Sisimolu v Kende [2022] PGSC 70; SC2267 (29 July 2022)

SC2267

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 123 OF 2021

BETWEEN:
MATHEW SISIMOLU
First Applicant/Appellants

AND:
DAWA SAYAPE, DICKSON TASI, JAMES KAIA,
SOSO TOMU, FRED KITIPA and JOE DAVE
Second Applicant/Appellants

V

PHILIP KENDE
First Respondent

AND:
ISSAC LUPARI as the Chairman of Board of Directors of
Mineral Resources Development Company Limited
Second Respondent

AND:
MEMBERS OF BOARD OF DIRECTORS OF MINERAL RESOURCE DEVELOPMENT COMPANY LIMITED
Third Respondent

AND:
AUGUSTINE SANGA MANO as the Managing Director of Mineral Resource Development Company Limited
Fourth Respondent

Waigani: Anis J, Numapo J, Dowa, J
2022: 26^th & 29^th July

APPLICATION FOR LEAVE TO APPEAL – Application refused and made before the full Court – s 10(2) of the Supreme Court Act Chapter 37 and Order 11 Rule 27 of the Supreme Court Rules 2002 (as amended) – application for leave based on an interlocutory decision of the National Court where a notice of motion that had sought to strike out amended originating summons was refused – Section 14(2) of the Supreme Court Act – Considerations – whether there are good grounds to grant leave to appeal – whether there is a serious question of law or mixed fact and law to be determined - whether there are jurisdictional basis where if not corrected, will substantially affect or prejudiced the applicants and the final outcome of the proceeding in the Court below – whether there are other avenues available thus should not warrant this Court to exercise its discretion

Cases Cited:

Matiabe Oberia v Chief Inspector Michael Charlie and Ors (2005) SC801
Sir Julius Chan v The Ombudsman Commission (1998) SC607

Counsel:

N. Kopunye with M. Worinu, for the Applicants/Appellants
Nil appearances by the First Respondent
B. Kumo, for the Second, Third & Fourth Respondents

29^th July, 2022

1. BY THE COURT: This was a hearing of an application for leave to appeal filed on 21 September 2021 (leave application). The leave application was heard afresh, that is, upon request by the applicants, pursuant to s 10(2) of the Supreme Court Act Chapter 37 (SC Act) and Order 11 rule 27 of the Supreme Court Rules 2002 (as amended) (SC Rules). The leave application was heard earlier and refused by Hartshorn J who had sat as a single Judge of the Supreme Court.

2. We heard the leave application on 26 July 2022 and reserved our decision to a date to be advised. We now give our decision.

BACKGROUND

3. The leave application seeks to challenge an interlocutory decision of Makail J which was made on 18 August 2021, in proceeding OS No. 304 of 2019 (National Court proceeding/ Court below). The applicants, in the Court below, applied to strike out an amended originating summons which had been filed by the first respondent who is the plaintiff in the Court below. Their notice of motion was filed on 7 May 2021 (NoM). Their main contention was that the amended originating summons was filed without leave of Court which contravened Order 8 Rule 50 of the National Court Rules (NCR). The trial Judge heard the NoM on 18 August 2021 and gave an ex-tempore ruling on the same day where His Honour, amongst others, refused the NoM.

4. The applicants were aggrieved and intend to challenge the said decision. As this is an intended appeal against an interlocutory decision of the National Court, the applicants submit, they move their leave application pursuant to s 14(3) of the SC Act. The sub-section reads,

(3) No appeal lies to the Supreme Court without leave of the Supreme Court–

......

(b) from an interlocutory judgement made or given by the National Court except...

......

PRELIMINARIES

5. At the start of the hearing, the first respondent’s counsel’s absence was noted. None of the parties who were present were aware of the reasons as to why counsel did not appear. After satisfying ourselves that the first respondent had been duly notified and also was aware of the date and time of the hearing, we allowed the applicants to move their leave application.

