SC2153
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 108 OF 2020

BETWEEN
MANOLOS AVIATION LIMITED
Appellant

AND
ISLANDS HELICOPTERS SERVICES LIMITED trading as ISLANDS NATIONAIR
Respondent

Waigani:  Gavara-Nanu, Makail & Collier JJ
2021: 2nd June & 22nd September

SUPREME COURT – Practice & Procedure – Contested objection to competency – Grounds of appeal – Questions of fact – Leave is necessary – No leave sought – Appeal dismissed – Supreme Court Act – Sections 4(2)(c) &14(1)(2)(c) – Supreme Court Rules – Order 7, rule 15

Facts

This is a contested hearing on the papers of an objection to competency pursuant to Order 7, rule 15 of the Supreme Court Rules.  The contested issue is in relation to whether the grounds of appeal raised questions of fact and leave is necessary to validly invoke the jurisdiction of the Supreme Court to determine the appeal pursuant to Sections 4(2)(c) & 14(1)(c) of the Supreme Court Act.  The second contested issue is whether one of the grounds of appeal complied with Order 7, rules 9(c) and 10 of the Supreme Court Rules. The objection followed an appeal by the appellant against the whole of the judgment of the National Court of 14th August 2020 where after a trial on assessment of damages, the learned trial judge awarded damages in the sum of K1,385,923.69 in favour of the respondent for hire and use of its Bell 407 helicopter.

Held:

1.	The first ground of appeal disputed the learned trial judge’s decision to award damages in a sum that was not pleaded and sought in the statement of claim.  The requirement to plead facts and relief is a requirement of law and failure by the learned trial judge to find that the sum awarded was not pleaded and sought in the statement of claim is a conclusion of fact and law.  It gave rise to a question of mixed fact and law and leave is not necessary pursuant to Section 4(2)(b) and Section 14(1)(b) of the Supreme Court Act.  However, as the sum awarded as damages was decided on the evidence, this ground is of no consequence.

2.	Three of the grounds of appeal disputed the learned trial judge’s decision to accept the evidence of the respondent where the evidence was conflicting.  Where the trial judge is required to weigh the evidence and accept the evidence of one party, the grounds of appeal raised questions of fact.  Therefore, according to Sections 4(2)(c) & 14(1)(c) of the Supreme Court Act, leave is necessary.  As no leave was sought, these grounds are incompetent.

3.	The last ground of appeal failed to identify the alleged error with particulars and the specific reasons why it is alleged to be wrong in law. It is ambiguous, vague and contrary to Order 7, rules 9(c) and 10 of the Supreme Court Rules.  It is incompetent.

4.	The appeal is incompetent and is dismissed with costs.

Cases Cited:

Henzy Yakham & The National Newspaper v. Dr Hamilton Stuart &Ors [1998] PNGLR 555; (1998) SC533
Opai Kunangel v. The State [1985] PNGLR 144

Counsel:

Ms. G. Kogora, for the Appellant
Mr. I. R. Shepherd, for the Respondent

JUDGMENT
22nd September, 2021

1.	BY THE COURT: This is a contested hearing on the papers of an objection to competency pursuant to Order 7, rule 15 of the Supreme Court Rules (“SCR”).  The contested issue is in relation to whether the grounds of appeal raised questions of fact and leave is necessary to validly invoke the jurisdiction of the Supreme Court to determine the appeal pursuant to Sections 4(2)(c) & 14(1)(c) of the Supreme Court Act(“SC Act”).  The other contested issue is whether one of the grounds of appeal complied with Order 7, rules 9(c) and 10 of the SCR.

2.	The objection followed an appeal by the appellant against the whole of the judgment of the National Court of 14th August 2020 where after a trial on assessment of damages, the learned trial judge awarded damages in the sum of K1,385,923.69 in favour of the respondent for hire and use of its Bell 407 helicopter.

Requirement for Leave

3.	According to Section 4(2)(c), an appeal lies from a civil and criminal proceedings with leave of the Supreme Court, on a question of fact.  It states:

	“4.	Right of appeal from National Court.

