Vitolo v Mararea Land Group Inc [2024] PGSC 92; SC2615 (28 August 2024)

SC2615

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 3 OF 2023 (IECMS)

BETWEEN:
PHILIP VITOLO
First Appellant

AND:
HERMAN PASI, VINCENT TOVILI & KENNY SONNY
Second Appellant

AND:
MARAREA LAND GROUP INCORPORATED
First Respondent

AND:
HONOURABLE JUSTIN TKATCHENKO in his capacity as the
MINISTER FOR LANDS & PHYSICAL PLANNING
Second Respondent

AND:
IRUNA ROGAKILA in his capacity as
the Registrar of Incorporated Land Groups
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND:
NEW BRITAIN PALM OIL LIMITED
Fifth Respondent

Waigani: Makail J, Murray J & Purdon-Sully J
2023:29^th November
2024: 28^th August

SUPREME COURT – PRACTICE & PROCEDURE – Objection to competency – Failure to obtain leave to appeal – Judicial review interlocutory order – Leave to appeal necessary – Appeal under Order 10 from order under Order 16 of National Court Rules – Leave to appeal granted in separate proceedings – Appeal filed by notice of motion – Process for obtaining leave to appeal and filing appeal by notice of motion are separate processes – Supreme Court Act – s 14 – Supreme Court Rules 2012 – Order 7 rules 4 & 6 – Order 10 rule 5 – Form 7 & From 15

SUPREME COURT - PRACTICE & PROCEDURE – Objection to competency – Failure to annex to notice of motion certified copy of order – Compliance with Supreme Court Rules mandatory – Rules not complied with – Objection upheld – Appeal dismissed – Supreme Court Rules 2012 – Order 10 rule 3(b)(ii)

Cases Cited:
Digicel (PNG) Ltd v Miringtoro [2019] SC1850
Dr Arnold Kukari v. Honourable Don Pomb Polye [2008] PGSC 4; SC907
Felix Bakani v Rodney Daipo [2002] SC699
Garamut Enterprises Limited v Steamships Trading Company Ltd [1999] SC625
GR Logging Ltd v Dotaona [2018] SC1690
Haiveta v. Wingti (No.2) [1994] PNGLR 189
Idumava Investments Ltd v National Fisheries Authority [2013] SC1273
Madang Timbers Ltd v Kambori [2009] SC992
National Capital Ltd v Bakani [2014] PGSC 34; SC1392
National Executive Council v Nelson [2004] SC766
Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642
Palaso v Elliot [2020] PGSC 118; SC2030
Rai v Imbuni [2021] PGSC 35; SC2080
Ronald Imbao v Don Pandan (2011) SC1098
Rural Technology Infrastructure Ltd v Paradise Foods Ltd [2015] SC1408
Sarea v Moutu [2019] PGSC 112; SC1893
Stephen Mendepo v NHC (2011) SC1169
Wahgi Savings and Loan Society v Bank South Pacific Ltd (1980) SC185, [1980] PGSC 4
Wawoi v Guavi Timber Company Ltd v Ken Norae Mondia (2007) SC1028

Legislation:
National Court Rules 1983
Supreme Court Act 1975
Supreme Court Rules 2012

Counsel
E. Isaac, for the Appellants
H. Leahy, for the First Respondent
N. Yano, for the Second, Third and Fourth Respondents
No Appearance for the Fifth Respondent

REASONS FOR JUDGMENT

28^th August 2024

1. BY THE COURT: This is a decision on an objection to competency.
   
2. Before the Court is an appeal from an interlocutory order of the National Court of 13 December 2022 (the order), in proceedings OS (JR) No 925 of 2018, dismissing a notice of motion filed by the appellants on 17 October 2022 and upholding a notice of motion filed by the first respondent on 26 October 2022.
   
3. The first respondent seeks the dismissal of the appellants’ notice of motion filed 22 February 2023 with costs. It raises preliminary issues relative to the competency of the appeal by notice of objections filed on 20 March 2023.
   
4. The second and third respondents support the first respondent’s objection to competency.
   
5. The appellants seek the dismissal of the first respondent’s objections.
   

BACKGROUND

6. On 19 January 2023 the appellants sought the leave of the Supreme Court to file an appeal against the order. They did so in another Supreme Court proceeding filed between the parties (SCA No 11 of 2023).
   
