SC2655

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 13 OF 2022

KALGREGOS ELECTRICAL LIMITED
Appellant

AND
MAMUN INVESTMENTS LIMITED
First Respondent

AND
NATIONAL COUNCIL OF YOUNG MEN’S CHRISTIAN ASSOCIATION OF PAPUA NEW GUINEA INC.
Second Respondent

AND
AUSTRALIA AND NEW ZEALAND BANKING GROUP (PNG) LIMITED
Third Respondent

Waigani:  Kandakasi DCJ, Auka J & Miviri J
2022:  26th September
2024:   29th October

PRACTICE & PROCEDURE - Objection to competency of appeal - Notice of appeal -appealing against two separate decisions, not in correct from and filed out of time - Claims of objection to competency being incompetent to being filed and served out of time - Competency of proceeding always open before final decision - Grounds of objection made out - Objection upheld, and proceedings dismissed. 

Cases Cited:
Michael Kuman & Ors v. Digicel (PNG) Ltd (2017) SC1638
Independent State of Papua New Guinea v. Namah (2020) SC2037
Barry v. Luma (2017) SC1639
Lady Ni Cragnolini v. Teddy Taison & Anor (2023) SC2464
Christopher. M. Smith v. Ruma Constructions (2002) SC695
Rea Joseph v Manau Sereva & Ors (2011) SC1152
PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456
Gigmai Awal v. Salamo Elema [2000] PNGLR 288

Counsel:   
Mr. Y. Awi, for the Appellant
Mr. N. L Ako for the First Respondent
 
29th October 2024

1.	BY THE COURT:  We heard and reserved our decision on two competing objections to competency of proceedings. The First Respondent, Mamun Investments Limited (Mamun) filed the first one on 04 April 2022, while the second one is in response to that objection by the Appellant, Kagregos Electrical Limited (KEL).  Here now is the Court’s decision on the objections.

Grounds for the Objections 

2.	Turning first to the grounds for the respective objections we note Mamun’s objection is based on the following grounds:

(1)	The Supplementary Notice of Appeal filed by KEL seeks to appeal against two separate and distinct decisions of the National Court, one delivered on 11 February 2022, and another made earlier on 14 December 2021 which is contrary to O. 7, rr. 3, 4, 9 and 10 of the SC Rules and s. 4 (1) and 2 (c) of the Supreme Court Act. 

(2)	The decision made on 11 February 2022 was an interlocutory decision which required leave, but no leave was sought and obtained. 

(3)	The form used for the Supplementary Notice of Appeal is defective because:

(a)	It does not correctly describe the National Court proceedings and the place where the decision was made; and 
(b)	A party in the National Court proceedings, the First Defendant has not been named in the appeal. 
(4)	Given two Supreme Court decisions vesting title to the property, the subject of the proceedings, other National Court orders against the proprietor of KEL and the principle of res judicata, there is no merit in the KEL’s appeal.

(5)	 A failure to properly plead the grounds of appeal with particularity and clarity. 

3.	Ground 2 is one which can be disposed of without any detailed consideration then this.  The same arguments Mamun raises in respect of KEL not appealing against the ex parte decision of 14 December 2021, as we will explain in detail later, equally applies here. In short, the decision of 11 February 2022 was a final decision.  The decision dismissed the application for a set aside of the earlier ex parte order.  That ended the life of the relevant proceedings in the National Court.  It was thus no interlocutory decision but a final decision in the relevant proceeding.  For this reason, we dismiss this ground of the objection. 

4.	Ground 3 has not been pursued and argued before us.  We are of the view that this ground has been abandoned.  Hence, we will not give this ground any further consideration. 

5.	Ground 4 goes into the substantive merits of the case.   It is therefore not a proper or valid ground for objection to competency of an appeal.  The procedure for objections to competency is not open to a respondent to have a short cut to a determination of the substantive merits of an appeal.  A proper ground for objection to competency of an appeal only concerns the proper or correct invoking of this Court’s jurisdiction to deal with the matter: See Turia v. Nelson (2008) SC949. We therefore order a dismissal of this ground of the objection.

