National Executive Council v Ila'ava [2014] PGSC 16; SC1332 (26 February 2014)

SC1332

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 07 OF 2013

Between

NATIONAL EXECUTIVE COUNCIL
First Appellant

And

HON. TOMMY TOMSCOLL – MINISTER FOR
AGRICULTURE & LIVESTOCK
Second Appellant

And

VELE KAGENA
Third Appellant

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

And

DR. VELE PAT ILA'AVA
First Respondent

And

PUBLIC SERVICES COMMISSION
Second Respondent

Waigani: Gabi, Sawong & Murray, JJ.
2013 : 24th June
2014 : 26thFebruary

CIVIL PROCEEDINGS — appeal from orders in judicial review in the National Court — O 10 Supreme Court Rules — appeal from orders of the single judge in the Supreme Court — O 10 Supreme Court Rules — Supreme Court Act s 5 — no right of appeal from single judge of the Supreme Court — right to apply to full Supreme Court — O 11 r 26 to be read consistent with Supreme Court Act s 5 — application must be in the original appeal proceedings — a 2nd appeal is incompetent.

Facts

The first appellant removed the first respondent from his position as A/Secretary, Agriculture and Livestock. The first respondent sought leave for judicial review proceedings which was refused. He appealed to the Supreme Court using the Order 10 procedure and a single Judge of the Supreme Court granted interim orders restoring him to his position. The first appellant appeals from those orders to the full Court by way of fresh appeal proceedings under Order 10. The issue in the Supreme Court was whether the correct procedure had been used.

Held

Gabi J, Sawong J and Murray J concurring:

1. There is no provision in the Supreme Court Act or the Supreme Court Rules 2012 providing that an order made under s 5(2), a direction or order of a single Judge may be discharged or varied by way of a separate appeal, at [17-18];
   
2. A direction or order given by a single judge of the Supreme Court may be discharged or varied pursuant to s 5(3) by way of an application, at [20];
   
3. O 11 r 26 must be read consistently with s 5 of the Supreme Court Act, it provides for an "application" in the same appeal in which the single Judge made orders, not a separate "appeal" proceedings, at [22-23);
   
4. The appeal is incompetent and is dismissed with costs.
   

Cases Cited:

Bruce Tsang vs. Credit Corporation (PNG) Ltd [1993] PNGLR 112
Felix Bakani vs. Rodney Daipo (2002) SC699
Gregory Puli Manda vs. Yatala Limited (2005) SC795
Haiveta vs. Wingti (No. 1) [1994] PNGLR 160
Independent State of Papua New Guinea vs. Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448
Jeffery Balakau vs. Ombudsman Commission of PNG (1996) PNGLR 346
Joshua Kalinoe vs. Paul Paraka (2007) SC874
Ken Norae Mondiai & Anor vs. Wawoi Guavi Timber Co. & Ors (2007) SC 886
Patterson Lowa & Ors vs. Wapula Akipe & Ors [1991] PNGLR 265
PNG Forest Authority vs. Securimax Securities Pty Ltd (2003) SC 717
ToRobert vs. ToRobert (2011) SC1130
Waghi Savings and Loan Society vs. Bank of South Pacific Ltd (1980) SC 185
Wau Ecology Institution vs. Registrar of Companies (2005) SC794
William Powi & Ors vs. The State vs. Ors (2006) SC844

Counsel:

T. Talid, for the Appellants
A. Baniyamai, for the First Respondent

DECISION

26th February, 2014

1. GABI, J: Introduction: This is an application by the applicants/appellants by way of a notice of motion under Order 10 of the Supreme Court Rules 2012 to have the interim order given by a single Judge of the Supreme Court in SCM No. 5 of 2013 discharged or varied pursuant to s. 5(3) of the Supreme Court Act.

2. Order 10 of the Supreme Court Rules 2012 is a unique procedure that applies to appeals from the decisions of the National Court under Orders 16 and 17 of the National Court Rules. There is no provision under Order 10 of the Supreme Court Rules 2012 or section 5 of the Supreme Court Act that enables a party to appeal against a decision of a single Judge to the full Court.

