – objection to competency – whether it is necessary for the appellant to have an interest in the subject matter of the appeal- whether Appellant has sufficient interest in decision on appeal.

Facts

In the National Court, the respondent sought certain orders against the appellants with respect to royalty sharing for the use of customary land. The appellants by motion sought a declaration that there was a dispute as to customary land ownership between the respondents and the fourth defendants in the National Court and as a consequence an order that the proceedings be dismissed. The National Court found that there was no dispute as to customary land ownership between the respondents and the fourth defendants. The appellant's motion did not challenge the claims to ownership of the respondent or the fourth defendants in the National court. The appellants seek leave to appeal.

Held

1. 1. An appellant in order to have sufficient interest to found an appeal must have a sufficient interest in the subject matter of the decision from which the appeal is taken. The decision must directly affect the rights of the appellant.
2. 2. The only persons who can be persons with a direct interest in whether there is a dispute between customary claimants to interests in customary land as to the ownership of customary land are indigenous inhabitants of the country;
3. 3. Where parties to litigation who are or claim to be customary land owners are bound by a decision of the National Court to the effect that there is no dispute between them concerning their claimed interests in customary land, a person not qualified to be a customary land owner and which does not claim a customary interest in that land and which does not directly challenge the claimed interests, does not have sufficient interest in the subject matter of the decision to appeal it.
4. 4. The objection upheld, application for leave to appeal dismissed.
   

Cases Cited:

Papua New Guinea Cases

Re-Kerevat Land (1972) N702
Waghi Savings & Loan Society Ltd v Bank of South Pacific Ltd SC185.
Aaron v Solomon Taiyo Ltd [1993] PNGLR 395.
Garamut Enterprises Ltd v Steamships Trading Ltd SC625.
Placer (PNG) Ltd v Leivers SC781.
Chief Inspector Robert Kalosim & The State v Ana Mond & Ors SC828.
Don Pomb Polye v Jimson Sauk Popaki, SC643.
Geoffrey Balakau v Ombudsman Commission [1994] PNGLR 346.
Malipu Balakau v Paul Torato [1982] PNGLR 242.
Kitogara Holdings v NCDC [1988-89] PNGLR 346.

Overseas Cases

In re Lamb: Ex parte Board of Trade [1894] 2QB 805
Peter v Shipway [1908] HCA 52; (1908) 7 CLR 232
Ex parte National Federation of Self Employer and Small Business Ltd [1981] 2 LLR 722.

Counsel

D. Gonol, for the applicant respondent
D. Wood, for the respondent appellant

1. BY THE COURT: The Respondent objects to the competency of the Appellants application for leave to appeal on the basis that the Appellant does not have sufficient interest in the subject of the decision under appeal. The objection to competency has been filed pursuant to a direction of the Court.
   

Background

2. The Second Appellant entered into a Compensation Agreement dated 31 January 1998 with persons identified as having customary interests in land the subject of mining leases issued to the Appellants; after a study conducted for that purpose. Two hundred and fifty (250) groups with relevant interests in the land were identified and from these 33 agents were appointed to a Land Negotiating Committee to negotiate with the Appellants. The Respondent is not a party to that agreement.
   
3. On 3 March 2000 the Respondent, and those he represents, amongst themselves entered into an agency agreement purporting to appoint the Respondent, a person not included in the 33 agents, as agent for the Wapini people ("the agency agreement") for the purposes of the Compensation Agreement. The issues in the National Court proceedings are the validity of the agency agreement and whether it binds the Appellants with respect to the Compensation Agreement.
   
4. The Appellants, defendants in the substantive proceedings, seek leave to appeal from a decision of Hinchliffe J, refusing an order to strike out the National Court proceedings. The order was sought by the Appellants on the allegation that there was a dispute as to interests in customary land between the Respondent, who is Plaintiff in the proceeding below, and Kule Layo, Pera Itawi and Peakape Aukini of Ambo Sub-clan, the Fourth Defendant in the proceedings below. The Appellants submitted in the National Court that the Mining Act s.4(2) provides that where a dispute arises as to interests in customary land or the position of boundaries of customary land, that dispute "shall be settled as provided for by the Land Disputes Settlement Act (Ch.45)". It was submitted that there was such a dispute, and the Court should strike out the proceedings on the basis there was no jurisdiction to determine that dispute in the National Court. The National Court held that there was no such dispute and declined to make the order sought.
   
5. The Fourth Defendant has not appealed to this Court.
   

OBJECTION TO COMPETENCY

6. On this Objection to Competency the respondent submits that the Appellants do not have an interest or sufficient interest to maintain the appeal because the only issue is whether there is a dispute as to interests in customary land. The Appellants cannot be a party to such a dispute. The issue does not affect the appellant's interests.
   