KEL’s objection

6.	These leaves us to deal only with grounds 1 and 5 of the Mamun’s Objection. Before proceeding to deal with those grounds, we note, the objection by KEL to Mamun’s Objections is based on a single ground of the notice of objection by Mamun not being served within the 14 days required by the Order 7, r. 15 (a) and (b) of the Supreme Court Rules (SC Rules). This is easily disposable as well.  Hence, we will have that dealt with first.

Relevant principle governing objection to competencies

7.	But first, we note the relevant principles governing objections to competency of appeals is well settled in our jurisdiction.  We will allow ourselves to be guided by those principles to come to a decision on the objections before us. 

8.	In Michael Kuman & Ors v. Digicel (PNG) Ltd (2017) SC1638, Kandakasi DCJ discussed and summed up the relevant principles of law in the following terms:

“Objections to competency of appeals, applications for leave to appeal and references and or other applications or process brought to the Supreme Court is a well-trodden road in Papua New Guinea. The principles governing such objections are well settled. I note as did the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 (per Cannings, David and Sawong JJ), the “law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v. Nelson (2008) SC949, per Kirriwom, Cannings, Yagi JJ. These have been elaborated and complimented upon by other decisions. According to these decisions, an objection to competency would properly be in Court if it raises issues that:

(1) 	draws the Court’s attention to a question of jurisdiction: See Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v. Gabriel Nelson (supra) and Talibe Hegele v. Tony Kila (supra).

(2) 	there are serious threshold issues concerning legality or viability of the appeal: See PNG Forest Authority v. Securamax Ltd (2003) SC717.

(3) 	leave has not being sought and obtained separately in cases where some of the grounds of appeal require leave and some do not: See Yakham & The National v. Merriam & Merriam (1997) SC533, per Amet CJ, Kapi DCJ and Los J.

(4) 	an application for leave or notice of appeal’s ground is false, misleading or is vague or not adequately stating the nature of the case, the questions involved and the reasons why leave should be given: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456, per Batari, David and Makail, JJ; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, per Amet CJ, Kapi DCJ and Sevua J.

To validly plead the grounds, they must briefly state but:

(a)	specifically make grammatical and legal sense and be intelligible.

(b)	if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that. 

(c)	if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: See Jimmy Lama v. NDB Investments Ltd (2015) SC1423, per Cannings, Collier and Geita JJ.

(5)	an application for leave or notice of appeal has been filed outside the 40 days period allowed by s. 17 of the Supreme Court Act without leave of the Supreme Court: See The State v. John Tuap (2004) SC765, per Sawong, Mogish and Cannings JJ.

(6)	an application for leave includes questions of law or fact not raised in the National Court: See Chief Inspector Robert Kalasim v. Tangane Koglwa (2006) SC828, Kapi CJ, Injia DCJ and Hinchliffe J.

(7)	an applicant for leave does not have sufficient interest in the subject matter of the National Court’s decision that it wishes to appeal against: See Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691, per Kapi CJ, Kirriwom and Lay JJ.

(8)	the notice of appeal raises factual questions for which leave had not been first sought and obtained separately: Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431, per Gavara-Nanu, David and Murray JJ.

(9)	an application for leave has been filed unnecessarily, that is, where the objecting party points out that leave to appeal was not actually required and leave is being sought. Earlier decisions of the Court held this could not be a valid ground to object: See Boyepe Pere v. Emmanuel Ningi (2003) SC711, per Los, Kandakasi and Mogish JJ; Oio Aba v. MVIL (2005) SC779, per Injia DCJ, Sawong and Lay JJ; The State v. John Talu Tekwie (2006) SC843, per Salika, Lay and Gabi JJ. This later changed to make it a valid ground for objection to competency: See Paul Bari v. John Raim (2004) SC768, per Salika, Mogish & Cannings, JJ; Timothy Neville v. IPBC (2012) SC1193, per Salika, DCJ and Batari J. and Rea Joseph v. Manau Sereva (2011) SC1152, five-member bench comprising of Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ.

