Maser v Salin [2021] PGSC 30; SC2093 (30 April 2021)

SC2093

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 167 OF 2018

BETWEEN:
JOACHIM MASER
First Appellant

AND:
RONNIE BRUNO
Second Appellant

AND:
HENRY SALIN & EPHRAIM NASO
Respondents

Waigani: Gavara-Nanu J, David & Berrigan JJ.

2021: 27^th & 30^th April

APPEAL - Practice & Procedure - Objection to competency of an appeal - Supreme Court Rules; Order 7 r 15 - Mandatory requirements - Failure to comply with the requirements - Objection incompetent - Objection dismissed.

Cases Cited:

Avia Aihi v. The State [1981] PNGLR 81
Isaac Lupari v Sir Michael Somare MP. & Ors (2010) SC1071
Michael Wilson v. Clement Kuburam (2016) SC1489
National Capital Limited v. Loi Bakani & Ors (2014) SC1392
Nominee Niugini Ltd v. IPBC (2017) SC1646
Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Counsel:

R. Habuka, for the Appellants
R. Asa, for the First and Second Respondents

30^th April, 2021

1. BY THE COURT: Before us is a Notice of Objection to Competency of this appeal (Objection) by the respondents. The Objection is grounded on Order 7 r 15 of the Supreme Court Rules, 2012 (Rules). The appeal was filed on 17 October, 2018, and the Objection was filed on 28 November, 2018.
   
2. The respondents raised 8 grounds of Objection which can be summarized as follows:
   

Ground 1. The Notice of Appeal does not conform to Practice Direction No. 1 of 1994, and Order 7 r 9 (e) of the Rules relating to Form 8, which requires a Notice of Appeal to specify or state whether the transcript of proceedings was required or not.

Ground 2. The appellants have no standing to bring the appeal because they are named in the appeal only in their personal capacities and not as Chairman and Treasurer, Simberi Mining Area Association Inc. respectively, as they were in the National Court proceeding OS No. 653 of 2017. Furthermore, the appellants resigned in 2017, as executives of Simberi Mining Area Association Inc. They also have not filed any affidavits in support of their application to set aside the Court Orders of 01 August, 2018.

Ground 3. The appeal breaches s. 14 (2) of the Supreme Court Act, 1975, because the appellants are seeking to quash the Orders of 1 August, 2018, which were entered by consent.

Ground 6. That paragraph 3 (c) of the Notice of Appeal failed to state legal and factual reasons or grounds relied on by the appellants to show that the trial judge erred in law and in fact in refusing to set aside the Orders of 1 August, 2018, and thereby breached Order 7 rr 9 (c) and 10 of the Rules. Paragraph 3 (c) also raised issues which were not raised in the National Court.

Ground 7. That Paragraph 3(d) of the Notice of Appeal failed to state legal and factual reasons, circumstances or grounds relied on by the appellants to show that the trial judge erred in law and in fact and thereby breached Order 7 rr 9 (c) and 10 of the Rules. This ground also raised issues not raised in the National Court.

Ground 8. That paragraph 3 (e) of the Notice of Appeal failed to state legal and factual reasons, circumstances or grounds to show that the trial judge erred in law and in fact, and thereby breached Order 7 rr 9 (c) and 10 of the Rules. Furthermore paragraph 3 (e) raised issues which were not raised in the National Court.

3. Mr. Asa of counsel for the respondents elaborated these grounds of Objection in his written and oral submissions. Mr. Habuka of counsel for the appellants in response submitted that the Objection is itself incompetent on two grounds and should be dismissed. First, the Objection is in breach of Order 7 r 15 of the Rules and the Objection is based on this Rule. Second, the grounds of Objection raise issues which either go to the merits of the appeal or although the grounds of appeal have been clearly and sufficiently pleaded and particularized, allege that the grounds of appeal are ambiguous and insufficiently pleaded.
   
4. It is convenient that we deal firstly with the two grounds raised by Mr. Habuka regarding the competency of the Objection. It is important to note that Order 7 r 15 is relied on by the respondents as a jurisdictional basis of the Objection. The respondents also relied on s. 155 (4) of the Constitution as a jurisdictional basis for the Objection, but this argument is misconceived . We canvass this point later in the judgment. If we find that the Objection is in breach of Order 7 r 15, then that should be the end of the matter because the Objection will have no jurisdictional basis and the Court will have no jurisdiction to entertain the Objection. The provisions of Order 7 r 15 are explicit and are couched in mandatory terms. Thus, a respondent to an appeal who raises an objection to the competency of the appeal must comply strictly with the requirements of Order 7 r 15. First, the respondent must file an objection in accordance with Form 9 within 14 days after service on him of the notice of appeal. Second, the respondent must also within that 14 days serve a copy of the Objection on the appellant. Mr. Habuka argued that these mandatory requirements were breached by the respondents when the Objection was served on the appellants outside the 14 days of them being served with the notice of appeal, and service of the Objection was effected through an email which was also in breach of the Rules.
   