7. The Appellants submit that they have sufficient interest because:
   
   1. The Agency agreement was not signed by the appellants;
      
   2. The agency agreement purports to amend the compensation agreement;
      
   3. The Land Liaison Office whose signature appears on the agency agreement says he did not sign it;
      
   4. The Appellants must have been made a party to the proceedings below for a purpose. That purpose must be that the Respondents seek to receive compensation from the Appellants.
      
   5. Further it is submitted that the Appellants would be required to consent to be a party to the Agency agreement and on that basis the Appellants have standing in the appeal notwithstanding that the First and Fourth Defendants below are not parties to this appeal.
      
   6. Nor, it is submitted, is it necessary for the First and Fourth Defendants to be parties to this appeal because the effect of the Agency Agreement is to purport to amend the Compensation Agreement even though Placer and the fourth Defendant were not made parties to the Agency Agreement.
      

Our Reasons

8. "An objection to competency is really an objection to the jurisdiction of the court to entertain the point,.....": See Waghi Savings and Loan Society Ltd. v Bank of South Pacific Ltd. SC185 (1980) (Kearney DCJ, Andrew and Kapi JJ, (as he then was), per Kearney DCJ).
   
9. Examples of grounds on which an objection to competency has been made are as follows:
   
   1. The form of commencement of the appeal, whether the appeal should have been preceded by an Application for Leave to Appeal: See Waghi Savings-And-Loan Society Limited v Bank of South Pacific Ltd. (1980) S. C. 185, Nerau v Solomon Taiyo Ltd.[1993] PNGLR 395 (Amit Woods and Hinchliffe J. J.) or commenced by Notice of Motion: See Garamut Enterprises Ltd v Steamships Trading Limited (1999) SC625 (Hinchliffe, Injia and Kirriwom JJ); or whether the form has been correctly completed: See Placer(PNG)Ltd. v Leivers (2005) SC781 (Kapi C.J., Injia D.C.J. and Cannings J.) for discussion on the completion of a Form 7 Application for Leave to Appeal;
      
   2. where the appeal cannot possibly succeed as a question of law, for example:
      
      1. raising on appeal admissibility of a document admitted into evidence on trial without objection;
         
      2. raising on appeal a point of law not raised at the trial and the facts do not give rise to the question of law.
         
      100. See Chief Inspector Robert Kalasim & The State v Aina Mond & Ors (2006) SC 828;
           
      4. the point has already been decided by the appellate court between the parties or their privies so that there is an issue estoppel or res judicata; See for example Don Pomb Polye v Jimson Sauk Papaki (1999) SC643 (Sheehan, Jalina and Sawong JJ);
         
   3. the appeal has been filed outside the statutory time limit: See for example Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346 (Amet CJ, Kapi DCJ, Los J);
      
10. The right to appeal is given by the Supreme Court Act. s4 provides:
    

4. Right of appeal from National Court.

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

11. Section 17 provides "where a person desires to appeal to or obtained leave to appeal from the Supreme Court he shall give notice of appeal...".
    
12. And s.14 amplifies the provisions of s.4(2) and provides for circumstances in which leave is required to appeal and circumstances in which leave is not required to appeal. The Appellants applied for an order from the National Court, which was refused. The Appellants claim they are aggrieved by that decision. In Re Lamb: Ex parte Board of Trade [1894] 2 QB 805 at 812 Lord Esher said that Re Reed Bowen & Co had determined that the phrase "person aggrieved" includes:
    

"any person who makes an application to a court for a decision or any person who is brought before a court to submit to a decision."

13. Speaking of the Supreme Court Act in the case of Malipu Balakau v Paul Torato [1982] PNGLR 242 (Kidu CJ, Kapi DCJ and Andrew J.) Kapi DCJ as he then was, said:
    

"This Act covers all acts of the National Court which may be reviewed by the Supreme Court. See Section 4 of the Supreme Court Act. A person aggrieved by a decision of the National Court in any jurisdiction would be entitled to appeal under this provision, and more particularly, under Section 16(now 17) of the Act...."

14. Similarly in Kitogara Holdings Ltd. v NCDIC at [1988-89] PNGLR 346 (Kapi DCJ Woods J. and Los J) per Kapi DCJ and Woods J. it was found that s.17 of the Supreme Court Act operates so as to provide a right of appeal to any person whose interests are affected by or who is aggrieved by the order of the court..."
    
15. Nothing in the Supreme Court Act defines who may appeal. No phrase such as "person aggrieved" is adopted by the Act. The Act does not limit the right of appeal to persons who were parties in the court below. But it would be plainly unworkable that any person, any ‘busy body’ as the administrative law cases say, could appeal a decision of the National Court: See Inland Revenue commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1981] UKHL 2; [1981] 2 WLR 722 @ 730 per Lord Diplock; cited in Re Somare [1981] PNGLR 265.
    