6. The leave application, as we later learnt, was unopposed. The 2^nd, 3^rd, and 4^th respondents, through counsel, informed the Court that they had supported the applicants’ dismissed NoM in the Court below. Counsel then submitted that her clients also support the applicants’ leave application.

7. We note that there is no issue on whether leave to appeal is required. Nevertheless, we are satisfied, and in so doing, find that the decision which the applicants seek leave to appeal, was an interlocutory decision of the National Court, and as such, that leave is required pursuant to s 14(3) of the SC Act. We therefore find the leave application as properly before us for consideration.

LEAVE APPLICATION

8. In regard to the questions involved in the leave application, it pleads, and we quote:

1. whether the Learned Judges (sic) erred in law and fact in refusing the 4^th and 5^th defendants (i.e., Appellants) application seeking to struck out the Plaintiff’s Amended OS filed on 19 August 2019 when:
   

(i) the Learned Judges (sic) accepted that the Amended OS was filed in breach of Order 8 Rule 50 and Order 5 Rule 8 of the National Court Rules;

(ii) leave was not sought to add additional parties to the claim (as 5^th Defendants);

(iii) leave was not sought to amend the relief pleaded;

2. whether the Learned Judges (sic) erred in law and in fact in finding that the amendments were necessary and that Order 8 Rule 51 of the National Court Rules allows for such amendments when:
   

(i) there was no evidence before the Court explaining as to why the amendments were necessary;

(ii) there was no evidence (by the Plaintiff) as to why additional parties should be joined;

(iii) pleadings which can be amended without leave under Order 8 Rule 51 are in a case commenced by Wirt of Summons and not OS as in the proceeding the subject of this application.

100. whether the learned Judges (sic) erred in refusing to uphold the oral application of the Plaintiff when there was no notice of motion and affidavit in support filed before the Court by Mr Kende to amend the OS and to add parties to the Proceedings? (sic)
     

4. whether His Honour erred in refusing to uphold the Application when it was not contested by Mr Kende that the Amended OS was in breach of the Rules.
   

ISSUES

9. The main issues for us to consider are as follows: whether there may be a serious error committed by the trial judge that must be corrected or clarified because the decision has or would have a significant bearing on the substantive proceeding going forward to trial; whether the concerns raised in the leave application concerns jurisdiction or merit of the proceeding to an extent that if not corrected or addressed before hand, that it (or they) will significantly affect the outcome of the substantive hearing, or that it (or they) will prejudice the rights of the parties in the substantive matter before a final outcome is reached or before the matter is determined on its merits.

LAW

10. The Court’s power to grant an application for leave to appeal of this nature, is discretionary. But of course, such a power must be exercised judicially, that is, after proper consideration and with good reasons.

11. There are numerous case authorities in this jurisdiction for guidance or adoption. For this purpose, we firstly refer to Lay J’s decision in Matiabe Oberia v Chief Inspector Michael Charlie and Ors (2005) SC801. His Honour stated, and we quote:

The requirement to seek leave is a procedure designed to ensure that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgement.

12. His Honour referred to this Court’s earlier decision in Sir Julius Chan v The Ombudsman Commission (1998) SC607. By majority, the Court stated:

There has to be cause shown therefore why the ordinary process of trial and determination of the issues should be interrupted by appeal procedure. Simply put there has to be good reason that the court empowered by law to try the issues between the parties should not be allowed to do so and that notwithstanding an order made in the National Court is interlocutory only, it is of such a nature that it requires the intervention of the Supreme Court.

......

......, leave to appeal is therefore unlikely to be given in circumstances where the judgment challenged may have little or no bearing on the final determination of the issues between the parties; leave should not be given where by the rules of the court there is obvious recourse for further application on the matter, nor should leave be given where the ruling is within the discretion of the Court and discloses no obvious breach of principle.”

......

