Vai v Tamaku [2022] PGSC 107; SC2304 (31 October 2022)

SC2304

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 15 OF 2022

ANTHONY VAI
Appellant

V

JOHN TAMAKU
First Respondent

PIUS NIMAKO
Second Respondent

DII ASSH KAMISO
Third Respondent

Waigani: Cannings J, Toliken J, Numapo J
2022: 27^th, 31^st October

PRACTICE AND PROCEDURE – objection to competency of appeal – whether notice of appeal in proper form – whether grounds of appeal pleaded with sufficient particularity – whether grounds of appeal raised questions of fact, requiring leave to appeal – whether grounds of appeal made grammatical and legal sense.

The appellant filed a notice of appeal against a final order of the National Court, containing six grounds of appeal numbered 3.1 to 3.6. The third respondent filed a notice of objection to competency raising six grounds of objection, summarised as: (1) the notice of appeal was “out of form”; (2) ground 3.1 was non-compliant with Order 7 rule 9(c) of the Supreme Court Rules as it failed to plead with specific particulars where the trial judge erred in fact and law; (3) ground 3.1 was non-compliant with s 14(1)(c) of the Supreme Court Act as it pleaded factual matters without obtaining leave of the Court; (4) ground 3.2 involved only questions of fact, for which leave was required but not obtained; (5) grounds 3.1, 3.3 and 3.4 are contrary to Order 7 rule 9 of the Supreme Court Rules as they are repetitious and failed to plead where the trial judge erred in fact and law; (6) grounds 3.5 and 3.6 fail to comply with Order 7 rule 9(c) and 10 and Order 10 rule 3(a) of the Supreme Court Rules, as they make no grammatical or legal sense and are not pleaded with sufficient particularity.

Held:

(1) The notice of appeal was substantially compliant with the Rules, the only defect being that there was no address for service specified. The departure from the Rules was insignificant and did not deprive the Court of jurisdiction. Ground of objection 1 refused.

(2) Ground of appeal 3.1 alleged errors of fact and law by the trial judge briefly and specifically, in compliance with Order 7 rule 9(c) of the Rules. Ground of objection 2 refused.

(3) Ground of appeal 3.1 raised questions of mixed fact and law and did not require leave of the Court. Ground of objection 3 refused.

(4) Ground of appeal 3.2 was expressed in terms of an alleged error of fact by the trial judge and therefore on the face of it required leave of the Court. However, on closer examination it appears to be properly regarded as raising questions of mixed fact and law, which means leave was not required. Ground of objection 4 refused.

(5) Grounds of appeal 3.1, 3.3 and 3.4 are not repetitious and do not fail to plead where the trial judge erred in fact and law. Ground of objection 5 refused.

(6) Grounds 3.5 and 3.6 make grammatical and legal sense and are pleaded with sufficient particularity. Ground of objection 6 refused.

(7) All grounds of objection refused. The objection to competency of the appeal was refused, with costs.

Cases Cited

The following cases are cited in the judgment:

Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205
Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962

Counsel:

J F Unua, for the Appellant
P Balos, for the Third Respondent

31^st October, 2022

1. BY THE COURT: The third respondent objects, by notice filed on 4 March 2022, to the competency of the appeal, SCA 15 of 2022.

2. The appeal is against the final order of the National Court in WS No 1397 of 2010, made on 20 January 2022. The National Court dismissed the proceedings, concerning a residential property in the National Capital District. The appellant was the plaintiff and the three respondents to the appeal were defendants.

3. The notice of appeal pleads six grounds of appeal:

3.1 The primary Judge erred in fact and in law when it [sic] decided that:-

• (a) the plaintiff had no standing to institute the proceeding in the beginning as the agreement to purchase interest on the NHC property was between the appellant’s brother Oa Vai and the First Respondent and not the Plaintiff;
  
• (b) the agreement between the Appellant and the First Respondent was purely oral when there was in fact overwhelming evidence that a part oral and part written agreement for purchase of beneficial interest on the National Housing Corporation (NHC) property described as State Lease Volume 94, Folio 10, section 310, allotment 137, Hohola (Talvung street, Gerehu stage 4, NCD) existed in the absence of a signed agreement.
  

3.2 The Primary Judge erred in fact when he failed to infer based on the overwhelming evidence supplied by the appellant that there existed a binding agreement between the Appellant and the First Respondent in the absence of a written agreement which was since misplaced by the Appellant and instead rely on the unsigned agreement before the Court to constitute the Appellant’s case that the agreement was part oral and part written.

3.3 The primary judge erred in fact and in law in holding that the agreement between the Appellant and the First Respondent was unenforceable.

3.4 The primary judge erred in both law and in fact when he found the agreement between parties to be that of a Contract of Sale of land when the agreement in fact was that of an agreement to sell the tenancy, equitable or beneficial interests of the property.

