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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO.93 OF 2022
BETWEEN:
ALFRED KIMBU
Applicant
AND:
SERAH EME PAKIRA
First Respondent
AND:
CREDIT CORPORATION FINANCE LIMITED
Second Respondent
Waigani: Manuhu J, David J & Anis J
2022: 27th October
2023: 28th April
PRACTICE & PROCEDURE – Objection to competency of appeal – Supreme Court Act, s.14(1)(c) - Supreme Court Rules, Order 7 Rule 9(c), 10 and 15 and Order 11 Rule 28, Order 13 Rules 1 and 15.
Cases Cited:
Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (1980) SC185
The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448
Patterson Lowa v Wapula Akipe [1991] PNGLR 265
Chris Haiveta v Paias Wingti & Others [1994] PNGLR 189
David Coyle v Loani Henao [2000] PNGLR 17
NCD Water and Sewerage Ltd v Sam Maskuman Tasion (2002) SC696
PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717
Gregory Puli Manda v Yatala Limited (2005) SC795
Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828
Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322
Jeffrey Turia v Gabriel Nelson (2008) SC949
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Gigmae Taemae v MVIL (2011) SC1121
Talibe Hegele v Tony Kila (2011) SC1124
Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221
Joseph Nandali v Curtain Brothers Ltd (2012) SC1483
Public Curator of PNG v Konze Kara (2014) SC1420
Jimmy Lama v NDB Investments Ltd (2015) SC1423
Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431
Sylvester Kalaut v Royale Thompson (2015) SC1551
Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553
Tukuyawini Peter Philip v Manasseh Makiba (2018) SC1725
Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd (2018) SC1752
Vitolo v Mararea Land Group Incorporated (2020) SC2006
National Capital District Water & Sewerage Ltd (trading as Eda Ranu) v Yambaran Pausa Saka Ben Ltd (2023) SC2365
Counsel:
Alice Kimbu, for the Appellant
Karen P. Nugi, for the First Respondent
Marilyn Saroa, for the Second Respondent
RULING
28th April, 2023
1. BY THE COURT: INTRODUCTION: On 7 July 2022, the First Respondent, Serah Eme Pakira (the First Respondent) filed a notice of objection to the competency (the Objection) of an appeal filed by the Appellant, Alfred Kimbu (the Appellant) on 4 July 2022. The Second Respondent, Credit Corporation Finance Limited (the Second Respondent) supports the objection. The Appellant opposes the Objection.
EVIDENCE
2. Usually, all materials or documents to be relied on in an objection are contained in the Objection Book unless ordered otherwise.
Only one affidavit is contained in the Objection Book and that is the affidavit of the First Respondent herself sworn on and filed
on 7 July 2022. In the Appellant’s submissions, he refers to his own affidavit sworn on 30 June 2022 and filed on 4 July 2022 as the affidavit
to be used in response to the objection. Given that there was no serious objection from the respondents for the Appellant to use
it, we grant leave for its use by the Appellant.
3. We have considered the evidence.
BRIEF BACKGROUND FACTS
4. The background facts are not disputed. The First Respondent is the registered proprietor of all that property described as Allotment 56 Section 48, Hohola (North Waigani), National Capital District and contained in State Lease Volume 23 Folio 5539 (the Property). The Property was mortgaged by the First Respondent to the Second Respondent as security for a loan obtained by the First Respondent from the Second Respondent. Sometime in 2020, the First Respondent and the Appellant verbally agreed that; first, the Appellant would purchase the Property from the First Respondent as the latter was behind in her loan repayments to the Second Respondent; and secondly, the Appellant would assist with the repayment of the First Respondent’s loan with the Second Respondent and subsequently purchase the property in full (the Verbal Agreement). In July 2020, upon payment of the sum of K44,000.00 to the respondents, but without first settling in full the purchase of the Property from the First Respondent, the Appellant moved into the Property. On 23 April 2021, the Second Respondent, as mortgagee, advertised the Property for sale as the First Respondent had defaulted in her loan repayments and the Appellant successfully bid to purchase the Property for K660,000.00. On 4 May 2021, the Second Respondent sent a letter of offer to the Appellant which, among others, required him to pay a 10% deposit within 24 hours and to pay the balance of the purchase price within 14 days after that. The Appellant did not meet the Second Respondent’s requirements.