(10)	the appeal, leave or review or an application or a process before the Court fails to strictly comply with the mandatory procedures and requirements of the Supreme Court Rules: See National Capital Ltd v. Loi Bakanio (2014) SC1392, per Injia CJ, Gavara-Nanu and Kawi JJ; Dr Arnold Kukari v. Don Polye & Ors (2008) SC 907, per Kapi CJ, Gavara-Nanu and Cannings JJ.; Ipili Porgera Investments Ltd v. Bank South Pacific Ltd (2007) SC1322; Felix Bakani v Rodney Daipo SC659; Haiveta v. Wingti (No.2) [1994] PNGLR 189 and Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112). Any such defect cannot be fixed by any amendments as the originating process is not properly before the Court. This is not an exercise in the court nitpicking, but is something that goes into the validity of the process: See In the Matter of Section 19 of The Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006) (2007) SC917; Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249 and Special Reference by Morobe Provincial Executive (2010) SC1089.

(11)	it is also clear that, the above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court raising questions of the Court’s jurisdiction to deal with a matter brought before it. At the same time, it is clear that, following grounds of objection are not proper grounds for taking an objection as to the competency of a matter before the Court:

(1)	That an application for leave to appeal was not served on the respondent: See Gigmai Awal v. Salamo Elema (supra), where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties;

(2)	That the proposed grounds of appeal referred to in an application for leave to appeal, lack merit. This is to say, where an objection raises an argument around the grounds of appeal having any merit or are not likely to succeed is not a proper ground to object because such arguments can only be raised at the hearing of the substantive matter. See The State v. John Talu Tekwie (2006) SC843; and PNG Forest Authority v. Securimax Ltd (2003) SC717.

9.	His Honour then concluded:

“...The obvious weight and import of all of these decisions is this. A notice of appeal, an application for leave to appeal or any application or a process brought before the Supreme Court must strictly meet the requirements of the Supreme Court Act and Supreme Court Rules in order for such a process to be properly before the Court. A failure to strictly meet these requirements amounts to incompetence by reason of which, the process could be dismissed.”

10.	As his Honour also noted:

“…the only case that has departed from the above well-established position at law was the decision in Coca Cola Amatil (PNG) Ltd v. Yanda…In that case, the Court essentially said, as long as there is one ground of appeal that invokes the Courts’ jurisdiction, the notice of appeal could safely proceed to a hearing. That judgment with respect, did not consider the long line of cases I referred to. The long line of cases I referred to and the principles they stand for do two things. First, they govern the issue of how a process can properly or competently invoke the Supreme Court’s jurisdiction. Having one ground of appeal or a process before the Supreme Court that invokes the jurisdiction of the Court is one critical aspect. The other also critical aspect is the need to come to the Supreme Court in the correct manner and form, at the correct time and by the correct person or parties. Secondly, they make it clear that, even if a person gets everything right but for one requirement such as the form, timing, not sufficiently and properly pleading a ground, or raising an issue not raised in the Court below, or seeking leave when not required, renders the appeal or the processes before the Court not properly before the Court. Instead, it would be incompetent and could be dismissed on that basis. The decision in Coca Cola Amatil (PNG) Ltd v. Yanda (supra) does not address these factors and clearly articulate why all the years of making through the various decisions of the Supreme Court must now be abandoned. Clearly, that decision does not with respect, offer any good reason to depart from the well-trodden road of objections to competencies of appeals and other process before the Supreme Court and in particular, the principles that have been developed and applied throughout the years to the present. In these circumstances, I see no reason to depart from the long-established practice and procedure in our jurisdiction. The principles they stand for are still sound and are thus relevant and applicable.”

Background facts

11.	With these we return to the case at hand.  The relevant factual background is simple. By a supplementary notice of appeal, KEL is in fact appealing against two separate decisions of the National Court. The first was a decision which dismissed KEL’s National Court proceedings on 14 December 2021. The second decision was a decision arrived at on 11 February 2022 dismissing an application by KEL by notice of motion seeking a set aside of the decision of 14th December 2021.

12.	The proceedings in the Court below and this appeal concerns a property described as Allotments 1 and 2 (consolidated) Section 13, Mt Hagen, Western Highlands Province (the Property). That Property was the subject of prior litigation.  The main issue in the then and current proceedings concerned the issue of ownership. The prior proceedings ended up in the Supreme Court on two separate occasions, resulting in two separate decisions.  Each of those separate decisions went in favour of Mamun. The first of the two decisions was made on 31st August 1995 and the second decision was made on 24 February 2015.  These decisions declared Mamun had indefeasible title over the Property and was the registered owner since 13th December 1990, when the original owner, National Council of Young Christian Men’s Association of Papua New Guinea transferred the Property to Mamun.  By a decision made on 16th May 2016, the National Court sitting in Waigani, ordered the sole proprietor of KEL, Mr. So Gregory Koim to desist and cease from making claims to the Property and not to file further proceedings in relation to the Property.  In a separate proceeding filed by KEL out of the National Court in Mt Hagen, it claimed ownership of the Property yet again. That proceeding got dismissed summarily on 03rd August 2021.   On the substantive merits therefore, the matter appears to have reached res judicata.

