Kuman v Digicel (PNG) Ltd [2017] PGSC 41; SC1638 (31 August 2017)

SC1638

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No 75 of 2016

BETWEEN
MICHAEL KUMAN
(for and on behalf of himself and 158 other clan members of the Aura Gunua Clan)
First Appellants

AND
STEVEN DAMA
(for and on behalf of himself and 416 other clan members of the Toisinowai Clan)
Second Appellants

AND
DIGICEL (PNG) LTD
Respondent

Waigani: Kandakasi J, Manuhu & Logan JJ
2017: 21 February & 31August

CIVIL PRACTICE AND PROCEDURE – Supreme Court – Notice of objection to the competency of the appeal – Supreme Court Rules Order 7, Rule 14 – at least one ground of appeal invoking Court's jurisdiction – notice of objection to the competency of the appeal overruled – inclusion in notice of appeal of some grounds raising question of fact alone – Supreme Court Act 1975, s 14(1) – failure to obtain prior grant of leave to appeal in respect of such grounds – ability of Supreme Court to control its own procedure so as to prevent abuse of process – grounds raising question of fact alone struck out.

Cases Cited:
Papua New Guinea Cases

Birch v. The State [1979] PNGLR 75
Boyepe Pere v. Emmanuel Ningi (2003) SC711
Charles Ombusu v. The State [1996] PNGLR 335
Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828
Coca Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52; SC1221
Dinge Damane v. The State [1991] PNGLR 244
Dr Arnold Kukari v. Don Polye & Ors (2008) SC 907
Felix Bakani v Rodney Daipo (2001) SC659
Gigmai Awal v. Salamo Elema [2000] PNGLR 288
Haiveta v. Wingti (No.2) [1994] PNGLR 189
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) (2007) SC917
Ipili Porgera Investments Ltd v. Bank South Pacific Ltd (2007) SC1322
Jimmy Lama v. NDB Investments Ltd (2015) SC1423
Joseph v. Manau Sereva (2011) SC1152
National Capital Ltd v. Loi Bakanio (2014) SC1392
Nerau v. Solomon Taiyo Ltd [1993] PNGLR 395
Oio Aba v. MVIL (2005) SC779
Opai Kunangel v. The State [1985] PNGLR 144
Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812
Paul Bari v. John Raim (2004) SC768
Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431
PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456
PNG Forest Authority v Securamax Securities Pty Ltd (2003) SC 717; [2003] PGSC 17
Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691
Rolf Schubert v. The State [1979] PNGLR 66
Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249
Special Reference by Morobe Provincial Executive (2010) SC1089
Talibe Hegele v. Tony Kila (2011) SC1124
Timothy Neville v. IPBC (2012) SC1193
The State v. John Tuap (2004) SC765
The State v. John Talu Tekwie (2006) SC843
Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112
Turia & McKay v. Nelson (2008) SC949
Van Der Kreek v. Van Der Kreek [1979] PNGLR 185
Golpak v Malori, Kali, Siname and Niugini Lumber Merchants Pty Ltd [1993] PNGLR 491
Waghi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185; [1980] PGSC 4
Yakham v Merriam (1997) SC 533; [1998] PNGLR 555

Overseas Cases:

Attorney-General v Sillem [1864] EngR 352; (1864) 10 HL Cas 704; 11 ER 1200
Aviagents Ltd v Balstravest Investments Ltd [1966] 1 WLR 150
Belton v General Motors Holden's Ltd (No 1) (1984) 58 ALJR 352
North British Railway Company v Wauchope (or Niddrie Marischall) [1862] 4 M 348

Legislation Cited:

National Court Rules 1983, Order 12, rule 40
Supreme Court Act 1975, ss 14, 17
Supreme Court Rules 2012, Order 7, rules 14, 24, 25, 33
Supreme Court Rules 2012, Order 11, rule 11

Other authorities Cited:

J Macqueen, A Practical Treatise on the appellate jurisdiction of the House of Lords & Privy Council together with the Practice on Parliamentary Divorce, A Maxwell & Son, Lincolns Inn, 1842

Counsel:

Mr R Bradshaw, for the Applicant/Respondent
Mr C M Gagma, for the Respondent/Appellants

REASONS FOR JUDGEMENT

31^st August, 2017

1. KANDAKASI J: Before us is an objection to the competency of the Appellants’ Notice of Appeal. The main ground for the objection is that the Notice of Appeal contains a number of grounds which raises questions of fact alone without prior leave of the Court. Relying on the decision in Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221, per Lenalia, Kawi and Logan JJ., the Appellants argue against a dismissal of their appeal because they say their Notice of Appeal pleads a number of grounds that invoke the jurisdiction of this Court.

