Yambaki Surveys Ltd v Nambawan Super Ltd [2020] PGSC 1; SC1901 (23 January 2020)

SC1901

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 68 OF 2019

BETWEEN
YAMBAKI SURVEYS LIMITED
Appellant

AND
NAMBAWAN SUPER LIMITED
Respondent

Waigani: Salika CJ, Polume-Kiele & Shepherd JJ

2019: 18^th December
2020: 23^rd January

PRACTICE AND PROCEDURE– Objection to competency – Supreme Court Rules 2012; Order 7 Rules 9(c) and 10 – Objections must raise issues concerning the jurisdiction of the Court or the validity of the appeal.

Cases Cited:

Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
Yakham & The National v. Merriam & Merriam (1997) SC533
PNG Forest Authority v. Securimax Ltd (2003) SC717
Turia McKay v Nelson (2008) SC949
Talibe Hegele v Tony Kila (2011) SC 1124
Coca Cola Amatil (PNG) v. Kennedy (2012) SC1221
Michael Kuman & Ors v. Digicel (PNG) Ltd (2013)SC1232
James Marape v. Peter O’Neill (2016) SC1486
Lucas Dekena v Nick Kuman (2018) SC1715
James Lovika v Carl Mapo as Commander of PNG Defence Force & The State (2019) SC1895
Independent State of Papua New Guinea v Peter Gaian & 82 Ors - SCA No 28 of 2018 (18 November 2019) (unreported)

Counsel:

Mr. A. Waira, for the Appellant
Mr. I. Molloy with Mr. I.R. Shepherd, for the Respondent

JUDGMENT

23^rd January, 2020

1. BY THE COURT: Before us on 18^th December 2019 was the respondent’s notice of objection to competency of the appeal. The objections as pleaded seek to dismiss the appeal pursuant to Order 7 Rule 15 of the Supreme Court Rules 2012 and for abuse of the court’s process on the basis that the grounds of appeal offend Order 7 Rules 9 and 10 of the Supreme Court Rules and section 14(1)(c) of the Supreme Court Act.
   

Facts

2. The appeal concerns State leasehold land situated at 9-Mile, National Capital District described as Portion 2158, which originally formed part of Portion 1216. The respondent purchased Portion 1216 in 1990 and its State lease expired in 1995.
   
3. In 1992 Portion 1216 was subdivided into Portions 2157, 2158 and 2159. Portion 2156 is another area of State leasehold land which was also acquired by the respondent, title for which was derived from what was formerly known as Portion 881. This appeal relates only to the title situation for Portion 2158.
   
4. At some point in 1995 the respondent applied for the renewal of its leases over Portions 2156, 2157, 2158 and 2159. The Department of Lands and Physical Planning (DLPP) failed to issue State leases over Portion 2156, 2157 and 2158. Aggrieved by this failure on the part of the DLPP, the respondent filed proceedings OS (JR) No. 519 of 2014 seeking mandamus and orders to exempt those properties under Section 69(2) of the Land Act 1996 from advertisement for application or tender. On 2 November 2015 the National Court ordered by consent that the Secretary for the DLPP recommend to the Minister to exempt Portions 2156, 2157 and 2158 from advertisement and to take steps to refer the respondent’s application for issuance of State leases over Portions 2156, 2157 and 2158 to the Land Board for consideration. The fact that the Minister duly issued a notice of exemption from advertisement in respect of Portions 2156, 2157 and 2158 in early 2016 (first exemption notice) is not in dispute, although a copy of that notice is not contained in the Amended Appeal Book (Amended AB). Given the orders of the Court in OS (JR) No. 519 of 2014, the Land Board met and on 14 March 2016 the respondent was granted State leases over Portions 2156 and 2157. However a State lease over Portion 2158 was not granted to the respondent. The Land Board informed the respondent that it could not consider the respondent’s application for Portion 2158 as a State lease for that property had already been issued to an entity named Nipo Investment Ltd (Nipo) in June 2014. Nipo is the company which had engaged the abovenamed appellant to survey the land and prepare development plans for Portion 2158.
   
5. The respondent then commenced proceedings OS (JR) No. 358 of 2016, seeking orders to quash the grant of the State lease over Portion 2158 in favour of Nipo. On 30 May 2017 the National Court constituted by Nablu J ordered the Secretary of the DLPP to comply with the consent orders made in OS (JR) No. 519 of 2014 with respect to Portion 2158. This resulted in a second exemption notice being issued by the Minister on 19 June 2018. That notice is contained at page 177 of the Amended AB (second exemption notice). This meant that Portion 2158 was, for the second time, exempt from advertisement and it is the respondent’s position that its application for grant of a State lease over Portion 2158 should have been the sole application to come back before the Land Board for its consideration.
   
