Fayana v Waipo [2023] PGSC 36; SC2389 (9 May 2023)

SC2389

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 25 OF 2022 (IECMS)

BETWEEN:
FRANCIS FAYANA
Appellant

AND:
MICHAEL WAIPO in his capacity as
COMMISSIONER FOR CORRECTIONAL SERVICES
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: David J, Frank J & Narokobi J
2023: 24^th April and 9^th May

APPEAL - Practice & Procedure - Objection to competency of an appeal - Appeal pursuant to National Court Rules Order 16 rule 11 and Supreme Court Rules Order 10 rule 3 - Mandatory requirements - Failure to comply with the requirements - Supreme Court Rules- Order 11 r 28 (a), Order 7 r 15 & Order 10 rule 3 (b) (ii).

Cases Cited:
Manda v Yatala (2005) SC795
Maser v Salin (2021) SC2093
Madang Timbers Ltd v Kambori (2009) SC992
National Capital Ltd v Bakani (2014) SC1392
GR Logging Limited v David Dotaona (2018) SC1690
Sarea v Moutu (2019) SC1893
Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2001) SC659
Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699
Kukari v Polye (2008) SC907
Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273
Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408
Nipo Investment Limited v Nambawan Super Limited (2017) SC1642
Palaso v Elliott (2020) SC2030
Nandali v Curtain Brothers Ltd (2012) SC1483
Papua New Guinea Law Society v Cooper (2016) SC1553
Kore v Lapa (2021) SC2103

Legislation:

Supreme Court Rules 2012 (as amended)

Counsel:
Mr. L. Giyomwanauri, for the Appellant
Mr. K. Kipongi, for the other Respondents

JUDGMENT

9^th May, 2023

1. BY THE COURT: Before this court is the respondents’ amended notice of objection to competency filed on 12 April 2023 in respect of the appeal instituted herein on 31 August 2022 by a notice of motion filed under Order 10 of the Supreme Court Rules 2012 (as amended)^[1] (“Notice of Motion”) against a decision made on 18 August 2022 in National Court proceedings OS(JR) 765 of 2014 (“Orders under Appeal”). The amendment only corrected the date of the Orders under Appeal pleaded in the original notice of objection to competency (“Notice of Objection”). At the hearing of it, the appellants argued that the Notice of Objection is incompetent because:
   
   • (a)

it was not served as required by Order 7 rule 15 (b) within 14 days after the respondents had been served with the Notice of Motion;

it is an abuse of process; and

it does not raise a serious threshold issue as to the validity of the mode of certification under Order 10 rule 3 (b) (ii).

2. The appellant’s first preliminary objection, which is made by reference to the dates of service of the Notice of Motion and the Notice of Objection, is advanced on these factual basis:
   • (a) on 9 September 2022, a sealed copy of the Notice of Motion was served on the respondents;
   • (b) on 26 September 2022, a sealed copy of the Notice of Objection was served on the appellants’ lawyers.
3. Mr Giyomwanauri for the appellants relied on an affidavit of service of one Melinda Laki which - according to para 24 of his written submissions filed on 5 October 2022 - deposed that as at 22 September 2022, the Notice of Objection had not been served on the appellants. That affidavit of service was not before this court as part of the Objection Book. However, from the documents and correspondence annexed to the affidavit of Kevin Kipongi sworn 3 and filed 4 October 2022 which is part of the Objection Book:
   
   • (a) as to the date of service of the Notice of Motion, on the copy of the Notice of Motion is affixed a “SERVICE BY HAND ACKNOWLEDGED” stamp of the Solicitor General’s office which bears the date, “9/9/22”. Mr Kipongi acknowledged as correct this date during the course of the hearing;
   • (b) as to service of the Notice of Objection, that date, 26 September 2022, is noted in the appellant’s lawyers’ letter dated 28 September 2022 to the respondents’ lawyers as the date when the appellant’s lawyers were served with the Notice of Objection. In the respondents’ lawyers letter dated 4 October 2022, that date of service was not disputed. Nor was it disputed at the hearing of the Notice of Objection.
4. As the dates asserted by the appellants have either been accepted or not challenged by the respondents, we accept and find that the Notice of Objection was served outside the 14 days prescribed by Order 7 rule 15 (b) which expired on 23 September 2022.
   