5. The Appellant then filed proceedings WS 200 of 2021, Alfred Kimbu v Sera Eme Pakira and Credit Corporation Finance Limited (the National Court proceedings) seeking orders that; he and the First Respondent had the Verbal Agreement which was lawful; the Second Respondent recognize and give effect to the Verbal Agreement; and that he be allowed to settle the First Respondent’s outstanding loan with the Second Respondent and then fully purchase the Property. The First Respondent contended that she terminated the Verbal Agreement with the Appellant because the Appellant did not make the full payment for the purchase of the Property and she wanted the Appellant to vacate the Property. The Second Respondent, on the other hand, argued that the Appellant did not meet the terms of the mortgagee sale and therefore in October 2021 withdrew the sale and requested the Appellant to vacate the Property in early November 2021. On 29 November 2021, the parties entered into consent orders that; the Appellant pay K483,999.00 to the Second Respondent by or before 13 December 2021; if the Appellant defaulted, the deposit paid by the Appellant to the Second Respondent would be refunded and the Appellant give vacant possession to the Second Respondent as mortgagee; and the National Court proceedings would then stand discontinued against the Second Respondent.
6. The Appellant contended that the National Development Bank had granted him finance to finalise his agreement with the Second Respondent, but as the First Respondent had terminated the Verbal Agreement, the Second Respondent refused to conclude the agreement with him.
7. There are fourteen grounds of appeal set out at paragraph 3 of the Notice of Appeal and they are restated verbatim below:
“3.1 The learned trial judge erred in law and in fact in perfecting the orders of 29th November, 2021 in the terms of those orders when the very orders of 29th November, 2021 had in fact been extended and its terms varied several times including on 11th May 2022 and therefore, that the exact terms of the orders of 29th did not exist for the Appellant to breach.
3.2 The learned trial judge erred in law and in fact in perfecting the orders of 29th November 2021 in the terms of those orders when the vary (sic) orders of 29th November, 2021 had been extended and its terms varied several times including on 11th May, 2021 and therefore, that the subsequent orders including the orders of 11th May, 2022 that extended and varied the orders of 29th November, 2021 and its varied terms superseded the orders of 29 November, 2021 and its terms.
3.3 The learned trial judge erred in law and in fact in dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29th November, 2021 when the very orders of 29th November, 2021 had been extended and its terms varied several times including on 11th May, 2022 and therefore, that the Appellant was not in breach and/or could not be in breach of the orders of 29th November, 2021 and its terms.
3.4 The learned trial judge erred in law and in fact dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29th November, 2021 when the very orders of 29th November, 2021 had been extended and its terms varied several times including on 11th May, 2022 and that the subsequent orders that extended and varied the orders of 29th November, 2021 and its terms including the orders of 11th May, 2022 superseded the order of 29th November, 2021 and its terms and therefore, that the Appellant did not and/or could not have breached the orders of 29th November, 2021.
3.5 The learned trial judge erred in law and in fact in dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29th November, 2021 as there was sufficient evidence before the Court confirming that the Appellant complied with the orders of 29th November, 2021 and its terms as well as the subsequent orders of the Court made subsequent to the orders of 29th November, 2021 including the orders of 11th May, 2022 and that where there was a delay in the compliance of any of these orders at any one time, that there was sufficient explanation before the Court explaining or justifying such a delay and/or non-compliance.
3.6 The learned trial judge erred in law [in] dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29th November, 2021 without first making a formal finding on whether or not the Appellant had in fact breached the Court orders of 29th November, 2021.
3.7 The learned trial judge erred in law [in] dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29th November, 2021 without first setting aside the subsequent orders of including the orders of 11th May, 2021 which orders had extended and varied the initial orders of 29th May, 2021 and its terms.
3.8 The learned trial judge erred in law in finding at paragraph 22 of its judgment that the First Respondent’s application (Notice of Motion) of 08th April, 2022 seeking orders to prefect (sic) the orders of 29th November, 2021 was properly before the Court when in fact that application (Notice of Motion) of 08th April, 2021 was not properly before the Court as the orders that motion sought to perfect, that is the orders of of 29th November, 2021 had long been extended and varied several times including on 11th May, 2022. The trial judge therefore, erroneously exercised jurisdiction to hear and determine the First Respondent’s application (Notice of Motion) of 08th April 2022.
3.9 The learned trial judge erred in law in finding at paragraph 23 of its judgment in making an assumption on what it is the Second Respondent sought when such orders sought were not specifically sought by the Second Respondent and further, that the Second Respondent had no formal application before the Court seeking those orders. The application (Notice of Motion) of 08th April, 2022 was filed by the First Respondent whose primary relief sought was entry of summary judgment. Any orders to vacate a property should properly be sought by the vendor, in this case, the Second Respondent and not the First Respondent.
