VJ Holdings Ltd(151339) v Ngusu Glan Ltd [2021] PGSC 114; SC2209 (31 December 2021)

SC2209

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 101 OF 2021

BETWEEN:
VJ HOLDINGS LIMITED (151339)
First Appellant

AND:
STEVEN WAOWAO and his agents and associates
Second Appellant

AND:
NGUSU GLAN LIMITED
Respondent

Waigani: Salika CJ, Hartshorn J, Yagi J
2021: 23^rd November, 31^st December

Application to dismiss and objection to competency

Cases Cited:

Don Polye v. Jimson Papaki (2000) SC637
Gigmai Awal v. Elamo Elema [2000] PNGLR 288
Oberia v. Charlie (2005) SC801
Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978
Rimbao v. Pandan (2011) SC1098
Mendepo v. National Housing Corporation (2011) SC1169.
Joseph Nadali v. Curtain Bros Ltd (2012) SC1843
Moime v. National Housing Corporation (2012) SC1191
Minicus v. Telikom (2014) SC1368
Amben v. Telikom (2015) SC1422
Papua New Guinea Law Society v. Cooper (2016) SC1553
Wilson v. Kuburam (2016) SC1489
National Superannuation Fund Ltd v. Yawenaik Holdings Ltd (2018) SC1709
National Airports Corporation v. Simitap (2019) SC1883
State v. Nimbituo (2020) SC1974
Kore v. Lapa (2021) SC2103

Counsel:

Mr. R. Raka, for the Appellants
Mr. E. Isaac, for the Respondent

31^st December, 2021

1. BY THE COURT: This is a decision on a contested application to dismiss an application for leave to appeal and an objection to competency of the application for leave to appeal.

Background

2. The respondent is a company representing customary landowners of the Simbali area of Pomio, East New Britain Province and holds a Forest Clearance Authority for the Simbali Tree Plantation project. The respondent commenced a proceeding in the National Court by originating summons seeking certain declarations including that all agreements which it had with the first appellant were terminated.

3. The first appellant applied to dismiss the National Court proceeding. The application to dismiss was refused. The first appellant filed this application for leave to appeal that refusal to dismiss.

4. The respondent seeks to dismiss the application for leave to appeal on the ground that it is an abuse of process. It is contended that the application for leave to appeal is an abuse of process as it concerns an issue that may still be argued in the National Court.

5. The respondent also objects to the competency of the application for leave to appeal on grounds that the appellants do not have standing and that the appellants have not adequately stated the application for leave as is purportedly required by the Supreme Court Rules.

Application to dismiss

6. The respondent seeks to have the application for leave dismissed as an abuse of process as it concerns an issue that may still be argued in the National Court proceeding.

7. The respondent contends that it remains open to the first appellant to argue and it is pleaded in the first appellant’s defence in the National Court proceeding, that the law firm of Emanuel Lawyers did not have the authority of the respondent when it filed proceedings in the name of the respondent. This issue is also being raised in the application for leave to appeal by the first appellant. The respondent contends that as this issue may still be argued in the National Court proceeding, it is an abuse of process for the issue to be raised in an application for leave to appeal. The respondent does not rely on any authority which is specifically on point.

8. There is no provision of the Supreme Court Act or Supreme Court Rules which precludes leave to appeal being sought on an issue that remains live in the National Court proceeding from which an application for leave emanates.

9. That an applicant for an application for leave to appeal may have recourse in the National Court, is a factor for consideration in determining whether an application for leave to appeal should be granted: Oberia v. Charlie (2005) SC801. We are not aware of any authority however, which has held that it is an abuse of process to apply for leave to appeal on an issue which still may be argued in the National Court proceeding from which the application for leave to appeal emanates.

10. We are mindful of the following statement of Gavara Nanu J in Wilson v. Kuburam (2016) SC1489 at [35]:

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.”

11. We are satisfied that the issue about which the respondent makes complaint in this instance does not fall within any of the categories referred to by Gavara Nanu J. In the absence of any relevant authority cited or any convincing argument for this court to find otherwise, the application to dismiss should itself be dismissed.

Objection to competency

12. The first issue we raise is that the notice of objection to competency does not cite any jurisdictional basis for making the objection to competency. Order 13 Rule 15 Supreme Court Rules relevantly provides that:

“15. All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. ....”

