Akiko v Ekepa [2022] PGSC 10; SC2203 (2 March 2022)

SC2203

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 96 OF 2021

NELSON AKIKO
First Appellant

REUBEN LOLI NALEPE
Second Appellant

V

MARK TONY EKEPA
First Respondent

HON JOHNSON TUKE MP, MINISTER FOR MINING
Second Respondent

MINERAL RESOURCES AUTHORITY
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Cannings J, Kariko J, Anis J
2022: 21^st February, 2^nd March

SUPREME COURT – practice and procedure – objection to competency of appeal – appellants were not parties to National Court proceedings and lacked standing – the subject of appeal was a consent order, requiring leave to appeal against it – the grounds of appeal: raise matters not argued in National Court; raise questions of fact and leave to appeal not sought; are frivolous and vexatious.

The appellants filed a notice of appeal against a final order of the National Court. The first respondent and the second and third respondents filed separate notices of objection to competency of the appeal that contained overlapping grounds of objection, summarised as: (1) the appellants were not parties to the National Court proceedings and lacked standing; (2) the appeal raised questions of fact only, requiring leave to appeal, which was not sought or granted; (3) the appeal is against a consent order; (4) the appeal raises matters that were not argued in the National Court; and (5) the grounds of appeal are frivolous and vexatious. The appellants raised a preliminary point that the notices of objection to competency were incompetent due to a failure to state the jurisdictional basis of each ground of objection.

Held:

(1) The notices of objection to competency were defective in that they each failed to sufficiently plead the specific provisions of the Supreme Court Act that the appeal allegedly breached. However, the Court has discretion to entertain an objection even if notice of it is defective. It exercised that discretion here, as the notice of objection raised arguable grounds and the appellants had been put on notice of them. The objections were heard and determined on their merits.

(2) Though the appellants were not parties to the National Court proceedings they were not required to seek leave to appeal (due to them not being parties) and appeared to have a genuine interest in the subject matter and to be directly affected by the order, giving them a sufficient interest in the proceedings to warrant an appeal. The first ground of objection failed.

(3) The questions raised in the notice of appeal were of mixed fact and law and did not require leave, so the second ground of objection failed.

(4) The fact that the appeal was against a consent order was inconsequential as the general prohibition under s 17(2) of the Supreme Court Act against appealing against consent orders only applies to those who were parties to the consent order. The third ground of objection failed.

(5) The fact that the grounds of appeal raised questions of fact and law not raised in the National Court was inconsequential as the general prohibition against appealing on grounds not addressed in the National Court only applies to those who were parties to the National Court proceedings. The fourth ground of objection failed.

(6) An argument that the grounds of appeal are frivolous and vexatious would only succeed as a ground of objection to competency if all grounds were so incomprehensible as not to be properly regarded as grounds of appeal, which was not the case here, so the fifth ground of objection failed.

(7) All grounds of objection failed, therefore the objections to competency were dismissed, with costs.

Cases Cited

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205
Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
Hamaka v Kombri SCA No 178 of 2019, 17.07.20 unreported
Hegele v Kila (2011) SC1124
Kandakapi v Enga Provincial Government (2011) SC1139
Kitogara Holdings Pty Ltd v NCDIC [1988-89] PNGLR 346
Kuk v O’Neill (2014) SC1331
Lowa v Akipe [1991] PNGLR 265
Mountain Catering Ltd v Punangi (2013) SC1225
Nandali v Curtain Brothers Ltd (2012) SC1483
Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
PNG Law Society v Cooper (2016) SC1553
Porgera Joint Venture v Yako [2008] PNGLR 173
Sarea v Moutu (2019) SC1893
Toale Hongiri ILG v Wolotou ILG (2012) SC1201
Turia v Nelson (2008) SC949
Van Der Kreek v Van Der Kreek [1979] PNGLR 185
Yanto v Piu (2005) SC798

Counsel

J Haiara, for the Appellants
P Mawa, for the First Respondent
N Saroa, for the Second and Third Respondents
T Tanuvasa, for the Fourth Respondent

2^nd March, 2022

1. BY THE COURT: The first respondent and the second and third respondents filed separate notices of objection to competency of the appeal. They are supported by the fourth respondent.

2. The appeal, SCA No 96 of 2021, is against the final order of the National Court in OS No 102 of 2021, made on 2 July 2021, which relates to identification of sub-clan representatives for purposes of negotiations regarding reopening of the Porgera gold mine, Enga Province.