2. The draft judgment of my learned brother Logan J, which I had the privilege of reading, sets out the relevant factual background to this case. His Honour also outlines the respective parties’ arguments. I wish not to repeat them here. For reasons I will shortly give, I do not, with the greatest respect, agree with the outcome His Honour proposes and the reasons he gives for his decision.

Reasons for Decision

3. Objections to competency of appeals, applications for leave to appeal and references and or other applications or process brought to the Supreme Court is a well-trodden road in Papua New Guinea. The principles governing such objections are well settled. I note as did the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 (per Cannings, David and Sawong JJ), the “law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v. Nelson (2008) SC949, per Kirriwom, Cannings, Yagi JJ. These have been elaborated and complimented upon by other decisions. According to these decisions, an objection to competency would properly be in Court if it raises issues that:

(1) draws the Court’s attention to a question of jurisdiction: See Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v. Gabriel Nelson (supra) and Talibe Hegele v. Tony Kila (supra);

(2) there are serious threshold issues concerning legality or viability of the appeal: See PNG Forest Authority v. Securamax Ltd (2003) SC717;

(3) leave has not being sought and obtained separately in cases where some of the grounds of appeal require leave and some do not: See Yakham & The National v. Merriam & Merriam (1997) SC533, per Amet CJ, Kapi DCJ and Los J;

(4) an application for leave or notice of appeal’s ground is false, misleading or is vague or not adequately stating the nature of the case, the questions involved and the reasons why leave should be given: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456, per Batari, David and Makail, JJ; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, per Amet CJ, Kapi DCJ and Sevua J; To validly plead the grounds they must briefly state but:

(a) specifically make grammatical and legal sense and be intelligible;

(b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that; and

(c) if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: See Jimmy Lama v. NDB Investments Ltd (2015) SC1423, per Cannings, Collier and Geita JJ;

(5) an application for leave or notice of appeal has being filed outside the 40 days period allowed by s. 17 of the Supreme Court Act without leave of the Supreme Court: See The State v. John Tuap (2004) SC765, per Sawong, Mogish and Cannings JJ;

(6) an application for leave includes questions of law or fact not raised in the National Court: See Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828, Kapi CJ, Injia DCJ and Hinchliffe J;

(7) an applicant for leave does not have sufficient interest in the subject matter of the National Court’s decision that it wishes to appeal against: See Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691, per Kapi CJ, Kirriwom and Lay JJ;

(8) the notice of appeal raises factual questions for which leave had not been first sought and obtained separately: Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431,per Gavara-Nanu, David and Murray JJ;

(9) an application for leave has been filed unnecessarily, that is, where the objecting party points out that leave to appeal was not actually required and leave is being sought. Earlier decisions of the Court held this could not be a valid ground to object: See Boyepe Pere v. Emmanuel Ningi (2003) SC711, per Los, Kandakasi and Mogish JJ; Oio Aba v. MVIL (2005) SC779, per Injia DCJ, Sawong and Lay JJ; The State v. John Talu Tekwie (2006) SC843, per Salika, Lay and Gabi JJ. This later changed to make it a valid ground for objection to competency: See Paul Bari v. John Raim (2004) SC768, per Salika, Mogish & Cannings, JJ; Timothy Neville v. IPBC (2012) SC1193, per Salika, DCJ and Batari J. and Rea Joseph v. Manau Sereva (2011) SC1152, five member bench comprising of Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ;

(10) the appeal, leave or review or an application or a process before the Court fails to strictly comply with the mandatory procedures and requirements of the Supreme Court Rules: See National Capital Ltd v. Loi Bakanio (2014) SC1392, per Injia CJ, Gavara-Nanu and Kawi JJ; Dr Arnold Kukari v. Don Polye & Ors (2008) SC 907, per Kapi CJ, Gavara-Nanu and Cannings JJ.; Ipili Porgera Investments Ltd v. Bank South Pacific Ltd (2007) SC1322; Felix Bakani v Rodney Daipo SC659; Haiveta v. Wingti (No.2) [1994] PNGLR 189 and Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112). Any such defect cannot be fixed by any amendments as the originating process is not properly before the Court. This is not an exercise in the court nitpicking, but is something that goes into the validity of the process: See 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) (2007) SC917; Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249 and Special Reference by Morobe Provincial Executive (2010) SC1089.