6. During the course of submissions in the present objection to competency hearing, counsel for the appellant was asked by the Court if there had been any appeal against the National Court’s decision of Nablu J in OS (JR) No. 358 of 2016. Counsel for the appellant informed the Court that there had been an appeal by Nipo but that the appeal had been dismissed on competency grounds.
   
7. On 4 September 2018 by notice published in National Gazette G569 the Chairman of the Land Board listed items for Land Board Meeting 04/2018 which included item 23, an application for a State lease over Portion 2158. The gazettal notice, which is set out at page 147 of the Amended AB stated that there were three applicants for grant of title to Portion 2158; the appellant, the respondent and Nipo.
   
8. The gazettal notice prompted the respondent to commence National Court proceeding OS No. 633 of 2018 whereby the respondent sought orders that it was entitled to be the sole applicant for the State lease over Portion 2158 and that its application be the only application before the Land Board for consideration in respect of Portion 2158.
   
9. In a separate proceeding, OS No. 673 of 2018, the appellant and Nipo contended that the respondent’s lease over Portion 1216 had expired and that therefore the State lease of Portion 1216, which had included Portion 2158, had reverted to the State. The appellant and Nipo argued in that proceeding that the second exemption notice made by the Minister under Section 69(2)(c) of the Land Act 1996 allowed them, along with the respondent, to apply for the new State lease for Portion 2158.
   
10. As proceedings OS No. 633 of 2018 and OS No. 673 of 2018 related to the same Portion 2158, the two cases were consolidated and heard together by Makail J.
    
11. On 24 April 2019 his Honour ruled in OS No. 633 of 2018 and OS No. 673 of 2018 (consolidated) to the effect that the Ministerial exemptions from advertisement of Portion 2158 made under section 69(2)(c) of the Land Act 1996 meant that the respondent was lawfully entitled to be considered by the Land Board as the sole applicant for Portion 2158 to the exclusion of all other applicants. His Honour also noted that whether the respondent’s application was to be granted a State lease for Portion 2158 was a matter for the Land Board.
    
12. The appeal before this Court is in relation to the decision of the National Court in consolidated proceedings OS No. 633 of 2018 and OS No. 673 of 2018 which was delivered by Makail J (the primary judge) on 24 April 2019. The appellant, Nipo and members of the Land Board were the defendants involved in OS No. 633 of 2018. The appellant and Nipo were the plaintiffs in OS No. 673 of 2018. Nipo is not an appellant in this appeal.
    
13. A certified copy of the subject order of the primary judge made on 24 April 2019 as extracted on 20 May 2019 is contained at pages 254 to 257 of the Amended AB.
    
14. This appeal was commenced by the appellant pursuant to s.14(1)(b) of the Supreme Court Act Chapter 37 alleging errors of mixed law and fact by the primary judge. As no errors of fact alone are pleaded in the notice of appeal, it is the appellant’s position that no leave to appeal was required or sought under section 14(1)(c) of the Supreme Court Act. We accept that position.
    

The Appeal

15. The appellant has raised 7 grounds of appeal. These are reproduced below as pleaded, without editorial correction:
    

“4.1 His Honor erred in law and in fact in finding that the Respondent is entitled to be considered as the only applicant for portion 2158, Milinch: Granville, Fourmil: Moresby, National Capital District pursuant to the exemption notice granted on the 19^th June 2018 under section 69(2)(c ) of the Land Act 1996 when the Respondent did not have a title and exemption notice was granted without proper legal basis and by error of law and the Court granted the orders by error of law.