KEL’s Objection - Objection to Competency Not Served Within Prescribed Time

13.	We deal firstly with KEL’s object to Mamun’s objections. It is settled law that the competency of proceedings before the Court is always an open question but before final judgment. The decision of this Court in Independent State of Papua New Guinea v. Namah (2020) SC2037confirms that position.  Relevantly, the Court held:

“In regard to the objection to the notice of objection to competency that it was not served within the time prescribed by Order 7 Rule 15(b) Supreme Court Rules, we note that it is conceded that the notice was served four days late. The evidence is that this was due to a sealed copy not being released in time by the Supreme Court Registry. Order 7 Rule 19 provides for a scenario in which an appeal may be dismissed as incompetent notwithstanding that a notice of objection to competency is not given. A failure to comply with this rule therefore does not preclude an objection to competency. We are also aware of numerous authorities to the effect that an objection to competency may be made at any time before the hearing of an appeal notwithstanding the requirements of the Supreme Court Rules concerning objections to competency: Lowa v. Akipe [1992] PNGLR 399; Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112 and Kalasim v. Mond (2006) SC828. Consequently, we reject the objection to the notice of objection to competency.”

14.	That being the case, the objection by KEL cannot be sustained.  Accordingly, we dismiss it. The only valid question for the Court to consider will be the question of costs should Mamun’s objection be upheld.  Accordingly, we order a dismissal of KEL’s objection to the competency of Mamun’s objections to the competency of its supplementary notice of appeal. This leads us to now deal with Mamun’s objection.

15.	We will deal with Mamun’s objection in the order of the remaining grounds of the object, starting with the first one first.

Objection ground 1 – One appeal against two separate decisions
16.	There is no contest that KEL’s supplementary notice of appeal, appeals against two separate and distinct decisions. The first is the exparte and order decision dismissing KEL’s proceedings in the National Court on 14th December 2021. Faced with that decision, KEL had the choice of either applying for a set aside of that decision or appeal against the decision.  

17.	Relevantly, there are two lines of authority on point as to KEL’s recourse.  The first is the decision of the Supreme Court in Barry v. Luma (2017) SC1639. That decision considered fully the provisions of Order 12, Rule 8.  The Court then went on to state what the whole provision of Order 12, r. 8 means in the following terms:

“It is clear from a reading of the whole of the provisions of Rule 8 that there is general power, albeit discretionary, vested in the National Court to set aside or vary a direction for entry of judgment or order. It is, however, also important to note that such power can be exercised only when an application (notice of motion) is filed “before entry of judgment” but this requirement may be dispensed with in appropriate circumstances under Order 1 Rule 7. Where the relief under Order 1 Rule 7 is not sought and or granted, there is no power to be exercised.
(Underlining ours)

18.	Then turning specifically to each of the sub-rules the Court observed:

“Sub-rule (1) grants a general power; however, the conditions for the exercise of the power are specific and are provided under Sub-rule (2). There are only 3 conditions; firstly, in cases where a default judgment is entered under Division 3 of Order 12, or, secondly, in cases where a judgment has been entered ex parte, or, thirdly, in cases where judgment has been entered in proceedings relating to land.”