4. It is also clear that, the above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court raising questions of the Court’s jurisdiction to deal with a matter brought before it. At the same time it is clear that, following grounds of objection are not proper grounds for taking an objection as to the competency of a matter before the Court:

(1) That an application for leave to appeal was not served on the respondent: See Gigmai Awal v. Salamo Elema (supra), where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties;

(2) That the proposed grounds of appeal referred to in an application for leave to appeal, lack merit. This is to say, where an objection raises an argument around the grounds of appeal having any merit or are not likely to succeed is not a proper ground to object because such arguments can only be raised at the hearing of the substantive matter. See The State v. John Talu Tekwie (2006) SC843; and PNG Forest Authority v. Securamax Ltd (2003) SC717.

5. The obvious weight and import of all of these decisions is this. A notice of appeal, an application for leave to appeal or any application or a process brought before the Supreme Court must strictly meet the requirements of the Supreme Court Act and Supreme Court Rules in order for such a process to be properly before the Court. A failure to strictly meet these requirements amounts to incompetence by reason of which, the process could be dismissed. The correct way to raise all issues of incompetence is by a respondent filing an objection to competency in the prescribed form and in accordance with the Rules of the Court.

6. The only departure from the above well-established position is the decision in Coca Cola Amatil (PNG) Ltd v. Yanda (supra). That decision stands for the proposition that, as long as there is one ground of appeal that invokes the Supreme Courts’ jurisdiction, the notice of appeal could safely proceed to a hearing. With respect, that decision has not considered in any meaningful way the long line of cases as set out above and their import. The long line of cases stand for the relevant principles which govern the issue of how a process can properly or competently invoke the Supreme Court’s jurisdiction. Having one ground of appeal or a process before the Supreme Court that invokes the jurisdiction of the Court is one critical aspect. The other also critical aspect is the need to come to the Supreme Court in the correct manner and form, at the correct time and by the correct person or parties.

7. The import of the long line of case authorities I set out above and the principles they stand for, present a clear case. Even if a person gets everything right but for one requirement such as the form, timing, not sufficiently and properly pleading a ground, or raising an issue not raised in the Court below, or seeking leave when not required, renders the appeal or the processes before the Court not properly before the Court. Instead it would be incompetent and could be dismissed on that basis. The Coca Cola Amatil (PNG) Ltd v. Yanda (supra) decision does not address this aspect and why all the years of making through the various decisions of the Supreme Court must now be abandoned. In my respectful view, the decision in Coca Cola Amatil (PNG) Ltd v. Yanda (supra) does not offer any good reason to depart from the well-trodden road of objections to competencies of appeals and other process before the Supreme Court and in particular, the principles that have been developed and applied throughout the years to the present. In these circumstances, I am not prepared to depart from the established practice and procedure in our jurisdiction. The principles upon which they stand are still sound and have not been demonstrated otherwise by the decision in Coca Cola Amatil (PNG) Ltd v. Yanda (supra).

8. In the present case, we have a Notice of Appeal that contains some grounds of appeal that clearly raise questions of fact only without prior leave of the Court. This entitles the Respondent to file an objection to the competency of the appeal in accordance with the established practice and procedure in PNG. That being done, it then requires the Court to consider and decide what to do with the notice of appeal. One option is to strike out the offending grounds of appeal and allow only the proper and remaining grounds to proceed to a hearing and determination on their substantive merits. The other option is to dismiss the whole Notice of Appeal for incompetence by reason of including grounds that required leave but not separately sought, obtained and included in the Notice of Appeal.

9. My search for a case that might be on all fours with the present case has failed to produce one. But a case that comes almost close to the present case is the case of, Yakham & The National v. Merriam & Merriam (supra). In that case, the appellants filed a notice of appeal based on grounds they were entitled to appeal as of right. At the same time, they sought leave of the Court on a number of pure questions of fact. The Respondents filed an objection to the competency of the appeal. The Court after a full hearing came to a unanimous decision in the separate opinions of the then Chief Justice, Sir Arnold Amet and the then Deputy Chief Justice, Sir Mari Kapi with the concurrence of Los J., the other member of the Court. The Court held that, an application for leave and a notice of appeal are separate matters with separate forms and must be dealt with separately. In the Courts own words per Kapi DCJ said:

“The question that arises in this case is; what is required to be filed when an appeal involves grounds that do not require leave together with grounds that require leave. In my opinion a person is required to file the application for leave in accordance with form 7 in respect of grounds that require leave and a notice of appeal involving grounds that do not require leave in accordance with form 8. These documents must be filed separately.

I find that the combination of grounds of appeal together with application for leave in the one form is not provided for in the Act or the Rules. In fact all the provisions I have referred to treat the two procedures distinct and separate. ...The practical result of this view is that all applications for leave to appeal must be filed in accordance with form 7 separate from grounds of appeal filed in accordance with form 8.”

