Tongayu v Oil Search Ltd [2021] PGSC 58; SC2131 (30 July 2021)

SC2131

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 30 OF 2021

BETWEEN
MR. ALEX TONGAYU
First Appellant

AND
SECURITIES COMMISSION OF PAPUA NEW GUINEA
Second Appellant

AND
OIL SEARCH LIMITED
First Respondent

AND
MR. CHRISTOPHER TAYLOR HNANGUIE
Second Respondent

AND
PNGX MARKETS LIMITED
Third Respondent

Waigani: Hartshorn, Kariko & Thompson JJ
2021: 26^th July, 30^th July

CIVIL APPEAL – objection to competency of appeal – capacity of appellants to file appeal - whether second appellant was subject to Attorney-General Act – whether second appellant’s lawyers required instructions from Attorney-General to appear – whether first appellant had capacity to appeal on behalf of second appellant – whether first appellant could appeal in personal capacity - Securities Commission Act 2015, Attorney-General Act 1989 consolidated to no.11/2013.

Counsel:

Mr N. Kopunye with Ms M. Worinu, for First & Second Appellants
Ms I. Guba with Ms D. Doiwa, for First Respondent
Mr D. Dusava, for Second Respondent
Mr J. Mesa, for the Third Respondent

30^th July, 2021

1. BY THE COURT: The second respondent has filed a Notice of Objection to Competency of the Appeal, which is supported by the first respondent (“the respondents”). There are essentially two grounds.

2. First, the Notice of Appeal and Supplementary Notice of Appeal are legal proceedings commenced in the Supreme Court, which have been filed by the first appellant in his name and in the name of the second appellant. The particulars in the Notice and Supplementary Notice of Appeal state that they are “Filed by Securities Commission of PNG”, which is the second appellant (“SCPNG”).

3. The respondents submit that the SCPNG is a statutory body established under a statute, namely, the Securities Commission Act, and is therefore subject to the provisions of the Attorney-General Act as amended by the Attorney-General (Amendment Act) 2013 (“the AG Act”). Section 1 of the AG Act defines the State to include a body set up by statute for government or official purposes. Section 7 of the AG Act says that the Attorney- General is the only person authorized to instruct lawyers to appear for the State.

4. The Public Money Management Regularisation Act 2017 was referred to in submissions, but has been declared unconstitutional by the Supreme Court (Reference by the Ombudsman Commission pursuant to Constitution s 19 (1) (2020) PGSC 43), and is not relevant.

5. SCPNG is a body set up by statute for government and official purposes, as is apparent from its contents, whereby it is responsible for regulating practices under other legislation including the Capital Market Act and Central Depository Act. Its functions include being responsible for the administration of the relevant Acts, and to advise the Minister every three months. The Chairman and members are appointed by the Head of State in accordance with the advice of the Appointment Committee consisting of the Prime Minister, Leader of the Opposition, Minister responsible for Commerce and Industry, Minister responsible for Treasury, Attorney General and the Governor of the Bank of PNG. There can be no doubt that the second appellant is a body set up by statute for government and official purposes.

6. SCPNG is therefore bound by the provisions of the AG Act. It follows that under s 7, only the Attorney-General may instruct lawyers to appear for the second appellant in any matter.

7. At the hearing of this Objection, Kopunye Lawyers appeared for the first and second appellants. They did not produce any evidence that they had been instructed by the Attorney-General, despite having been put on notice by the Objection that this would be required.

8. This issue was considered by the Supreme Court in Donald Valu & Anor v Ken Ngangan & Anor (2018) PGSC 62. In that case, the Konebada Petroleum Park Authority (“KPPA”) was a statutory body, which was therefore required to comply with the PMMR Act which was then in force, and the AG Act, and obtain approval from the A-G prior to engaging lawyers to file the appeal in the Supreme Court on behalf of the statutory body or its CEO. As the appellants had not obtained the A-G’s approval to engage lawyers to appear for KPPA before filing the appeal, the lawyers did not have authority to file the appeal. The issue of the possible separate status of the CEO, did not appear to have been raised, and the entire appeal was dismissed as incompetent.

9. The court followed the Supreme Court in Wahgi Savings and Loan Society Ltd v Bank South Pacific Limited (1980) PGSC 4 in holding that an objection to competency is really an objection to the jurisdiction of a court to entertain the point. The court in Valu’s case held that the appellant’s lawyers had not lawfully engaged the jurisdiction of the court as they had not obtained the A-G’s approval, and the appeal was therefore incompetent.

10. In the present case, SCPNG as a statutory body is obliged to comply with the AG Act and obtain instructions from the A-G to engage lawyers to appear on its behalf.

11. The appellants submitted that this meant that they would only be required to obtain instructions from the A-G to physically appear on behalf of SCPNG, at a hearing.

12. To appear on behalf of the State in any matter, must include the filing of legal proceedings on behalf of the State, as such proceedings necessarily require the lawyer who is filing the originating document, to be appearing for the State, the same as when filing a notice of appearance if defending proceedings on behalf of the State. We reject the appellant’s submission that approval is only required for the physical appearance of lawyers at a hearing.
13. By filing a Notice of Appeal and Supplementary Notice of Appeal without instructions from the A-G, the second appellant has therefore not correctly engaged the jurisdiction of the court, and the second appellants’ Appeal is incompetent.