Sub-rule (4) whilst making provision for additional or supplementary powers, at the same time, provides two caveats or exceptions to the general power. It specifically says that there is no power to set aside or vary a judgment or order for “dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.”
(Underlining ours)

19.	The Court reasoned:

“ The process for setting aside or varying an order is without question an interlocutory process. Sub-rule (1) expressly provides for that. In the broader context and scheme of things under the Rules of Court a civil proceeding is commenced by a substantive process. These processes are provided under Order 4. Except as authorized by any other law there are only two modes of commencing a civil proceeding; by a writ of summons and by an originating summons.”
(Underlining ours)

20.	Thereafter, the Court clarified:

“A notice of motion is only an interlocutory process. It cannot be used to commence or re-commence a substantive proceeding. It can only be used, as its name suggests, whilst the substantive proceeding is current. It is intended to be used within and not without a current proceeding. Where the proceeding is brought to a finality by way of a dismissal order the currency or life of the proceedings is at end and cannot be brought back to life or resurrected, as it were, by an interlocutory process. This is made clear by virtue of Rule 4 of Order 4. It states:
‘4.	Mode of proceedings in interlocutory matters.
Proceedings may be instituted by motion, only if they relate to an interlocutory application.’

Rule 4 is further reinforced by Rule 37 of Order 4 where it reads:
‘37.	Interlocutory or other application in proceedings. (19/1)
An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.’

Put it in another way in the context of the present appeal the effect of Rule 4, is that, a notice of motion cannot be employed to resurrect, restore or revive a substantive proceeding that has been dismissed even on the basis of an ex parte order. The remedy for an aggrieve party does not lie in an application under Order 12 Rule 8 but through an appeal or review process in the Supreme Court.”
(Underlining ours)

21.	In arriving at its decision, the Court also had regard to several earlier decisions on point in the following way:

“We have read the National Court decision in James Aiwasi (supra). In the course of writing this decision we have also come across another judgment of the National Court in Harry Tovon v Carl Malpo (2016) N6240. Both are judgments of his Honour Kandakasi J. These two cases discussed, amongst others, the effect of Rule 8(4) of Order 12 and both reached the same conclusion on the very issue before us. In Harry Tovon case (supra) his Honour Kandakasi J discussed, amongst others, the scheme of the Rules and the meaning of “interlocutory” in the context of the Rules. Both of his Honour’s decisions agree with the reasoning by Makail AJ (as he then was) in Peter Malts case (supra). We are of the view that the reasoning in these 3 cases is sound in law and practice. We agree with and endorse their Honours’ reasoning and conclusion.”
(Underlining ours)

22.	Additionally, the Court considered the important public policy consideration of finality in litigation and said:

“The Public Policy dictates or requires finality in litigation. There must be finality in litigation once a final decision has been arrived at. We adopt the remarks as stated in Richard Dennis Wallbank & Jeanette Miniffe v The Independent State of Papua New Guinea [1994] PNGLR 78.
(Underlining ours)

23.	Then based on the reasons the Court gave, it concluded:

“For all the foregoing reasons and applying the order approach principle recently approved by the full Bench of the Supreme Court in Steven Punangi case (supra) an ex-parte order dismissing the proceedings for want of prosecution, and for that matter disclosing no reasonable cause of action, is in our view a final order as it finally and effectively determines the life of the substantive proceeding before the National Court.

A party like the Appellants in this case who are aggrieved by an ex-parte dismissal order can only appeal to the Supreme Court as of right and leave is not required. see Rea Joseph v. Manau Sereva & Ors (2011) SC1152.”
(Underlining ours)

24.	The other line of Supreme Court decisions is represented by the 5-member Supreme Court decision in Lady Ni Cragnolini v. Teddy Taison & Anor (2023) SC2464. These lines of authorities allow for applications by notice of motion in the National Court for a set aside of an ex-parte order dismissing or concluding proceedings.  Representing that line of authority, the Cragnolini v. Taison case, discussed the provisions of Order 12, r. 8 in the following terms at [15] to [17]:

“15.	The power under Order 12 Rule 8(1) is separate from those under Order 12 Rule 8(2) and (3) as the latter rules only apply to circumstances where judgments or orders have been obtained in the absence of a party.  There is a clear demarcation in that regard. 

16.	The provisions of Rule 8(3) (a) and (b) appear to be simple and easy to understand and are general in their nature and their application and are wide in our opinion.  Order 8 Rule 3(a) refers to an order made in the absence of a party whether a party is in default or not of giving notice of intention to defend or otherwise in default.  This provision is very general.  Rules 8 (3) (b) refers to where a motion is filed seeking to set aside or vary an order made under sub-rule (3) (a).   Order 12 Rule 8 (3)(a) does not specifically mention an order “dismissing in part or the entire proceeding “which would effectively determine the life of that proceedings.

