Pundia v Korua [2020] PGSC 11; SC1920 (28 February 2020)

SC1920

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 159 OF 2017

BETWEEN
MICHAEL PUNDIA
Appellant

AND
SAMUEL KORUA & PHILIP KORUA MEKRE
Respondents

Waigani: Kirriwom, Manuhu & Makail JJ
2020: 25^th & 28^th February

SUPREME COURT – Application to dismiss appeal – Want of prosecution – Readiness of appeal – Belated appeal book filed – Wide power to dismiss – Supreme Court Rules – Order 7, rule 48(a)

SUPREME COURT – Objection to competency – Requirement to specifically state ground in support of appeal – Claim of ambiguous or vague or convoluted grounds of appeal – Claim of grounds of appeal expressing opinion rather than error of law or fact – Claim of grounds of appeal being confusing or contradictory – Supreme Court Rules – Order 7, rule 9(c)

Cases Cited:

Nil

Counsel:

Ms. V. Yobone, for the Appellant
Mr. N. Tame, for the Respondents

INTERLOCUTORY RULING

28^th February, 2020

1. BY THE COURT: We rule on two interlocutory matters which were heard and reserved to today. They are:

• Application to dismiss appeal for want of prosecution filed 7^th August 2019 pursuant to Order 7, rule 48(a) of the Supreme Court Rules.
  
• Objection to competency filed 7^th March 2018 pursuant to Order 7, rule 9 of the Supreme Court Rules.
  

2. They emanate from an appeal against a decision of the National Court of 6^th October 2017 where after a five-day trial and deferral of the judgment for two years, the trial judge gave an oral judgment with a promise to provide detailed reasons on a later date. He held that the appellant’s title of a piece of land known as “Balinga” located in Mt Hagen and granted under the land tenure conversion process was procured by fraud and quashed it. The written judgment was not available by the time the appellant drafted and filed the appeal.

Application to dismiss for want of prosecution

3. The notice of appeal itself was filed on 15^th November 2017. What would have immediately followed were the preparation, settlement and filing of the index to the appeal book which would have paved the way for the preparation and filing of the appeal book. However, it was not until 26^th September 2018 and after repeated reminders by the respondents’ lawyers that a draft index to the appeal book was prepared and settled. That document was then filed on 8^th October 2018 and served on the respondents’ lawyers on 9^th October 2018.

4. A month and a half after service of the index to the appeal book, the appellant’s lawyers served a draft appeal book under cover letter dated 19^th November 2018 on the respondents’ lawyers. There was no disagreement or objection to the content of the draft appeal book and it was certified by the respondents’ lawyers and returned to the appellant’s lawyers under cover letter dated 27^th November 2018.

5. Apparently nothing further was heard from the appellant’s lawyers for almost a year. When the respondents’ lawyers filed and served this application on 7^th August 2019, it prompted a quick response from the appellant’s lawyers. Their explanation was, the appeal book had been sent to a copying and printing company to run copies and no attempt had been made to retrieve the reproduced copies. It was said, it was an oversight by the lawyers. Since then, the appeal book in multiple copies was lodged and filed. One copy was served on the respondents on 12^th August 2019.

6. The respondents had no issue with service of a copy of the appeal book. However, they claimed that the appeal book contained documents with back sheet pages which were not permitted by Order 7, rule 43(6) of the SCR. Otherwise, they were quite adamant and insisted that the appeal should be dismissed because it had taken the appellant almost two years since the filing of the appeal, to file and serve the appeal book. They emphasised that it was on their prompting and not the appellant’s faithful observance of the procedural requirements that an appeal book was produced and the appellant should not be allowed to progress the appeal for this dilatory conduct.

7. The discretion conferred by Order 7, rule 48(a) of the Supreme Court Rules, (SCR) is wide enough to capture a number of different scenarios where an appeal may be dismissed if there has been unexplained delay or the delay is inexcusable. However, pivotal to the application is the readiness of the appeal and an appellant who has produced an appeal book, duly filed and served, though belated, is more likely to successfully resist a dismissal application than one who has not. While the result may be unfavourable to the mover of the dismissal application and appear unjust, a respondent who has been an active participant and faithful observer of the SCR will, in many cases, be rewarded with a costs order for bringing the dismissal application.

8. While the series of events highlighted above contributed to the delay in the prosecution of this appeal, it has been accepted that an appeal book was eventually filed and served, signifying the readiness of the appeal and paving the way for it to be listed for hearing. The recent question in relation to the correctness of the appeal book on account of it being contaminated by some unauthorised documents under the SCR is a minor defect or has been waived by the prior certification of the appeal book. This has placed the appellant in a much stronger position than one year ago to resist the dismissal application and it would be unjust if we were to accede to the respondents’ application and dismiss the appeal for want of prosecution. For these reasons, we decline to dismiss the appeal for want of prosecution.

Objection to competency

9. There were nine grounds of appeal set out in numerical order from paragraphs 3.1 to 3.9 in the notice of appeal. The objection to the competency of appeal was pressed on grounds that the grounds of appeal were either ambiguous, vague, convoluted or expressions of opinion rather than error of law or fact or confusing or contradictory. According to the respondents, grounds 3.1, 3.2, 3.6, 3.7, 3.8 and 3.9 of the notice of appeal have been plagued by these series of defects.

