Boyepe Pere v Emmanuel Ningi (2003) SC711

• Jurisdiction: Papua New Guinea
• Judge: Los J, Kandakasi J, Mogish J
• Judgment Date: 30 June 2003
• Court: Supreme Court
• Citation: [2003] PNGLR 58
• Year: 2003
• Judgement Number: SC711

Full Title: Boyepe Pere v Emmanuel Ningi (2003) SC711

Supreme Court: Los J, Kandakasi J, Mogish J

Judgment Delivered: 30 June 2003

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No. 82 of 2002

Between:

BOYEPE PERE

Appellant

And:

EMMANUEL NINGI

Respondent

Waigani: Los, Kandakasi, Mogish JJ.

2003: 10th April

30th June

APPEAL - PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought in a case where leave is not required – Objection as to competency of application for leave raised on the basis that leave is not required – Objection dismissed as having no merit – It is good practice for a party to seek leave when in doubt as to whether leave is required or not – Where there is no issue on a party’s right to appeal as of right is taken, that party should be allowed to pursue his appeal – s. 14 of the Supreme Court Act.

STATUTORY INTERPRETATION – Requirement for leave to appeal under s. 14 of the Supreme Court Act – The purpose for requiring leave is to enable and to ensure only meritorious cases go to the Supreme Court on Appeal – Where the Act or any other legislation vests a right of appeal as of right in a party, it is not against the purpose of the legislation to allow a party to proceed with his appeal where leave is inadvertently or deliberately sought in circumstances where it is difficult to tell whether leave is required and need to be obtained before appealing – s. 14 Supreme Court Act.

Cases Cited:

Henzy Yakham & Anor -v- Meriam & Meriam, (27/11/97) SC 533.

Steven Pokawin and Others v. The State (10/05/95) SC515.

Imambu Alo v. Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 1.

The Right Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (25/06/99) SC607.

Lawrence Bokele v. The Police Commissioner and The State (22/06/01) N2105.

Lawrence Bokele v. The Police Commissioner and The State (05/04/02) SC682.

Counsels:

Mr. P. Korowi for the Respondent.

Mr. P. Parkop, for the Appellant.

30th June 2003

BY THE COURT: The respondent objects to the competency of the appellant’s application for leave to appeal. Three grounds have been pleaded in the notice of objection. The first two state that leave is not required by reason of s.14 (3)(b)(iii) and s. 14 (1) and (b) Supreme Court Act. The third is a claim that grounds 1 and 2 in the application for leave to appeal are frivolous and vexatious in terms of s.11 of the Supreme Court Act. This ground was however, abandoned at the outset of the hearing of the objection, leaving only the first two grounds to be argued and determined.

Hence the hearing was only in respect of the first two grounds. After having heard the parties’ arguments, we reserved a ruling. This is the ruling of the Court.

Arguments of the Parties

The respondent argues that, although the judgement, which gives rise to this appeal, is an interlocutory one, it finally determined the rights as between the parties. This brings into operation s.14 (3) (b)(iii) Supreme Court Act, which gives the appellant a right to appeal as of right and not with leave of the Court. The argument is thus that, it follows therefore that, the application for leave to appeal is incompetent.

As for the objection based on s. 14(1) (b) of the Supreme Court Act, the respondent argues that the grounds of the appeal raise questions of mixed fact and law. By reason of that, the appellant does not require leave of this Court to appeal. But since the appellant has sought leave of the Court, the process is incompetent. Therefore, it argues that the application and hence the appellant’s wish to appeal should be struck down as being incompetent.

The only authorities relied upon by the respondent in support of his arguments, apart from s.14 (3) (b)(iii) and 14 (1)(b) of the Supreme Court Act, is this Court’s judgement in Henzy Yakham & Anor -v- Meriam & Meriam, (27/11/97) SC 533. This authority requires leave to be separately sought and received first if an appeal lies to this Court from the National Court with leave of the Court. A failure to do so renders an appeal incompetent if lodged without first obtaining leave of this Court.

The appellant welcomes the suggestion that he does not require leave of this Court to appeal. But it argues that, this does not render the process it has adopted incompetent. Instead it means that, leave is not contested and as such, he should be granted leave to appeal. He also argues that if the Court is of the view that, the procedure adopted is incompetent, this Court has power under s. 155 (4) of the Constitution to allow him to proceed with his appeal. This he so argues on the basis that he is already in Court within the required deadline and would enable him to avoid loosing his right of appeal after having exercise that right on the premise that leave was required. Now that it is put beyond any contest that leave is not required for any of the grounds proposed for his appeal, his argument is that he should be allowed to proceed with his appeal.

In so arguing, the appellant says the Henzy Yakham & Anor -v- Meriam & Meriam case is correct as to what it says but does not apply to the present case. He argues that the application for leave has been filed to comply with the requirement for leave to be first sought before appealing.

Issue

These arguments present one main issue for us to determine. The issue is, whether the appellant’s application for leave to appeal is incompetent by reason of the appellant seeking leave to appeal when leave is not required by reason of s. s.14 (3) (b)(iii) and 14 (1) b) of the Supreme Court Act?

The Law and the Present Case

A large number of appeals have been struck down on grounds of incompetence. This has been mainly on grounds of leave not being sought for appeal against an interlocutory judgement, or an appeal on a pure question of fact without first obtaining or seeking leave of this Court. An example of a judgement falling under the first category is the five men judgement of this Court in Steven Pokawin and Others v. The State (10/05/95) SC515, per Amet CJ, Kapi DCJ, Woods, Los and Hinchliffe JJ. The case of Imambu Alo v. Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 1, is an example of the latter.

The objection in this case is not based on any of these two fronts. Counsel for the respondent, Mr. Korowi’s argument is that, s. 14 of the Supreme Courts Act requires in mandatory terms, leave to be sought in cases where leave is required. The converse of that, in his argument is that, no leave should be sought where it is required. Following on from that, he argues that, if an appellant seeks leave, that process is strictly not in accordance with s.14 of the Supreme Courts Act and it renders the process incompetent.

Mr. Korowi cited no authority in support of his arguments. He was also not able to answer in any satisfactory manner the following questions that were specifically raised and put to him:

1. What is the purpose of the requirement for leave to appeal in cases where leave is required?

2. In the absence of any argument against leave been granted why should the appellant be prevented from exercising his right of appeal?

What Mr. Korowi is saying can be illustrated in this way. “A” might be entitled be at a particular place say an office without seeking permission from anybody. Nevertheless, he seeks the permission of say his superior, “B” before entering his office and occupying it may be because “A” is in doubt. According to Mr. Korowi’s argument, the fact that permission has been sought by “A” renders both the seeking of the permission and any subsequent entering of his office and occupying it by “A” would be invalid.

From a logical and common sense perspective, Mr. Korowi’s argument is illogical and makes no sense. Even if it was logical and with some common sense, the question necessarily arises, did...