7. On 2 February 2023 leave was granted to the appellants to proceed with their appeal SCA No 11 of 2023 and to file a notice of appeal in those Supreme Court proceedings.
   
8. On 6 February 2023 in SCA No 11 of 2023 the appellants filed a Notice of Appeal using Form 8 under Order 7 of the Supreme Court Rules (SCR).
   
9. On 8 February 2023 in Supreme Court proceedings SCA No 11 of 2023 the appellants obtained a stay of the substantive National Court proceedings OS (JR) No 925 of 2018 (the National Court proceedings).
   
10. On 17 February 2023 the first respondent filed an objection to competency against the notice of appeal filed on 6 February 2023 using Form 8.
    
11. On 22 February 2023 the appellants instituted the current proceedings SCM No 3 of 2023 using Form 15.
    
12. On 8 March 2023 the appellants filed an application seeking leave to withdraw the notice of appeal in SCA No 11 of 2023 filed on 6 February 2023.
    
13. On 17 March 2023 a single judge sitting in the Supreme Court in proceedings SCA No 11 of 2023 granted leave for the appellants to withdraw their notice of appeal filed on 6 February 2023 on the following conditions:
    

(a) For the avoidance of doubt, the entire proceedings SCA 11 of 2023 now stands withdrawn

(b) For the avoidance of doubt, the stay order of 8 February 2023 is dissolved

(c) The appellants shall pay the respondent’s costs of the appeal SCA 11 of 2023 up to and including 20 February 2023. (emphasis added).

14. On 20 March 2023 the first respondent filed an objection to competency in the current proceedings SCM No 3 of 2023, the subject of this decision.
    
15. On 21 March 2023 the appellants filed an application in proceedings SCA No 11 of 2023 seeking to reinstate the stay application. On 5 July 2023, the Supreme Court dismissed the application as an abuse of process.
    
16. On 17 July 2023 the National Court proceedings was listed for substantive hearing on 9 August 2023.
    
17. On 1 August 2023 the appellants filed an application for a stay of the National Court proceedings. The stay was granted by a National Court judge on 17 August 2023.
    

GROUNDS

18. The first respondent raised in total 14 grounds of objections but relies upon six (6) grounds of objection^[1]. We set out the text of those grounds in full:
    

PURSUANT TO Order 7 rule 15 and/or Order 11 rule 28(a) Supreme Court Rules OBJECTION is made on the following grounds:

i. The appellants have failed to invoke the jurisdiction of the Supreme Court in that, this is an appeal by way of review (order 10 of the Supreme Court Rules) from an interlocutory decision of the National Court made on 13 December 2022. Therefore, leave of the Supreme Court is required pursuant to section 14 (3) (b) of the Supreme Court Act Ch. No. 37.

ii. No leave of the Supreme Court has been sought by the appellant and no leave has been granted by the Supreme Court.

iii. The jurisdiction of the Supreme Court cannot be invoked in the within appeal by reliance on the leave granted by a single judge of the Supreme Court in another Supreme Court proceedings (SCA No. 11 of 2023 which appeal proceedings has since abandoned by the appellants and the file closed – 16 March 2023).

iv. The appellant’s application for leave to appeal (cited by the appellants in paragraph 2 of their notice of motion) was filed in the ordinary appeal jurisdiction of the Supreme Court. It does not contain any reference to an appeal from orders made under order 16 and 17 of the National Court rules (order 10 – Supreme Court Rules).

v. The notice of motion filed herein is a separate proceeding. It is not based on anything (grant of leave). It exists in a vacuum because Order 7 rule 6 of the Supreme Court Rules require that a party file their notice of motion/notice of appeal following the grant of leave. Further, that provision does not contemplate fresh proceedings being filed once leave has been granted. The notice of appeal/motion is filed in the same proceedings for which leave was granted. Interpretation of the Supreme Court Rules in this way avoids a duplication. There is nothing to be gained by getting an applicant for leave to appeal to file a fresh Supreme Court proceedings once leave has been granted. Prior to the 2012 amendment to the Supreme Court Rules, and in the old Order 7 rule 5, when application for leave to appeal was granted, the Supreme Court could treat the notice of application for leave to appeal as the notice of appeal. Clearly, that could only be done in the originating proceedings seeking leave to appeal.

