Rawa v Trappe [2020] PGSC 116; SC2027 (5 November 2020)

SC2027

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 207 OF 2019

REVEREND RAUKE RAWA – BISHOP OF MT HAGEN DISTRICT OF EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
First Appellant

AND:
WANE KANAPI, CHAIRMAN LANDS AND PROPERTY, EVANGELICAL LUTHERAN CHURCH, HAGEN DISTRICT
Second Appellant

AND:
EVANGELICAL LUTHERAN CHURCH HAGEN DISTRICT AND OGELBENG CONGREGATION AND WARIE OGLA AND AKUNU KULI, AND OTHER SHAREHOLDERS OF NAMASU HAGEN LTD
Third Appellant

AND:
NAMASU HAGEN LIMITED
Fourth Appellant

V

KOI TRAPPE, KOGOI KOKOWA, SALLY TRAPPE, REGINA YAPO, KILA KAULASI
First Respondent

AND
TRAISA TRADING LIMITED
Second Respondent

AND:
MUKU LIMITED
Third Respondent

Waigani: Kirriwom J, Polume-Kiele J & Anis J
2020: 27^th October, 5^th November

OBJECTION TO COMPETENCY – Preliminary – objection to competency of appeal – Order 7 Rule 15 – Supreme Court Rules - whether notice of objection was served within 14 days from the date of service of the notice of appeal – whether service on lawyers for the respondents was sufficient compliance with Order 7 Rule 15 of the Supreme Court Rules

PRACTICE AND PROCEDURES – Order 7 Rule 13 and Order 11 – Supreme Court Rules – service – modes of service for a notice of appeal – whether service of a notice of appeal on the lawyers of a respondent who have not ceased to act for the said respondent after the National Court proceeding, may be regarded as due service

Cases Cited:

Rockus Lokinap v. Jack Wagambie (2015) SC 1457
Sarea v. Moutu (2019) SC1893

Counsel:

D Gonol, for the Appellants
A Inia, for the Respondents

5^th November 2020

1. BY THE COURT: This was an objection to competency hearing. It was heard on 27 October 2020, and we reserved our ruling to a date to be advised.

2. We rule on it now.

RELEVANT BACKGROUND

3. On 2 September 2015, the appellants filed an originating summons in proceeding OS 557 of 2015. They sought various declaratory relief against the respondents. They alleged, amongst others, that they were the duly appointed shareholders of the fourth appellant, and they disputed the sale of the fourth appellant and its assets and properties, to the second respondent.

4. On 13 October 2015, the respondents filed an application to dismiss the proceeding under Order 12 Rule 40(1) of the National Court Rules. The application was granted on 29 November 2019. The trial judge found, amongst others, the proceeding untenable, incontestably bad and an abuse of process, and dismissed it.
5. The appellants were aggrieved, and they filed this appeal.

NOTICE OF OBJECTION

6. The Notice of Objection to Competency was filed on 4 February 2020 (notice of objection). The respondents argue that (i), some of the grounds of appeal relate to questions of fact and therefore leave should have been sought, as required under s. 4(2)(c) and s. 14(1)(c) of the Supreme Court Act Chapter No. 37, (ii), the appeal did not comply with the requirements for service of the Notice of Appeal as required under Order 7 Rules 11, 12 and 13 of the Supreme Court Rules (SCR), (iii), some of the facts and law alleged in some of the grounds of appeal were not raised in the Court below, and (iv), some of the grounds pleaded are vague, insufficiently pleaded and are too lengthy, contrary to Order 7 Rule 9(c) and (e) of the SCR.

COMPETENCY OF APPLICATION

7. The appellants raise a preliminary issue. They argue that the notice of objection was filed outside of the 14 days period for filing a notice of objection to competency of an appeal. The relevant rule is Order 7 Rule 15 of the SCR. It reads, and we quote in part, A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal—......