13. The notice of objection to competency does not comply with Order 13 Rule 15 Supreme Court Rules and so this court’s jurisdiction has not been invoked. We refer to the cases of: Joseph Nadali v. Curtain Bros Ltd (2012) SC1843; Papua New Guinea Law Society v. Cooper (2016) SC1553; National Superannuation Fund Ltd v. Yawenaik Holdings Ltd (2018) SC1709 and Kore v. Lapa (2021) SC2103 in this regard.

14. Counsel for the appellants did not raise this issue before the court, however. This Court of its own volition may dismiss the objection to competency as its jurisdiction has not been invoked. This Court has the inherent jurisdiction to ensure the integrity of its processes and may exercise that power of its own volition: Moime v. National Housing Corporation (2012) SC1191; Minicus v. Telikom (2014) SC1368; Amben v. Telikom (2015) SC1422 and National Airports Corporation v. Simitap (2019) SC1883 and State v. Nimbituo (2020) SC1974 - see also Don Polye v. Jimson Papaki (2000) SC637; Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978; Rimbao v. Pandan (2011) SC1098 and Mendepo v. National Housing Corporation (2011) SC 1169. Consequently, the notice of objection to competency should be dismissed.

15. We will, however, consider the objection to competency further.

16. The respondent’s first ground of objection is that the first appellant does not have standing to appeal as the decision sought to be appealed does not directly affect its interests. It is submitted that this is because the first appellant has not challenged the termination of the Logging and Marketing Agreement between the respondent and the first appellant. The respondent relies upon the case of Porgera Joint Venture v. Yako (2008) SC916 for the proposition that even a person who is a party to proceedings in the National Court cannot have standing to appeal if the decision in the court below does not directly affect their rights or interests.

17. The appellants’ submit that they have standing as they are aggrieved by the interlocutory decision which refused their application to dismiss the proceeding.

18. As to the respondent’s submission, it was the respondent which named the appellants as the defendants in the National Court proceeding, presumably because the respondent considers that the appellants have rights or interests which will be directly affected in the proceeding. Secondly, the National Court proceeding commenced by the respondent continues. The substantive relief, including the validity or otherwise of the Logging and Marketing Agreement, has not been determined.

19. We are satisfied that the appellants have the necessary standing to bring the application for leave to appeal. The proceeding which the decision sought to be appealed refused to dismiss, is directly concerned with the rights of the first appellant and agreements it entered into with the respondent and with both appellants, as it was their application to dismiss which the National Court refused.

20. The second ground of the objection to competency is concerned with a purported failure to comply with Order 7 Rule 4(c) Supreme Court Rules.

21. The complaint is that the application for leave to appeal does not adequately state certain matters as are required by Order 7 Rule 4(c). From a reading of Order 7 Rule 4(c), it is clear that the Rule does not require an application for leave to appeal to ‘adequately’ state. It requires an application for leave to appeal to ‘state’.

22. Here, the appellant sets out paragraphs 1, 2, 3 and 4 of the originating summons in the National Court proceeding and then sets out a description of the notice of motion which sought to dismiss the proceeding. We are satisfied that the requirement to set out the nature of the case has been met: Gigmai Awal v. Elamo Elema [2000] PNGLR 288.

23. It is further contended that the application for leave to appeal does not ‘adequately’ state the questions involved. Here, the appellant contends that the primary judge fell into error and sets out four detailed issues. We are satisfied that these are the questions raised for determination by the court below: Gigmai Awal (supra). The requirement in Order 7 Rule 4(c) has been met.

24. It is further contended that the application for leave to appeal does not ‘adequately’ state the reasons that leave should be granted. We are satisfied that the reasons given in paragraphs 5 a), b) and c) of the application for leave to appeal satisfy the requirement of Order 7 Rule 4 (c). As mentioned, there is no requirement as to the specificity required in Order 7 Rule 4 (c).

25. Consequently for the above reasons the notice of objection to competency of the respondent should be dismissed.

Orders

26. It is ordered that:

a) The application of the respondent filed 12^th October 2021 is dismissed;

b) The notice of objection to competency of the respondent filed 23^rd August 2021 is dismissed;

c) The respondent shall pay the costs of the appellants’ of and incidental to the said application and notice on a party party basis to be taxed if not otherwise agreed.
__________________________________________________________________
Nelson Lawyers: Lawyers for the Appellants
Emmanuel Lawyers: Lawyers for the Respondent