Placer (PNG) Ltd v Yako [2019] PGSC 6; SC1764 (20 February 2019)

SC1764

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 184 of 2010

BETWEEN:
PLACER (PNG) LTD as Manager for and on behalf of the PORGERA JOINT VENTURE
Applicant/Cross-Respondent

AND:
JOSHUA SIAPU YAKO
Respondent/ Cross-Appellant

Waigani: Gavara-Nanu & Pitpit, JJ
2016: 1 September
2019: 20 February

PRACTICE & PROCEDURE – Cross-appeal – Pleadings – Objection to competency – Principles discussed.

Cases Cited:

Cocoa Cola Amati (PNG) Ltd v. Yanda [2012] PGSC 52
Haiveta v. Wingti & Ors (No. 2) [1994] PNGLR 189
Ipili Porgera Investments Ltd v. Bank South Pacific Ltd (2007) SC 1322
Issaac Lupari v. Sir Michael Somare, MP. Prime Minister & Chairman of the National
Executive Council & Ors (2010) SC1071
Henganofi Development Corporation Ltd v. POSF Board (2010) SC1025
Henzy Yakam & Ors v. Dr Stuart Hamilton Merriam & Anor (1997) SC533
Hermit Island Ltd v. National Fisheries Authority (2010) SC1026
Jimmy Lama v. NDB Investment Ltd (2015) SC 1423
National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea & Ors (2014) SC1392

Counsel:

T. Injia, for the Appellant/Cross-Respondent

20^th February, 2019

1. BY THE COURT: The third member of the Court Sawong J, retired sometime after this Application was heard. Thus, the remaining two members of the Court having put the requirements of s. 3 of the Supreme Court Act, Chapter No. 37, to the applicant/cross-respondent (applicant) which was the only party heard at the hearing; and the applicant having agreed that the remaining two members of the Court could decide the Application, we now deliver the decision of the Court, which is unanimous.
   
2. This is an application by the applicant made by way of an objection to competency against the cross-appeal filed by the respondent/cross-appellant (respondent) against the decision of His Honour, Justice Graham Ellis given at Wabag on the 23 November, 2010, in proceeding CIA No. 184 of 1999, in particular Order No. 1, which stated “appeal allowed”.
   
3. The applicant had appealed against a decision of a Mining Warden given against it on 24 February, 1999. His Honour, allowed the appeal but ordered costs against the applicant. In its appeal the applicant successfully raised issues of land ownership. His Honour, in allowing the appeal held that issues of land ownership should have been brought under the Land Dispute Settlement Act, Chapter 45.
   
4. His Honour ordered costs against the applicant because his Honour was of the view that the appeal would not have been necessary had the applicant raised the land ownership issues before the Mining Warden.
   
5. The applicant raised seven grounds of objection to competency. They are as follows:
   
   1. The Notice of Cross Appeal does not comply with Order 7 Rule 8 (b) of the Rules of the Supreme Court of Justice (Rules) in that it does not state whether the whole or part only and what part of the judgement is appealed from.
      
   2. The Notice of Cross Appeal does not comply with Order 7 Rule 2 (c) of the Rules as it does not state: The Nature of the Case, or Questions involved, or Reasons.
      
   3. The Notice of Cross Appeal does not comply with Order 7 Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (a) the grounds relied on to demonstrate that the judgment is against the evidence.
      
   4. The Notice of Cross Appeal does not comply with Order 7Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (b) and 3 (c) and 3 (d) the specific reasons why the judgment is alleged to be wrong in law where the National Court considered evidence not presented in the lower court when the National Court was conducting a hearing de novo in accordance with Sections 229 and 230 of the District Courts Act.
      
   5. The Notice of Cross Appeal does not comply with Order 7 Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (e) and 3 (f) the specific reasons why the judgment is alleged to be wrong in law where the National Court exercised its powers in accordance with Sections 230 and 232 of the District Courts Act.
      
   6. The Notice of Cross Appeal does not comply with Order 7Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (g) the specific reasons why the judgment is alleged to be wrong in law.
      