5. In Manda v Yatala (2005) SC795 (Injia DCJ, Hinchliffe J & Mogish J), this court held that a notice of objection to competency served outside of the prescribed 14 days is incompetent and dismissed the notice of objection to competency in that case. Similarly, the notice of objection to competency in Maser v Salin (2021) SC2093 (Gavara-Nanu J, David J and Berrigan J), which was served outside the prescribed 14 days was dismissed as incompetent.
   
6. As the Notice of Objection has been served outside of the prescribed 14 days, it is, on those authorities of this court, incompetent.
   
7. As the issue of competence remains a live issue up to the determination of the substantive appeal, we address the ground of objection. It is common ground between counsel that the Notice of Motion annexes a copy of the Orders under Appeal which bears the seal of the National Court and was signed on behalf of the Registrar.
   
8. Therefore, this would be an appropriate case in which the views expressed in Madang Timbers Ltd v Kambori (2009) SC992 (11 September 2009) Davani J, Cannings J, Kariko J) and commented on in GR Logging Limited v David Dotaona (2018) SC1690 (Cannings J, Collier J, Dingake J) concerning the word “certified” as it appears in Order 10 rule 3 (b) (ii) could be further considered.
   
9. In Madang Timbers (supra), the appellants appealed against an order of the National Court made in judicial review proceedings under Order 16 of the National Court Rules (“National Court Order”). For the respondents to justify the grant of leave which they had sought to file a notice of objection to the competency of the appeal, they contended that the notice of motion instituting the appeal did not comply with Order 10 rule 3 (b) (ii). In concluding that a determination of that contention in favour of the respondents would not render the appeal incompetent, this court said, with reference to the word “certified” as it appears in Order 10 rule 3 (b) (ii), that:
   

“...the word "certified" in the Oxford English Dictionary 2nd Edition, to be "made certain, assured, certainly informed, attested by certificate, furnished with a certificate" meant that the Registrar "made certain" these were the orders made by the trial judge. This is endorsed by the fact that (i) The National Court Act, National Court Rules, Supreme Court Act and Supreme Court Rules do not provide for any particular mode of certification, more particularly, they do not provide for a form of a certificate; that (ii) The Registrar of the National Court signed and entered the orders of 27th November, 2008, thereby certifying the trial judge’s orders announced on 22nd October, 2008 and which are contained in his published reasons.”

10. In National Capital Ltd v Bakani (2014) SC1392 (Injia CJ, Gavara-Nanu & Kawi JJ), the notice of motion instituting the appeal filed on 22 December 2011 had annexed to it a copy of the judgment. Then on 4 April 2012, a minute of the National Court Order from that judgment was entered after the appeal had been filed. The court found the appeal incompetent as the notice of motion instituting it did not annex a minute of the National Court Order as required by Order 10 rule 3 (b) (ii). The observation which this court made there at paras 14 and 15 of Madang Timbers (supra) in the context of certification under Order 10 rule 3 (b) (ii) was as follows:
    
    15. It is significant to note that the court in that case noted that the trial judge's orders were not annexed to the notice of motion as required under Order 10 r 3 (b) (ii); what was annexed to the notice of motion was the judgment of the trial court which included the orders of the court. The orders were subsequently entered on 27 November, 2008.
    16. The other notable reason given by the court in that case in refusing to grant leave to the respondents was that the National Court Act, NCR, Supreme Court Act and the SCR did not provide for any particular mode of certification of the orders given by the trial court for the purposes of Order 10 r (3) (b) (ii). Therefore, the fact that the judgment of the court was annexed to the notice of motion was not fatal to the appeal. The court said the fact that the Registrar had subsequently signed and entered the orders on 27 November, 2008, amounted to certification of the trial judge's orders for the purposes of the requirements of Order 10 r (3) (b) (ii).
11. In considering whether the two proposed grounds of objection would render the appeal incompetent, the court in Madang Timbers (supra) said:
    
    23. First, they submit that the notice of motion by which the appellant instituted the appeal does not comply with Order 10, Rules 3(b) and 3(c) of the SCR as:

(a) the copy of the trial judge’s order (Salika J, as he then was) annexed to the notice of motion is not certified by the Judge’s Associate or the Registrar, as required by Rule 3(b); and

(b) the notice of motion is not in accordance with Form 15 of the Rules, as required by Rule 3(c), as there is no affidavit in support of the notice of motion and the decision of the National Court should not be annexed to the notice of motion.

