Gabriel Yer, Secretary for Department of Finance and Leonard Lauma, Acting Chief of Staff, Prime Minister’s Department and The Independent State of Papua New Guinea and Maurice Sheehan, Chief Commissioner, Commission of Inquiry Into Finance Department v Peter Yama (2009) SC990

• Jurisdiction: Papua New Guinea
• Judge: Cannings, Gabi & Makail JJ
• Judgment Date: 03 July 2009
• Docket Number: SCA NO 53 OF 2008
• Citation: (2009) SC990
• Court: Supreme Court
• Year: 2009
• Judgement Number: SC990

Full Title: SCA NO 53 OF 2008; Gabriel Yer, Secretary for Department of Finance and Leonard Lauma, Acting Chief of Staff, Prime Minister’s Department and The Independent State of Papua New Guinea and Maurice Sheehan, Chief Commissioner, Commission of Inquiry Into Finance Department v Peter Yama (2009) SC990

Supreme Court: Cannings, Gabi & Makail JJ

Judgment Delivered: 3 July 2009

SC990

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 53 OF 2008

BETWEEN

GABRIEL YER, SECRETARY FOR DEPARTMENT OF FINANCE

First Appellant

AND

LEONARD LAUMA, ACTING CHIEF OF STAFF, PRIME MINISTER’S DEPARTMENT

Second Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Appellant

AND

MAURICE SHEEHAN, CHIEF COMMISSIONER, COMMISSION OF INQUIRY INTO FINANCE DEPARTMENT

Fourth Appellant

AND

PETER YAMA

Respondent

Waigani: Cannings, Gabi & Makail JJ,

2009: 29th June & 03rd July

PRACTICE & PROCEDURE - Application for stay - Application for want of prosecution - Competency of appeal - Delay of 10 months - Whether reasonable explanation given for delay - Whether arguable grounds of appeal - Supreme Court Rules - Order 7, rules 14 & 53 - National Court Rules - Order 4, rules 2 & 3.

Cases Cited:

PNG Forest Authority -v- Securimax Security Limited (2003) SC 717

The State -v- Kubor Earthmoving (PNG) Limited [1985] PNGLR 448

Patterson Lowa -v- Wapula Akipe & Ors [1991] PNGLR 265

Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC 762

Nambawan Trophy Limited -v- Dynasty Holdings Limited (2005) SC 811

Gary McHardy -v- Prosec Security Services Limited (2000) SC 646

John Momis & Ors -v- Attorney General, NEC & The State [2000] PNGLR 109

Hilary Singat -v- Commissioner of Police & The State (2008) SC 910

Counsel:

Mr L Makap, for 1st Appellant

Mr N Kubak, for 2nd & 3rd Appellants

Mr S Kassman, for 4th Appellant

Mr B Lomai, for Respondent

03rd July, 2009

RULING

ON APPLICATIONS TO DISMISS APPEAL AND FOR STAY

1. BY THE COURT: There are three applications before the Court for our determination. Two of them are by the Respondent and one by the First Appellant, supported by the Second, Third and Fourth Appellants. They are as follows:

1. Respondent’s Notice of Application for dismissal of appeal for want of prosecution and lack of or no proper instructions from Attorney-General to file appeal filed on 12th March 2009;

2. First Appellant’s Notice of Application for Stay filed on 08th July 2008; and

3. Respondent’s Notice of Application to discharge interim Stay filed on 12th March 2009.

BRIEF FACTS

2. These three applications arose from a decision of the National Court of 03rd July 2008 which ordered inter-alia that the First Appellant release a sum of K7,750,000.00 to the Respondent forthwith. That decision is the subject of the substantive appeal but earlier on in the National Court, the Respondent commenced proceeding by way of an Originating Summons No 371 of 2008 seeking inter-alia an order for payment of K15,500,000.00 to him by the Appellants pursuant to a Deed of Release executed between the Acting Solicitor-General on behalf of the Third Appellant and the Respondent on 28th November 2002 as damages for the unlawful deprivation of use of a State lease described as Section 68, Allotment 38, Madang, granted to the Respondent.

Pursuant to the Deed of Release, the Acting Solicitor-General gave his clearance or approval to the First Appellant to pay K15,500,000.00 to the Respondent and sometimes in the month of June 2008, whilst the First Appellant was away on an official trip overseas, he learnt that a sum of K7,750,000.00 was to be released and paid by the Department of Finance to the Respondent as part payment. He intervened by directing a stop payment. This prompted the Respondent to commence the proceeding in the National Court on 02nd July 2008 to enforce the Deed of Release and payment of K15,500,000.00. This led to the National Court ordering the First Appellant to release K7,750,000.00 to the Respondent upon an interlocutory application by the Respondent on 03rd July 2008.