7. Further, there is a mandatory requirement under Order 10 rule 3 (b)(ii) Supreme Court Rules for a certified copy of the order of the National Court appealed from (National Court order made 13 December 2022 and entered 21 December 2022) to be annexed to the notice of motion on appeal in judicial review proceedings. Failure to annex the certified copy of the order renders the notice of motion (in this instance the notice of appeal) incompetent and is fatal to the notice of motion.
   

19. We are of the view that the six grounds of objections can be conveniently considered under two headings:
    
    1. Whether the leave to appeal the order granted to the appellants in separate proceedings can be relied upon by it in these proceedings and, further, on the grant of leave the procedure to be followed with respect to an appeal from a Judicial Review Proceeding under Order 10 of the SCR (lack of leave) (Objection Grounds 1 (i) – (v)) and
    2. Whether the appellants have failed to comply with Order 10 rule 3(b)(ii) of the SCR by reason of want of certification of the order of the National Court appealed from (lack of certification).

(Objection Ground 1 (vii)).

20. Before we turn to consider the grounds of objection, as grouped, we will outline the relevant legislation.
    

LEGISLATION

21. The underlying jurisdiction on objection to competency is derived from Order 7 Division 5 and/or Order 11 Rule 28(a) of the SCR.
    
22. Division 5 of Order 7 provides:
    

Objection to Competency of Appeal

15. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service of the notice of appeal or application for leave to appeal—

(a) file an objection in accordance with Form 9; and

(b) serve a copy of the objection on the appellant in any manner including by service on the appellant’s lawyers in the National Court proceedings.

16. Any party may file affidavits.

17. (1) An objection of which notice has been given shall be determined by:
    • (a) in the case of an objection to a matter that is within the jurisdiction of a Judge, the Court, or any Judge; and
    • (b) in any other case, the Court.

(2) An objection to competency shall be heard and determined before the substantive matter to which the objection relates is set down for hearing unless a Judge decides in a special case that it is in the interests of justice to set down the matters together.

18. Upon the hearing of an objection to competency the burden of establishing the incompetency of the matter the subject of objection is on the party making the objection.
19. If notice of objection is not given and the appeal or the application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal or the application for leave to appeal unless the Court or Judge on special grounds orders otherwise.
    
23. Order 11 Rule 28(a) of the SCR provides:
    

The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:

(a) Order 7 Division 5 (Objection to competency)

.....

24. Order 10 of the SCR deals with appeals from orders made under Orders 16 and 17 of the National Court Rules.
    
25. Order 10 provides as follows:
    

Division 1—Institution of appeal

1. (a) An appeal under this Order shall be instituted by a notice of motion.
   
   • (b) Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply.
2. The notice of motion and all subsequent proceedings shall be entitled “In the Supreme Court of Justice” and shall be entitled between the party as appellant and the party as respondent.
3. The notice of motion shall—

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 rule 9; and

(b) have annexed—

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge’s Associate or the Registrar; and

(c) be in accordance with Form 15; and

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry.

Division 2—Certain rules to apply.

4. The following rules shall apply to matters under this part with regard to—
   • (a) filing and service: Order 7 Division 4; and
   • (b) affidavits: Order 7 rules 56, 57, 58 and 59.
   • (c) where an application for leave to appeal has been filed: Order 7 rule 6 (time to file a Notice of Appeal) and Order 7 rule 11 (notice of appeal deemed given on filing of an Application for Leave to Appeal) with the necessary modifications.
5. Where leave to appeal is required pursuant to s 14 of the Supreme Court Act application shall be made in Form 7.
26. Section 14 of the Supreme Court Act provides:
    
    14. CIVIL APPEALS TO THE SUPREME COURT.

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court–

(a) on a question of law;
(b) on a question of mixed law and fact;
(c) with the leave of the Supreme Court, on a question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court–