3. The issue is whether the procedure used by the applicants/appellants to come before the full Court of the Supreme Court in SCM No. 7 of 2013 to discharge or vary an order made in SCM No. 5 of 2013 is allowed or permitted by the Supreme Court Act or the Supreme Court Rules 2012.

4. The chronology of events leading to the application is as follows:

• 22nd December 2011 – The National Executive Council (NEC) appointed Dr. Vele Pat Ila'ava, the first respondent, as the Acting Secretary of the Department of Agriculture & Livestock until such time a permanent appointment is made.
  
• 4th July 2012 – The first respondent was again appointed by NEC as Acting Secretary.
  
• 15th August 2012 – The first respondent was reappointed by NEC as Acting Secretary following a recommendation from the Public Services Commission.
  
• 16th January 2013 – The second appellant approved the first respondent's request to seek medical treatment in Manila and relieved him of duties effective 21st January 2013. At the same time, Mr. Vele Kagena, the third appellant, resumed office as Acting Secretary during the period of absence of the first respondent.
  
• 25th January 2013 – The second appellant suspended the first respondent.
  
• 6th February 2013 – NEC revoked the appointment of the first respondent as Acting Secretary and appointed the third appellant as Acting Secretary for the Department of Agriculture & Livestock for a period of three months.
  
• 12th February 2013 – The first respondent filed an Originating Summons OS 51 of 2013 seeking a judicial review of the NEC Decision of

6th February 2013. The first respondent also filed a notice of motion seeking to restrain the implementation of the decision of NEC of

6th February 2013.

• 13th February 2013 –The National Court per Gavara-Nanu J granted interim injunctive orders.
  
• 18th March 2013 – Cannings J heard the parties on the leave application and refused leave. His Honour made the following orders:
  
  • (i) leave for judicial review is refused;
  • (ii) the interim order of 13th February 2013 is dissolved;
  • (iii) the eighth defendant, the State, shall pay the plaintiff's costs of proceedings on a party/party basis to be taxed if not agreed; and
  • (iv) time for entry of the order is abridged.
    
• 20th March 2013 – The decision of NEC revoking the acting appointment of the first respondent was gazetted. The third appellant took office as Acting Secretary of the Department of Agriculture & Livestock.
  
• 21st March 2013 – The first respondent filed SCM No. 5 of 2013 seeking to appeal the decision of the National Court refusing leave. At the same time, the first respondent filed an application under s. 5(1)(a) and (b) of the Supreme Court Act and s. 155(4) of the Constitution seeking to restore him as Acting Secretary pending the determination of the appeal.
  
• 4th April and 9th April 2013 – The Chief Justice, Sir Salamo Injia, sitting as a single Judge of the Supreme Court heard the application of the first respondent on 4th April 2013. On 9th April 2013, the Chief Justice granted the application and made the following orders:
  

"(1) The application for interim relief under section 5(1)(a) of the Supreme Court Act is granted in terms of paragraphs 1.3, 1.4 and 1.5 of the appellant's application filed on 21 March 2013 herein, pending determination of the appeal; or until a permanent appointment to the position of Secretary for Department of Agriculture & Livestock [DAL] is made; as follows:-

(a) The decision of the fourth respondent made on 24 January 2013 to suspend the appellant's appointment as acting Secretary for the Department of Agriculture and Livestock (DAL) is stayed;

(b) The decision of the first respondent made on 6 February, 2013 to suspend the appellant's appointment as Acting Secretary for DAL and to appoint the fifth respondent as Acting Secretary for DAL; and the Head of State's formalization of those decisions through publication of a gazette notice to that effect; are stayed;

(c) Pursuant to the first respondent's appointment of the appellant as Acting Secretary DAL made on 22 December, 2011, the appellant shall remain in office and be allowed to perform the duties of the office;

(d) The respondents, their agents or employees are restrained from preventing, threatening, harassing and intimidating the Appellant in the performance of his duties as Acting Secretary DAL.