10. The Court decided against upholding the objection and dismissing the appeal because of two earlier decisions, namely, the decisions in Opai Kunangel v. The State [1985] PNGLR 144 and Nerau v. Solomon Taiyo Ltd [1993] PNGLR 395. These decisions approved the practice prevailing as at the time of the decision in the Yakham & The National v. Merriam & Merriam (supra). At the same time, however, the Court clearly pointed out that, after that decision, the practice of a notice of appeal also seeking leave incorporating pure questions of fact or a ground that requires leave should be abandoned and not used at all.

11. In the present case, the Appellants included in their grounds of appeal pure questions of fact. This they had no right to do unless they first separately sought and obtained leave of the Court to appeal on those grounds. If that is what they did, their notice of appeal should also point out when the Court granted them the required leave on those grounds. There is no contest that the Appellants did not go through that process in order to include the questions that should have been preceded with prior leave of the Court. The Appellants could have gotten away with what they have done if it were not for the objection the Respondent has filed and became the subject of this Court’s hearing. There can be no argument therefore that, the Appellants have in fact abused the process of the Court by filing proceedings that are incompetent. The abuse and incompetence is in the Appellants including in their Notice of Appeal, grounds that required leave without having first secured such leave. Those grounds called for the filing of a separate form initiating a separate process. That process had to proceed separately and resolved in the Appellants favour before the relevant grounds could be included in their Notice of Appeal. The Appellants failed to go through that process before filing their Notice of Appeal in the current form. This renders the Notice of Appeal irregular or incompetent.

12. The decision and import of this Court’s decision in Yakham & The National v. Merriam & Merriam as subsequently followed and strengthened by its later decisions as outlined above including, the five member Supreme Court decision in Rea Joseph v. Manau Sereva (supra) is clear. A failure to meet strictly the requirements of the Supreme Court Act and the Supreme Court Rules as to the correct form, pleading grounds of an appeal and the relevant and correct procedure amounts to a failure to properly invoke the jurisdiction of the Court. Consequently, the proceedings would not be correctly before the Court by reason of which they would be dismissed for being incompetent.

13. During the course of the hearing, my learned brother, Logan J., raised and discussed with counsel the possibility of striking out the offending grounds in the Appellants’ Notice of Appeal to cure the problem that is evident. He then encouraged learned counsel for the Respondent to apply for an order striking out the offending grounds. This learned counsel did. On a proper reconsideration, I am of the view that granting such an application will in effect be granting the Appellants leave or permission to amend their Notice of Appeal without any initiation from them through a formal application for leave to so amend the Notice of Appeal or filing a supplementary notice of appeal in accordance with the Supreme Court Rules. This cannot be permitted and the reason for this is simple.

14. Amendments are a separate regime governed by a separate process and procedure and principles. The relevant provisions of the Supreme Court Rules are in Division 7.8 (Rules 24-25) (amendment by supplementary notice) of those Rules and in particular Order 7, r. 24 and Order 11, r. 11. Appellants are given the right or authority to amend their notice of appeals without prior leave of the Court in certain circumstances. This can be done by filing a supplementary notice of appeal before a date is fixed for a settlement of the relevant appeal’s index. Order 7, r. 33 of the Supreme Court Rules obligates an appellant upon filing a notice of appeal, to request an appointment for a settlement of an index to his or her appeal. This must then be served on the respondent. In practice, this usually happens at the time of filing an appeal or shortly thereafter.

15. Earlier decision of the Supreme Court as in Rolf Schubert v. The State [1979] PNGLR 66, the court voiced strong displeasure at the practice of counsel asking for last minute amendments to a notice of appeal. Leave would only be granted in exceptional circumstances at the discretion of the court. Events like a sudden or late change of counsel for the appellant or the point sought to be raised appear broadly to have merit could constituted exceptional circumstances. But leave to add new grounds of appeal can not be granted if the application is made on the day set for hearing, or grounds should properly have been included in the notice of appeal, or where further adjournments would unduly delay the hearing of the appeal, unless adequate and good reasons are disclosed: See Birch v. The State [1979] PNGLR 75. Also applications to add new grounds of appeal in the course of an address in reply should not be entertained: See Van Der Kreek v. Van Der Kreek [1979] PNGLR 185. More recent decisions like the one in Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812, simply adopt and apply these principles.

16. Specifically on criminal appeals, the decision of the Supreme Court in cases like the one in Dinge Damane v. The State [1991] PNGLR 244, extended the above principles on amendment to criminal appeals. These line of cases stand for the proposition that, in criminal appeals, exceptional circumstances could be said to exist where, for example an appeal is originally filed as a ‘prisoner appeal’, takes two years for the Public Solicitor to assign the appellant legal representation and the Public Prosecutor had adequate notice of the proposed amendment and did not oppose it. Later decisions like the one in Charles Ombusu v. The State [1996] PNGLR 335, the Court, indicated that the focus should be more on “special circumstances” rather than on “exceptional circumstances” to highlight the fact that, the test is whether, there are special circumstances in the case which leads to a conclusion that, an exceptional case exists to warrant a grant of leave to amendment a notice of appeal.