16. In the pre-independence case of Re-Kerevat Land (1972) N 702 Williams J, the court was considering an appeal under the New Guinea Land Titles Restoration Act 1961 from a final order of the Land Titles Commission involving 4708 acres of which the appellants claimed 2324 acres. It was contended for the respondents that the appeal was fatally flawed because it was framed as an appeal from the whole of the order made by the Land Titles Commission, which was patiently not correct. Ultimately His Honour decided the case on another basis.
    
17. In support of the contention for the respondents that the appellant had no interest in the balance of the land over and above the 2324 acres claimed and the appeal was thus incompetent, reference was made to Peter v Shipway [1908] HCA 52; (1908) 7 CLR 232. That case in the High Court of Australia was an appeal from a judgment ruling on the interpretation of a will and a finding that on the proper interpretation of the will the appellant was not entitled to any interest in certain lands in the estate of the deceased.
    
18. Before the High Court the respondent argued that the trial judge had been right and that on a proper construction of the will the appellant had no entitlement and consequently no interest in the property sufficient to sustain an appeal. The respondent's second argument was that the appellant and her husband had made an arrangement with their creditors and by deed had assigned to the trustees for the creditors all of their interests in present and future property. Consequently, even if the appellant did at one stage have an interest, contingently, under the will, she no longer had that interest because it had been assigned. In either case it was submitted that the appellant had no interest under the will and consequently insufficient interest in the decision of the trial judge to found an appeal.
    
19. Although differing on the point with respect to proper interpretation of the will, all four judges Griffiths CJ, Isaacs, O'Connor and Higgins, agreed that the appellant's assignment had been effective and consequently she had no interest in the property distributed under the will because of the assignment, therefore no interest in the land and no interest in the subject matter of the appeal. For that reason she could not maintain the appeal and the objection was upheld and the appeal dismissed. Higgins J. said:
    

"No appellant is entitled to succeed unless he can show that the judgment of the Court below does him hurt, contrary to law; and in this case the appellant cannot show any hurt done to her, even to the amount of a shilling, either now or hereafter or in any contingency whatever. In the present case, if this Court should come to the conclusion that the learned Judge below did not rightly construe this will, it would, in effect, allow an appeal in favour of parties who have not appealed, and who are concluded as to their rights against the respondents by having failed to appeal. Subject to the right of the trustees of the deed of assignment, or of Mrs. Burrows, to appeal as prescribed, the right of the respondent to hold the judgment in his favour is absolute and indefeasible. He can plead res judicata to any action brought by the defeated party; and his right ought not to be disturbed at the instance of any one whose only interest is the interest which all persons have in common—an interest in securing ideal accuracy in the decisions of the Court."

20. So that in order to be "aggrieved" by the decision of a court in a manner which grounds a right of appeal there must be a real and direct interest in the subject matter of the decision from which the appeal is taken. The decision appealed from must directly affect the rights of the appellant. Therefore there can be added to the list of examples of thresh-hold jurisdictional questions which can be addressed by an Objection to Competency, the issue of whether the appellant has sufficient interest in the subject matter of the decision under appeal. A person who was not a party to the National Court proceedings can still show that they are aggrieved by a decision and have sufficient interest to appeal if they are "directly affected": see SC 798 Yanto & Ors Piu & Ors (2005). However, even a person who is a party to proceedings in the National Court cannot have standing to appeal if the decision in the court below does not directly affect their rights or interests.
    
21. Now addressing the law on customary land owner disputes, Section 4 of the Mining Act is in the following terms:
    

4. Land dispute settlement.

(1) Where a dispute arises as to interests in customary land or the position of boundaries of customary land such dispute shall not affect—

(a) the right of a person to make application for and be granted a tenement under this Act; or

(b) the validity of a tenement granted under this Act.

(2) A dispute referred to in Subsection (1) shall be settled as provided for by the Land Disputes Settlement Act (Chapter 45).

Section 3 of the Land Disputes Settlement Act is in the following terms:

3. Application.

(1) Subject to Subsection (2) and to Section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.

(2) Nothing in this Act applies to a dispute—

(a) as to whether land is or is not customary land; or

(b) to which Part IV. of the Land Groups Incorporation Act applies.

22. The term "interest" is defined in the Land Disputes Settlement Act in the following manner -"interest" includes any interest in land of whatsoever nature that is recognized by the custom of the people of the area in which the land is located and "party" means a party to a dispute to which this Act applies, and includes—
    

(a) a customary kinship group; and

(b) a customary descent group; and

(c) a customary local group or community;

And "land" means customary land, and includes—

(a) a reef or bank; and

(b) a house or other structure built on land or over water; and

(c) things growing on land or in water over land, earths and minerals on or under land; and

(d) an interest in land;

23. Custom is defined in Schedule 2 paragraph 1.2 of the Constitution as:
    

"custom" means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial;

24. From those provisions it is clear that disputes regarding customary land must go to the Local Land Court and the only persons with locus standi before a Local Land Court, are indigenous inhabitants with an interest by custom in land.
    