   7. The Notice of Cross Appeal does not comply with Order 7 Rule 9 of the Rules as it does not specify or with particularity in paragraph 3 (h) the specific reasons why the judgment is alleged to be wrong in law or fact.
      
6. The respondent raised eight grounds of cross-appeal. They are as follows:
   

1. The Cross Appellant appeals from part of the judgment of His Honour Justice Graham Ellis given at Wabag on the 23rd November, 2010 in the matter in proceeding CIA No. 184 of 1999 in particular Order No. 1 allowing the Appeal.

2. The Appeal lies without leave as it is a final judgment and it involves grounds that raise questions of law and questions of mixed fact and law.

3. Grounds

a) His Honour erred in law and fact in allowing the appeal, filed in that (sic.) National Court after he rejected all the 8 grounds of appeal raised by the Appellant/Cross-Respondent.

b) His Honour erred in law in allowing the Appeal based on a ground he determined and rejected in his decision, in that the appellant who was a party in the proceedings before the Mining Warden cannot raise an issue for the first time in an appeal, which was not raised in the Mining Warden hearing to have the matter resolved under the Land Dispute Settlement Act.

c) His Honour erred in law in venturing into issues, which were not properly before the Court in particular the referral of the matter to be resolved under the Land Dispute Settlement Act.

4. His Honour erred in law in allowing the appeal based on issues and evidence which the appellant failed to raise at the Mining Warden’s Court.
   
5. His Honour erred in law in allowing the appeal when, that order was not sought in the Notice of Appeal.
   
6. His Honour erred in law by not dismissing the appeal, when there was (sic.) no reliefs at all sought in the Notice of Appeal filed.
   

g) His Honour erred in law when he allowed the appeal without giving further directions/orders as to what becomes of the award by the Mining Warden, after the disputes are resolved under the Land Dispute Settlement Act, thus creating confusion.

8. His Honour erred in law and fact in allowing the appeal, stating the dispute be dealt with under the Land Dispute Settlement Act, when that issue was already dealt with by a Court of Competent jurisdiction.
   

7. The respondent also sought that the decision of Ellis J be set aside and the decision of the Mining Warden confirmed.
   
8. The respondent’s cross-appeal is without leave because the decision of Ellis J was said to be final.
   
9. The applicant’s grounds of objection to competency in our view fall into following three broad categories:
   

(i). The cross-appeal failed to comply with Order 7 r 8 (b) of the Supreme Court Rules, in that it failed to state that the appeal is against the whole of the judgment of Ellis J, or part of the judgment only. If it is against part of the judgment then he failed to specify the particular part of the judgment that is being appealed.

(ii). The cross-appeal raised issues of fact only for which leave had not been obtained, thus breaching the requirements of s. 14 (1) (c) of the Supreme Court Act, Chapter 37.

(iii). The cross-appeal failed to comply with Order 7 r 9 of the Supreme Court Rules, in that it failed to particularize parts of the judgment, which were claimed to have amounted to errors of law or errors of law and fact and the reasons why the learned trial judge fell into those errors.

10. The applicant has relied on a number of Supreme Court decisions, one of which is Jimmy Lama v. NDB Investment Ltd (2015) SC 1423. In that case the Supreme Court held among others, that grounds of appeal must make grammatical and legal sense and be intelligible. If the judgment is claimed to be wrong in law, the grounds relied upon must clearly show such errors, and the alleged errors must be clearly pleaded with reasons why the judgment was wrong in law. See, Ipili Porgera investments Ltd v. Bank South Pacific Ltd (2007) SC 1322 and Haiveta v. Wingti & Ors (No. 2) [1994] PNGLR 189.
    
11. The applicant has raised threshold issues in its objection to competency. These issues reflect mainly the mandatory requirements of Order 7 r 9 of the Supreme Court Rules, which a notice of appeal must satisfy. Under Order 7 r 9, a notice of appeal is required to be pleaded clearly and the pleadings must be comprehensible and must relate to the judgment appealed against. The grounds of appeal in particular must be clearly pleaded. The jurisdiction of the Court cannot be invoked if the pleadings do not meet these requirements. Grounds of appeal which are incomprehensible and impossible to discern would also be incompetent. See, Cocoa Cola Amati (PNG) Ltd v. Yanda [2012] PGSC 52 and Lama v. NDB investments Ltd (supra). A notice of appeal should be clearly pleaded and easy to understand so that the respondent is also made fully aware of the issues. See, Ipili Pogera Investments Ltd v. Bank South Pacific Ltd (supra).
    