GROUNDS OF APPEAL

3. It is necessary for us to set out in full the grounds of appeal as they will become relevant to the application for stay in the event that we refuse the Respondent’s application to dismiss the appeal for want of prosecution or lack of or no proper instructions for the Attorney-General to institute the appeal on behalf of the First, Second and Third Appellants in the first place.

4. The Appellants base their appeal on 5 grounds in their Notice of Appeal. We set them out in full below:

“3A Improper Mode of Commencement of Proceedings.

The National Court erred in law in granting the orders sought by way of Notice of Motion in the following respects:-

(i) The substantive proceeding by way of Originating Summons sought to enforce, by orders sought in paragraph 10, a Deed of Settlement for the sum of K15.5 million in favour of the Respondent.

(ii) These orders were preceded by a number of declaratory orders sought by the Respondent in the National Court which were substantially disputed and were largely at issue.

(iii) The Respondent therefore should have commenced the proceedings by way of Writ of Summons with a Statement of Claim endorsed on it pursuant to Order 4 Division 3 of the National Court Rules.

(iv) In addition or in the further alternative, the orders granted pursuant to a Notice of Motion filed and moved in the National Court on 03rd July 2008 were in the nature of mandamus. Such orders can be sought strictly by the exclusive judicial review procedure set out in Order 16 of the National Court Rules. The National Court therefore erred in law in making an order in the nature of mandamus by way of an interlocutory interim application on notice under an ordinary Originating Summons proceedings under Order 4 Division 4 of the National Court Rules.

3B Court Documents short served and substantive orders made without the Appellants being heard.

(i) The National Court erred in law in dispensing with the requirements of service and sufficient notice, and proceeded to make orders that were substantive in nature (without determining the enforceability of the Deed of Settlement), the subject of the orders sought by way of Notice of Motion, and without according the Appellants a practical opportunity to be heard at all.

3C Injunctive Reliefs.

(i) The National Court erred in law in granting an order in the nature of permanent injunction restraining the Appellants by way of an interlocutory Application on notice:-

(a) without hearing out the Appellants at all;

(b) without an undertaking as to damages being

given and filed by the Respondent; and

(c) without satisfying the requirements for the grant of interlocutory injunctions established by case law in this jurisdiction.

3D Orders in Breach of Claims By and Against the State Act

(1) The National Court erred in law in the orders made on the 03rd July, 2008 which were in the nature of execution against the revenue of the State, in breach of Section 13 of the Claims By and Against the State Act;

(2) The National Court erred in law, in making those orders in the 03rd July 2008, which were in he nature of mandamus, contrary to Section 14(5) of the Claims By and Against the State Act.

3E Substantive reliefs on the Originating Summons were sought and granted in the Interlocutory application.

The Court erred in law in granting substantive reliefs in the interlocutory application.”

EVIDENCE

5. The parties have filed and rely on the following Affidavits for and against each application:

1. Affidavit of Peter Yama sworn on 10th July 2008 and filed on 11th July 2008;

2. Affidavit of Zachary Gelu sworn and filed on 11th July 2008;

3. Affidavit of Ben Lomai sworn on 15th August 2008 and filed on 18th August 2008;

4. Affidavit of Peter Yama sworn and filed on 22nd March 2008;

5. Affidavit of Ben Lomai sworn and filed on 12th March 2009;

6. Affidavit of Peter Yama sworn and filed on 27th March 2009;

7. Affidavit of Gabriel Yer sworn and filed on 08th July 2008;

8. Affidavit of Leonard Louma sworn and filed on 26th August 2008;

9. Affidavit of Gabriel Yer sworn and filed on 26th August 2008;

10. Affidavit of Luther Makap sworn and filed on 28th August 2008;

11. Affidavit of Manly Ua sworn on 27th October 2009 and filed on 28th October 2008;

12. Affidavit of Luther Makap sworn and filed on 26th June 2009;

13. Affidavit of Norbert Kubak sworn and filed on 26th August 2008;

14. Affidavit of Jerry Hulamari sworn and filed on 26th August 2008;

15. Affidavit of Norbert Kubak sworn and filed on 29th October 2008; and

16. Affidavit of Maurice Sheehan sworn and filed on 11th July 2008.

RESPONDENT’S APPLICATION TO DISMISS APPEAL - LACK OF OR NO PROPER INSTRUCTIONS FROM ATTONERY GENERAL

6. We deal first with the application to dismiss the appeal for lack of or no proper instructions from the Attorney-General to institute this appeal because if we uphold the application, it would bring an end to the entire appeal and there would be no need to determine the other applications.

7. Mr. Lomai urges us to dismiss the entire appeal because there is a lack of or no proper instructions given by the Attorney General to Makap Lawyers to institute the appeal on behalf of the First, Second and Third Appellants at the time of filing of the appeal on 08th July 2008. He points to a letter signed by the Acting Attorney-General Mr. Paul Tienstan dated 08th July...