25. The Appellants claim no interest in the relevant land by custom. Indeed the Appellants in their submission say "it is not a situation where the appellants are able or willing to become involved in a dispute between the Pulumaini-Ambo clan and the Wapini people" as to whether the Wapini have an interest in the relevant land. The Respondent and the Fourth Defendant in the Court below do not contest the ruling appealed from in this court.
    
26. The Appellants interests are indirect ones, the crux of which are contained in their submission that "The issue of land ownership should be determined in accordance with the Land Dispute Settlement Act, before any determination can be made whether the Appellants are required to recognise the Agency Agreement."
    
27. Returning to the submissions for the Appellant set out at [7], each of the Appellants submissions is relevant to the outcome of the argument about enforceability of the agency agreement, which is the substantive issue before the National Court. That issue is not before this Court. In our view, none of those matters raised by the Appellants demonstrates that the Appellants are directly affected by the decision of the National Court on the issue of whether or not there is a dispute between customary landowner parties to the National Court proceedings
    
28. The rights to customary land are matters in which only the respondents and the Fourth Defendants in the National Court can have a direct interest being the only parties capable of having an interest in customary land. The issue of whether there is a dispute between them over the interests in customary land has been determined by the court and none of the affected parties has appealed from that decision. None of those parties can now assert in those proceedings that there is such a dispute.
    
29. Therefore although the appellants maintain on appeal that the trial judge was wrong, they are not parties directly affected by the issue the subject of the decision. The respondents are bound by that decision as are the Fourth Defendants in the court below, the other party to the alleged dispute. What interest can the appellant have in appealing it? The decision has settled the issue as between the only parties directly affected, the respondent and the Fourth Defendants in the court below as to interests in the customary ownership in land. They cannot ask the National Court to adjudication interests of customary land, nor can they now raise an issue in those proceedings that there is a dispute as to ownership of interests in customary land between them, both because of lack of jurisdiction and because the issue is res judicata. Our view then is that the appellants’ interests cannot be affected by those issues in the National Court proceedings. The only parties directly affected are bound by the court’s decision. The Appellants themselves do not challenge the traditional rights to land claimed by the respondent and the Fourth Defendant in the court below, in the motion from which the appeal is taken or on appeal. The only way in which the appellants’ interests are affected is that a successful appeal would defer and an unsuccessful appeal would accelerate the date on which the substantive issues in the National Court are determined. In our view that is not a sufficient interest in the subject matter of the appeal to found a right of appeal.
    
30. Let us demonstrate that by postulating what might occur if the appellants were to proceed and succeed on this appeal. That is if on the appeal this court was to find that there was on the evidence before the trial judge a dispute over rights to customary land between the respondents. The relief granted could be either (a) a stay of the proceedings until the issue of ownership of customary land rights was settled; or (b) a dismissal of the proceedings on the basis that it was fundamental to the issue of the cause of action that the customary rights be determined before the plaintiffs could have the relief claimed.
    
31. What could happen after either relief was granted is that the next day the respondents and fourth defendants in the National Court return to court and say we are agreed, there is no dispute, let us continue or start again (depending on the relief granted by the Supreme Court ). That is effectively the position the respondents are in now.
    
32. We do not see that the appellants, who properly concede that they are not directly interested in customary land issues, can come to this court and in effect force the customary landowner claimants to go to the Local or District Land Court to adjudicate on their interests when, for the purposes of the National Court proceedings, they are bound by the decision that there is no dispute and quite clearly, by not cross appealing in this appeal, do not wish to contest that finding. And the Appellants do not directly challenge the title of the customary land owner claimants; the Appellants do not say that the customary land owner claimants are not customary land owners.
    
33. Even if, at some later stage, the respondents and the fourth defendant's below do litigate their respective interests and the appropriate Court declares their respective interests and proportions of ownership, the appellant’s only responsibility will be to honour their legal obligations to the owners as declared by the appropriate court.
    
34. Simply put, the appellants do not have grounds to appeal because the decision complained of does not involve any right or obligation of theirs. "It has done( them) no hurt", as Higgins J. observed in Peter v Shipway (supra).
    
35. In this case the Appellants made an application in the National Court, not for any of their rights to be determined, but for rights as between the respondents and the fourth defendants in the National Court to be determined. In our view the Appellants cannot be aggrieved and their interests are not affected by the decision under appeal.
    
36. For those reasons we allow the Objection to Competency and dismiss the Application for Leave to Appeal. The appellants shall pay the respondent's costs of the appeal.
    

Paulus M Dowa Lawyers: Lawyers for the Applicant/Respondent
Blake Dawson Waldron: Lawyers for the Respondent/Appellant