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except–

(i) where the liberty of the subject or the custody of infants is concerned; or
(ii) in cases of granting or refusing an injunction or appointing a receiver; or
(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

SUBMISSIONS OF THE PARTIES

27. The first respondent submitted in summary:
    
    1. With respect to lack of leave:
       1. Pursuant to s 14(3) of the Supreme Court Act, leave of the Supreme Court is required because the decision of the National Court, the subject of the appeal was an interlocutory decision.
       2. The appellants have not sought and have not been granted leave of the Supreme Court to file their notice of motion.
       3. Leave was sought and granted in another Supreme court proceedings – SCA No 11 of 2023 involving the same parties, but those proceedings have since been withdrawn upon the formal application by the appellants.
       4. The leave the appellants obtained in the Supreme Court proceedings filed SCA No 11 of 2022 is not transferrable.
       5. Grounds 1 (i) - (v) inclusive of the notice of objection should be upheld for that reason alone and appeal dismissed as incompetent.
    2. With respect to lack of certification:
       1. Order 10 rule 3(b)(ii) contains a mandatory requirement.
       2. The notice of motion must contain a copy of the order certified by the Judge’s Associate or the Registrar of the National Court.
       3. There is no certified copy of the order annexed to the notice of motion. This omission alone is fatal to the appellant’s notice of motion.
       4. Ground 1 (vii) of the notice of objection should be upheld and the appellant’s notice of motion dismissed as incompetent.
28. The second and third respondents agree with the first respondent in summary:
    1. With respect to lack of leave:
       1. Leave has not been sought and granted for the appeal before the Court. Leave was sought and granted in other proceedings, namely SCA No 11 of 2023.
       2. Further, having been granted leave in the other proceedings, instead of filing a notice of motion under Order 10 of the SCR, the appellant filed a notice of appeal under Order 7 of the SCR, the wrong mode of proceeding and an error because the appeal was from a Judicial Review Proceeding and the appropriate rule that applies is Order 10 of the SCR.
       3. Even though the appeal in the other proceedings were withdrawn and a fresh notice of motion filed, leave was not sought and granted in the current proceedings. As a consequence, the jurisdiction of this court was not invoked, and the proceedings exist in a vacuum rendering the proceedings an abuse of process and incompetent.
    2. With respect to lack of certification:
       1. There is no certified copy of the order appealed against. This is a mandatory requirement which has been affirmed in previous cases.
       2. The Supreme Court ensures strict compliance with its rules to safeguard its integrity and to avoid abuse by court users.
       3. The appeal is incompetent and must be dismissed.
29. The appellants submitted in summary:
    
    1. With respect to lack of leave:
       1. The process for obtaining leave of appeal to appeal from an interlocutory judicial review rulings (using Form 7) and filing appeals by notice of motion (using Form 15) are separate processes and therefore necessarily require the initiation of separate proceedings. There is no rule for modification of Form 15 for the purposes of leave.
       2. An application for leave is to be made using Form 7 under Order 7 and after leave is granted then by notice of motion using Form 15 under Order 10 (Garamut Enterprises Limited v Steamships Trading Company Ltd [1999] SC 625; Digicel (PNG) Ltd v Miringtoro [2019] SC1850; National Executive Council v Nelson [2004] SC766.
       3. The appellants complied with the process by seeking the leave of the court to appeal the order using Form 7 under Order 7 in SCA No 11 of 2023 and after leave was granted correctly filed the notice of motion in Form 15 thus commencement the current proceedings.
       4. The purpose for leave is filtering process whereby the Supreme Court filter out meritless appeals from those with merit (Wawoi v Guavi Timber Company Ltd v Ken Norae Mondia (2007) SC1028 at [3]).
    2. With respect to lack of certification:
       1. There is no issue that the requirement to annex to the notice of motion a certified copy of the orders is a mandatory requirement however the SCR does not prescribe the process of certification or the form of the order to be considered and the order annexed is in accordance with the rules relying on the decisions of GR Logging Ltd v Dataona [2018] SC1690 and Madang v Timbers Ltd v Kambori [2009] SC992).
          

CONSIDERATION

Lack of leave

30. There is no dispute that the order the subject of the appeal is an interlocutory order and that leave to appeal the order was granted by the Supreme Court on 2 February 2023 in separate proceedings, later withdrawn.
    
