Vaki v Damaru [2015] PGSC 41; SC1447 (30 July 2015)

SC1447

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 12 OF 2015

BETWEEN

GEOFFREY VAKI
Appellant

AND

MATHEW DAMARU,
Detective Chief Superintendent of Police and The Director of National Fraud and Anti-Corruption Directorate
First Respondent

AND

TIMOTHY GITUA,
Detective Chief Inspector of Police and Deputy Director of National Fraud and Anti-Corruption Directorate
Second Respondent

Waigani: Makail, J
2015: 22nd & 30th July

SUPREME COURT – PRACTICE & PROCEDURE – Order 11 appeal – Objection to competency – Lack of procedure – Directions sought – Supreme Court Rules – Order 11, rules 9, 25 & 26.

Cases cited:

Hegele v. Kila (2011) SC1124
Madang Timbers Ltd v. Kambori (2009) SC992

Counsel:

Mr G. Sheppard with Mr. Meninga, for Appellant
Mr G. Egan with Mr. Kendakali, for Respondents

PRELIMINARY RULING

30th July, 2015

1. MAKAIL, J: The Appellant Mr Geoffrey Vaki who was then the Commissioner of Police was convicted by the National Court on 2 of 4 counts of contempt of Court on 17th June 2015. On 03rd July 2015 he was sentenced to a term of 3 years imprisonment with hard labour on each count to be served concurrently. On the same day he filed an appeal against his conviction and applied and was granted bail pending the determination of his appeal. The bail was granted under Section 11 of the Bail Act by a single judge of the Supreme Court.

2. On 10th July 2015 the Respondents filed and served a notice of appeal against the grant of bail. On 15th July 2015 Mr Vaki filed an application pursuant to Order 11, rule 9 of the Supreme Court Rules and Section 185 of the Constitution. He submits by this application, he seeks firstly, directions as to how an objection to competency to the appeal under Order 11, rules 25 and 26 of the Supreme Court Rules can be made and secondly, for leave to file it.

3. After hearing Mr Greg Sheppard of counsel for Mr Vaki on 22nd July 2015 the Respondents, in opposing the application, raised a preliminary objection. Mr Greg Egan of counsel for the Respondents objects on the ground that Mr Vaki failed to seek directions from the Court in relation to the filing and moving of the application for leave to file the objection to competency.

4. Mr Egan submits given that the Supreme Court Act and the Supreme Court Rules do not provide for an objection to competency and specifically, the form and procedure for objection to competency of an appeal under Order 11, rules 25 and 26 of the Supreme Court Rules, the onus is on Mr Vaki to first seek directions from the Court pursuant to Section 185 of the Constitution or under Order 11, rule 9 of the Supreme Court Rules in relation to how an objection to competency is made. This, Mr Vaki did not do and the failure is fatal to the entire application. The consequence is, the application is not properly before the Court and the Court is not properly seized of the matter to exercise jurisdiction. The application should, therefore, be dismissed.

5. In response, Mr Sheppard submits the objection is misconceived. He relies on the case of Hegele v. Kila (2011) SC1124 and submits that Mr Vaki did seek directions from the Court as stated at paragraph 1 of the application and secondly, during submissions.

6. Despite the different positions taken by the parties, it is common ground that there is a lack of procedure in relation to raising an objection to competency in an Order 11 appeal of the Supreme Court Rules. For the benefit of those who may not be aware of this Order 11 appeal, Order 11, rule 25 states:

"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."

7. Rule 26 states:

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

8. I note that under Order 11, rule 25 of the Supreme Court Rules, an appeal lies from a direction or order given by a Judge under the Supreme Court Rules or Section 5 of the Supreme Court Act, but it does not provide for an objection to competency. The grant of bail was under Section 11 of the Bail Act. On this basis, it could be argued that the grant of bail is not a direction or order that falls within the meaning of a direction or order under the Supreme Court Rules or the Supreme Court Act. The consequence is there is no right of appeal against the grant of bail and the appeal is incompetent. Likewise, there may be other procedural and jurisdictional issues that may arise such as whether a fresh appeal by way of a notice of motion should be filed for the purpose of Order 11 appeal or is it envisaged that there be an appeal within an appeal. However, given the lack of procedure on objection to competency, it is not clear how Mr Vaki could object to the competency of the appeal on these grounds.

9. The lack of procedural rules can be cured by the Court issuing appropriate directions either on its own motion or on application of a party. It may issue directions pursuant to its powers under Section 185 of the Constitution or Order 11, rule 9 of the Supreme Court Rules. The case of Hegele v. Kila (supra) which Mr Sheppard cites in support of his submission addresses the issue of lack of procedure for objection to competency. That was a case which dealt with an appeal under Order 10 of the Supreme Court Rules, but the same principles apply to an appeal under Order 11, rule 25 by virtue of Order 11, rule 26 (application of Order 10 appeal procedure).

10. The Supreme Court suggested that a Respondent to an Order 10 appeal (or Order 11 appeal) may apply for leave to file a notice of objection to competency by applying for directions before the Supreme Court under Section 185 of the Constitution or Order 11, rule 9 of the Supreme Court Rules or before a single Judge of the Supreme Court under Order 11, rule 9 of the Supreme Court Rules. The Supreme Court got the hint from the decision in Madang Timbers Ltd v. Kambori (2009) SC992.

11. I find that, that is exactly what Mr Vaki did in this case. He seeks directions from a single judge of the Supreme Court as to how to object to the competency of the appeal filed by the Respondents. This is firstly evident from the terms of the order sought at paragraph 1 of the application which states in part "For a direction ........." (Emphasis added). Secondly, it is evident from the submission of Mr Sheppard on behalf of Mr Vaki. In other words, apart from Mr Vaki seeking directions, he also seeks leave. If the proposed directions are refused, it may not be necessary to consider the application for leave. If the Court issues directions that an objection can be made and with notice to the other party but with leave, then the Court may go on to determine the question of leave.

12. The Respondents did not show that the course taken by Mr Vaki is adverse to their defence of the appeal. I am satisfied that the course taken by Mr Vaki is appropriate and consistent with the third option suggested by the Supreme Court in Hegele v. Kila (supra). He has complied with the requirement to seek directions. The Court is, therefore, seized of the matter and it is within its discretion to issue appropriate directions to cure the lack of procedure. On this basis, I issue the following directions; Mr Vaki may give notice of objection to competency of an appeal under Order 11 of the Supreme Court Rules. The notice must be given in writing and with leave of the Court. The notice may be filed in accordance with Form 9 of the Supreme Court Rules. It follows the Respondents' preliminary objection is misconceived and is dismissed with costs. I now will hear the Respondents.

Ruling and Orders accordingly.

________________________________________________________________
Young & Williams Lawyers: Lawyer for the Appellant
Jema Lawyers: Lawyer for the Respondents