(2) Costs of the application shall be in the cause".

• 26th April 2013 – The appellants/applicants appealed the decision of Injia CJ sitting as a single Judge of the Supreme Court pursuant to s. 5(3) of the Supreme Court Act and Orders 10 and 11 rules 25 and 26 of the Supreme Court Rules 2012.
  

The appellants' application

5. The interim stay and injunctive orders of 9thApril 2013 issued by Injia CJ in SCM No. 5 of 2013 effectively restored the first respondent as Acting Secretary. In this proceeding, the appellants filed a notice of motion, SCM No. 7 of 2013, seeking to set aside the interim stay and injunctive orders issued by Injia CJ in SCM No. 5 of 2013. The appellants' application to discharge or vary the orders is by way of a fresh appeal under s. 5(3) of the Supreme Court Act and Orders 10 and 11 rules 25 & 26 of the Supreme Court Rules 2012.

The Law

6. Section 5 of the Supreme Court Act and Orders 7 rule 15, 10 and 11 rules 25 and 26 of the Supreme Court Rules 2012 are set out below.

Section 5. INCIDENTAL DIRECTIONS AND INTERIM ORDERS.

"(1) Where an appeal is pending before the Supreme Court –

(a) a direction not involving the decision on the appeal; or
(b) an interim order to prevent prejudice to the claims of the parties; or
(c) an order in any proceedings (other than criminal proceedings) for security for costs; or
(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or
(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court."

7. Order 7 rule 15 of the Supreme Court Rules 2012 states:

"15. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal-

(a) file an objection in accordance with form 9; and

(b) serve a copy of the objection on the appellant."

8. Order 10 of the Supreme Court Rules 2012 provides for appeals from orders made under Order 16 & 17 of the National Court Rules by way of motion in the following terms:

Division 1. – Institution of appeal

"1. (1) An appeal under this Order shall be instituted by a notice of motion.

(2) Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply.

2. The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.

3. The notice of motion shall –

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; and

(b) have annexed –

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and

(a) be in accordance with form 15; and
(b) be signed by the appellant or his lawyer; and
(c) be filed in the registry.

Division 2. – certain rules to apply

4. The following rules shall apply to matters under this part with regard to –

(a) filing and service: Order 7 Division 4; and

(b) affidavits: Order 7 Rules 61, 62, 63, 64.

(c) where an application for leave to appeal has been filed: Order 7 Rule 5 (time to file a Notice of Appeal) and Order 7 Rule 10 (notice of appeal deemed given on filing of an Application for Leave to Appeal) with the necessary modifications.

5. Where leave to appeal is required pursuant to s14 of the Supreme Court Act, application shall be made in Form 7."

Division 13.- Appeal & application to court from orders or directions of judge

"25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just;

26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply."

Competency

9. The first respondent objects to the competency of the appeal on the basis that there is no right of appeal under s. 5(3) of the Supreme Court Act or O.11 rules 25 & 26 of the Supreme Court Rules.

10. The appellants submitted that the respondents cannot belatedly raise any competency issue. This is an appeal under Order 16 of the National Court Rules to which Order 7 rule 15 of the Supreme Court Rules apply: Joshua Kalinoe v Paul Paraka (2007) SC874. A respondent to an appeal who has not filed and served a notice of objection to competency will not be heard on any belated objection to competency: Gregory Puli Manda vs. Yatala Limited (2005) SC795; Patterson Lowa & Ors vs. Wapula Akipe & Ors [1991] PNGLR 265; Independent State of Papua New Guinea vs. Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448. Secondly, the appeal is competent in that there are proper grounds of appeal for determination by the Supreme Court. Thirdly, the interim orders of 9th April 2013 cause serious and irreparable damage or prejudice to the rights of the parties in that the orders have in effect determined the rights of the parties in the substantive appeal and an urgent intervention of the full Court of the Supreme Court is warranted: Wau Ecology Institution vs. Registrar of Companies (2005) SC794. Finally, s. 5(3) of the Supreme Court Act enables the Supreme Court to discharge or vary an order made by a single Judge of the Supreme Court. Order 11 rules 25 and 26 of the Supreme Court Rules state that an application to discharge or vary orders made by a single Judge of the Supreme Court can be made as an appeal by way of motion under Order 10 with necessary modifications. This appeal has been duly filed and served in accordance with Form 15 and Order 10 rules 1, 2 and 3 of the Supreme Court Rules. Order 11 rule 26 puts it beyond doubt that the proceeding under rule 25 "shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply."