4.2 His Honour erred in law and in fact in finding that the respondent is entitled to be considered as the only applicant for portion 2158, Granville: Fourmil: Port Moresby, National Capital District pursuant to the exemption notice granted under section 69(2)(c ) of the Land Act 1996 when the exemption notice did not use the words of the provision to describe why the exemption was granted and Court recognised the notice by error of law

4.3 His Honour erred in law and in fact in finding that the Respondent is entitled to be considered as the only applicant when the Respondent did not meet any of the reason or requirement under section 69(2)(a) to (j) of the Land Act 1996 to have proper legal basis to obtain exemption at the time and this situation would continue into the future and Court granted the orders by way of error of law

4.4 His Honour erred in law and in fact in taking into account irrelevant considerations that the Respondent’s lacking reasons under section 69(2)(a) to (i) of the Land Act 1996 would not overlook the Respondent’s long history and association with portion 1216 Granville: Fourmil: Moresby National Capital District despite it found that the upon expiry of the lease, the land reverted back to the State and this has resulted in the Respondent’s rights and interest or associations ceased to exist and also the irrelevant considerations do not fall as reasons or circumstances within section 69(2)(a) to (j) of the Land Act 1996

4.5 His Honour erred in law and in fact in finding that the Respondent is entitled to be considered as the sole applicant for with portion 1216 Milinch: Granville: Fourmil: Moresby National Capital District based on the authority of exemption notice granted 2018 under section 69(2) of the Land Act 1996 when there was no evidence of such exemption notice and purported exemption notice granted on the 19^th of June 2018 under section 69(2)(c ) of the Land Act 1996 was also granted to the Appellant by the Minister by error of law

4.6 His Honour erred in law in fact in finding that the Respondent correctly came to Court when the Respondent abused the process provided by the Land Act 1996 in that it did not wait for the Land Board to deal with the land matter and exhausted the appeal process provided under section 62(1) and (1) of the said Act and filed the matter prematurely.

4.7 His Honour erred in law and in fact in granting the orders against the Appellant when appropriately, the orders should have been made to advertise portion 2158, Milinch: Granville, Fourmil: Moresby, National Capital District under section 68 of the Land Act 1996 to give opportunity to the Appellant to apply as the Appellant did the improvements and also generally sought the orders to that effect in OS No. 673 of 2018.”

The Objection to Competency

16. The respondent has raised 5 grounds of objection to the competency of the appeal. These grounds are set out at pages 10 to 12 of Application Book. We summarise the respondent’s objections as follows:
    • (1) The respondent asserts that grounds 4.1, 4.2, 4.3 and 4.5 of the notice of appeal all challenge the primary judge’s finding that the respondent was entitled to be considered as the sole applicant for Portion 2158 pursuant to the second exemption notice dated 19 June 2018. The respondent contends that these grounds all fail to clearly identify the basis for the challenge, which thereby offends Order 7 Rules 9 and 10 of the Supreme Court Rules.
    • (2) Grounds 4.1, 4.2 and 4.3 of the notice of appeal allege errors of law by the primary judge when he declared that the respondent is the only applicant entitled to apply to the Land Board for the State lease for Portion 2158 exempted from advertisement because the appellants appear to be contending that the primary judge made findings de novo on the issue of exemption, whereas the respondent asserts those findings had already been made by the National Court in OS (JR) No. 519 of 2014 and were not pleaded as being in issue before the primary judge. Ground 4.5 of the notice of appeal alleges errors of law by the Minister when granting the exemption(s) but no cogent reason is given by the appellants in support of that ground. Furthermore, the respondents object to grounds 4.1, 4.2, 4.3 and 4.5 on the basis that if these grounds are directed to a challenge to the orders made by the National Court in OS (JR) No. 519 of 2014 where Nablu J ordered the Secretary for the DLPP to recommend to the Minister to exempt Portions 2156, 2157 and 2158 from advertisement, then these grounds are also incompetent because:
      
      • (a) they purport to challenge an order made by the National Court in other proceedings which are not the subject of the current appeal;
        
      • (b) they raise points of law not raised in the appellant’s pleadings, i.e. the validity of the first exemption notice (and by implication the second exemption notice); and
      • (c) no leave has been sought by the appellant pursuant section 14(1)(c) of the Supreme Court Act to appeal these undisputed questions of fact.
    • (3) The respondent contends that ground 4.4 is incompetent because in breach of Order 7 Rules 9 and 10 of the Supreme Court Rules, ground 4.4 fails to specify with particularity the specific reasons why it is alleged that the primary judge erred in taking into account the considerations complained of by the appellant, when the only real issue before the Court was not the validity of the exemption notice(s) but whether the respondent was entitled to be the sole applicant for Portion 2158.
    • (4) As to ground 4.6, the respondent maintains that the issue of whether or not the appellant should be included as an applicant for the State lease for Portion 2158 is a decision of the Land Board pursuant to section 62(1) of the Land Act 1996 is a question of fact for which no leave pursuant to section 14(1)(c) of the Supreme Court Act has been sought by the appellant. Further, the primary judge’s finding on this point is also a question of fact, alternatively if it is a question of law then it was not pleaded in the appellant’s originating summons in OS No. 673 of 2018. Further, if the issue related to the jurisdiction of the National Court to hear the matter, no application was made by the appellant to dismiss OS No. 633 of 2018 and OS No. 673 of 2019 (consolidated) based on lack of jurisdiction.
    • (5) The respondent asserts that ground 4.7 of the appeal is meaningless because no ground of appeal can be identified. The respondent says that ground 4.7 is simply a statement as what the appellant alleges the primary judge ought to have found and should instead have been included in the orders sought by the appellant in the prayer for relief in paragraph 5 of the notice of appeal.
17. Order 7 Rules 9(c) and 10 of the Supreme Court Rules are set out below (underlining supplied):