17. The above brief discussion demonstrates that unless an appellant comes within the prescribed time limits to amend their notices of appeal as of right by formally filing and serving a supplementary notice of appeal, a formal application has to be made to the Court for leave to amend. An appellant making such an application has to make out a case in terms of having exceptional or special circumstances warranting a grant of the application. Failing grant of such an application, no amendment would be permitted. Unless formal and proper application is made for appropriate amendments, the Court should be careful not to arrive at a decision that would effectively result in an amendment of a notice of appeal or a process before the Court. Consequently, a notice of appeal that is not in the correct and proper form, or failing to properly plead grounds, renders the appeal or process irregular and incompetent and is in no state to properly progress to a hearing. Such a notice of appeal should be dismissed for being incompetent. As has been repeatedly pointed out in numerous decisions of the Supreme Court, appeals are creatures of statute, namely the Supreme Court Act and the Supreme Court Rules. Hence, it is to these laws we must turn to determine all issues of form, process and procedure except only in cases where there is a clear vacuum with no existing practice or procedure on point. Where there is a failure to meet any of these requirements, the correct and proper way to raise such non-compliance is by a notice of objection to the competency of the process under consideration. Where a failure to comply with any of the forms, processes, practices and procedures is made out, the process the subject of the objection remains incompetent. When such is the case, the Court is left with only one option. That option is to dismiss the process on grounds of incompetence.

18. In the present case, the Notice of Appeal contains grounds of appeal that raise pure questions of fact. No leave has been first sought and obtained in the correct form and process for the Appellant to include those grounds. This renders the Notice of Appeal incompetent. This cannot be cured by a strike out of the offending grounds in the absence of a formal application for amendments by the Appellants and such an application being made out properly. For a decision to strike out the offending grounds will effectively grant the Appellants leave to amend their notice of appeal without them making out a case for such amendments in any manner or form. As often said, justice requires a careful consideration of each of the parties conduct and the kinds of consequences that must follow. Here, the Appellants brought it upon themselves by first, failing to separately seek and secure leave to appeal on the factual grounds included in their notice of appeal. Secondly, without first obtaining such leave, they included the offending grounds in the notice of appeal as if they have a right to include those grounds. Thirdly, they had the opportunity to file and serve a supplementary notice of appeal this time omitting the offending grounds of appeal. Finally, they should have filed an application to amend their notice of appeal by omitting the offending grounds. All these, the Appellants failed to do. More than ample warnings have been issued by the Supreme Court, if not clear earlier, at least from the decision in Yakham & The National v. Merriam & Merriam (supra) and all the cases that have followed it. Despite all of that, the Appellants here have chosen to come to this Court in the way they have which amounts to an abuse of the process of the Court to put it mildly but in the strongest terms possible the Appellants’ conduct amounts to an act of defiance or contempt of the numerous Supreme Court decisions on point. In these circumstances, the only fairest decision to arrive at is to order a dismissal of the notice of appeal and order the Appellants to pay the Respondents costs, to be taxed if not agreed.

19. MANUHU J: I have had the benefit of reading the draft judgments of my brothers. With respect, given the concession by the Respondent that some grounds of appeal are competent, it would not be fair to dismiss the entire appeal as proposed by Kandakasi, J. Only those grounds which are incompetent should be censored. Thus, I prefer the conclusion reached and the orders proposed by Logan, J.

20. LOGAN J: The respondent, Digicel (PNG) Ltd (Digicel), has objected to the competency of an appeal brought by the first appellant Mr Michael Kuman on his own behalf and on behalf of himself and 158 other clan members of the Aura Gunua Clan and by the second appellants, Mr Steven Dama on his own behalf and on behalf of himself and 416 other clan members of the Toisinowai Clan against a judgement of the National Court (Kariko J). By that judgement, the National Court dismissed with costs an action for damages brought against Digicel by the first and second appellants.

21. The action had its origins in the erection by Digicel of a communications tower on customary land known as Mononotu at Gunorobaro village in Chuave District, Simbu Province. Mononotu is a very small part of the Gunurobaro land.