3.5 The primary Judge erred both in law and in fact when holding that the subject property was under joint tenancy where the First Respondent and his wife were joint tenants and that the First Respondent did not have the legal capacity to enter into any agreement to sell, when in fact the title to property was still under the National Housing Corporation at the time of entering into the agreement between the appellant and the First Respondent.

3.6 The primary judge erred in law and in fact when he decided that the agreement between the Appellant and the First Respondent was solely negotiated and concluded by the appellant’s brother Oa Vai and not the Appellant, hence he had no standing to bring the action when in fact execution of the terms of the agreement itself was executed both orally and in writing between the Appellant and the First Respondent and every other term of the agreement honoured by the Appellant including signing, negotiation and payment of the deposit and instalment payment of the balance in excess of K20,300.00 instead of K14,000.00 as initially agreed.

GROUNDS OF OBJECTION

4. There are six grounds of objection.

(1) The notice of appeal is “out of form” and does not comply with the mandatory requirements of Order 7 rules 8 and 9(e) and Forms 8 and 17 of the Supreme Court Rules.

5. The provisions of the Rules referred to prescribe the form of a notice of appeal. The notice of appeal in this case complies substantially with the form. The only problem is that it omits the address for service panel, which should have been incorporated into the notice of appeal.

6. This departure from the Rules is insignificant and does not deprive the Court of jurisdiction. We endorse the sentiments expressed by this Court in the leading case Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205, that “form cannot triumph over substance”. Ground of objection 1 is refused.

(2) Ground 3.1 is non-compliant with Order 7 rule 9(c) of the Supreme Court Rules as it fails to plead with specific particulars where the trial judge erred in fact and law.

7. Order 7 rule 9(c) of the Rules requires that a notice of appeal shall “state briefly but specifically the grounds relied upon in support of the appeal”.

8. We consider that ground of appeal 3.1 states alleged errors of fact and law by the trial judge briefly and specifically, in compliance with Order 7 rule 9(c) of the Rules. Ground of objection 2 is refused.

(3) Ground 3.1 is non-compliant with s 14(1)(c) of the Supreme Court Act as it pleads factual matters without obtaining leave of the Court.

9. Section 14(1) of the Supreme Court Act provides:

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.

10. Leave of the Court is required if a ground of appeal raises questions of fact only. Ground of appeal 3.1 clearly involves questions of mixed fact and law, for which leave is not required. Ground of objection 3 is refused.

(4) Ground of appeal 3.2 involves only questions of fact, for which leave is required but has not been sought or granted.

11. It is correct that on the face of it, ground of appeal 3.2 is expressed in terms of an alleged error of fact by the trial judge and would appear to require leave of the Court. However, on closer examination it appears to be raising questions of mixed fact and law, and if it is so regarded, leave to argue it is not required. The question of whether it is raising questions of fact only, or questions of mixed fact and law is better left for the hearing of the appeal.

12. For present purposes, we are not satisfied that it is raising questions of fact only or that leave to argue it is required. Ground of objection 4 refused.

(5) Grounds 3.1, 3.3 and 3.4 are contrary to Order 7 rule 9 of the Supreme Court Rules as they are repetitious and fail to plead where the trial judge erred in fact and law.

13. Order 7 rule 9(c) and (d), combined with Order 7 rule 10, prescribe how grounds of appeal should be drafted.

14. Order 7 rules 9(c) and (d) state:

The notice of appeal shall — ...

(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.

15. Order 7 rule 10 states:

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.

16. It was explained in Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322 and Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962, that such provisions impose three requirements for drafting grounds of appeal:

1. The ground relied on in support of the appeal must be stated briefly, but specifically.
   
2. If it is alleged that a judgment is against the evidence or the weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence.
   
3. If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.
   

17. We are satisfied that grounds of appeal 3.1, 3.3 and 3.4 meet those requirements. They are not repetitious and do not fail to plead where the trial judge erred in fact and law. Ground of objection 5 is refused.

(6) Grounds 3.5 and 3.6 fail to comply with Order 7 rule 9(c) and 10 and Order 10 rule 3(a) of the Supreme Court Rules, as they make no grammatical or legal sense and are not pleaded with sufficient particularity.

18. We do not understand why Order 10 rule 3(a) is relied on in this ground of objection. It appears to be irrelevant. Be that as it may, we are satisfied that grounds of appeal 3.5 and 3.6 make grammatical and legal sense and are pleaded with sufficient particularity. Ground of objection 6 is refused.

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

ORDER

1. The objection to competency of the appeal is refused.
   
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 third respondent shall pay the appellant’s costs of the objection to competency on a party-party basis, which shall, if not agreed, be taxed.

________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Korerua Lawyers: Lawyers for the Third Respondent