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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 139 OF 2021 (IECMS)
BETWEEN:
NELSON AKIKO
First Appellant
AND
RUEBEN LOLI NALEPE
Second Appellant
V
NIXON MANGAPE in his capacity as elected Clan Agent for Tieni Waupe Clan,
JOE KALE in his capacity as elected Clan Agent for the Tieni Akira Clan,
SOLE TARO in his capacity as elected Clan Agent for Tuanda Yapala Clan,
NIKER PULI in his capacity as elected Clan Agent for Tuanda Ulupa Clan
First Respondent
AND:
MINERAL RESOURCES AUTHORITY
Second Respondent
AND:
HON. JOHNSON TUKE in his capacity as Minister for Mining
Third Respondent
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent
AND:
INVESTMENT PROMOTION AUTHORITY
Fifth Respondent
Waigani: David J, Anis J, Dowa J
2022: 30th June and 15th July
OBJECTION TO COMPETENCY – Objection based on question of jurisdiction – claim that appeal is based on consent order thus is prohibited by s 14(2) - Supreme Court Act Chapter No. 37 – claim that appeal is incompetent - claim that all grounds of appeal raise questions of fact only – claim that leave was required under s 14(1)(c) of the Supreme Court Act and under Order 7.3 and 7.4 of the Supreme Court Rules 2012 but had not been sought –- claim that appeal is incompetent – claim on abuse of process – considering whether the ground is competent and may be raised in an objection to competency application – claim on want of form – claim dependent or based on earlier grounds – whether notice of appeal filed in compliance with and under Form 8 – whether notice of appeal filed in breach of Order 7.3 and 7.4 of the Supreme Court Rules – considerations – ruling
Cases Cited:
Kitogara Holdings Pty Ltd v NCDIC [1988-89] PNGLR 346
Nelson Akiko and 1 Or v. Mark Ekepa and Ors (2022) SC2203
Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221
Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1056
State v. John Talu Tekwie (2006) SC843
Jeffrey Turia v. Gabriel Nelson (2008) SC949
James Marape v. Peter O’Neill (2016) SC1486
Counsel:
J Haiara, for the First & Second Appellants
L J Baida, for the Second & Third Respondent
P T Ohuma, for the Fourth Respondent
15th July, 2022
1. BY THE COURT: This was a contested hearing of an application for objection to competency. It was filed and moved by the second and third respondents (applicants), and it was supported by the fourth respondent. We heard the matter and reserved our ruling on 30 June 2022.
BACKGROUND
2. The appeal stems from a judgment of the National Court made on 23 September 2021 in proceeding OS No. 208 of 2021 (the National Court proceeding). The appellants were not parties to the National Court proceeding. They were however aggrieved by the final decision made therein. They claim by this appeal that they had direct interest in the National Court proceeding which they said involved the same or similar disputes in related proceedings where they were also parties. The final decision appealed against consists of a consent order which was sought and obtained by parties in the National Court proceeding including the respondents herein on 23 September 2021 (Consent Order). The appellants’ main grievance for the substantive appeal is that the Consent Order was obtained without their involvement or knowledge, thus they intend to argue, amongst others, that their rights to natural justice had been breached.
3. The dispute relates to appointments of clan agents for landowners whereby the clan agents, upon being appointed, would represent the landowners’ interests in the Pogera Gold Mine. Various related proceedings were filed that have or had similar disputes, one of which was the National Court proceeding which is now the subject of this appeal.
OBJECTION
4. The Notice of Objection to Competency was filed on 15 November 2021 (the Objection). It alleges (i), want of jurisdiction, (ii), abuse of process, and (iii), want of form, to say that the appeal is incompetent.
PRELIMINARY OBJECTION
5. The appellants raised a preliminary objection to the competency of the Objection. They say the Objection was filed outside the mandatory 14 days requirement as provided for under Order 7 Rule 15 of the Supreme Court Rules 2012 (SC Rules). We note that Division 7.5 or Order 7 Rule 15 has been repealed by the Supreme Court (Miscellaneous Amendments) Rules 2022 (SCMAR). The SCMAR came into effect as of 1 May 2022, that is, as determined by the Chief Justice and published in National Gazette No G162 of 9 March 2022. They are therefore applicable herein. See Order 1 Rule 5 of the SC Rules as amended.
6. Rule 3 of SCMAR states:
“3. Repeal and replacement of Division 7.5 (objection to competency of appeal)
Division 7.5 (objection to competency of appeal) is repealed and replaced by the following:
“15. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service of the notice of appeal or application for leave to appeal—
(a) file an objection in accordance with Form 9; and
(b) serve a copy of the objection on the appellant in any manner including by service on the appellant’s lawyers in the National Court proceedings.”