31. The issue in dispute is whether the process for obtaining leave and filing the appeal in the proceedings before the court was correct in law.
    
32. An appellate court in the exercise of the inherent power to control its own proceedings, may strike out a notice of appeal where there is no right of appeal (Wahgi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185, [1980] PGSC 4; Ronald Imbao v Don Pandan (2011) SC1098; Stephen Mendepo v NHC (2011) SC 1169).
    
33. An appeal may be incompetent if it does not comply with the Supreme Court Act or the SCR which regulates appeals to the Supreme Court.
    
34. Order 10 of the SCR deals with the procedure for appeals to the Supreme Court from orders made by the National Court in its judicial review jurisdiction (Order 16) and when the National Court deals with writs of habeas corpus (Order 17).
    
35. All appeals must be instituted by notice of motion (Order 10 rule 1(a)) and not by notice of appeal.
    
36. In the case of an appeal with leave, according to Order 10 rule 5 “Where leave to appeal is required pursuant to s 14 of the Supreme Court Act application shall be made in Form 7”.
    
37. Form 7 is the prescribed form for an application for leave to appeal under Order 7 rule 4 of the SCR.
    
38. Order 7 rule 4 states that:
    

An application for leave to appeal shall be made by filing a notice in writing and shall –

(a)......

(b)......

(c)......

(d)......

(e) be in accordance with Form 7; and

(f)......

39. It is important to note that Form 7 is used in filing an application for leave to appeal under Order 7 rule 4 of the SCR. Order 7 provides for civil appeals. The application for leave to appeal in Form 7 refers to “SC APPEAL No....... of .........”.
    
40. In the case of an appeal under Order 10 from orders made under Orders 16 and 17 of the National Court Rules, given that Order 10 rule 5 states that “Where leave to appeal is required pursuant to s 14 of the Supreme Court Act application shall be made in Form 7” the prescribed form for an application for leave to appeal shall be in Form 7.
    
41. It follows that notwithstanding leave of appeal is sought to appeal an order made under Order 16 of the National Court Rules, the prescribed form to use to file an application for leave to appeal is also Form 7.
    
42. Where leave is granted, according to Order 7 rule 6 of the SCR a notice of appeal shall be filed within 21 days immediately after the date of grant of leave. As this is an appeal under Order 10 of the SCR from an interlocutory judicial review rulings or order made under Order 16 of the National Court Rules, an appeal shall be filed by notice of motion using Form 15 (see Garamut Enterprises Limited (supra), Digicel (PNG) Ltd (supra) and National Executive Council v. Nelson (supra)).
    
43. We accept the appellants’ submissions that there is no rule for modification of Form 15 for the purposes of leave. Also, we accept that as the process for obtaining leave of appeal to appeal from an interlocutory judicial review ruling or order using Form 7 and filing appeals by notice of motion using Form 15 are separate processes, they necessarily require the initiation of separate proceedings.
    
44. In the present case we accept that the appellants complied with the process by obtaining leave of the Court to appeal the order using Form 7 under Order 7 in SCA No 11 of 2023 and after leave was granted, although not immediately or soon after the grant of leave, the appellants still within time correctly filed the notice of motion in Form 15 thus commencement of the current proceedings.
    
45. In addition, we consider that regardless of whether SCA No 11 of 2023 proceedings was withdrawn, the purpose to which the proceedings were initiated (to obtain leave) has been achieved and the proceedings are at an end.
    
46. For these reasons, we find the grounds of objection that give rise to the first respondent’s argument that the appellants failed to obtain leave to appeal the order of the National Court of 13 December 2022 in the current proceedings and that the leave the appellants obtained in proceeding SCA No 11 of 2023 is not transferable is without merit.
    
47. Objection grounds 1 (i) – (v) are dismissed.
    

Lack of certification

48. In relation to ground (vii) of the notice of objection, we note that a notice of motion which is not in in accordance with the rules is not a motion (Fekix Bakanui v Rodney Daipo SC659).
    
49. Order 10 rule 3 of the SCR sets out the mandatory requirements relating to a notice of motion by way of appeal from the orders made by the National Court under Order 16 and 17.
    