9. The notice of appeal shall-

(a) state that the appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and

(b) state whether the whole or part only and what part of the judgment is appealed from; and
(c) state briefly but specifically the grounds relied upon in support of the appeal; and
(d) state what judgment the appellant seeks in lieu of that appealed from; and
(e) be in accordance with Form 8; and
(f) be signed by the appellant or his lawyer; and
(g) be filed in the Registry.

10. Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law; and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law

.

18. We do note that there are currently two divergent approaches of the Supreme Court governing objections to competency of proceedings. The first approach requires strict compliance with Order 7 Rules 9 and 10 of the Supreme Court Rules and s. 14 of the Supreme Court Act. However a more liberal approach to objections to competency was recognized in the decision of Coca Cola Amatil v Kennedy (2012) SC1221, which provides a concession to the effect that if a notice of appeal or application for review contains at least one ground by which the Court’s jurisdiction is validly invoked, all of the grounds survive the objection to competency although those grounds can still be open to challenge at the substantive hearing of the appeal or review application.
    
19. The strict approach of the Supreme Court to competency objections has been considered in many reported cases including, among others, Michael Kuman & Ors v. Digicel (PNG) Ltd (2013) SC1232; Talibe Hegele v Tony Kila (2011) SC 1124; Turia McKay v Nelson (2008) SC949; Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185; PNG Forest Authority v Securimax Ltd (2003) SC717; Yakham & The National v Merriam & Merriam (1997) SC533, James Marape v Peter O’Neill (2016) SC1486, Lucas Dekena v Nick Kuman (2018) SC1715; James Lovika v Carl Mapo as Commander of PNG Defence Force & The State (2019) SC1895.
    
20. In Lucas Dekena v Nick Kuman (supra) the Supreme Court [paragraph 11] cited with approval those principles which the Court should consider when determining an objection to competency which were summarized by Kandakasi J (as he then was) in Michael Kuman & Ors v Digicel (PNG) Ltd (2017) SC1638:
    

Before dealing with the issues before us, we consider it important that we should remind ourselves and allow ourselves to be guided by the relevant principles of law on objections to competency of proceedings before this Court. In the dissenting judgment in the matter of Michael Kuman & Ors v. Digicel (PNG) Ltd, Kandakasi J., discussed and summed up the relevant principles of law in the following terms:

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 complemented 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 Wahgi 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. Securimax 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 Bakani (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 [the] 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. Securimax Ltd (2003) SC717.

21. The above list is not determinative of all principles to be applied by the Supreme Court when it considers an objection to competency of any appeal or review but the list is a most useful guide to the Supreme Court’s consideration of the issues which are frequently raised for ruling by the Court on the hearing of objections to competency.
    
22. The alternative and more liberal approach which the Supreme Court has taken when considering objections to competency was approved in the case of Coca Cola Amatil (PNG) Ltd v. Kennedy (supra). The ratio decidendi of that case is that objections must go to the competency of the appeal or application for review, not the grounds of appeal or review per se. If there exists just one ground of appeal or review which properly invokes the Court’s jurisdiction, the notice of appeal or application for review can safely proceed to a hearing – and it is at the substantive hearing that challenges can then be made to grounds alleged by a respondent to be defective for want of compliance with those pleading and procedural requirements of the Supreme Court Rules and Supreme Court Act which do not go to jurisdiction.
    
23. The more liberal approach taken in the Coca Cola Amatil case was recently adopted and applied in the case of Independent State of Papua New Guinea v Peter Gaian & 82 Ors (2019) SC1879. See also the majority decision of Manuhu J and Logan J in Michael Kuman v Digicel (PNG) Ltd (2017) SC1638.
    