17.	Order 12 Rule 8(4) in our opinion is more specific in its nature and in its application.  It an additional power given to the National Court apart from those given under sub-rules (1), (2) and (3). In our view, this sub-rule does not apply to judgments or orders made in the absence of a party given under sub-rules (2) and (3) which specifically and expressly make provision for that circumstance:  see Inugu v Maru (2019) SC1873 at [71].”
(Underlining ours)

25.	With respect, unlike the Court in the Barry v. Luma (supra) case, the Court in Cragnolini v. Taison (supra) did not note the following:

(a)	Order 12, r. 8 (1) reads:
The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(b)	Order 12, r. 8 (3) (b) also reads:
Where notice of motion for the setting aside or variation is filed before entry of the order.

(c)	Order 12, r. 8 (4) reads:
In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether  or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the  whole or any part of any claim for relief.

(d)	Order 4, r. 4 and r. 37 which read:
Rule 4:	
Proceedings may be instituted by motion, only if they relate to an interlocutory application.”

Rule 37:
An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.”
(Underlining ours)

26.	As can be seen from these, the Court in the Cragnolini v. Taison (supra) case, with respect, did not give any consideration at all to the fact that a notice of motion seeking to set aside an earlier order under O.12, r. 8 (1) needs to be filed prior to and not after the entry of the judgment or order sought to be set aside.  That is also a requirement that must be met under O12, r. 8 (2) and (3) by a party seeking to set aside an earlier ex parte order or judgment, or a default judgment or a judgment for passion of land must meet.  On the other hand, as already noted, the decision in Luma v. Barry (supra) did note the requirement to file a notice of motion seeking to set aside an order under Order 12, r. 8 must be filed prior to entry of the judgement or order sought to be set aside and suggested a way around that requirement if a motion is filed after the entry of the order or judgment in the following terms:
 
“It is, however, also important to note that such power can be exercised only when an application (notice of motion) is filed “before entry of judgment” but this requirement may be dispensed with in appropriate circumstances under Order 1 Rule 7. Where the relief under Order 1 Rule 7 is not sought and or granted, there is no power to be exercised.”

27.	On our part, we note as did the Court in Barry v. Luma (supra) that Order 12, r. 8 need to be read as a whole.   Here is why. The provision provides for the setting aside or varying of a judgment or order and nothing more or different.  Subrule (1) grants that power to the Court, provided the application for a set aside is filed prior to and not after the entry of the judgment or order sought to be set aside.  Subrule (2) provides for the kinds of judgment or orders that are open for a set aside application, namely default judgements, judgment or orders made in the absence of a party (ex-parte) or the judgment or order concerns possession of land. Subrule (3) re-enforces subrule (1) as to the orders the Court can make under subrule (2).  Finally, subrule (4) adds, the Court has the power to order a set aside or variation but for two exceptions.  These are in cases where the order or judgment sought to be set aside:

(1)	Determined any claim for relief or determined any question (whether of fact or law or both) arising in any claim for relief; and or

(2)	Dismissed the whole or part of the proceedings or the whole or part of any claim for relief.

28.	Following on from the above, we note that each of the subrules, (1), (2) and (3) of Order 12, r. 8 are not providing for separate and distinct scenarios.  They are all speaking of the Court’s power to set aside or vary an earlier judgment, or order provided the motion for the set aside is filed prior to and not after the entry of the judgment or order sought to be set aside.  The only subrule that speaks of a different scenario is subrule (4).  As noted, this subrule provides for the exclusion of the power to set aside ex parte orders or judgments in cases where there has been a final determination of the whole or part of the proceedings or an issue or relief sought in the proceedings.  

29.	As the decision in Barry v. Luma (supra) stated, there is a good reason for these exclusions. Once a court has come to a final decision, the primary decision maker has no power to revisit its own order or judgment. There must be finality in litigation subject to ones right of appeal or review. Consistent with that, and the decisions in Christopher. M. Smith v. Ruma Constructions (2002) SC695, Rea Joseph v. Manau Sereva & Ors (2011) SC1152 and Barry v. Luma (supra) as well as the provisions of Order 4, rr. 4 and 37, no notice of motion can be employed to apply for a set aside of a final order either dismissing any proceeding, determining a question or a part of any proceeding.  