(1)	……………..
(2)	An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal—

(a)	on a question of law; or
(b)	on a question of mixed fact and law; or
(c)	with the leave of the Supreme Court, on a question of fact.”

4.	The requirement to seek leave in the case of civil appeals on a question of fact is reinforced by Section 14(1)(c) which states:

	“14.	Civil appeals to the Supreme Court.

(1)	Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a)	on a question of law; or
(b)	on a question of mixed fact and law; or
(c)	with the leave of the Supreme Court, on a question of fact.

(2)	………….”.

5.	Finally, Supreme Court decisions in Henzy Yakham & The National Newspaper v. Dr Hamilton Stuart &Ors [1998] PNGLR 555; (1998) SC533 reinforced the proposition that where the grounds of appeal raise questions of fact, leave is necessary and the appropriate form to adopt to seek leave is Form 7 of the SCR.  A failure to obtain leave will render an appeal incompetent.  It has been held that question of weight and credibility of witnesses (evidence) raises a question of fact: see Opai Kunangel v. The State [1985] PNGLR 144. 

Grounds of Appeal

Ground 3.1i

6.	Relevantly, Ground 3.1i states:

“3.1	His Honour erred in law or mixed fact and law in finding that the amount of damages which are due to be paid by the Appellant to the Respondent relating to the hire of a Bell 407 helicopter is K1,385,923.69 in circumstances in which:

i.	The amount of damages awarded to the Respondent was not pleaded or claimed in the Statement of Claim wherein the Statement of Claim specifically claimed for a liquidated amount in the sum of K1,060,686.00 and not in the awarded sum”.	

7.	According to this ground, it is alleged that the sum pleaded and sought in the statement of claim as constituting liquidated damages is K1,60,686.00.  The allegation is the primary judge erred in law or mixed fact and law when he awarded summary judgment in the sum of K1,385,923.69 which was not pleaded and sought in the statement of claim.

8.	The requirement to plead facts and relief is a requirement of law and a failure by the primary judge to find that facts and relief, in this instance, the relief of K1,385,923.69 not being pleaded and sought in the statement of claim is a conclusion of fact and law.  To ground an appeal on a conclusion of fact and law raises a question of mixed fact and law.  According to Section 4(2)(b) and Section 14(1)(b) (supra), leave is not necessary.  

Grounds 3.1 ii - v

9.	Ground 3.1 ii - v states:

“3.1	His Honour erred in law or mixed fact and law in finding that the amount (sic) of damages which are due to be paid by the Appellant to the Respondent relating to the hire of a Bell 407 helicopter is K1,385,923.69 in circumstances in which:

ii.	The amount of damages awarded to the Respondent was excessive and beyond the amounts stated in invoice numbers 30 and 31 dated 1 September 2012 issued to the Appellant respectively for the sums of K823,086.00 and K237,600.00 totalling K1,060,686.00.

iii.	The evidence of Michael Mayberry in his Affidavit filed 14 June 2019 and accepted by the Trial Judge is unsubstantiated, unmeritorious and vague wherein Michael Mayberry’s assessment based on a review contained in his Letter dated 15 September 2016 was contrary to the Lease Agreement dated 7 November 2010 signed by the parties which provided for a fixed rate for a fixed period.

iv.	The evidence given by Michael Mayberry gave rise to the award of damages in excess of K325,237.69, an amount unsubstantiated by proper assessment and supporting evidence.

v.	The evidence given by Mark Chan in his affidavit filed 2 November 2015 and accepted by the Trial Judge asserted that according to the Appellant’s records to which Mark Chan annexed the Affidavit of Kessia Ruh, stated that K477,591.81 was the exact amount that was owed to the Respondent”.

10.	The allegations pleaded in Grounds 3.1ii-v show that in terms of evidence, firstly, the invoices produced by the respondent did not support the sum of K1,060,686.00 pleaded and sought in the statement of claim.  Secondly, the affidavit of Michael Mayberry is “unsubstantiated, unmeritorious and vague” and finally, it is contrary to the sum agreed between the parties in a lease agreement.  Therefore, the evidence did not support the learned trial judge’s finding and award damages which exceeded K325,237.69.  