11. There are two lines of authority in this jurisdiction on the question of whether an objection to competency ought to be filed and entertained in an appeal under Order 10 of the Supreme Court Rules.

12. In Jeffery Balakau v. Ombudsman Commission of PNG (1996) PNGLR 346, the Supreme Court held that appeals lodged pursuant to Order 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules are civil appeals and requirements of Order 7 r 15 of the Supreme Court Rules apply to them. Again in Joshua Kalinoe vs. Paul Paraka (supra), the Supreme Court said:

"10. A notice of motion constituting an appeal filed pursuant to Order 10 of the Supreme Court Rules is subject to other provisions of the Supreme Court Rules including Order 7 r 14, where a notice of objection to competency is filed, as in this case. Order 10 of the Supreme Court Rules allows for appeals against orders made pursuant to Orders 16 and 17 of the National Court Rules to be instituted by way of a notice of motion instead of an ordinary notice of appeal. In that sense appeals lodged pursuant to Order 10 of the Supreme Court Rules are of special nature. See, Felix Bakani & Oil Palm Industrial Corporation vs. Rodney Daipo SC 699. But that does not exempt such appeals from the mandatory requirements of Order 7 r14 of the Supreme Court Rules. Requirements of Order 7 r 14 apply equally to appeals lodged under Order 10 and Order 7, the latter being either by way of an application for leave to appeal or by a notice of appeal. This is clear from the terms of Order 7 r 14 which provides:

'A respondent who objects to the competency of an appeal or for application for leave to appeal shall...'

11. The word 'appeal' therefore also refers to an appeal by way of a notice of motion under Order 10 of the Supreme Court Rules."

13. The Supreme Court expressed a different view in Ken Norae Mondiai & Anor v. Wawoi Guavi Timber Co. &Ors (2007) SC 886. The Court said:

"It was submitted for the Appellant's, and we agree, that the Supreme Court Rules contain no provision for a Respondent to a Motion of Appeal under Order 10 to file a Notice of Objection to the Competency of the Appeal. For that reason we would dismiss the Objections to Competency. They have no basis under the Supreme Court Rules. The point has not been previously taken and ruled upon. In the future objections to competency should not be filed in respect of Order 10 appeals."

14. The issue was not argued in full before us. However, I hold the view that as an objection to competency deals with the question of jurisdiction of the court, I have decided to entertain the application.

15. "An objection to competency is really an objection to the jurisdiction of the Court to entertain the point..." per Kearney DCJ in Waghi Savings and Loan Society vs. Bank of South Pacific Ltd (1980) SC 185. The Court can raise and consider issues of competency at any time until judgment: Bruce Tsang vs. Credit Corporation (PNG) Ltd [1993] PNGLR 112 and Haiveta vs. Wingti (No. 1) [1994] PNGLR 160.

16. An objection to competency might be made where: (i) there is no right of appeal; (ii) there is no reasonable ground of appeal stated in the notice of appeal; (iii) the grounds of appeal are frivolous and vexatious; (iv) notice of appeal was served out of time; and (v) the notice of appeal is irregular: PNG Forest Authority vs. Securimax Securities Pty Ltd (2003) SC 717.

No right of appeal

17. Section 5(1) of the Supreme Court Act empowers a single Judge of the Supreme Court to give a direction or make an order in specific matters. Pursuant to s. 5(2), a direction or order of a single Judge "shall be deemed to be a direction or order of the Supreme Court."A direction or order "may be discharged or varied by the Supreme Court" (s. 5(3) of the Supreme Court Act).