22. Digicel erected the tower after it had entered into an agreement with a Mr John Munom, who claimed to be the owner of the Mononotu land. Mr Munom’s claim to ownership of that land was controversial before the National Court. Mr Kuman and the Aura Gunua Clan asserted that it was that clan which is the customary owner of the Gunurobaro land, including the Mononotu land. For their part, Mr Dama and the other clan members of the Toisinowai Clan had originally asserted that their clan was the customary owner. On or about 21 September 2008, the dispute as to the ownership of the whole of the Gunurobaro land developed into a full scale tribal fight, resulting in fatal casualties. That dispute was purportedly settled by mediation on 5 October 2008. Under the terms of that purported settlement, the Aura Gunua Clan was recognised as having the ownership of the whole of the Gunurobaro land and the Toisinowai Clan was recognised as having customary usage rights over this same land.

23. The claim for damages alleged causes of action based on negligence, trespass and breach of constitutional rights. As to negligence, it was alleged that Digicel owed a duty of care to the appellants to ensure that the correct owners were identified and to reach agreement with them before erecting its tower.

24. Initially, Digicel succeeded in securing from the National Court (Hartshorn J) an order for the summary dismissal of the appellants’ claim on the basis that no reasonable cause of action was disclosed. That order was set aside on appeal to the Supreme Court (Sakora, Cannings & Collier JJ): Kuman v Digicel (PNG) Ltd [2013] PGSC 10; SC1232. The matter then proceeded to trial.

25. In the subsequent trial, the National Court determined that the plaintiffs’ claims involved unresolved questions as to the ownership and usage rights over customary land. His Honour was not persuaded that there had ever been a valid settlement of these questions. In light of this determination, the National Court concluded that it did not have jurisdiction to deal with the issue of customary ownership or usage rights in respect of the land. In the absence of some demonstrated error in the making of that determination, the resultant conclusion as to absence of jurisdiction would be unremarkable: Golpak v Malori, Kali, Siname and Niugini Lumber Merchants Pty Ltd [1993] PNGLR 491.

26. The National Court’s consequential conclusion, flowing from the conclusion that the court had no jurisdiction to determine customary ownership or usage rights in respect of the land, was that it had no jurisdiction to entertain the action. As possession of customary ownership or usage rights in respect of the subject land was an essential element of each of the pleaded causes of action, this consequential conclusion by the learned primary judge was also unremarkable.

27. Even though this consequential conclusion was reason enough to dismiss the action, the learned primary judge, with consummate fairness, considered whether in any event there was merit in any of the pleaded causes of action on the assumption that the asserted rights of customary ownership and usage existed. By analogy with Edward Etape & Ors v Gari Baki & Ors (SCA No 50 of 2014, unreported, 2 December 2015) he concluded that Digicel owed none of the appellants a duty of care to prevent the tribal fight. As to trespass, his Honour reasoned that, even if the Aura Gunua Clan were the owners of the land known as Mononotu, Mr Munom was on the evidence a member of that clan and in possession of that land. That being so and relying on Stettin Bay Lumber Co Ltd v S K Goh (2011) SC1096, his Honour found that Mr Munom would be able to assert trespass against any person who might unlawfully interfere with that possession. It followed, so his Honour reasoned, that, in light of Mr Munom’s agreement for Digicel to enter the land, there could be no trespass. As to the claim based on allegedly breached constitutional rights, his Honour found that these were pleaded at such a level of generality as not to admit of any determination of any breach.

28. The notice of appeal is prolix, containing no less than 16 grounds. On its face, it asserts that the appeal lies as of right as the appeal raises questions of law or mixed questions of law and fact. The effect of s 14(1) of the Supreme Court Act 1975 is that it is only on such grounds that an appeal lies as of right. A grant of leave is required in respect of a ground which raises a question of fact alone. It is common ground that the appellants did not obtain a grant of leave to appeal prior to the filing of their notice of appeal.

29. As pleaded, some of the grounds of appeal incontestably raise nothing more than a question of fact – grounds 2, 4, 7 and 14. Digicel asserted that grounds 10, 12 and 13 also fell into this category but we are not persuaded that this characterisation is correct. As it happens though, it is not necessary finally to determine whether those grounds raise purely questions of fact. That is because the method chosen by Digicel, an objection to competency, is an inappropriate vehicle for the striking out of particular, non-compliant grounds of appeal.

30. Order 7, Rule 14 of the Supreme Court Rules makes provision for an objection to competency. Such an objection is to the competency of the appeal itself, not to any particular ground in the notice of appeal. The purpose of an objection to competency is to call into question whether the Supreme Court has jurisdiction to entertain the appeal, in other words, whether the appeal is competent. This was the point made by this Court in Coca Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52; SC1221 (Coca Cola Amatil v Yanda). Even when that case was decided, this was no new subject, either in Papua New Guinea or elsewhere in the common law world.

