SC2673

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 7 OF 2024

ULEA BAEAU
First Appellant

AND
CHARLIE IMBU, JACOB MANDALIA, REX CLARK, RAYMOND HULI, TAYAGO HAMONO, GRAHAM TALIPE, LUDWIG REPO, SIRI YAKU, LOUIS WARUPE AUA AND BALAI MEKIM KUNAGO
Second Appellants

AND
PORT MORESBY GENERAL HOSPITAL BOARD
Respondent

WAIGANI: FRANK J, BERRIGAN J, PURDON-SULLY J
25 September and 18 December 2024

APPEAL – OBJECTION TO COMPETENCY – Notice of objection to competency served out of time and itself incompetent – Grounds of objection failed to establish that the Court lacked jurisdiction – Objection dismissed.

Cases cited

Frontier Holdings Ltd v James Hariva Lohoro & Others (2022) SC2334
The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448
Independent State of Papua New Guinea v Kalaut (2021) SC2094
Yama v Singirok (2020) SC1982 
Amaiu v Yalbees (2020) SC2046
Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205
Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201
Serowa v Dowa (2023) SC2381
Akiko v Ekepa (2022) SC2203
Kitogara Holdings Pty Ltd v NCDIC [1988-89] PNGLR 346
Yanto v Piu (2005) SC798
Porgera Joint Venture v Yako [2008] PNGLR 173 

References cited

Section 59, Constitution
Section 17, Supreme Court Act
Order 7 Rules 9, 10, 15, Supreme Court Rules 2012

Counsel

T Tape for the appellants 
J Aku for the respondent

DECISION ON OBJECTION TO COMPETENCY

1.	BY THE COURT:   This is a decision on an objection to competency of an appeal filed on 23 January 2024 against a decision of the National Court made on 21 December 2023 ordering the eviction of the Appellants and others within 14 days from a certain portion of land at Fourmile, Port Moresby, National Capital District on the application of the Respondent. 

2.	The Respondent objects to the competency of the appeal on a number of grounds. We refuse the objection for the following reasons.

3.	Firstly, the notice of objection is itself incompetent having been filed outside the mandatory requirements of the Supreme Court Rules. In particular, Order 7 Rule 15, Supreme Court Rules provides that a respondent who objects to the competency of an appeal shall file and serve the notice of objection within 14 days. 

4.	The objection to competency whilst filed within time on 13 February 2024 was not served on the Appellants until the following day and thus out of time: Order 7 Rule 15(b), Frontier Holdings Ltd v James Hariva Lohoro & Others (2022) SC2334; see also The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448; Independent State of Papua New Guinea v Kalaut (2021) SC2094. 

5.	Whilst a party who fails to comply with the mandatory requirements of the Rules may seek leave of the Court to raise an objection going to jurisdiction at any time any such exception must be one that demonstrates unequivocally that the Court has no jurisdiction: Yama v Singirok (2020) SC1982 per Cannings J at [99], Salika DCJ, Batari J and Mogish J agreeing and the cases applying.

6.	We are not persuaded that any of the grounds relied upon by the Respondent demonstrate that the Court lacks jurisdiction. 

7.	The Respondent objects to an error in the manner in which it is named in one part of the notice of appeal. The error is typographical. It is inconsequential in our view and causes no prejudice to the Respondent. The error has, furthermore, since been rectified by a supplementary notice of appeal against which no objection has been raised.

8.	As for the objection that the notice of appeal fails to seek orders “upholding the appeal”, the Respondent has failed to identify any requirement for an appellant to use those precise words. Moreover, the notice of appeal clearly identifies both the orders the subject of the appeal and the relief sought on the appeal in compliance with Order 7, Rule 9(d). 

9.	The Respondent further objects on the basis that the notice of appeal fails to “state briefly but specifically the grounds relied upon in support of the appeal” and fails to “specify with particularity the … specific reasons why it is alleged to be wrong in law” in accordance with Orders 7 rules 9(c) and 10 of the Supreme Court Rules, respectively.

10.	Some of the grounds in the notice of appeal are not well drafted. Nevertheless, it is sufficiently clear from Grounds 3.1 and 3.6 that the Appellants’ principal contention is that the primary judge erred by failing to ensure that persons affected by the proposed eviction orders, namely those living on the land, were given notice of the court proceedings or given an opportunity to be heard in accordance with s 59 of the Constitution. It also appears from Ground 3.3 that the Appellants contend that the National Court had no jurisdiction to deal with the eviction application whilst the question of whether the land was State or customary land was before the Land Titles Commission. The effect of Ground 3.4 is to contend that the 14 days notice given to vacate was unreasonable having regard to the Appellants’ interest in the land as long-term occupants of the land: see Amaiu v Yalbees (2020) SC2046. Ground 3.7 contends that the trial judge erred in failing to enquire as to whether the Respondent had standing to seek the eviction orders. 

11.	Those grounds raise questions of law or mixed fact and law for which leave was not required. 

12.	It is well established that an objecting party must show that all grounds of appeal are not properly before the Court to establish that the Court’s jurisdiction has not been properly invoked: Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205; Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201; Serowa v Dowa (2023) SC2381, amongst others. It follows that the Respondents have failed to demonstrate that the grounds of appeal are incompetent.

13.	Finally, we reject the Respondent’s contention that the Appellants lack standing to bring the appeal because they were not parties to the National Court proceedings. That is not the determinative issue. The Appellants must show that they have a right pursuant to s 17 of the Supreme Court Act as persons who “desire to appeal”. For that purpose they must establish that their interests are directly affected or that they are aggrieved by the order of the National Court and might have been joined as a party to the proceedings: Akiko v Ekepa (2022) SC2203 applying Kitogara Holdings Pty Ltd v NCDIC [1988-89] PNGLR 346; Yanto v Piu (2005) SC798 and Porgera Joint Venture v Yako [2008] PNGLR 173. 

14.	There is material before us to show that the Appellants have a genuine interest in the subject matter of the appeal and are directly affected or aggrieved by the National Court orders made on 23 December 2023. This ground of objection also fails.

15.	All grounds of objection to the competency of the appeal are refused. Costs will follow the event.

ORDERS

16.	We make the following orders.

(1)	The objection to the competency of the appeal is dismissed.
(2)	The Respondent shall pay the costs of the Appellants on the objection to competency to be taxed if not agreed.
(3)	The matter is remitted to the Registry for listing.
________________________________________________________________
Lawyers for the appellants: Kandawalyn Lawyers
Lawyers for the respondent: Jaku Lawyers