8. We have heard submissions from both counsel on the matter, and we note that the parties are at common ground on the following. The decision the subject of the appeal was made on 29 November 2019. As for the respondents, their then lawyers Manase & Co. Lawyers (M&CL) appeared on that day (i.e., 29 November 2019) to receive the decision. On 6 January 2020, the appellants served M&CL with a sealed copy of the Notice of Appeal (notice of appeal). On 21 January 2020, M&CL filed a Notice of Appearance as the lawyers on record for all the respondents in the appeal. On 4 February 2020, M&CL, on behalf of the respondents, filed the present notice of objection. After that and on 27 February 2020, M&CL filed a notice ceasing to act for the respondents in the appeal. On 3 March 2020, the company lawyer for Traisa Group of Companies, filed a new Notice of Appearance. Ms Inia, who is the company lawyer, and as revealed in the notice, states that she acts for all the respondents in the appeal.

9. So, we ask ourselves this. Was the notice of objection filed outside the 14 days, as required under Order 7 Rule 15 of the SCR? The respondents submit that time should compute from the date of filing the first notice of appearance on 21 January 2020, and not on the date of service of the notice of appeal by the appellant on their former lawyers M&CL on 6 January 2020. The respondents refer to this Court’s earlier decision, that is, the case of Rockus Lokinap v. Jack Wagambie (2015) SC 1457 in support of their submission. The appellants, on the other hand, submits that the notice of objection, given that it was filed on 4 February 2020, was filed well outside the 14 days period, and as such, it breaches Order 7 Rule 15 of the SCR. The appellants rely on this Court’s ruling in Sarea v. Moutu (2019) SC1893.

10. We refer to the case Rockus Lokinap v. Jack Wagambie (supra). The Supreme Court stated at paragraphs 8 and 9, and we quote:

8. We are of the view that Order 11, rule 7(c) relied on by the appellants has limited application in so far as the question of service of a notice of appeal is concerned because the question of service is adequately addressed in Rule 13. Rule 13 states that a notice of appeal must be served on each party to the appeal. It does not state that it may be served on the lawyers for each party.

9. There is no dispute that the notice of appeal was served on Mr. Uyassi. Mr. Uyassi is not a party to the appeal. Even then, he had no instructions at that time to act for the respondents. Given this we are not satisfied that 14 days ran from 18th May 2015 and expired on 01st June 2015. However, accepting the respondents’ contention that 14 days ran from 01st June 2015 which was the date S. Douglas Uyassi Lawyers formally entered appearance as lawyers for the first group of respondents, time expired on 14th June 2015. The notice of objection was filed on 10th June 2015. We are satisfied it was filed within time. We dismiss the preliminary objection.

11. We note the above decision. We would however and with respect, differ from the proposition or findings therein that Order 7 Rule 13 of the SCR adequately or sufficiently covers service of a notice of appeal and that Order 11 Rule 7(c) has limited application. We begin our reasoning by setting out Order 7 Rule 13 and Order 11 Rule 7(c) herein:

Division 4.—Filing and serving notice of appeal

13. A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party—

(a) affected by the relief sought by the notice of appeal; or

(b) interested in maintaining so much of the judgment as is appealed from;

and upon the associate to the primary judge.

......

PART 4—GENERAL PROVISIONS
ORDER 11—RULES OF GENERAL APPLICATION
Division 1.—Application

1. The rules contained in this part apply to all matters brought under these rules unless in these rules, the contrary intention appears.

Division 2.—Notice of appearance to be filed and served

2. A person served with a document by which proceedings are instituted or by which leave or other order is sought under these rules and who desires to be heard at any stage of the proceedings shall, as soon as is practicable or within the time specified in the document or in any other order of the court—

(a) file an appearance in accordance with form 16; and

(b) serve a copy of the appearance on each of the other parties.

(c) a party appearing by a ‘next friend’ who ceases to be under the disability which occasioned that appearance and who wishes to adopt the proceedings shall file and serve an appearance in their own name on every other party within 30 days of ceasing to be under that disability.

Division 3.—Address for service

3. An address for service shall be disclosed on—

(a) any document by which proceedings are instituted in the court; and

(b) an appearance filed under Rule 2 of this Order.