14. The second Ground is that pursuant to the SCPNG Act, it is the SCPNG Chairman who is charged with the day-to-day administration of the Act and the exercise of its powers, which include the issue of legal proceedings by SCPNG, and he has not authorized the filing of the Appeal.

15. The second respondent deposed to the fact that he was the SCPNG Chairman and neither he nor they had authorized the filing of the Appeal by the second appellant. He said that SCPNG is not aggrieved by the National Court decision which is the subject of this Appeal, and the SCPNG has not filed an appeal against it.

16. The appellants produced no evidence to rebut this or to show that they had been authorized by the Chairman or SCPNG, to file the Appeal.

17. The respondents have therefore shown that the appellants did not properly engage the jurisdiction of the court by filing the Supplementary Notice of Appeal on behalf of the second appellant, without instructions from the second appellant. As a result, the Appeal is incompetent in relation to the second appellant.

18. Finally, the respondents raised the issue that the Appeal also could not have been authorized by the first appellant. Since the National Court decision, circumstances have changed, and the first appellant has deposed to the fact that he has “resigned from my position as Chairman” and that as from 22 April 2021 “I no longer have any claim to the position of Chairman”.

19. The Supplementary Notice of Appeal was filed on 30 April 2021, by Kopunye Lawyers. They did not have instructions to do so from the A-G, or from SCPNG, and they could not have received lawful instructions from the first appellant as he no longer had authority to give instructions.

20. In The Application by Belden Namah (2020) PGSC 33, a five-men bench of the Supreme Court found that the commencement of proceedings by a person involving the exercise of a power which he no longer had, by virtue of his suspension from duty, meant that he had not properly engaged the jurisdiction of the court, and the proceedings were incompetent.

21. Here, even if the first appellant had previously been the purported Acting Chairman of the second appellant, he had resigned from that position as from 22 April, and was no longer able to exercise any powers on behalf of the second appellant.

22. The Appeal is against a decision solely concerning the valid exercise of powers by SCPNG and its Chairman. The first appellant is no longer the purported Acting Chairman or member of SCPNG and can no longer exercise any of those powers. He no longer has any powers and has no legal interest in the second appellant or its position of Chairman.

23. The proceedings in the National Court were instituted against the first appellant in his capacity as purported Acting Chairman of SCPNG. In that capacity, the first appellant had made assertions of the invalidity of decisions made by the second respondent as Chairman of SCPNG. The first respondent issued the proceedings seeking declarations that the second respondent’s decisions were lawfully made, and the first appellant be restrained from asserting to the contrary. That relief was granted. If the first appellant wanted to appeal against the decision, he could only do so in the same capacity in which the decision had been made against him, namely, in his capacity as purported Acting Chairman. He no longer had that capacity at the time of filing the Supplementary Notice of Appeal.

24. In Porgera Joint Venture v Yako ( 2008) PGSC 11, the Supreme Court held:

An appellant, in order to have sufficient interest to found an Appeal, must have a sufficient interest in the subject matter of the decision from which the Appeal is taken. The decision must directly affect the rights of the appellant.

25. The court referred to the statement in Kitogara Holdings Ltd v NCDIC (1988-89) PNGLR 346, that s 17 of the Supreme Court Act operates so as to provide a right of appeal to any person whose interests are affected by or who is aggrieved by the order of the court.

26. The court determined that, in order to be aggrieved by a lower court decision, the appellant must have “a real and direct interest in the subject matter of the decision ....(which) must directly affect the rights of the appellant.” The court held that “the issue of whether the appellant has sufficient interest in the subject matter under the Appeal” is one of the “ .... thresh-hold jurisdictional questions which can be addressed by an objection to competency...”.

27. The decision which is the subject of the present Appeal, does not directly (or indirectly) affect the first appellant’s rights. Even if he previously had any right arising from his purported position of Acting Chairman of the second appellant, he no longer has that right. The first appellant in his personal capacity, no longer in the capacity of purported Acting Chairman, has no real or direct interest in the subject matter of the decision of the Appeal, and it does not directly affect any of his personal rights. As his personal interests are not affected by the decision the subject of the appeal, and he has no other interest, he cannot be aggrieved by it, and he does not have a right of appeal. This issue is properly raised by an objection to competency.

28. As the first appellant does not have sufficient interest, or indeed any interest at all, in the subject matter of the decision under appeal, he has not properly invoked the jurisdiction of the court to entertain the appeal. As a result, the Appeal is also incompetent in relation to the first appellant.

29. The Court therefore orders:

(1) The Notice of Objection to Competency of the Appeal, is upheld.
(2) The Appeal is dismissed.
(3) The First Appellant is to pay the costs of the Second Appellant and of the Respondents, on a party/party basis, to be agreed or taxed.

__________________________________________________________________
Kopunye Lawyers: Lawyers for First & Second Appellants
Allens PNG Lawyers: Lawyers for First Respondent
B. S. Lai Lawyers: Lawyers for Second Respondent
Corrs Chambers Westgarth Lawyers: Lawyers for Third Respondent