10. No objection has been taken against ground 3.3 of the notice of appeal and it would appear that the respondents have conceded that it is competent. Though grounds 3.4 and 3.5 were subject of objections, the objections were abandoned at the hearing. It would appear then that the respondents have conceded that these grounds have met the Order 7, rule 9(c) test and must progress to substantive hearing. We turn to the remainder of the grounds of appeal and for completeness sake, cite them below:

Ground 3.1 states:

“The learned trial judge, erred in law and fact when he held that ‘land tenure conversion process undertaken by the first and the third defendant(sic) was tainted with fraud perpetrated by the fifth Defendant’ when there was no evidence to prove that the Appellant had committed fraud or did the Plaintiffs/Respondents had proven fraud”.

Ground 3.2 states:

“The learned trial judge, erred in law and fact when he held that ‘land tenure conversion process undertaken by the first and the third defendant (sic) was tainted with fraud perpetrated by the fifth Defendant’ when the land tenure conversion process is the sole responsibility of the Land Titled(sic) Commission, and Registrar of Titles and not that of the Appellant save for the application for conversion”.

Ground 3.6 states:

“The learned trial judge, erred in law and fact when he held that the registration of the land by the Land Titles Commissioner was null and void when there was evidence before the court confirming compliance of the registration process by the Land Titles Commissioner and Registrar of Titles”.

Ground 3.7 states:

“The learned trial judge, erred in law and fact when he held the Respondents were the owners of the customary land known as Balinga, when he lacked the jurisdiction to make such an order”.

Ground 3.8 states:

“The learned trial judge, erred in law and fact when he failed to properly assess the evidence as presented during the five (5) days trial, evidence which if properly considered, the learned trial judge would not have made a decision as it (sic) did”.

Ground 3.9 states:

“In the light of the foregoing grounds, its (sic) on its own or taken two or more grounds together, the learned trial judge erred in law or mixed fact and law in finding for the Plaintiff and granting the judgment and further making the orders of 6^th October 2017, Plaintiff had not, properly pleaded its case and established by proper evidence and had no proper legal basis for the entire claim to succeed”.

11. It is easy to criticise an appellant, who has been alleged of, not producing a carefully drafted notice of appeal. However, in a case where the appellant had not had the benefit of a written judgment to assist him to carefully frame the grounds of appeal, it would be quite unfair to be particular about it. Under those circumstances, there may be some concession unless the grounds are so bad and beyond comprehension. On a proper construction, these grounds of appeal are neither ambiguous nor vague. It is also quite plain to us that they are not convoluted or difficult to comprehend. Neither can the allegations in each ground be described as expressing an opinion or confusing or contradictory.

12. We are satisfied that they sufficiently identify the alleged error of law and fact where the recurring theme is the finding of fraud against the appellant and that, such a finding is wrong because there is no evidence to prove it. Against that, the defence raised compliance with statutory process for land tenure conversion and alleged that it is solely a matter for State authorities such as the Land Titles Commission and Registrar of Titles to administer. The appellant had nothing to do with it except to submit an application for conversion. If there was non-compliance, it does not necessarily amount to fraud. He calls for the Supreme Court to re-look at the evidence given in the National Court over a five--day trial and make its decision if the evidence supported the trial judge’s finding. Where the grounds such as the ones under consideration are brief but specifically directed to the alleged error by the trial judge, which they do, they meet the test set out in Order 7, rule 9(c) of the SCR and will not be struck out as being incompetent. We are not satisfied that these grounds of appeal are defective and incompetent. They will progress to the substantive hearing.

13. The respondents resorted to what they described as a “general ground” to dismiss the entire appeal because the appellant had not included the State parties or the Land Titles Commission and Registrar of Titles in the appeal when they had been parties (defendants) in the National Court proceeding. They argued that their omission may be fatal to the outcome of the appeal in the event that the Supreme Court upholds the appeal and quashes the finding of fraud against the appellant. Being non-parties and not participating in the appeal, the finding of fraud will stand and they will be bound by it. This submission is not only an assumption but speculative. We are not prepared to engage in this debate and pre-empt the decision of the Supreme Court. But we point out that this issue only makes it clearer that this “general ground” of non-joinder of party goes to the substance of the appeal and it is for another day.

14. All we are saying is that, it is not a competency issue and if it was, as contended by the respondents, the test is even higher for them to pass because they have not been able to refer us to a provision in the Supreme Court Act or the SCR which states that a non-joinder of party may render an entire appeal incompetent. Even Order 7, rule 9(a) to (g) of the SCR which speaks of form and content of a notice of appeal does not assist them. The objection to competency is dismissed.

Costs

15. An award of costs is discretionary and we appreciate the effort by the respondents to get the appellant to get the appeal ready for hearing. The conduct of the appellant can be best described as far from satisfactory and the appeal could have been easily dismissed had it not been for the belated appeal book. For the respondents’ effort they could be easily rewarded with an order for costs for the dismissal application even though the outcome was unfavourable to them. However, their objection to competency was unsuccessful. Ordinarily, they will have to bear the costs of the unsuccessful objection. To balance the competing claims for costs, we order that costs of the dismissal application and objection to competency will be in the appeal. As to the appeal, it is ready for hearing and to expedite it, we will adjourn it to Monday 2^nd March 2020 at 9:30 am for listing before the Duty Judge.

Order

16. The orders are:

1. The application to dismiss for want of prosecution filed 7^th August 2019 is dismissed.
2. The objection to competency filed 7^th March 2018 is dismissed.
3. The appeal is adjourned to Monday 2^nd March 2020 at 9:30 am for listing before the Duty Judge.
4. Costs of the application to dismiss and objection to competency shall be in the appeal.

________________________________________________________________
Greg Manda Lawyers: Lawyers for Appellant
Nicholas Tame Lawyers: Lawyers for Respondents