4. The address for service shall—

(a) Contain the name, address and telephone number of—

(i) the person on whose behalf the document is filed; and

(ii) be a place within 15 kilometres of the Registry, at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is; and

(iii) an address to which documents in the proceedings may be posted for that person; and

(iv) where a person is represented by a lawyer it shall be the office of the lawyer or of his Papua New Guinea agent, but in the case of a lawyer who has requested and been allocated by the Registrar a compartment in the Document Exchange Box located within the Registry then the deposit of a document in such compartment shall amount to ordinary service within the meaning of this sub-rule; and

(b) be in accordance with form 17.

5. The address so disclosed shall remain the address for service until notice of change of address is filed in the registry and served on any other party to the proceedings.

6. Where a lawyer ceases to act for a party, he shall file in the registry a notice of that fact.

Division 4.—Service

7. Where in these rules service is required of any document, it may be effected—

(a) by serving a signed and sealed copy of the document personally on the party to be served; or

(b) by delivering a signed and sealed copy of the document to—

(i) the address for service of a party given in accordance with Division 3; or

(ii) the address for service of a party in the proceedings in the National Court from which the present proceedings arose; or

(c) where a lawyer of a party has an address for service disclosed, service shall be effected at that address whilst such lawyer continues to act for a party.

12. In our view, the SCR and in particular, Orders 7 and 11, should be read together. Order 7 Rule 13 states that a sealed copy of a notice of appeal shall be served on each party or persons that are affected by the relief sought that is or are the subject of the appeal. Two notable remarks we make of Order 7 Rule 13, are, (i), it does not expressly say that personal service is required, and (ii), it does not provide the mode(s) of serve of a notice of appeal.

13. The modes of service of a notice of appeal, in our view, are prescribed under Order 11. And Order 11, in our view, and as expressly stated, generally applies to all the provisions of the SCR including Order 7. The rule, in our view, in fact provides express modes of how a notice of appeal may be served under Order 7. A notice of appeal that is required to be served on a party or person under Order 7 Rule 13, may be served by, (i), personal service, or (ii), service through the address for service of the parties affected including through their address for service as pleaded in the National Court proceedings where the appeal has arisen from, or (iii), service through their lawyers who had acted for them in the National Court proceeding where the appeal has arisen from, provided the lawyers continue to act for the party or parties in the matter. In the practical sense, what Order 11 Rule 7(c) means is that in a case where parties have lawyers who acted for them in the National Court, the party that is appealing, to effect service of a notice of appeal under Order 11 Rule 7(c), must first of all get confirmation from the lawyers of the respondent that they still act for their client in the matter. Confirmation, in our view, may either be express or by conduct.

14. In the present matter, the notice of appeal was served on M&CL who continued to act for the respondents at the material time that the notice of appeal was served on them. They were served on 6 January 2020. Although we note that there appears to be no express evidence of confirmation, the respondents do not deny that M&CL continued to act for them after the date of the final decision that was made by the National Court. Proof of that beyond reasonable doubt, our view, is when M&CL filed the respondents’ notice of appearance and the objection to competency. The notice of objection was filed on 4 February 2020. The 14^th day for the respondents to file their notice of objection in this case, was on 20 January 2020, that is, after they had been served with the notice of appeal, through their lawyers, on 6 January 2020. The notice of objection was therefore filed out of time, that is, in breach of Order 7 Rule 15 of the SCR.

15. We will also say this in ending. The process for objecting to the competency of the appeal was already in motion when the change of lawyers for the respondents took place. New lawyers on record did not rewind the clock back to give new life to the matter for the respondents' new lawyer to raise the issue of objection to competency afresh and raise the issue of service which is already a fait accompli and respondents are estopped from raising that issue now.

16. In conclusion, we find the notice of objection incompetent, and therefore we propose to dismiss it with cost.

REMARK

17. We remark that competency issues are matters that can still arise or be raised at the substantive hearing of an appeal, and as such, we also see no prejudice that this application being dismissed will prevent the respondents from making such arguments later.

FINAL ORDERS OF THE COURT

18. We make the following orders:

(1) The notice of objection to competency is dismissed for being incompetent.

(2) The respondents to pay the appellants’ cost of the application on a party/party basis to be taxed if not agreed.

(3) The matter shall be relisted before the Listings Judge for the next listings hearing.

________________________________________________________________
Danny Gonol: Lawyers for the Appellants

Agatha Inia, In-house Counsel: Lawyers for the Respondents