3.10 The learned trial judge erred in law in finding at paragraph 22 of its judgment that it was functus officio and therefore did not have jurisdiction, when in fact the orders of 29th November, 2021 had already been extended and varied several times including on 11th May, 2022 and that the Court had wide discretion to further extend and vary the orders of 11th May, 2022 allow the Appellant and the Second Respondent to settle given the entire circumstance of the matter and to do justice in the particular case.
3.11 The learned trial judge erred in law and in fact in dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29th November, 2021 when the very orders of 29th November, 2021 and the subsequent orders including the orders of 11th May, 2022 was fully complied with and that any non-compliance and/or delay in the compliance of the orders was owing to the conduct and attitude of the respondents themselves for which there, was sufficient evidence before the Court.
3.12 The learned trial judge erred in law and in fact in dismissing the proceeding WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited on the basis of non-compliance of the orders of 29th November, 2021 when there was sufficient evidence before the Court that full compliance of the orders of 11th May, 2022 and 29th November, 2021 was made difficult by the conduct and attitude of the Second Respondent who refused to further participate in the conclusion of the sale of the subject property when it unlawfully terminated the Contract of Sale between itself and the Appellant on 10th March, 2022 (before the orders of 11th May, 2022) and that the question then was whether such termination under the circumstance in which the Appellant had no control over, was lawful.
3.13 The learned trial judge erred in law and in fact in exercising discretion and entering judgment for the First Respondent given the circumstances of the case where the property subject of the proceeding at the National Court described Volume 23, Folio 5539, Section 48, Allotment 56, North Waigani, National Capital District, was subject of two (2) contracts of sale, first between the Appellant and the First Respondent dated 03rd July, 2020 and the second between the Appellant and the Second Respondent. The property was therefore, never available for the First Respondent to be collecting rentals.
3.14 The learned trial judge erred in law and in fact in exercising discretion and entering judgment for the First Respondent given the circumstances of the case where the property subject of the proceeding at the National Court described Volume 23, Folio 5539, Section 48, Allotment 56, North Waigani, National Capital District, was subject of a contract of sale between the Appellant and the Second Respondent who had exercised its mortgage right to sell the subject property to the Appellant and therefore, that any claim for losses should be claimed by the Second Respondent through appropriate formal application and not the First Respondent as was in this case.” (sic)
GROUNDS OF OBJECTION
8. The First Respondent objects to all the grounds of appeal for two main reasons:
ISSUES
9. Two main issues arise for our consideration and decision and these are:
1. Whether the Objection itself is competent?
2. Whether the Objection has merit?
LAW ON OBJECTION TO COMPETENCY OF APPEAL
10. A respondent who objects to the competency of an appeal or an application for leave to appeal must file the objection in accordance with Form 9 of the Supreme Court Rules and within 14 days after service of the appeal on the appellant pursuant to Order 7 Rule 15 of the Supreme Court Rules. The provisions of Order 7 Division 5 (Objection to competency of appeal) of the Supreme Court Rules apply to any proceedings before the Court that are not appeals by virtue of Order 11 Rule 28 of the Supreme Court Rules.
11. Some of the relevant principles which apply when considering an objection to competency were summarized by the Court in Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431 and these are:
12. Order 13 rule 15 of the Supreme Court Rules provides that:
“All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought...”
13. The word “Application” is defined in Order 13 Rule 1 of the Supreme Court Rules and it:
“means any application as provided for under these rules, the Act, the Constitution and any other legislation.”
14. An objection to competency would fall within the meaning of “Application”.
15. This Court has also held that:
16. In relation to what questions relate to fact or law, that was addressed by this Court in Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431 at para 33 where it observed as follows:
“As to what questions relate to fact or law is difficult to determine: Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz [1975] PNGLR 262, Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (supra). In British Launderers' Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21 at 25 to 26, Lord Denning discussed the distinction this way:
“On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are
observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document.
Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them
is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by
a process of reasoning from them. If and so far as these conclusions can as well be drawn by a layman (properly instructed on the
law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them
are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the
primary facts: ... If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination
by a trained lawyer — as, for instance, because it involves the interpretation of documents, or because the law and the facts
cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer —
the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of the first
instance." (Our underlining)
17. Some examples of grounds of objection that would not be properly before the Court are mentioned in Jeffrey Turia v Gabriel Nelson (2008) SC949 at [9] eg, the proposed grounds of appeal are unmeritorious, frivolous or vexatious.
18. In Talibe Hegele v Tony Kila (2011) SC1124 at [10], the Court said claims for abuse of process and vexatiousness are not proper grounds of objection as they are not matters that relate to the jurisdiction of the Court.
19. We adopt these principles and apply them here with modification where appropriate.
COMPETENCY OF THE OBJECTION
Reasons for ruling
20. No objection was raised by the Appellant in relation to the competency of the Objection. Given that, we will proceed to address matters raised in the Objection and more precisely the question of whether the Objection has merit.