18. There is no provision in the Supreme Court Act or the Supreme Court Rules 2012 to say that a direction or an order made under s. 5(1) may be discharged or varied by way of a separate appeal. There is no right of appeal from the decision of a single Judge to the full Court: ToRobert v. ToRobert (2011) SC1130. In that case, the appellant relied on s. 14(3)(a) of the Supreme Court Act to argue that the full Court has jurisdiction to hear an appeal from a single Judge. The majority (Cannings and Kariko JJ) said:

"6. Having considered the competing arguments of the appellant and the respondent and the decision of the full court to grant leave and the invitation to reconsider the question of jurisdiction in the directions of the Chief Justice given in his capacity as the listings judge, we have come to the view that Section 14(3)(a) does not allow an appeal from a single judge allowing an extension of time to appeal to the full court of the Supreme Court, and that there is no other law that provides for such an appeal. Section 14(3)(a) does not say that there can be an appeal, it simply provides that if there is an appeal it can only be filed with the leave of the Court.

7. Mr. Gorua submitted that by not specifying the court that makes the order allowing an extension of time, the provision is broad enough to cover orders made by a single Judge of the Supreme Court. He points to other provisions in Section 14, which refer expressly to the National Court, and argues that omission of a reference to the National Court in Section 14(3)(a) was deliberate. To appreciate the argument it is necessary to cite the whole of Section 14 (civil appeals to the Supreme Court), which states:

(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; or

(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.

8. We can see that the omission of a reference to the National Court in Section 14(3)(a) at first glance creates some uncertainty as to whether the provision is talking about an order of the National Court granting an extension of time to appeal (eg an order under Section 231 of the District Courts Act), an order of a single Judge of the Supreme Court granting an extension of time to appeal (made under Section 10(1)(b) of the Supreme Court Act), or both. The ambiguity is resolved by considering the provision in the context of the entire Section 14, which is dealing only with appeals from the National Court to the Supreme Court, not appeals from single Judges of the Supreme Court to the full court of the Supreme Court. In fact nowhere in the Supreme Court Act or in any other law does there exist a right of appeal from a single Judge of the Supreme Court to the full court of the Supreme Court. The full court of the Supreme Court is entitled in certain circumstances to reconsider issues that were before a single Judge of the Supreme Court but is not given appellate jurisdiction, as such. For example, Section 5(1) allows a single Judge of the Supreme Court to make various directions and orders when an appeal is pending before the Supreme Court. Section 5(3) provides that such a direction or order may be discharged or varied by the full court of the Supreme Court, but no indication is given that such an order could be made following an appeal. Section 10(1), in addition to conferring jurisdiction on a single Judge of the Supreme Court to extend the time for appealing (the jurisdiction exercised by the Chief Justice in the present case), allows the power to give leave to appeal and to admit an appellant to bail to be exercised by a single Judge of the Supreme Court. Section 10(2) provides that where a Judge refuses an application in relation to a matter specified in Section 10(1) the appellant may apply to the full court of the Supreme Court to have the matter determined by it, but such an application is a fresh application, not an appeal (Felix Bakani vs. Rodney Daipo (2002) SC699, The State vs. John Tuap (2004) SC765).

9. There is no avenue of appeal to the full Supreme Court against a decision of a single Judge of the Supreme Court made under Section 10(1). The only way that the issues the subject of a decision under Section 10(1) can be revisited is if the application under Section 10(1) is refused, in which case "the appellant" (ie the party making the application under Section 10(1)) may apply to the full court of the Supreme Court under Section 10(2) to have the matter determined by that court (William Powi vs. Southern Highlands Provincial Government (2006) SC844). A person aggrieved by a decision of a court in civil proceedings has no inherent or constitutional right of appeal to a higher court (Avia Aihi vs. The State (No 1) [1981] PNGLR 1). We do not consider that this is an anomaly in the law or that it is unfair to a party in the position of the present appellant who may disagree with the other party being granted an extension of time. Such a person's rights and interests are not directly prejudiced by the granting of an extension. Their interests are protected by their right of appearance at the hearing of the appeal against the judgment of the National Court. We agree with the views expressed by the Court in Powi's case that it makes sense to restrict challenges to interlocutory decisions of a single Judge of the Supreme Court, so that the hearing of substantive appeals can be set down expeditiously. We conclude that we have no jurisdiction to hear this appeal and for that reason alone it must be dismissed." (Emphasis added).