12. In addressing these two proposed grounds of objection, the court said:
    
    26. As to ground (a), we consider that the matters concern arguable defects in the notice of motion. We find that there is merit in the arguments advanced by the appellant because the meaning of the word "certified" in the Oxford English Dictionary 2nd Edition, to be "made certain, assured, certainly informed, attested by certificate, furnished with a certificate" meant that the Registrar "made certain" these were the orders made by the trial judge. This is endorsed by the fact that;

(i) The National Court Act, National Court Rules, Supreme Court Act and Supreme Court Rules do not provide for any particular mode of certification, more particularly, they do not provide for a form of a certificate;

(ii) The Registrar of the National Court signed and entered the orders of 27th November, 2008, thereby certifying the trial judge’s orders announced on 22nd October, 2008 and which are contained in his published reasons. ...

27. This ground will not render the appeal incompetent or does not demonstrate that the Court lacks jurisdiction to hear the appeal.
28. ...
29. ...
30. As to ground 1(b)(ii) of the respondents’ Notice of Motion, in relation to the exclusion of the reasons of the National Court, neither the SCR nor Form 15, precludes the annexing of the trial judge’s reasons to the Notice of Motion. We have not heard anything from the respondents’ lawyers that would convince us otherwise.
13. Relevantly, to the issue at hand, this court in National Capital Limited (supra) did not suggest what certification in Order 10 rule 3 (b) (ii) means or entails.
    
14. In GR Logging (supra), the fifth respondent, without filing a notice of objection to competency to the appeal, in submissions argued that the appeal instituted by notice of motion filed under Order 10 rule 3 which had annexed to it a copy of the National Court Order signed for the Registrar and had affixed to it the stamp of the National Court of Justice, was incompetent. In deciding against the grant of leave to the fifth respondent to raise the issue, this court was not persuaded by the submission, that “...compliance with Order 10 Rule 3(b)(ii) required a certification “stamp” or statement followed by the signature of the Judge’s Associate or the Registrar,” in response to which it said:
    2. ...[T]he basis on which the fifth respondent claims that the appeal is incompetent is controversial. .... [As] the Supreme Court found in Madang Timber, none of the National Court Act, National Court Rules, Supreme Court Act or Supreme Court Rules provides for any particular mode of certification, and more particularly, they do not provide for a form of a certificate. We do not understand this finding to be in dispute. Further, although aspects of the decision in Madang Timber were the subject of criticism in Bakani, we do not understand that the Supreme Court in Bakani made findings as to the meaning of “certified” in Order 10 Rule 3(b)(ii).
    3. The orders of the primary Judge found in the appeal book at pages 701-704 bear the stamp of the National Court of Justice, a signature which appears to be “for” the Registrar (with the word “JUDGE” struck through) under the words “BY THE COURT” at appeal book page 704, and what appears to be an initial and date on page 703 of the appeal book.
    4. Prima facie, the form of order attached on page 704 bears the signature of the Registrar of the National Court. To the extent that the meaning of “certified” in Order 10 Rule 3 (b)(ii) is not defined we are not persuaded at this stage that the absence of a stamp including the word “certify” is critical to “certification” within the meaning of the Rule. Arguably, the form of order with the signature of the Registrar satisfies the provisions of Order 10 Rule 3 (b)(ii).
15. In Sarea v Moutu (2019) SC1893 (Cannings J, Hartshorn J and Yagi J), this court dismissed as incompetent the notice of motion instituting the appeal which had annexed to it a copy of the judgment. A minute of the National Court Order was entered after the notice of motion instituting the appeal had been filed. In its reasons, it observed:
    