50. Order 10 rule 3(b)(ii) is in these terms:
    

3. The notice of motion shall -

(b) have annexed—

....

(ii) a copy of the order made, certified by the Judge’s Associate or the Registrar...

(Our underlining)

51. The order starts with the word “shall’ which prima facie means that the whole of rule 3 is mandatory.
    
52. While the appellants accept that the requirement to annex or attach to the notice of motion a certified copy of the order the subject of the appeal is a mandatory requirement, they argue that:
    
    1. the SCR does not prescribe the process for certification of an order or the form of the order to be attached and the meaning of certified is not defined in Order 10;
    2. the order annexed is certified in accordance with the relevant rule, case authority to the effect that the absence of stamp including the word “certify” is not critical to “certification” within the meaning of the rule and that the signature of the Registrar arguably satisfies the provisions of the rule; and
    100. the order was taken out by the first respondent and served on the appellants such that the first respondent was not prejudiced in any way.
         
53. We do not regard the absence of a definition of ‘certified’, whether in the National Court Act, National Court Rules, Supreme Court Act or the SCR, or a lack of a defined process or form of certification as one that should present a particular difficulty in meeting the requirement to certify.
    
54. When read in its proper context, and on its ordinary meaning, it is plain that what is required by the rule is:
    
    1. the certification of a copy of the order of the trial court to be done by the Judge’s Associate or Registrar; and
    2. such certified copy of the order to be annexed to the notice of motion before the notice of motion is filed (National Capital Ltd v Bakani [2014] PGSC 34; SC1392 at [9]).
       
55. To ‘certify’ according to the Cambridge online dictionary is “to officially approve of something after testing its quality and proving that it is acceptable”. The Oxford Learners online dictionary defines the word to mean “to state officially, especially in writing, that something is true”. The Merriam-Webster online dictionary defines the word to mean “to testify to the truth or genuineness of something.” The Macquarie Concise Dictionary (Revised Third Edition) defines the word as “to guarantee as certain; to give reliable information; to testify to or vouch for in writing”.
    
56. As variably described, what is clear and what is required by the rule is for a person with the requisite authority to prove the genuineness of the order to be appealed against, a process to be undertaken for the purposes of the rule by a Judges Associate or the Registrar.
    
57. The order annexed to the appellant’s notice of motion (OB page 55) is an order with a court seal over the name of the Registrar with what purports to be a signature (not decipherable) over the word “Registrar”. There is no certification in the sense that there is no statement or acknowledgment by the Registrar that the order annexed to the motion has been verified as being the order made, the subject of the appeal. That is the intent of the rule. It is not a mere technicality to be disregarded lightly, rather one designed to ensure the integrity of the appeal process.
    
58. In Nipo Investment Ltd v Nambawan Super Ltd the Full Court (Murray, Collier, Geita JJ) said at [9]:
    

.... While the strict application of the relevant rule can lead to what may appear to be a harsh result, the need for parties to comply with Rules of Court is not an exercise in pedantic technicality. The Rules ensure that the difficult and often complex process of litigation occurs in an ordered manner, meeting the expectations of the Court and all parties. This Court has been consistent in finding that breach of Order 10 rule 3 (b)(i) and (ii) is fatal to an appeal.

59. If the legislature had intended for a court seal accompanied by a Registrar’s signature to suffice for the purposes of the rule there would be no need to include the words “Judge’s Associate’’ as an alternate certifier.
    
60. We acknowledge there has been some controversy on the question of certification and that there have been cases that have taken a more liberal or purposive approach as opposed to a strict interpretation of Order 10 rule 3(b)(ii) (see Madang Timbers Ltd v Kambori [2009] SC992; GR Logging Ltd v Dotaona [2018] SC1690).
    
61. In GR Logging Ltd v Dotaona the Court (Cannings, Collier & Dingake JJ) said at [44] that arguably the form of the order with the signature of the Registrar satisfies the provision of Order 10 Rule 3 (b)(ii). Respectfully, we are of the view that the rule envisages a written form of verification.
    