24. The decision of the Court in Coca Cola Amatil with respect is consistent with a line of prior decisions of 3-member benches of the Supreme Court. It has not subsequently been overtaken by any contrary decision of a 5-member bench of the Supreme Court. Both approaches have their merits. However we emphasize the importance of the distinction between the two approaches but recognize that objections must always go to the competency of the appeal, not to the grounds of appeal per se.
    
25. The overarching consideration presently before this Court is whether the respondent is lawfully the only applicant for renewal of the State lease for Portion 2158.
    

Respondent’s Objections No. 1 and No. 2– objections to Grounds 4.1, 4.2, 4.3, 4.5 of Notice of Appeal

26. As to the respondent’s objections no. 1 and no. 2, it is clear that grounds 4.1, 4.2, 4.3 and 4.5 of the notice of appeal all relate to the second exemption notice dated 4 September 2019 set out at page 177 of the Amended AB (and by implication the first exemption notice) in respect of Portion 2158 which was prepared by the DLPP and signed by the Minister for Lands and Physical Planning following the ruling made by Nablu J in National Court proceeding OS(JR) No. 519 of 2014 on 2 November 2015 as reaffirmed by her Honour in National Court proceeding OS (JR) No. 358 of 2016 on 30 May 2017.
    
27. It is apparent that Grounds 4.1, 4.2, 4.3 and 4.5 of the notice of appeal in effect challenge the orders made by her Honour in National Court proceeding OS(JR) No. 519 of 2014 on 2 November 2015 and in National Court proceeding OS (JR) No. 358 of 2016 on 30 May 2017 which resulted in the Ministerial exemption notices.
    
28. Grounds 4.1, 4.2, 4.3 and 4.5 of the notice of appeal are not grounds which directly relate to the orders made by the primary judge in National Court proceedings OS No. 633 of 2018 and OS No. 673 of 2018 (consolidated) and which are the subject of this appeal
    
29. Furthermore, we observe that the appellant did not raise the issue of the validity of the exemption notices in its originating summons in National Court proceeding OS No. 673 of 2018.
    
30. We therefore, with respect, uphold the respondent’s objections Nos. 1 and 2.

Respondent’s Objection No. 3 – objection to Ground 4.4 of Notice of Appeal

31. The respondent’s objection no. 3 contends that ground 4.4 of the notice of appeal offends against Order 7 Rule 10 of the Supreme Court Rules. The respondent argues that it is difficult to decipher what error of law or of fact is alleged by the appellant to have been made by the primary judge. The text of ground 4.4 is confusing and makes little sense as pleaded.
32. The appellant appears to be asserting in ground 4.4, among others, that the primary judge fell into error of law or fact by taking into account allegedly irrelevant considerations such as the respondent’s long history and association with the land as those considerations did not come within the circumstances allowing for exemption from advertisement under section 69(2) of the Land Act. However considerations such as these were not in issue in the matters before the primary judge. The issue that title to Portion 2158 (which arose out of the subdivision of Portion 1216 in 1992) had reverted to the State upon the expiry of the lease for Portion 1216 in 1995 was an issue which was raised by Nipo, the State and other defendants in the earlier National Court proceeding OS (JR) No. 358 of 2016 before Nablu J. Her Honour ruled against all defendants on this issue: see paragraph 37 page 10 of her Honour’s decision [Amended AB at page 45]:

I accept the evidence of Mr. Aldrich who had dealt with this land. Mr. Aldrich says that the Portion 2158 was derived from Portion 1215 to which the plaintiff’s predecessor was the registered proprietor. There was no dispute in regard to the change of the land description.

The fifth defendant [Nipo] also argues that the Land was advertised because there was no title and no improvement made on the land. I reject this argument. There was no title issued, therefore the land covenants were not specified. Also, this case was not a case of forfeiture under Section 122 of the Land Act. There is no evidence to suggest that the State Lease was forfeited.

In regard to the objection to ground 4.4, it is apparent that the National Court in OS (JR) No. 358 of 2016 quashed the decision of the Minister to grant a State lease to Nipo. That Court further ordered the Secretary for the DLPP to comply with the orders made in OS (JR) No. 519 of 2014 of 2 November 2014 with respect to Portion 2158.