19. This Court also said that there is no provision for review of a direction or order of a single Judge by the full Court of the Supreme Court in William Powi &Ors vs. The State & Ors (2006) SC844. The Court said:

"23. It had in fact had established earlier on in SC Review No 4 of 1990; Application by Wili Kili Goiya, that s.155 (4) does not support the proposition that a Supreme Court can review a decision of a differently constituted Supreme Court. It said:

'If that were so, it could also be said that the National Court could review a decision of another National Court decision in the same manner. ...There are limited circumstances provided in the law where the Supreme Court and the National Court can review their own decisions. Under s 10 of the Supreme Court Act (Ch No 37), a single judge of the Supreme Court may exercise the powers of the Supreme Court. Under s 10 (2) of the Act, if the application is refused, a party then may apply to the Supreme Court. Under O 12 of the National Court Rules, a party may apply to the National Court to set aside an order made by another National Court if it is a default judgment or made ex parte.'

24. There is therefore, no room for argument in our view that, regardless of however the Supreme Court is constituted, there is no power in the Supreme Court to review the decision of another Supreme Court except as may be provided for by, any other law, such as the Supreme Court Act itself."

20. A direction or an order given by a single Judge of the Supreme Court may be discharged or varied pursuant to s. 5(3) by way of an "application" in the same manner in which the direction or order were made by the single Judge. This position is confirmed by s. 10(2) of the Supreme Court Act (see also Felix Bakani v. Rodney Daipo (2002) SC699; William Powi & Ors v. The State v. Ors (supra); Joshua Kalinoe v. Paul Paraka (2010) SC1024; ToRobert v. ToRobert (supra)). Clearly, there is no legal basis to file a separate appeal to challenge the direction or order of a single Judge. The application to discharge or vary the direction or order must be made in the existing appeal.

21. The applicants/appellants rely on Order 11 rules 25 and 26 to file a substantive appeal under Order 10 of the Supreme Court Rules. Order 10 applies to appeals against decisions of the National Court under Order 16 and 17 of the National Court Rules. It does not provide for an appeal to be filed against a decision of a single Judge of the Supreme Court exercising jurisdiction under s. 5(1) of the Supreme Court Act.

22. Order 11 rule 25 entitles "a party dissatisfied with a direction or order" to "apply" to the court which may make such order as appears just" and such a party is required to give 21 days' notice to other parties in the proceedings. It is significant to note the use of the word "apply" as oppose to "appeal" in the provision.

23. Order 11 rule 26 states that "proceedings under rule 25 shall be instituted as if it was an appeal under Order 10..." The applicants/appellants argued that this provides the jurisdictional basis to institute an appeal by way of a notice of motion under Order 10. To read rule 26 to mean that a fresh appeal ought to be filed would be inconsistent with s. 5 of the Supreme Court Act. The power given under the Supreme Court Rules must be exercised subject to the provisions of the Supreme Court Act.

24. An issue raised by the applicants/appellants that I wish to comment on is the question of serious and irreparable damage and prejudice to the rights of the parties. The applicants/appellants urged the full Court to intervene on the basis that the rights of the parties have been damaged or prejudiced. There is no evidence of any serious and irreparable harm or damage that may be suffered by the applicants/appellants before the Court. The applicants/appellants had not shown how or in what way the interim orders of 9th April 2013 had caused serious and irreparable damage or prejudice to the rights of the parties to the appeal so as to enable the full Court to intervene.

25. For all the above reasons, I am of the view that the appeal is incompetent and dismiss it with costs.

26. SAWONG, J: I have read the opinion of my brother Gabi, J and I agree entirely with the reasons and the conclusion he gives.