7. The parties do not dispute that the appellants’ Notice of Appeal filed on 27 October 2021 (NoA) was served on the applicants on 1 November 2021. The Objection was filed on 15 November 2021, that is, on the 14th or the last day of the time permitted under Division 7.5 of the SC Rules as amended. The appellants’ submission that it was filed a day after the 14th day is misconceived, and we dismiss it.
JURISDICTION
8. Under the ground, jurisdiction, the applicants firstly say that since the appeal is against a consent order of the National Court, the appellants do not have any appeal rights, pursuant to s 14(2) of the Supreme Court Act Chapter No. 37 (SC Act), to lodge this appeal.
9. Section 14(2) reads:
“An appeal does not lie from an order of the National Court made by consent of the parties.”
10. We dismiss this ground of the Objection. The appellants herein were not parties to the National Court proceeding but rather were aggrieved interested persons. Contrary to the submissions of the applicants on this point, they have rights to appeal as interested persons. This is permitted by s 17 of the SC Act which was highlighted in this Court’s decision in Kitogara Holdings Pty Ltd v NCDIC [1988-89] PNGLR 346. Secondly, we note that the appellants did not consent to the Consent Order that is the subject of this appeal. Section 14(2) expressly refers to consent orders made by those persons who are parties in a National Court proceeding and who have signed a consent order. This Court recently in Nelson Akiko and 1 Or v. Mark Ekepa and Ors (2022) SC2203, held, amongst others, at headnote (4) as follows:
“The fact that the appeal was against a consent order was inconsequential as the general prohibition under s 17(2) (sic) 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.”
......
11. We will assume, as we think it is, that the Court’s reference to s 17(2) in Nelson Akiko above was rather to s 14(2) of the SC Act. With that, we find that the fact that the appellants are appealing against a consent order is inconsequential as the general prohibition under s 14(2) of the SC Act only applies to those persons who were parties to the Consent Order which includes the respondents herein. Given that, the appellants are free to and have the right to lodge their appeal as interested persons pursuant to s 17 of the SC Act. They have done so in this case.
12. The applicants’ second ground of objection under jurisdiction is this. They say or claim that the grounds of appeal in the NoA all raise questions of facts only. As such, leave of court, they submit, was required and that the correct process should have been for the appellants to file an application for leave to appeal first, seek leave and subject to leave being granted, file the NoA.
13. We have considered the submissions of the parties.
14. The grounds of appeal are five in total. They are contained at pages 4 and 5 of the NoA which may be found at pages 7 and 8 of the Objection Book (OB). We set them out herein,
3.1 His Honour the trial Judge erred in fact and law by endorsing the purported Consent orders instead of refusing the application and dismissing the proceedings for; -
(a) abuse of process constituted by Plaintiffs and their privies instituting multiple proceedings namely OS NO. 193 OF 2021, OS NO 191 of 2021 and OS NO. 208 of 2021.
(b) abuse of process for reason that there is no real controversy between the Plaintiffs and named Defendants whereas real controversy is between the Plaintiffs and other landowners and landowner agents such as the appellants herein who were not name as parties nor served the Court documents nor aware of the proceedings.
3.2 His Honour erred in law in endorsing the draft Consent orders in the absence of the Appellants and other affected landowner agents and further without ensuring that these other landowner agents or persons who were or might be affect by the orders of 2nd July 2021 made in OS NO. 102 of 2021:
(a) Were named as parties to the proceedings;
(b) were served the Court documents; and
(c) were notified of the hearing date;
thereby denied natural justice to the appellants.
3.3 His Honour erred in law in failing to return the parties to Court in proceedings OS NO. 102 of 2021 [IECMS] to ensure parties compliance or otherwise of the terms of Court order made on 2nd July 2021 instead entertained multiple proceedings when there was no real controversy between the Plaintiffs and the Defendants to warrant the Court to entertain the parties and endorse the proposed Consent orders or even make any orders sought by the Plaintiffs in OS NO. 208 of 2021 and OS NO. 191 of 2021.
3.4 His Honour erred in law in entertaining and making purported Consent orders in duplicate proceedings instead of ensuring that the parties in proceedings OS NO. 102 of 2021 fully complied with the orders of 2nd July 2021 and any aggrieved parties such as the Plaintiffs should have been given liberty to apply to be heard in OS NO. 102 of 2021 before endorsing the result of the purported validation exercise.