33. Counsel for the appellant during submissions on the respondent’s objection to competency informed the Court that although there was an appeal by Nipo against her Honour’s decision in OS (JR) No. 358 of 2016, the appeal was dismissed on competency grounds. Given this disclosure and the fact that there was no substantive appeal against her Honour’s decision in National Court proceeding OS(JR) No. 348 of 2016, we are satisfied that the exemption notices have continued to remain in full force and effect up to the hearing of this appeal.
    
34. There is no evidence that Portion 2158 had ever been exempted from advertisement in 1995 and no evidence of any Land Board decision which could have been appealed at that time.
    
35. We accordingly find that ground 4.4 of the notice of appeal is defective. It offends Order 7 Rule 10 of the Supreme Court Rules for want of clarity. No error of law and or fact has been identified. Consequently, we uphold the respondent’s objection no. 3.

Objection No. 4 – objection to Ground 4.6 of Notice of Appeal

36. Ground 4.6 of the Notice of Appeal is a challenge to the jurisdiction of the National Court to have heard OS No. 633 of 2018. Ground 4.6 alleges that the primary judge erred in law and in fact by finding that the proceeding in OS No. 633 of 2018 was correctly before the National Court. The appellant pleads that OS No. 633 of 2018 was instead an abuse of process by the respondent for not having exhausted the appeal process provided by section 62(1) of the Land Act 1996.
37. The respondent’s objection no. 4 as pleaded, instead of addressing ground 4.6 of the notice of appeal, appears to be largely a response to the appellant’s ground 4.5, which seems to challenge the primary judge’s observation at paragraph 28 page 253 of the Amended AB that “Nambawan Super has sufficiently shown that it has correctly engaged the jurisdiction of this Court and will be, accordingly, declared as a sole applicant at the Land Board.”
    
38. As a related matter, we note that it was Nipo who asserted at the hearing of the consolidated proceedings in OS No. 633 of 2018 and OS No. 673 of 2018 that the respondent ought to have allowed the Land Board to determine the matter of who was entitled to apply for the State lease for Portion 2158 following publication of the gazettal notice on 4 September 2018 and that if the respondent was aggrieved by that decision, it could then appeal pursuant to the provisions of the Land Act.
    
39. In relation to this Appeal, we are satisfied that at no time did the appellant or Nipo challenge the National Court’s power to prevent the Land Board proceedings in circumstances in which it was exceeding or mistaken as to its jurisdiction. In the circumstances, these are not matters for appeal under section 62(1) of the Land Act. These matters were not issues raised in either of the originating summonses in OS No. 633 of 2018 or OS No. 673 of 2018.
    
40. Consequently, ground 4.6 of the notice of appeal is incompetent. We are satisfied that the primary judge did not err in law or in fact by ruling that the National Court had jurisdiction when no challenge to the Court’s jurisdiction had been pleaded in the proceedings before him.
    

Objection No. 5 – objection to Ground 4.7 of Notice of Appeal

41. The respondent’s objection no. 5 is that no ground of appeal is identified in ground no. 4.7 of the notice of appeal, which ground merely alleges that the primary judge erred in law and in fact in granting the orders he did. The order which the appellant contends in ground 4.7 of the notice of appeal that the primary judge should have made is clearly a matter which the appellant should have claimed under paragraph 5 of the notice of appeal, which is the prayer for relief in terms of the orders sought by the appellant if the appeal were to be upheld. This is not a ground of appeal. It is merely a prayer for relief.
    
42. Ground 4.7 of the notice of appeal is incompetent for this reason. We uphold the respondent’s objection no. 5.
    

In all, we uphold the respondent’s objections nos. 1, 2, 3 and 5. We also uphold the respondent’s objection in regard to ground 4.6 of the notice of appeal as we are satisfied that this ground improperly challenges the jurisdiction of the National Court when jurisdiction was not an issue that had been pleaded for determination by the primary judge.

43. For these reasons we find that the notice of appeal filed by the appellant on 24 May 2019 is not properly before the Court and is incompetent and must be dismissed with costs.
    
44. The formal orders of the Court are:
    
    • (1) The Respondent’s Notice of Objection to Competency filed on 4 June 2019 is upheld.
      
    • (2) The Appellant’s Notice of Appeal filed on 24 May 2019 is dismissed for being incompetent.
      

(3) The Appellant shall pay the Respondent’s costs, to be taxed if not agreed.

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Waira Lawyers: Lawyers for the Appellant
Ashurst PNG: Lawyers for the Respondent