OBJECTION TO COMPETENCY
Submissions
21. Consistent with the grounds of the Objection, the First Respondent submits that the Notice of Appeal should be struck out and dismissed as:
22. The Second Respondent supports the Objection and concurs with the First Respondent’s submissions.
23. The Appellant contends that the Objection is misconceived and knit-picking and therefore should be dismissed for being an abuse of the process of the Court as:
Law
24. There are three requirements for the drafting of grounds of appeal and they arise from Order 7 Rule 9(c) and 10 of the Supreme Court Rules.
25. Rule 9(c) states:
“The notice of appeal shall —
(c) state briefly but specifically the grounds relied upon in support of the appeal.”
26. 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.”
27. The three drafting requirements were suggested by the Supreme Court in Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322 and have been considered and applied in Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962, Gigmae Taemae v MVIL (2011) SC1121, Public Curator of PNG v Konze Kara (2014) SC1420, Jimmy Lama v NDB Investments Ltd (2015) SC1423 and Sylvester Kalaut v Royale Thompson (2015) SC1551. These are:
“1 The ground relied on in support of the appeal must be stated briefly, but specifically.
28. The Supreme Court in Chris Haiveta v Paias Wingti (No 2) [1994] PNGLR 189 said these requirements exist for two reasons:
29. Moreover, on the need to state grounds of appeal with sufficient particularity, the Supreme Court in Public Curator of PNG v Konze Kara (2014) SC1420 at [99] said:
“The Supreme Court has in the past considered the requirement of these provisions of the rules in a number of decisions and held that a ground that does not comply with the rules in terms of lack of sufficient particularity is incompetent and must be struck out: see Haiveta v Wingti (No.2) [1994] PNGLR 189; Henao v Coyle (2000) SC655; NCDC Water and Sewerage Ltd v Tasion (2002) SC696 and Ipili Porgera Investments Ltd v Bank of South Pacific Ltd & RIFL (2007) SCA No.15 of 2006, Unreported & Unnumbered Judgment of Injia DCJ (as he then was) and Cannings J delivered on 27 June 2007.”
30. Where these requirements are not met, the Supreme Court has discretion to either strike out the offending grounds of appeal or dismiss the entire appeal as incompetent: Chris Haiveta v Paias Wingti (No 2) [1994] PNGLR 189, David Coyle v Loani Henao [2000] PNGLR 17, NCD Water and Sewerage Ltd v Sam Maskuman Tasion (2002) SC696, Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322, Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962.
Reasons for ruling
31. The Appellant has failed to state briefly, but specifically with particularity all grounds of appeal from paragraph 3.1 to 3.14. The terms of the variations of orders made on 29 November 2021 which were alleged to have been varied and extended several times subsequent to those orders and the alleged uncooperative conduct and attitude of the respondents relevant to compliance with orders made leading to the dismissal of the Appellant’s claim in the National Court proceedings and the entry of summary judgment in favour of the first respondent have not been pleaded in accordance with the drafting requirements mentioned above. The grounds of appeal are actually either imprecise or bland statements alleging that the trial judge’s judgment amounted to either errors of law or mixed fact and law.
32. Moreover, the pleadings throughout most grounds of appeal that the trial judge “erred in law and in fact” are improper. A discussion of the meaning of the phrase “mixed fact and law” for purposes of s.4(2)(b) of the Supreme Court Act was made in a recent decision of National Capital District Water & Sewerage Ltd (trading as Eda Ranu) v Yambaran Pausa Saka Ben Ltd (2023) SC2365 at [54] to [57], where the Court observed that it is improper to plead “mixed law and fact” or “mixed law and facts”. We concur that that is the correct position of the law.
33. Given this, its is not necessary to address other matters raised by counsel.
34. For these reasons, we find that the Objection has merit and will uphold it. The appeal is dismissed as a consequence.
JUDGMENT AND ORDERS
35. The Supreme Court will enter judgment in the following terms:
1. The objection to competency of the appeal is upheld.
2. The appeal is dismissed.
3. The judgment and orders of the National Court of 30 June 2022 in proceedings WS No.200 of 2021; Alfred Kimbu v Serah Eme Pakira & Credit Corporation Limited are affirmed.
4. The Appellant shall bear the respondents’ costs of and incidental to the objection to competency and the appeal which shall, if not agreed, be taxed.
Judgment and orders accordingly.
___________________________________________________________
Kimbu & Associates: Lawyers for the Appellant
Pang Legal Services: Lawyers for the First Respondent
In-house Lawyers: Lawyers for the Second Respondent
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