11.	Finally, it is alleged that the learned trial judge accepted an affidavit by Mark Chan.  That affidavit annexed an affidavit of Kessia Ruh.  Kessia Ruh admitted that a sum of K477,591.81 was owed to the appellant.  According to the appellant, the admission by Kessia Ruh contradicted the sum awarded by the learned trial judge.  

12.	The combine effect of these allegations is that the appellant disputes the decision of the learned trial judge to accept the evidence of the respondent based on the invoices and sworn affidavits of Michael Mayberry and Mark Chan to award damages in favour of the respondent.  For example, the invoices show that the total sum outstanding was K1,060,686.00 and in his affidavit Mr Mayberry deposed that the sum outstanding was K325,237.69.  Add these two sums and the total sum outstanding was K1,385,923.69.  However, Kessia Ruh deposed that the sum outstanding was K477,591.81.  The conflicting evidence required the learned trial judge to look at the evidence and decide which one to accept.  They relate to the credibility and weight of the evidence.  He chose the latter.  The conclusion reached was based on facts as found by the learned trial judge and constitute questions of fact.  According to Sections 4(2)(c) and Section 14(1)(c) (supra), leave is necessary.  As no leave was sought, these grounds are incompetent.

Ground 3.2

13.	Ground 3.2 states:

“3.2.	His Honour erred in law or mixed fact and law in finding that the Appellant did not object to the tender of an earlier affidavit of Mark Chan and in doing so relied on an affidavit not filed earlier or prior to the one filed on 2 November 2015”.

14.	The allegations in Ground 3.2 are that firstly, the learned trial judge found that the appellant did not object to the tender of the affidavit of Mark Chan.  Secondly, he failed to rely on another affidavit filed prior to the one filed on 2nd November 2015.  

15.	The contested issue is whether this ground complies with Order 7, rules 9(c) and 10 of the SCR. Order 7, rule 9(c) states:

	“9.	The notice of appeal shall—

(a)	state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and
(b)	state whether the whole or part only and what part of the judgment is appealed from; and
(c)	state briefly but specifically the grounds relied upon in support of the appeal; and
(d)	state what judgment the appellant seeks in lieu of that appealed from; and
(e)	be in accordance with form 8; and
(f)	be signed by the appellant or his lawyer; and
(g)	be filed in the registry”. (Emphasis added).

16.	Order 9, rule 10 states:

“10.	Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law”.

17.	In this case firstly, it is not expressed in this ground that the appellant objected to the tender of the affidavit of Mark Chan which annexed a copy of the affidavit of Kessia Ruh.  It assumes it.  Secondly, it does not state the ground(s) of objection to these affidavits, eg, hearsay or irrelevance.  Thirdly, it is not expressed in this ground that the respondent did not tender the affidavit that was filed on 2nd November 2015.  Again, it is assumed that the learned trial judge relied on this affidavit without it being tendered by the respondent.  If the appellant is relying on an error of law, it is its duty to identify the alleged error with clarity and the specific reasons why it is alleged to be wrong in law.  If the alleged error is one of mixed fact and law, it is the duty of the appellant to express the alleged error with particulars and the specific reasons why it is alleged to be wrong in law.  In this instance, this ground fails to meet these requirements.  It is ambiguous and vague and contrary to Order 7, rules 9(c) and 10.  It is incompetent.

Conclusion and Orders

18.	Ground 3.1i raised a question of mixed fact and law.  However, as the sum awarded was based on evidence, that Grounds 3.1ii-v have been found to raise questions of fact alone and as no leave was sought to rely on these grounds, Ground 3.1i is of no consequence.  

19.	The end result, the appeal is incompetent and dismissed. The appellant shall pay the costs of and incidental to the objection, to be taxed, if not agreed.
_______________________________________________________________
Namani & Associates Lawyers:	Lawyers for Appellant
Ashurst Lawyers: Lawyers for Respondent