Independent State of Papua New Guinea v Betanjo [2023] PGSC 32; SC2378 (23 February 2023)

SC2378

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 77 OF 2020[IECMS]

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
GARI BAKI acting in his capacity as COMMISSIONER OF POLICE
Second Appellant

AND:
FRED YAKASA in his capacity as METROPOLITAN SUPERINTENDENT NATIONAL CAPITAL DISTRICT
Third Appellant

AND:
NICK BETANJO AND 100 OTHERS NAMED IN THE SCHEDULE
Respondents

Waigani: Hartshorn J, Anis J, Dingake J.
2023: 23^rd February

SUPREME COURT – practice and procedure – objection to competency of appeal – respondents raised objection as to the competency of the appeal – respondents contend Appeal was incompetent as it offended Order 7 Rule 9(b) of the Supreme Court Rules – rule is couched in mandatory terms – appellants concede rule not complied with – objection is upheld – appeal dismissed

Counsel:

Ms. Pricilla Ohuma, for the Appellants
Mr. Tai Yai, for the Respondents

Cases Cited

Idumava Investment Ltd v National Fisheries Authority (2013) SC1273
Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408
Sauwan Rai v Cornelius Aku Imbuni (2021) SC2080

23^rd February, 2023

1. BY THE COURT: This is our ruling with respect to the contested objection raised by the Respondents as part of their submissions when the matter was called up for a hearing.
   
2. The Respondents in this matter had successfully sued the Appellants in the lower Court for negligence and breach of their constitutional rights.
   
3. Liability was entered in favour of the Respondents and eventually damages were assessed at K2,946,763.65.
   
4. Aggrieved by the aforesaid decision, the Appellants filed an appeal with the Supreme Court on the 25^th of August 2020.
   
5. The Respondents filed a Notice of Objection to Competency on the 29^th of September, 2020 and on the 3^rd of November 2022, they filed an Application to amend the said Notice of Objection to Competency.
   
6. The above Objection to Competency was not argued and it was eventually withdrawn.
   
7. When the matter was called for hearing on the 23^rd of February, 2020, we allowed the Respondents to raise the Objection to Competency as part of their submissions, as they were entitled to do, and overruled the Appellants objection that the Respondents having withdrawn the Notice of Objection to Competency may not raise same as part of their submissions.
   
8. The Respondents raised four (4) competency issues, which we find unnecessary to enumerate, save that, in our opinion only one such objection deserves our attention, namely, that the Appellant’s Notice of Appeal was incompetent as it offended Order 7 Rule 9(b) of the Supreme Court Rules.
   
9. Order 7 Rule 9(b) of the Supreme Court Rules provides as follows:
   

“The notice of appeal shall—

(a) ......

(b) state whether the whole or part only and what part of the judgment is appealed from;

10. As is plain from the above, the Rule is couched in mandatory terms. The Appellants conceded it was not complied with.
    
11. In our opinion the natural consequences that flow from such non compliance is that the Notice of Appeal is incompetent, and we so hold. We refer to Idumava Investment Ltd v National Fisheries Authority (2013) SC1273, Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408 and Sauwan Rai v Cornelius Aku Imbuni (2021) SC2080 as examples of appeals that were dismissed for failure to comply with mandatory Supreme Court Rules.
    
12. In the result, this Appeal is liable to be dismissed in its entirety as we shall in due course direct.
    
13. We do not think that the Respondents, although successful in their objection, are entitled to costs, given that the Objection to Competency was not formally filed and was only raised as part of their submissions.
    
14. In the premises, this Court orders as follows:
    
    1. The Objection to Competency is upheld and the Appeal is dismissed in its entirety;
       
    2. There is no order as to costs.

________________________________________________________________
Office of the Solicitor General: Lawyers for the Appellants
Bristle Lawyers: Lawyers for the First Respondents