3. The two objections to competency have been heard jointly. They contain overlapping grounds, which can be summarised as follows:

1. the appellants were not parties to the National Court proceedings and lacked standing;
   
2. the appeal raises questions of fact only, requiring leave to appeal, which was not sought or granted;
   
3. the appeal is against a consent order;
   
4. the appeal raises matters that were not argued in the National Court; and
   
5. the grounds of appeal are frivolous and vexatious.
   

4. The appellants raised a preliminary point that the notices of objection to competency were incompetent due to a failure to state the jurisdictional basis of each ground of objection. We will deal with that issue first, then consider the grounds of objection.

OBJECTION TO NOTICES OF OBJECTION

5. We agree with the respondents that the notices of objection to competency are compliant with form 9 and have been filed and served in accordance with O 7, r 15 of the Supreme Court Rules. We also agree that we are not bound by previous Supreme Court decisions on the point made by the appellants. However, we must acknowledge that those decisions support the appellants’ point. Nandali v Curtain Brothers Ltd (2012) SC1483, PNG Law Society v Cooper (2016) SC1553 and Hamaka v Kombri SCA No 178 of 2019, 17.07.20 unreported, all refer to O 13, r 15 of the Supreme Court Rules in support of the proposition that a notice of objection to competency falls within the meaning of an “application” for the purposes of O 13, r 15 and therefore “must contain a concise statement of the Court’s jurisdiction to grant the orders being sought”.

6. What this means in practice, according to those decisions, is that a notice of objection must not only be in form 9 but each of the grounds of objection must, in addition to stating the ground, specify with particularity which provision of the Supreme Court Act or the Supreme Court Rules is offended against. We have not heard sufficient argument on this issue to consider departing from those decisions, so we apply them here and find that each of the notices of objection is deficient due to the failure to adequately state the jurisdictional basis of each ground of objection.

7. We do not, however, agree with the further argument of the appellants, which is that the objections to competency are themselves incompetent and are fatally flawed and ought to be summarily dismissed. We prefer the approach taken in cases such as Amet v Yama [2010] 2 PNGLR 87, Mountain Catering Ltd v Punangi (2013) SC1225, Kuk v O’Neill (2014) SC1331, Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646 and Sarea v Moutu (2019) SC1893. Though the respondents have no right to have their objections to competency heard (as they ought to have sought leave to raise their objections (Lowa v Akipe [1991] PNGLR 265, Hegele v Kila (2011) SC1124), but did not), the Court still has discretion to entertain the objections. The Court can also of its own volition at any time raise any issue as to jurisdiction of the Court, including competency of an appeal.

8. We have decided to exercise that discretion here, despite leave to argue the objections not being sought, as the notices of objection raise arguable grounds and the appellants have been put on notice of them. The objections will be heard and determined on their merits.

GROUND OF OBJECTION 1: APPELLANTS WERE NOT PARTIES TO THE NATIONAL COURT PROCEEDINGS AND LACK STANDING

9. The respondents point out that the appellants were not parties to the National Court proceedings. It is argued that they therefore lack standing to institute the appeal.

10. We reject this argument. Though the appellants were not parties to the National Court proceedings, they nevertheless have a right under s 17 of the Supreme Court Act, as persons who ‘desire to appeal’, to appeal. The criteria that they need to satisfy are that their interests are directly affected or that they are aggrieved by the order of the National Court and might have been joined as a party to the proceedings. These criteria were established in the leading case, Kitogara Holdings Pty Ltd v NCDIC [1988-89] PNGLR 346 and developed in Yanto v Piu (2005) SC798 and Porgera Joint Venture v Yako [2008] PNGLR 173. Their appropriateness has not been called into question in subsequent cases. There is sufficient material before us to show that the appellants meet them.

11. The appellants appear to have a genuine interest in the subject matter and to be directly affected by the order, giving them a sufficient interest in the proceedings to warrant an appeal. The first ground of objection fails.

GROUND OF OBJECTION 2: APPEAL RAISES QUESTIONS OF FACT ONLY, REQUIRING LEAVE TO APPEAL

12. The respondents argue that the appellants required leave to appeal before filing their notice of appeal, as the appeal is based on questions of fact only and therefore leave was required under s 14(1)(c) of the Supreme Court Act.

13. Section 14(1) (civil appeals to the Supreme Court) states:

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. [Emphasis added.]