31. As the Court observed in Coca Cola Amatil v Yanda, at [10], this point is nicely illustrated by a judgement of the High Court of Australia, Belton v General Motors Holden's Ltd (No 1) (1984) 58 ALJR 352:

The question for decision is whether this appeal is competent under s 35(6) of the Judiciary Act 1903 (Cth) which gives a right of appeal from a final judgment of the Full Court of a Supreme Court, where the ground of appeal, or one of the grounds of appeal, involves the interpretation of the Constitution.

A question that fell for decision in the Supreme Court was whether the provisions of s 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA) (the Act), as amended and then in force, were inconsistent with the provisions of an award made by the Australian Conciliation and Arbitration Commission. One of the grounds of appeal is that the Supreme Court erred in holding that there was such inconsistency.

If the argument of the applicant as to the interpretation of the award is accepted, no question of inconsistency would appear to arise. But if the argument of the respondent, which was accepted by the majority of the Full Court, prevails, s 109 of the Constitution would have to be applied, with the result that s 15(1)(e) of the Act would be pro tanto invalid.

At least one ground of appeal clearly involves the application of s 109 of the Constitution. That section cannot be applied unless its meaning is properly understood. It follows that at least one ground of appeal involves the interpretation of s 109. It follows that the appeal is competent. [Emphasis added]

See also as to the like proposition, Bedwell v Stapleton [1954] QWN 28 (Mansfield SPJ).

32. On any view, there are grounds in the notice of appeal which raise either a question of law or a question of law and fact. Ground 8 in the notice of appeal, which asserts the existence of a duty of care in relation to a tribal fight, is one such ground. Grounds 9, 11, 12 and 13 are related to this ground. Ground 15 challenges the conclusion as to the inadequacy of the pleading. It asserts that a cause of action grounded in privacy and peaceful enjoyment of the appellants’ ceremonial ground was pleaded and known to law either under the Constitution or the common law. As we understood it, Digicel conceded that some of these grounds did at least raise a mixed question of law and fact. Even in the absence of such a concession, that conclusion would follow.

33. What necessarily follows is that the objection to competency is itself incompetent. It is truly lamentable that, some four years after this Court emphasised the purpose of an objection to competency, those advising Digicel have so demonstrably not understood this.

34. An objection to competency is only apt where it is at least reasonably arguable that a notice of appeal has not validly invoked the Court’s appellate jurisdiction. In this jurisdiction, that proposition was settled by Waghi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185; [1980] PGSC 4, over two decades prior to Coca Cola Amatil v Yanda. It was reiterated in PNG Forest Authority v Securamax Securities Pty Ltd (2003) SC 717; [2003] PGSC 17, in which Sakora J stated that, “An objection to competency must raise serious threshold issues concerning legality or viability, or otherwise, of a particular process.”

35. In turn, Waghi Savings and Loan Society v Bank South Pacific Ltd applied in Papua New Guinea a principle which has long been recognised elsewhere in relation to an objection to competency.

36. A right of appeal is wholly a creature of statute, there being no right of appeal at common law from outcomes at trial: Attorney-General v Sillem [1864] EngR 352; (1864) 10 HL Cas 704 at 720; [1864] EngR 352; 11 ER 1200 at 1207. Consent to take no objection to the absence of a right of appeal does not confer appellate jurisdiction: North British Railway Company v Wauchope (of Niddrie Marischall) [1862] 4 Macqueen 348 (UKHL). In this instance, the relevant statutory provision is, as mentioned, s 14 of the Supreme Court Act. A notice of appeal must be pleaded with sufficient particularity to demonstrate on a fair reading of its grounds that the statutory appeal right conferred has been invoked. If the statute limits the grounds upon which an appeal as of right is conferred, at least one of the grounds specified in the notice must fall within the terms of the statutory limitation. If none does, the appeal will be incompetent. The English case, Aviagents Ltd v Balstravest Investments Ltd [1966] 1 WLR 150 illustrates this. There, the relevant statute conferred no right of appeal on a pure question of fact. The notice of appeal pleaded only grounds raising such grounds. The respondent moved for the appeal to be dismissed accordingly. This motion was upheld. The Court of Appeal entertained the motion even though, unlike the position with Order 7, rule 14 in this jurisdiction, the relevant rules made no formal provision for an objection to competency. As to that, Wilmer LJ, with whom Davies and Russell LJJ agreed, stated, at 154, “It appears to me inconceivable that this court should not have inherent power to control its own proceedings by striking out a notice of appeal in a case where an appeal is plainly not a competent appeal.”