5. Mr Asa has conceded that his clients breached the mandatory requirements under Order 7 r 15, when they served the Objection on the appellants outside the 14 days of the Notice of Appeal been served on them. Mr. Asa also conceded that Objection was not served in accordance with the requirements of the Rules because service was done through an email.
   
6. The concessions by Mr. Asa are clearly fatal to the Objection because it means the respondents cannot rely on Order 7 r 15 as a jurisdictional basis for the Objection. This Court in Nominees Niugini Ltd v. IPBC (2017) SC1646, in discussing Order 7 r 15 said:
   

"Order 7 Rule 15 is quite explicit and unambiguous and couched in mandatory terms by the use of the word "shall". The rule requires that any objection to the competency of an appeal "shall" be filed "within 14 days after service on him of the notice of appeal". The rule plainly and ordinarily does not give any discretion or power on the Supreme Court to extend the fourteen days period.

The other view advocating the discretionary approach adopted by the Second Respondent seems to equate the inherent power of the Court as the source of the discretion. We think that is a misconception. We are of the view that the inherent power of the Court is independent to the statutory power given by Order 7 Rule 15 which is in mandatory terms and gives no discretion or power on the Supreme Court to extend the fourteen days period.

In the present case, LLLS served a sealed copy of the Notice of Appeal on Gadens on 21 July 2015. The time limited for the Second Respondent to file a notice of objection to competency of the appeal lapsed on 4 August 2015. The Second Respondent filed its objection on 4 September 2015, about six weeks after being served with a sealed copy of the Notice of Appeal. There is no dispute about service of the Objection to Competency. Clearly the Second Respondent breached the mandatory requirements of Order 7 Rule 15 of the Supreme Court Rules. Consequently, the Second Respondent cannot as a matter of right raise the question of competency now.

Is there any proper basis upon which the Court can exercise its inherent power to address the question of competency notwithstanding the Second Respondent being non-compliant with Order 7 Rule 15? We have considered the decision of the Court in Sir Arnold Amet v Peter Charles Yama (2010) SC 1064 where at paragraphs 27 and 28, the Court held:

The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:

It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.

...The inherent power of the Court carries with it, the onerous responsibility to safeguard its processes and procedures against abuse.” (Our underlining).

7. The Court therefore also has inherent power to consider competency at any stage of a proceeding but before judgment for possible abuse of process, this is discretionary. But where a respondent decides to object to the competency of an appeal or an application for leave to appeal, the respondent must comply strictly with the mandatory requirements of Order 7 r 15. The Court would lack jurisdiction to entertain an objection to competency which is itself incompetent for breaching these Rules and for abuse of process, as in this case. The improper use of the court processes is an abuse of process. See, Michael Newell Wilson v. Clement Kuburam (2016) SC1489.

8. Section 155 (4) of the Constitution has also been relied on by the respondents as a jurisdictional basis for the Objection. However, as we noted above, that argument is misconceived and has no merit because the provision does not itself give jurisdiction, it is only an enabling provision which is invoked to protect a primary right. See, Avia Aihi v. The State [1981] PNGLR 81 and Peter Makeng v. Timbers (PNG) Limited (2008) N3317. In Peter Makeng, Injia DCJ (as he then was) elaborated the principle. His Honour said that it:

“........is not the source of primary jurisdictional power. .........
Section 155 (4)confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.”

9. For the foregoing reasons, the Objection is itself incompetent and we dismiss it. This finding effectively puts an end to the respondents' application. See, Isaac Lupari v. Sir Michael Somare MP& Ors (2010) SC1071 and National Capital Limited v. Loi Bakani & Ors (2014) SC1392. However, for completeness we also state that in regard to the grounds of Objection, we accept Mr. Habuka's submissions that they are all deficient and incompetent and have no merit because they either raise issues which go to the merits of the appeal or the respondents have failed to prove them.

10. Consequently, we make the following Orders:

1. Objection to competency is itself incompetent and we dismiss it.
2. Pursuant to Order 12 r 15 of the Rules, the costs will follow the event.
___________________________________________________________
Habuka Lawyers: Lawyers for the Appellants
Warner Shand Lawyers: Lawyers for the Respondents