3.5 His Honour erred in law in entertaining the Plaintiffs in new proceedings instead of allowing the Plaintiffs and Defendants to settle their issues in OS NO. 191 of 2021 pursuant to term 2 of the Orders made on 15th September, 2021 in OS NO. 193 of 2021
......
15. We find all the grounds of appeal raised as referring to questions of law and mixed fact and law. We find no valid basis under this ground of objection by the applicants. Even if we may be wrong (which we say we are not) that all grounds of appeal concern questions of law and mixed fact and law, the minimum requirement, as held by this Court in Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221, is for us to be satisfied of only one of the grounds of appeal that validly invokes the Court’s jurisdiction irrespective of inadequacies in other grounds, and that should suffice to sustain or validate a notice of appeal. Ground 2 in the NoA for example alleges denial of natural justice. The fact that the appellants have interests in the dispute and the fact that they were not represented in the National Court proceeding, appear as non-issues thus this may be a question of law before the full Court, that is, on whether the appellants were denied their rights to be heard regardless of the Consent Order. As such, we could have also refused this ground of objection based only on ground 2 of the NoA.
ABUSE OF PROCESS
16. The next ground of objection is abuse of process. The applicants’ claim, apart from their argument concerning questions of fact which we have dismissed above, concerns the second relief that is sought. They argue that the relief includes requesting the Supreme Court to also make determinations on or concerning other National Court proceedings whose decisions are not the subject of the present appeal. As such, they argue that that amounts to abuse of process.
17. The second relief sought in the NoA reads:
“The proceedings OS NO. 208 OF 2021 and other related National Court proceedings such as OS NO. 191 of 2021 [IECMS] AND OS NO 193 of 2021 filed subsequent to 2nd July, 2021 be dismissed for abuse of Court’s process and denial of natural justice to the Appellants.”
18. We have considered the submissions of the parties on this matter.
19. We reject this ground of objection. There are ample case authorities such as Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1056, State v. John Talu Tekwie (2006) SC843, Jeffrey Turia v. Gabriel Nelson (2008) SC949 and James Marape v. Peter O’Neill (2016) SC1486 where it has been said that a claim that an appeal is an abuse of process does not question the court’s jurisdiction to hear an appeal and does not go to the competency of appeal. We concur with this principle of law, and in so doing, we dismiss this ground of objection as misconceived, incompetent, and baseless.
WANT OF FORM
20. The applicants’ final ground of objection is this. They argue that the NoA contradicts Order 7 Rule 3 and 4(b), (c), and (d) of the SC Rules. Order 7 Rule 3 and 4(b), (c), and (d) has been amended by the SCMAR. Its equivalent provision is Rule 2(3) & (4) which reads:
2. Repeal and replacement of Division 7.1 (application to extend time and application for leave to appeal)
......
Sub-Division 2—Application for leave to appeal
(a) be entitled "In the Supreme Court of Justice" and shall also be entitled as between the party as appellant and the party as respondent; and
(b) show that an appeal lies with leave; and
(c) state the nature of the case, the questions involved and the reason why leave should be given; and
(d) show an address for service of the party giving the notice; and
(e) be in accordance with Form 7; and
(f) be served forthwith on all parties in the proceedings the subject of the proposed appeal or the lawyers for such parties in those proceedings.
(Underlining ours)
21. The ground want of form, based on the applicants’ Written Submission, is premised on or subject to the success of their earlier 2 grounds, namely, jurisdiction and abuse of process. However, given that we have already dismissed them, the 3rd ground cannot therefore be sustained, and so we dismiss it accordingly.
22. In any event, we have perused the NoA which is contained at pp 4 to pp 9 of the OB. We find that the appellants have used the correct form to file their NoA. The correct form to file a notice of appeal is Form 8 which must be filed in accordance with the requirements prescribed under Order 7 Division 3 of the SC Rules as amended. We do not see or detect any serious discrepancies or errors in the content or the format of the NoA. And we note that the appellants are lodging their appeal as of right, and their grounds of appeal involve questions of law and mixed fact and law thus no leave or separate application for leave to appeal was necessary.
23. We dismiss the final ground of objection.
SUMMARY
24. In conclusion, we will dismiss the Objection. We will order cost to follow the event on a party/party basis to be taxed if not agreed. We will also issue orders for the matter to return before the Listings Court to progress it to hearing.
ORDERS OF THE COURT:
25. We make the following orders:
________________________________________________________________
Haiara’s Legal Practice: Lawyers for the First & Second Appellants
Nelson Lawyers: Lawyers for the Second & Third Respondents
Solicitor General: Lawyer for the Fourth Respondent
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