27. I only wish to add a few comments of my own in relation to Section 5(3) of the Supreme Court Act. The powers of a single Judge of the Supreme Court are set out in S.5(1)(a) to S.5(1)(e) inclusive.

28. Under s.5(3) of the Act, only a full Supreme Court, comprising of three or more Judges, have the jurisdiction to discharge or vary a direction or order made by a single Judge of the Supreme Court under s.5(1) of the Act.

29. In my view, s.5(3) of the Act does not give a party right to lodge an appeal to the full Court against a direction or order given by a single Judge pursuant to s.5(1) of the Act.

30. Briefly, what has occurred in the present case is this. There is already an appeal on foot by way of a Notice of Motion being SCM No. 5 of 2013, pending before the Supreme Court. The respondents in that proceeding obtained some interim relief before a single Judge of the Supreme Court. Being aggrieved by that decision, the present appellant/applicants filed an appeal by way of Notice of Motion (SCM No. 7 of 2013) purporting to appeal against the ruling of the single Judge of the Supreme Court. Thus the respondent, have raised an objection against the competency of SCM No. 07 of 2013.

31. In my view, the only way to discharge or vary any direction or orders made by a single Judge of the Supreme Court pursuant to S.5(1) of the Act, is to apply for variation or discharge of the order or direction to the full Court, by application under S.5(3) of Act within the existing appeal.

32. For instance, in the present case, the appellants in SCM No. 07 of 2013, should or ought to have applied for a variation or discharge of the orders or directions within the existing appeal, namely SCM No. 05, and not institute a fresh or new appeal as was done here. Such a procedure is not envisaged nor permissible under s.5(3) of the Act.

33. I too, would dismiss this appeal namely: SCM No. 07 of 2013, as being incompetent. I would also order that the appellants pay the respondents costs of this appeal.

34. MURRAY, J: I agree with the reasons and conclusions of Gabi J. There is however one particular aspect of this matter I wish to add some brief additional observations.

35. In ToRobert vs. ToRobert (2011) SC1130, the Court of which I was a member, I gave dissenting judgment.

36. The matter that came before us was an "Appeal" by way of Notice of Motion seeking an order pursuant to s 5(3) of the Supreme Court Act to set aside/dissolve orders of the Chief Justice sitting as a single Supreme Court Judge in the Supreme Court proceedings SCM 5/2013, hearing an application for stay and injunctive orders, pursuant to s 5(1) (a) & (b) of the Supreme Court Act.

37. The distinction between the present case and in ToRobert vs. ToRobert and William Powi & Ors vs. The State &Ors are that in ToRobert vs. ToRobert, the Appeal which was dismissed, was brought pursuant to s 14(3)(a) of the Supreme Court Act against a decision of the Chief Justice sitting as single Supreme Court Judge hearing an application for extension of time to appeal pursuant to s 10(1)(b) of the Supreme Court Act.

38. In the case of Powi & Ors, the nature of the application was similar to ToRobert. However, the application that was filed to set aside the order of the single Supreme Court Judge granting extension of time to appeal was brought pursuant to s 155(4) of the Constitution, which the Supreme Court found was an abuse of process, after having found that s 10(2) & s 5(3) of the Supreme Court Act were applicable.

39. In the present case, the single Supreme Court Judge exercised his powers under s 5(1)(a) & (b) of the Supreme Court Act. In my view, where a party is aggrieved by a decision made under s 5(1) (a)-(e) of the Supreme Court Act,
s5(3) of the Act provides the avenue for the aggrieved party to seek redress before the full Supreme Court by way of an Application.

40. For those reasons, I do not see any conflict or inconsistency in my views expressed in ToRobert vs. ToRobert.

41. Consequently, I would also dismiss the Appeal as being incompetent, with costs to the respondents.

______________________________________________________________
Greg Manda Lawyers: Lawyers for the Appellants
Baniyamai Lawyers: Lawyers for the First Respondent