Though there have been cases in which the issue has arisen whether the National Court order has been “certified” as required (see eg Madang Timbers Ltd v Kambori (2009) and GR Logging Ltd v Dotaona (2018) SC1690), if there is nothing that can be regarded as a certified copy of the order annexed to the notice of motion, the notice of motion is materially defective and the appeal is rendered incompetent.;

16. As to the other case authorities on the issue cited in the submissions:
    
    • (a) In Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2001) SC659 (Gavara-Nanu J), the appellants did not annex a copy of the National Court Order. The appellants applied outside the 40 days appeal period for an extension of time in which to annex a copy of the National Court Order. The application was refused;
    • (b) In Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699 (Kapi DCJ, Injia J and Davani J) a second application was made under section 10 (2) of the Supreme Court Act for an extension of time in which to annex a copy of the National Court Order. It was also refused for similar reasons as those in Bakani SC659;
    • (c) In Kukari v Polye (2008) SC907 (Kapi CJ, Gavara-Nanu & Cannings JJ), the respondent applied to dismiss the notice of appeal filed pursuant to section 14 (a) and (b) of the Supreme Court Act which is regulated by Order 7 when it ought to have filed a notice of motion pursuant to Order 10 to institute the appeal as it was an appeal against a National Court Order. Conceding this error, the appellants applied for leave to amend the notice of appeal to transform it into a notice of motion in Form 15 which this court rejected and dismissed the notice of appeal as incompetent;
    • (d) In each of the following cases, the appeal was dismissed as incompetent as the notice of motion instituting the appeal filed pursuant to Order 10 rule 3 did not, in breach of Order 10 rule 3 (b) (ii), have annexed to it a certified copy of the National Court Order:
      • (i) Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273, the Supreme Court (Injia CJ, Gabi and Sawong JJ).
      • (ii) Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408 (Sakora J, David J and Hartshorn J);
      • (iii) Nipo Investment Limited v Nambawan Super Limited (2017) SC1642 (Murray J, Collier J and Geita J). The court also found the appeal incompetent because, in breach of Order 10 rule 3 (b) (i), the notice of motion did not have annexed to it a copy of the written submission of Nambawan Super Ltd;
      • (iv) Palaso v Elliott (2020) SC2030 (Cannings J, Hartshorn J and Makail J). The court also found the appeal incompetent because, in breach of Order 10 rule 3 (b) (i), the notice of motion did not have annexed to it a copy of the respondent’s written submissions;
    • (e) In each of Nandali v Curtain Brothers Ltd (2012) SC1483 (Hartshorn J, Makail J and Logan J), Papua New Guinea Law Society v Cooper (2016) SC1553 (Manuhu J, Yagi J and Sawong J), Kore v Lapa (2021) SC2103 (Manuhu J, Anis J, Kassman J), this court dismissed the notice of objection to competency as incompetent because it did not plead the jurisdiction of this court which authorised its filing.
17. While these case authorities emphasize the requirement of strict compliance with Order 10 rule 3, in none of them has this court commented on the meaning of certification given in Madang Timbers (supra) or otherwise determined its meaning and method of compliance. The case authorities in para.16 (e) above relate to a different issue of competence.
    
18. Based on the view expressed in Madang Timbers (supra) and GR Logging (supra), and the fact that a sealed copy of the Orders under Appeal is annexed to the Notice of Motion, the respondents have not advanced any argument to persuade us of an alternative view to that expressed in Madang Timbers (supra) as to the requirement and meaning of certification in Order 10 rule 3 (b) (ii) which might lead to the conclusion that the Notice of Motion is incompetent.
    
19. The appellant should therefore have the benefit of the meaning accorded in Madang Timbers (supra) as we have not been persuaded to find that the Notice of Motion is incompetent.
    
20. For these reasons and those earlier given as to the competence of the Notice of Objection, we dismiss the Notice of Objection. The respondents shall pay the appellant’s costs of and incidental to the Notice of Objection to be taxed if not agreed.
    

______________________________________________________________
Leslie Mamu, Public Solicitor: Lawyer for the Appellant
Tauvasa Tanuvasa, Solicitor General: Lawyer for the Respondents

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^[1] Unless stated otherwise, similar references and to a Form in this judgment are to provisions and Forms of this Supreme Court Rules