Kukari v Polye [2008] PGSC 4; SC907 (29 February 2008)

SC 907

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 78 OF 2007

BETWEEN:

DR. ARNOLD KUKARI, DR. FELIX BABLIS,
PAROL MAINO, FLORENCE NIMBA,
MICHAEL KISOMBO, JOE NOM, MARIA KOPKOP
AND IGNUS WUNUM (MEMBERS OF THE SUBSTANTIVE
COUNCIL OF THE UNIVERSITY OF GOROKA)
- Appellants-

AND:

HONOURABLE DON POMB POLYE,
MINISTER FOR HIGHER EDUCATION, RESEARCH,
SCIENCE AND TECHNOLOGY
-First Respondent-

AND:

SIR EBIA OLEWALE, DR. DAVID RAWLENCE,
DR. NEMANE TAUSERE, PETER BAKI,
DR. GAIRO ONAGI, RONNY ANGU, MIRIAM MIDIRE
(INTERIM COUNCIL MEMBERS OF THE UNIVERSITY OF GOROKA)
-Second Respondent-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Respondent-

Waigani: Kapi CJ, Gavara-Nanu & Cannings JJ.
2008: 27 & 29 February

PRACTICE & PROCEDURE: Appeal – Appeal arising from a judgment given under Order 16 of the National Court Rules – Order 16 r 11 of the National Court Rules provides that an appeal under this rule be by way of Notice of Motion – Appellants appealing by way of Notice of Appeal pursuant to s. 14 (a) and (b) of the Supreme Court Act, Chapter No. 37 – Objection to competency of appeal – Appeal dismissed as being incompetent.

Cases cited:

Felix Bakani v. Dodney Daipo SC659
Felix Bakani v. Rodney Daipo SC699
Haiveta vs. Wingti (No.2) [1994] PNGLR 189
In the Matter of Section 19 of the Constitution - Reference by Fly River Provincial Executive (Ref. No. 3 of 2006)
Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112

Counsel:

P. Kak, for the Appellants
V. Narokobi, for the Respondents/Applicants

1 BY THE COURT: This is an application by the first and third respondents (‘the applicants’), made pursuant to Order 7 r 14 of the Supreme Court Rules (‘The Rules’) for an order dismissing the appeal for being incompetent. The applicants argued that because the appeal is against a judgment given in respect of judicial review proceedings under Order 16 of the National Court Rules, the Notice of Appeal which was filed pursuant to s. 14 (a) (b) of the Supreme Court Act, is incompetent. They argued that the appeal should have been instituted by way of a Notice of Motion under Order 10 of the Rules as required by Order 16 r 11 of the National Court Rules. The applicants therefore argued that the appeal should be dismissed.

2 Mr. Narokobi has conceded the mistake made by the appellant in filing the appeal under s. 14 (a) and (b) of the Supreme Court Act and not under Order 10 of the Rules. In other words, he has indirectly conceded that the appeal is incompetent as it should have been instituted under Order 10 of the Rules, by way of a Notice of Motion. However, he went to ask the Court to exercise its discretion and grant leave to the appellants to amend their Notice of Appeal so that it can meet the mandatory requirements of Order 10 of the Rules. This was a fresh application by the appellants. We will return to this point later.

3 An appeal instituted by way of a Notice of Motion under Order 10 of the Rules is authorized by Order 16 r 11 of the National Court Rules and Order 10 of the Rules prescribes and regulates such an appeal. See, The Right Honourable Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557. Whereas an appeal instituted by way of a Notice Appeal, as in this case, or an Application for Leave to Appeal is authorized by s. 14 of the Supreme Court Act and is prescribed and regulated by Order 7 Divisions 1, 2, 3 & 4 of the Rules. Thus, an appeal instituted by way of a Notice of Motion under Order 10 of the Rules and a Notice of Appeal or an Application for leave to Appeal instituted under Order 7 of the Rules are two different types of appeals both in form and substance. See, Felix Bakani v Rodney Daipo SC659. Even a Notice of Appeal is different from an Application for Leave to Appeal. See, Haiveta v. Wingti (No.2) [1994] PNGLR 189 at 193 and Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112. Thus they must each comply strictly with the stringent mandatory requirements set out in the rules which regulate them. Thus a non-compliance with the mandatory requirements of those rules by any of these appeals would render it incompetent. In Haiveta vs. Wingti (supra), the Supreme Court made this very point at page 192 when it said:

"An appeal may be incompetent if it does not comply with the Supreme Court Act, Chapter 37 (hereafter referred to as the Act) and the Supreme Court Rules (hereafter referred to as the Rules), which regulates appeals to the Supreme Court".

4 In the instant case, we are considering non-compliance with the mandatory requirements of Order 10 of the Rules by the appellants. There is no dispute that the appellants have invoked a wrong provision in instituting their appeal. It follows that the failure by the appellants to comply with the mandatory requirements of Order 10 of the Rules is fatal to the appeal. In Felix Bakani v Rodney Daipo SC 699, the Supreme Court emphasised this point when it said:

"The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural requirements of Order 10, in particular Order 10 r 3 are also restrictive and onerous. They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant." (Our emphasis).

5 The need for strict compliance with the mandatory requirements of the Rules was emphasised by the Supreme Court in the case of; In the Matter of Section 19 of The Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006). In that case, the issue was whether the Reference should be struck out for non-compliance with the mandatory requirements of Order 4 r 1(e) of the Rules, which provide that a Reference – "be signed by the person, court, tribunal, or authority or proper officer on behalf of the authority as required by law, making the reference." The Reference in that case was signed by the lawyer acting for the Fly River Provincial Executive, who was not an authorized officer under the rule. Thus, the Reference clearly did not comply with the requirements of Order 4 r 1 (e) of the Rules. At the time of hearing, an application was made by the lawyer acting for the Fly River Provincial Executive for the Court to direct that the Reference be signed by a proper officer of the Fly River Provincial Executive to cure the error and to validate the Reference. In rejecting the application, the Court said:

"It follows that we reject that argument that a breach of Order 4, Rule 1 (e) can be remedied by giving a direction to the referrer to get the reference properly signed. The reference has been put before the court and it is incumbent on the referring authority and its lawyer to ensure that the reference meets the requirements of the Rules. This is not a mere technical requirement. It is not a matter of the court nitpicking, insisting on a referrer filing in a correct form and getting it signed by the right people. The signing requirement is something that goes to the validity of the reference. If the court is to hear and determine a Section 19 reference it must be satisfied that the jurisdiction of the court has been properly invoked and that the referring authority has made a considered decision to make the reference. The court can only be satisfied of those things if the reference is properly signed.

It is necessary to insist on strict compliance with Order 4 Rule 1 (e) to preserve the integrity of the Section 19 procedure and to ensure that the power to make such a reference is properly controlled. It is not sufficient, as suggested by Mr Narokobi, to comply with the other requirements of the Rules and miss out on Rule 1 (e).

We conclude that breach of Order 4 Rule 1 (e) is fatal to a Section 19 reference. The present reference is therefore incompetent and must be struck out".

6 We apply the same reasoning here and reject the application by the appellants to amend the Notice of Appeal so that it can meet the mandatory requirements of Order 10 of the Rules. Once the appeal was instituted under a wrong provision the appeal was incompetent. That being so, there is no appeal on foot before us and there is no appeal for the appellants to amend. In any case, the only issue properly before us is the issue of the competency of the appeal. The application to amend the Notice of Appeal by the appellants as we alluded to earlier is a fresh application, and it is not properly before us, thus it does not arise for our determination.

7 In the result, we dismiss the appeal for being incompetent. The appellants will pay the first and third respondents’ costs.

_____________________________________________

Narokobi Lawyers: Lawyers for the Appellants
Paulus M Dowa Lawyers: Lawyers for the Respondents/Applicants