Just how this Court will exercise its discretion in granting of leave to appeal or for review varies according to the relevant circumstances. These range from the need to show "exceptional circumstances" in time barred appeal cases starting with Avia Aihi v State (1982) PNGLR 92 and PNG v Albert (1988) PNGLR 138 to the showing of an arguable case, that is one of "cogent convincing reasons on clear legal grounds" in judicial review (Moi Avi & Election Commission & Charlies Maino SCA 584). Of course the judicial review criteria nonetheless relates to substantive decisions effecting parties rights, and even then, remains subject to there being no other remedy open, that is equally effective and convenient.”

PRESENT MATTER

13. We note that the intended appeal concerns, amongst others, dispute over 2 originating processes (i.e., the original originating summons and the latter amended originating summons), and in relation to the application and interpretation relevant provisions under the NCR, that is, for amending an originating summons, such provisions that will include Order 8 Rules 50 and 51.

14. Order 8 Rules 50(1) and 51(1) read:

50. General. (20/1)

(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

......

51. Amendment of pleading without leave. (20/2)

(1) A party may, without leave, amend any pleading of his once at any time before the pleadings are closed.

15. The applicants seek leave to argue, amongst others, that the original originating summons was the valid document that was filed and that should be before the National Court for hearing and not the latter amended originating summons because the latter document, it submits, was filed without the leave of Court. The fact that the first respondent did not seek leave to file the amended originating summons was not disputed before the Court below. We note that the trial Judge, in his decision, accepted the first respondent’s argument that the originating summons was correctly amended without leave of Court pursuant to Order 8 Rule 51. The applicants’ submission that the correct provision was Order 8 Rule 50(1) of the NCR was also rejected by the trial Judge. The first respondent also submitted, which was also accepted by the trial Judge, that pursuant to Order 8 Rule 51, leave was not required to amend an originating summons in the first instance, and that leave may only be sought under Order 8 Rule 51 where a second or further amendment to an already amended originating summons is required.

16. We consider that there is a serious question to be tried in regard to the said argument and in regard to the trial Court’s decision. We also find that the dispute goes to jurisdiction and the cause of action that is before the National Court. It concerns a dispute on which originating summons is or should be regarded as properly before the National Court before the matter can proceed any further or to a final hearing. We also consider that the applicants do not have an avenue that is available to them in the lower Court where they could address their grievance concerning the amended originating summons. In fact, if leave is refused or had the applicants not sought leave, they will be bound by the decision of the trial Court which has regarded the amended originating summons as the valid originating process that is before it. That will ‘seal their fate’, so to speak, from ever raising the argument at the later stage, thus shall affect or prejudice their rights in the final outcome of the proceeding. The applicants, however, and in this case, intend to exercise their rights not to be bound by an originating summons, namely, the amended originating summons which they say (i), was not properly filed and (ii), that contains substantive relief and orders which they also argue are substantially different to the original originating summons.

17. They also argue, based on their other intended ground of appeal, that additional parties were included by the first respondent in the amended originating summons that was filed without leave, without following the processes for adding parties under Order 5 Rule 8 of the NCR. Order 5 Rule 8 reads:

8. Addition of parties. (8/8)

(1) Where a person who is not a party —

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

18. The applicants intend to argue this as their other main reason to say why the amended originating summons should not have been granted by the trial Judge. We also find this reason meritorious and believe that it should be properly considered in an appeal proper.

SUMMARY

19. We will exercise our discretion and grant leave to the applicants to file their Notice of Appeal. Pursuant to Order 7 Rule 6 of the SC Rules (as amended), the applicants shall file their Notice of Appeal within 21 days from the date of this order. The applicants will also be directed to observe the rules regarding service of notice of appeal under Order 7 Rule 13 of the SC Rules (as amended).

ORDERS OF THE COURT:

20 We make the following orders:

1. The applicants’ application for leave to appeal is granted.
   
2. The applicants are granted 21 days from the date of this Order to file their Notice of Appeal.
   
3. The applicants shall observe Order 7 Rule 13 of the SC Rules (as amended) regarding service of copies of the filed notice of appeal.

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Kopunye Lawyers: Lawyers for the First & Second Applicants/Appellants
Jema Lawyers: Lawyers for the Second, Third & Fourth Respondents