14. The respondents argue that some the grounds of appeal in the supplementary notice of appeal raise questions of fact, for which leave to appeal has not been sought. This is a tacit concession that some grounds raise questions of law or questions of mixed law and fact. That being the case, there are some questions that do not require leave. There are some grounds of appeal that properly invoke the jurisdiction of the Supreme Court.

15. We have examined the grounds of appeal in the notice of appeal. It cannot be said that all of them require leave, due to them raising only questions of fact. We are not inclined at this juncture to assess each of numerous grounds of appeal for the purpose of determining which ones required leave and ought to be struck out and which ones should remain. That can be done at the hearing of the appeal. For present purposes, it is sufficient to say that there are some grounds of appeal that are properly before the Court.

16. As an objecting party must show that all grounds of appeal are not properly before the Court, ie that the Supreme Court’s jurisdiction has not been properly invoked in any respect (Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205), the second ground of objection fails.

GROUND OF OBJECTION 3: THE APPEAL IS AGAINST A CONSENT ORDER

17. The respondents argue that the appeal is against a consent order and is prohibited by s 14(2) of the Supreme Court Act, which states:

An appeal does not lie from an order of the National Court made by consent of the parties.

18. We reject this argument. The fact that the appeal was against a consent order is inconsequential as the general prohibition under s 17(2) of the Supreme Court Act against appealing against consent orders only applies to those who were parties to the consent order (Kitogara Holdings Pty Ltd v NCDIC [1988-89] PNGLR 346, Toale Hongiri ILG v Wolotou ILG (2012) SC1201). The appellants were not parties to the consent order of 2 July 2021. The third ground of objection fails.

GROUND OF OBJECTION 4: ISSUES RAISED IN THE NOTICE OF APPEAL WERE NOT RAISED IN THE NATIONAL COURT

19. The respondents argue that all grounds of appeal raise issues that were not raised in the National Court. Therefore, those issues cannot be raised in the Supreme Court. Reliance is placed on the principles exemplified by the leading case, Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705: if an argument is not raised in the National Court, it cannot be raised in a ground of appeal in the Supreme Court. There are other cases that have applied a modified form of that principle, so that it is possible for a ground of appeal to raise matters that were not raised in the National Court if leave is sought and granted to do so (Van Der Kreek v Van Der Kreek [1979] PNGLR 185, Papua Club Inc v Nusaum Holdings Ltd (2005) SC812).

20. Whichever approach is taken here, leave has not been sought, so it is unnecessary to traverse the issues raised by the latter cases.

21. The fact that the grounds of appeal raised questions of fact and law not raised in the National Court is inconsequential as the general prohibition against appealing on grounds not addressed in the National Court only applies to those who were parties to the National Court proceedings. The fourth ground of objection fails.

GROUND OF OBJECTION 5: GROUNDS OF APPEAL ARE FRIVOLOUS AND VEXATIOUS

22. The respondents say that the grounds of appeal are frivolous and vexatious and have no chance of success, and this renders the appeal an abuse of process and incompetent.

23. We acknowledge that the Court has an inherent power to protect its processes against abuse. But we have insufficient evidence that that is what is happening here. An argument that the grounds of appeal are frivolous and vexatious will rarely provide effective support for an objection to competency of the appeal (Turia v Nelson (2008) SC949, Hegele v Kila (2010) SC1124, Kandakapi v Enga Provincial Government (2011) SC1139).

24. The respondents would need to persuade us that all grounds of appeal are so devoid of merit or incomprehensible that they have the effect of depriving the Court of jurisdiction. A cursory examination of the grounds of appeal shows that that is not the case here. The fifth ground of objection to competency fails.

CONCLUSION
25. All grounds of objection to competency of the appeal are refused. The objections to competency will be refused. The appeal will be referred to the Duty Judge. Costs will follow the event.

ORDER

1. The objections to competency are dismissed.
   
2. The appeal is referred to the Duty Judge, to give directions for hearing the appeal in accordance with Order 13 of the Supreme Court Rules.
   
3. The first, second and third respondents shall pay the appellants’ costs of the objections to competency on a party-party basis, which shall, if not agreed, be taxed.

________________________________________________________________
Haiara’s Legal Practice: Lawyers for the Appellants
Mawa Lawyers: Lawyers for the First Respondent
Nelson Lawyers: Lawyers for the Second & Third Respondents
Solicitor-General: Lawyer for the Fourth Respondent