SC2685

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 43 OF 2023

BETWEEN:
TOM WAMBE
for himself and as Chairman and authorized representative of the members of the Lu’u Clan of Masiki Village, Erave Rural Local Level Government Constituency, Kagua Erave District, Southern Highlands Province
Appellant

AND:
CIVIL CONTRACTORS PACIFIC LIMITED
First Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: HARTSHORN J
18 JUNE,1 JULY 2024

PRACTICE AND PROCEDURE - Application for leave to appeal – section 14(3)(1)(c) Supreme court Act - whether the application for leave to appeal serves any purpose and whether the application is flawed - application for leave to appeal serves no purpose, is fundamentally flawed and should be dismissed.  

 Cases cited

JT(PNG) Ltd v. Tapu Construction Ltd (2013) SC1254
Amaiu v. Kipalan (2009) SC991 
Henzy Yakhien v. Stuart Merrian [1998] PNGLR 555
Henganofi Development Corporation Ltd v. POSFB (2010) SC1025 

Counsel

Mr. D. Kaima for the appellant
Ms. J. Nandape and Ms. B.Thomas for the first respondent

1. HARTSHORN J: This is a decision on a contested application for leave to appeal on questions of fact made pursuant to Section 14(3)(1)(c) Supreme court Act.

Background 

2. The lead appellant (appellant) for himself and others commenced proceedings in the National Court seeking amongst others, an injunction restraining the first respondent from continuing with the construction of a certain road on the appellants’ customary land and general special and exemplary damages in respect of the construction of the road. 

3. The proceedings were dismissed by the primary judge on 31st March 2023 (dismissal order). The appellants seek leave to appeal the proceeding dismissed on questions of fact.   

The application 

4. The appellant contends that the primary judge fell into error in her determination of particular facts in respect of the appellant’s representative capacity, the identification of the appellant’s customary land and as to when the appellant’s causes of action accrued. 

5. The first respondent contends that this application for leave to appeal is fundamentally flawed and should be dismissed. This is because the appellant does not have an appeal of the dismissal order pending on questions of law or mixed fact and law. The appellant only has this application for leave to appeal on questions of fact. As a consequence, the application for leave to appeal serves no purpose as the questions of fact raised therein are not linked or connected with questions of law or mixed fact and law.  The applicant only has this application for leave to appeal on questions of facts. As a consequence, the application for leave to appeal serves no purpose as the questions of fact roused therein are not linked or connected with questions of law or mixed fact and law. The first respondent relies upon the judgment of Injia CJ in JT(PNG) Ltd v. Tapu Construction Ltd (2013) SC1254.

6. The appellant contends first, that the first respondent has not filed an objection to competency raising this issue. 

7. On this point, as to the first respondent raising the issue without filing an objection to competency, this Court may consider an issue of competency in the absence of a notice of objection to competency at any time before judgment. This is envisaged in Order 7 Rule 19 Supreme Court Rules. I also make reference to the judgment of Injia CJ in Amaiu v. Kipalan (2009) SC991 in which His Honour said at [19]: 

“SCR, O 7 Div.5 provides the procedure for a respondent to object to the competency of a leave application. It does not provide the procedure in a case where the Court of its own motion raises a competency issue. Competency issues are threshold procedural issues which relate to the jurisdiction of the Court to entertain the point: Whagi Savings and Loans Society Ltd v Bank of South Pacific Ltd [1979] INSC 181; (1980) SC185. The Courts power to raise competency issues with the parties and determine those issues is in the ordinary or inherent jurisdiction of the Judge or Court which is possessed of primary statutory power or jurisdiction to deal with a particular matter. This power or jurisdiction maybe exercised in a particular case at any stage of the proceedings up to judgment: Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828.” 

8. In the course of the hearing, in addition to counsel for the first respondent raising the issue, I also raised this issue with counsel for the appellant. 

9. Further, in my view, this issue is not a competency issue as it does not relate to the Courts power to entertain the point. The issue concerns whether the application for leave to appeal serves any purpose and whether the application is flawed. Consequently, for the above reasons, the first respondent is able to raise and argue this issue. 

10. Secondly, the appellant contends that if this application for leave to appeal on questions of fact is granted, then the notice of appeal which will be filed will contain appropriate grounds of appeal concerning the findings of fact and mixed fact and law of the primary judge with which the appellant takes issue. Reliance was placed upon the judgment of Henzy Yakham v. Stuart Merriam [1998] PNGLR 555 and Henganofi Development Corporation Ltd v. POSFB (2010) SC1025. 

11. These judgments relied upon by the appellant do not concern the issue being considered and are not of assistance to the appellant in my view.  In JT (PNG) Ltd v. Tapu Construction Ltd (supra) Injia CJ (as he then was) at [8] and [9] said the following: 

“8. During my exchange with counsel for the appellant, it became apparent that no appeal was on foot on questions of law or mixed fact and law. I then raised the question that if the appellant were not appealing against the findings of law and mixed fact and law, what purpose would be served by appealing against pure findings of fact. It was argued in response that if leave is granted, appropriate grounds of appeal relating to findings of fact and mixed fact and law will be introduced in a notice of appeal filed upon grant of leave. 

“9. In my view, an appeal against findings of fact alone after final judgment must be supported by an appeal raising questions of law or mixed fact and law as of right, because a decision or judgment necessarily entails application of law to given facts and conclusions reached that form the basis of the judgment or orders made, that (sic) determines the case and disposes of the rights of the parties. Questions of fact that have no connection to the law (questions of law) and conclusions reached upon application of the law to the facts (mixed fact and law) serves no purpose in the appeal unless those questions of fact are linked to or connected with questions of law or mixed fact and law, raised in a separate appeal filed as of right that is on foot. In this case, no such appeal is on foot. In this situation, the application for leave in relation to questions of fact alone is fundamentally flawed. 

12. I respectfully agree with His Honour’s reasoning and conclusion concerning an appeal against finding of facts alone after a final judgment. In this instance, it is not controversial that the appellant does not have an appeal of the dismissal order pending and so he does not have an appeal pending on questions of law or mixed fact and law. Consequently, in accordance with the judgment of JT (PNG) Ltd v. Tapu Construction Ltd (supra), I am satisfied that this application for leave to appeal serves no purpose, is fundamentally flawed and should be dismissed.  

13. Given this, it is not necessary to consider the other submissions of counsel, apart from as to costs.  

14. The First Respondent submits amongst others as to costs that the lawyer for the appellant should pay costs on an indemnity basis. Reliance is placed upon Order 11 Rule 11 (1) Supreme Court Rules at [7.2] of the first respondent’s submissions. There is no Order 11 Rule 11(1) Supreme Court Rules and Order 11 Rule 11 does not give the power to this Court to grant the order sought.  

15. Costs will follow the event. 

Orders

a)	This application for leave to appeal is dismissed.

b)	The appellant shall pay the costs of the first respondent of and incidental to 	the said application for leave to appeal.
__________________________________________________________________
Lawyers for the appellant: Stratsev Legal
Lawyers for the first respondent: Nandape & Associate Lawyers