30.	Repeating what we already noted, the Court in Cragnolini v. Taison (supra) did not address the above important points.  That decision is therefore not binding and applicable to cases in which the issues the Court did not address are raised.  That is the case before case.

31.	Based on the foregoing, we are respectfully of the view that, anyone applying in the National Court for a set aside of an earlier order that dismissed a proceeding or determined part of a proceeding or a question arising in the proceeding would be irregular and incompetent. Additionally, filing such an application after the entry of the judgment or order sought to be set aside without any dispensation or leave of the Court under Order 1, r. 7, would add to the application being irregularity and incompetent. 

32.	Applying the law as discussed above to the case at hand, we find the application for a set aside of the ex parte order on 14 December 2021, which dismissed KEL’s proceedings was irregular and incompetent. KEL’s recourse lied in an appeal or review application to the Supreme Court against the ex parte dismissal order, which KEL failed to exercise and instead applied for a set aside.  The National Court, therefore, correctly dismissed that application amongst others for being incompetent and for an abuse of the process of the court.  By virtue of its choice to apply for a set aside of the ex parte dismissal order, KEL decided to forego its right of appeal or review against that decision.  It is now not open to KEL to appeal against the ex parte order as it seeks to do in this appeal. This alone renders KEL’s appeal incompetent.

33.	Additionally, when the National Court dismissed KEL’s application for a set aside of the ex parte order, KEL had a right of appeal against that decision but only against the reasons the Court gave for dismissing the application.  Instead of doing that, KEL is seeking to appeal against the ex parte decision and orders of 14 December 2021, as well as the decision that decided against setting aside the that ex parte order made on the 12 February 2022 in the one appeal.  There can be only one appeal against one decision unless one of the decisions is an interlocutory decision for example a decision on admission or not of any evidence during a trial and a final decision in the relevant case or a decision on liability followed by a decision on quantum or a decision on verdict first that is followed by a decision on sentence in a criminal case, but not two separate final decisions as in this case.  There is no provision in the Supreme Court Act or the Supreme Court Rules, which allows for appeals against two decisions arrived at or delivered at different times, in one notice of appeal.  Instead, appeals are usually against a single decision.

34.	For these reasons we uphold the first ground of the Mamun’s objection.  This would be sufficient to order a dismissal of the appeal for incompetence.  But for completeness, however, we will deal with the remaining ground of the Objection, ground 5.  This ground concerns the proper pleading of the grounds of appeal.
 
Ground 5 - Failure to properly plead the grounds of appeal with particularity and clarity. 
35.	Mamun claims the grounds of appeal are not properly pleaded. It is settled law that an appellant should properly plead the grounds of his or her appeal with the relevant particulars and with clarity: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, and Michael Kuman & Ors v. Digicel (PNG) Ltd (supra) per Kandakasi DCJ. Having appealed against two separate decisions of the National Court. It was incumbent upon KEL to properly plead each of the grounds it is relying upon against each of the two separate decisions.  Our pursual of the Supplementary Notice of Appeal filed on 21 March 2022 fails to reveal KEL doing just that.  In view of the views, we have earlier expressed in the context of ground 1 of the Objection, it was necessary for KEL to plead amongst others, how it is able to appeal against the decision of 21 December 2021, after having failed in his application for set aside of that decision. This in our respectful view renders the appeal incompetent.  Hence, we uphold this ground of the Objection. 

Outcome of the Objection to Competency

36.	 What should be the outcome of Mamun’s Objection to Competency? Clearly, the appeal is incompetent, and it also amounts to an abuse of the process of the Court. Accordingly, we uphold Mamun’s Objection to Competency and order a dismissal of the Appeal.

37.	On the question of costs, we remind ourselves that Mamun filed its Objection to Competency outside the time prescribed.  We also note that, out of 5 grounds of the Objection only two are successful.   In the circumstances we consider it fair and reasonable that each party should bear their own costs.

Orders of the Court

38.	The formal orders of the Court then are:

1.	The First Respondent’s Objection to Competency is upheld.
2.	The appeal is dismissed.
3.	Each party to bear their own costs. 

Judgment and orders accordingly.

________________________________________________________________
Awi Lawyers: 		Lawyers for the Appellant
Warner Shand Lawyers: 		Lawyers for the First Respondent