37. A notice of appeal might fail to invoke the Court’s appellate jurisdiction if none of the grounds raised a question of law or mixed question of law and fact and pleaded only questions of fact for which no prior leave to appeal had been granted. Equally, a notice of appeal the specified grounds in which were, on a fair reading, incomprehensible would likewise fail to invoke the Court’s appellate jurisdiction. In all such cases, an objection to competency would be an appropriate procedure for a respondent to follow.

38. In its provision for an objection to competency Order 7, rule 14 takes up and makes local provision for a procedure the origins of which may at least be traced to those prevailing in the House of Lords as long ago as 1842. In J Macqueen, A Practical Treatise on the appellate jurisdiction of the House of Lords & Privy Council together with the Practice on Parliamentary Divorce, A Maxwell & Son, Lincolns Inn, 1842, the learned author, at 156-157, observes of that practice:

If the appeal be in any respect irregular, or informal, the respondent ought not to put in his answer, but should present a petition to the House, objecting to the appeal, by reason of such irregularity or informality; and, therefore praying their Lordships to dismiss the appeal with costs. For if the respondent treat it as an effective appeal, by answering and suffering it to proceed, he will not be entitled to costs on the subsequent dismissal of the appeal.

39. The last of these observations does not mean that it is impossible to list for hearing an objection to competency along with the substantive appeal. Sometimes, and the present case is probably one, the issues in an appeal are so compressed that it is convenient for the appeal to be listed in conjunction with the objection so that, if it proves that there is no merit in the objection, the Court can proceed to determine the merits of the appeal without having so to do at a later date. Much valuable court time and expense to the parties can be saved in this way. Whether to seek such conjoint listing requires the making of a careful value judgement by the parties as to what is the most efficient way in which to deal with a particular appeal or purported appeal.

40. That the appellants included in the notice of appeal grounds raising questions of fact as well as grounds raising questions of law or of mixed fact and law does not mean that, in the absence of a prior grant of leave, they are entitled to argue those questions of fact. They have failed to follow the practice set out by Amet CJ, Kapi DCJ and Los J in Yakham v Merriam [1998] PNGLR 555. What they ought to have done is to have filed, within the time permitted, a notice of appeal specifying grounds of appeal where an appeal lay as of right. Separately and also within the time prescribed, they ought to have sought leave to appeal in respect of grounds raising questions of fact alone. In the event that such leave was granted, a notice specifying such grounds ought then to have been filed. The appellants might then have sought leave to amend the original notice to include these questions of fact, reciting on the amended notice the date of the grant of leave. Alternatively, the appellants might have sought that the appeal be consolidated. None of this was done.

41. The question then becomes what is to be done with such grounds as raise patent questions of fact in the absence of a prior grant of leave? Somewhat surprisingly, the Supreme Court Rules do not make express provision for a procedure. Order 2, rule 1(h) makes a relevant provision in the National Court Rules applicable in the event that there is no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed. Within the National Court Rules, Order 12, rule 40 provides:

40. Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

42. There is also, as Aviagents Ltd v Balstravest Investments Ltd serves to remind, inherent power to deal with an abuse of process.

43. In the course of hearing the objection we came to put to counsel for Digicel whether, even if the objection were misconceived, that meant that the Court could not strike out particular defective grounds of appeal. In the result, Digicel came to make such an application instanter and in the alternative. We then put to the appellants whether any objection to this was taken on procedural fairness grounds. Quite properly, there was no such objection, it being understood that dealing with the objection to competency had necessarily required the analysis of each of the pleaded grounds of appeal.

44. Accordingly, grounds 2, 4, 7 and 14, which raise pure questions of fact in the absence of a prior grant of leave to appeal, should be struck out. Adopting that course now will reduce the number of issues for consideration when the appeal comes on for hearing. It was convenient to adopt this somewhat novel approach in the circumstances of this case. It does not follow that every misconceived objection to competency will be so treated.

45. In the result, the appellants have succeeded in resisting Digicel’s objection to competency but have failed to demonstrate that they are entitled to prosecute each of the grounds of appeal. It will recognise the limited forensic success of Digicel if they receive but half of their costs.

46. Accordingly, the orders are:

1. The objection to competency be dismissed.
2. The respondent’s oral application for the striking out of particular grounds of appeal (strike out application) be deemed sufficient and service of that application be dispensed with.
3. The respondent’s strike out application be upheld to the extent that grounds 2, 4, 7 and 14 be struck out from the notice of appeal.
4. The appellants pay one half of the respondents’ costs of and incidental to the objection to competency and the strike out application.

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Gagma Legal Services: Lawyers for the Appellant
Bradshaw Lawyers: Lawyers for the Respondent