12. Having regard to the above principles, we find the whole of the cross-appeal incompetent. Firstly, we find opening paragraph 1 of the cross-appeal impossible to discern, in that the part of the judgment appealed against is not pleaded and particularized. The paragraph pleads that appeal is from part of the judgment and simply states – “Order No. 1 appeal allowed”. We find the pleading ambiguous, unintelligible and incomprehensible. Thus opening paragraph 1 of the cross-appeal offends against Order 7 r 9 of the Supreme Court Rules.
    
13. If the across-appeal is against the order allowing the appeal, then the appeal would be against the whole of the judgment. Thus, we also find that paragraph 1 of the cross-appeal incorrectly states that only part of the judgment is appealed against. The cross-appeal also fails to precisely plead what is appealed against. See, Cocoa cola Amati (PNG) Ltd v. Yanda (Supra). These are sufficient reasons for us to dismiss the cross-appeal in its entirety for being incompetent. See, Isaac Lupari v. Sir Michael Somare, MP. Prime Minister & Chairman of the National Executive Council & Ors (2010) SC1071 and National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea & Ors (2014) SC1392.
    
14. We nonetheless for completeness consider it necessary to comment on the grounds of the cross-appeal. The opening paragraph 2 of the cross-appeal states that the appeal is without leave because the decision of the learned trial judge was considered by the respondent to be final. We find that this paragraph offends against s.14 (1) (c) of the Supreme Court Act, because ground 3 (a) of the cross-appeal raises a question of fact only. It states the learned trial judge erred in “law and fact” in allowing the appeal after “he rejected 8 grounds of appeal”. In our view, this is a question of fact for which leave had to be obtained first. See, Henzy & Ors v. Dr Stuart Hamilton Merriam & Anor (1997) SC533; Hermit Island Ltd v. National Fisheries Authority (2010) SC1026 and Henganofi Development Corporation Ltd v. POSF Board (2010) SC1025. Even if this ground raised questions of law and fact, it does not state and particularize the errors of law and fact and the reasons for those errors. See, Lama v. NDB investments Ltd (Supra). Thus this ground also offends against Order 7 r 9 of the Supreme Court Rules.
    
15. We find that the rest of the grounds of appeal in 3 (b) to (h) suffer the same fate. Ground 3 (b) does not state the “ground” the respondent claims the learned trial judge determined and rejected in his decision. It is not for this Court to speculate, which is what this ground is inviting us to do. The respondent was required to clearly plead the “ground” he claims the learned trial judge determined and rejected. This ground also offends against Order 7 r 9 of the Supreme Court Rules. We find the pleading confusing and unintelligible. It is difficult for us to discern the issues arising under this ground.
    
16. We find that ground 3 (c) also offends against Order 7 r 9 of the Supreme Court Rules. This ground does not state reasons why the learned trial judge erred in law, it simply states that the issues could have been raised under the Land Dispute Settlement Act.
    
17. Ground 3 (d) to (h) in our view also offend against Order 7 r 9 of the Supreme Court Rules. These grounds do not state how and why the judgment was wrong in law. The respondent was required to clearly plead the errors in the judgment and the reasons for those errors. See, Lama v. NDB Investments Ltd (supra); Ipili Pogera Investments Ltd –v- Bank South Pacific Ltd (Supra) and Haiveta v. Wingti (Supra).
    
18. For the foregoing reasons, we find that the across-appeal is incompetent and we dismiss it in its entirety with costs.

____________________________________________________________
Ashurst Lawyers: Lawyers for the Applicant/Cross-Respondent
Jefferson Lawyers: Lawyers for the Respondent/Cross-Appellant