62. We are supported in our view by a long line of authority wherein the Supreme Court has taken a strict approach to the requirement under Order 10 rule 3(b)(ii) ( for example, Haiveta v. Wingti (No.2) [1994] PNGLR 189; Dr Arnold Kukari v. Honourable Don Pomb Polye [2008] PGSC 4; SC907; Felix Bakani v Rodney Daipo [2002] SC699; Idumava Investments Ltd v National Fisheries Authority [2013] SC1273; National Capital Ltd v Bakani [2014] PGSC 34; SC1392; Rural Technology Infrastructure Ltd v Paradise Foods Ltd [2015] SC1408; Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642; Sarea v Moutu [2019] PGSC 112; SC1893; Palaso v Elliot [2020] PGSC 118; SC2030; Rai v Imbuni [2021] PGSC 35; SC2080).
    
63. These authorities have emphasized that Order 10 rule 3 is in mandatory terms and its requirements must be strictly complied with. The appellants have not argued that these authorities have been wrongly decided and that we should not follow them, rather that the circumstances of this case evidence compliance. We are unable to agree.
    
64. The authorities of Madang and GR Timbers have been considered in subsequent Supreme Court decisions. We need say nothing further than what has already been said in those decisions. The Court in Bakani (Injia CJ, Gavara-Nanu & Kawi JJ), in disagreeing with the Court in Madang on the issue of certification said at [9]:
    

... So, when the notice of motion is filed it should already have annexed to it a duly certified copy of the trial court's order. This requirement is mandatory. It follows that the certification of the trial court's order that is required under r 3 (b) (ii) cannot be validly made after the notice of motion is filed. To do so would amount to a serious breach of r 3 (b) (ii). This indicates clearly the intention of the legislature regarding Order 10 r 3 (b) (ii). It must be strictly complied with as a mandatory regulatory provision. Thus, in the instant case, the mandatory requirements of r 3 (b) (ii) had to be strictly complied with in order for the appeal to be valid and competent. Having reached this conclusion, it follows that we must respectfully disagree with the view held in Madang Timbers Ltd v. Kambori & Ors (supra) that the certification of a copy of the trial court's order can be validly made after the notice of motion is filed. We also respectfully disagree that annexing the trial court's judgment to the notice of motion and the subsequent entry and signing of the trial court's orders by the Registrar would meet the requirements of r 3 (b) (ii). We are also respectfully of the view that the court in Madang Timbers Ltd considered irrelevant and extraneous matters which influenced its decision. We respectfully adopt and affirm the views held by the courts in Haiveta v. Wingti (No.2) (supra) and Dr Arnold Kukari v. Honourable Don Pomb Polye (supra) that Order 10 is mandatory and its requirements must be strictly complied with.

65. In again upholding a strict interpretation of the rule in Sarea (supra) and in referring to the decisions of Madang and GR Logging the Supreme Court (Cannings, Hartshorn & Yagi JJ) said at [15]:
    

....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) SC992 and GR Logging Ltd v Dotoana (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.

66. Applying the principles we have outlined we uphold ground 1 (vii) of the notice of objection to competency as the appellants have failed to annex to the notice of motion a certified copy of the order by a Judge’s Associate or Registrar as required by Order 10 rule 3(b)(ii) of the SCR, a failure that renders the notice of motion filed 22^nd February 2023 materially defective and the appeal incompetent for that reason.
    

ORDERS

67. The objection to competency is upheld in part:
    
    1. The grounds of objection that no leave has been granted to appeal the order of the National Court of 13 December 2022 are dismissed.
    2. The ground of objection that the appellants failed to annex to the notice of motion a certified copy of the order by the Judge’s Associate or Registrar as required by Order 10 rule 3(b)(ii) of the Supreme Court Rules is upheld.
    3. The appeal is dismissed.
    4. The appellants shall pay the costs of and incidental to the objection, to be taxed, if not agreed.
       

Emmanuel Lawyers: Lawyers for the Appellants
Pacific Legal Group: Lawyers for the First Respondent
Solicitor General: Lawyers for the Second, Third, and Fourth Respondents
No Appearance for the Fifth Respondent

---

^[1] Grounds 1 (vi), (viii – (xiv) of the Notice of Objections to Competency were abandoned.