Poko Kandapaki and Albert Minakaso and Timothy Tima and Wedo Limited v Enga Provincial Government (2011) SC1139

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Gabi J & Yagi J
• Judgment Date: 06 December 2011
• Citation: (2011) SC1139
• Docket Number: SCA NO 01 of 2011
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1139

Full Title: SCA NO 01 of 2011; Poko Kandapaki and Albert Minakaso and Timothy Tima and Wedo Limited v Enga Provincial Government (2011) SC1139

Supreme Court: Cannings J, Gabi J & Yagi J

Judgment Delivered: 6 December 2011

SC1139

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 01 of 2011

POKO KANDAPAKI

First Appellant

ALBERT MINAKASO

Second Appellant

TIMOTHY TIMA

Third Appellant

WEDO LIMITED

Fourth Appellant

V

ENGA PROVINCIAL GOVERNMENT

Respondent

Waigani: Cannings J, Gabi J & Yagi J

2011: 30th November & 6th December

PRACTICE AND PROCEDURE – objection to competency of appeal – Supreme Court Rules, Order 7 Rule 14 – nature of grounds of objection – merits of appeal – interlocutory judgment – issues not raised in trial Court – whether a proper ground of objection to competency.

The appellant filed an appeal against a final judgment of the National Court. The respondent objected to the competency of the appeal on grounds that the grounds of appeal lacked merit, new grounds sought to be introduced and leave to appeal not sought and obtained.

Held:

(1) The grounds of objection relating to merit of appeal and new grounds are not proper grounds of objections.

(2) The ground of objection relating to leave to appeal has no merit and is dismissed.

(3) Objection to competency is dismissed.

(4) Each party to bear own costs.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Folkes [1981] PNGLR 58

Curtain Bros (PNG) Ltd v UPNG (2005) SC788

Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705

Jeffrey Turia v Gabriel Nelson (2008) SC949

Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370

Motor Vehicles Insurance (PNG) Trust v James Etape [1994] 596

Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

Peter Peipul v Justice Sheehan & Others (2001) N2096

Philip Takori and Others v Simon Yagari and Others (2008) SC905

Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

OBJECTION

This was an objection to the competency of an appeal.

Counsel

W Bigi, for the Third Appellant

P Potane, for the Respondent

06th December, 2011

1. BY THE COURT: This is a hearing of an objection to the competency of the appeal. The appeal was filed by the third and fourth appellants and is against the whole of the judgment of the National Court given at Wabag in proceedings OS No 872 of 2005.

2. The dispute between the parties relates to ownership of a large parcel of land registered as State Leases situated within the township of Wabag, Enga Province. The land comprises a number of adjoining allotments, described as Allotments 1 – 25, Section 34.

3. The appellants entered the land and carried out certain improvements on the land including excavating and removing soil, constructing an access road and erecting a permanent fence.

4. The respondent claimed a right to ownership over the land and therefore issued proceedings against the appellants in the National Court seeking, amongst others, a declaration that it has ownership rights over the land and an order that the appellants pull down and remove the permanent fence and peacefully deliver up possession.

5. The National Court heard the dispute and made a decision in favour of the respondent. The decision was made on 1st December 2010. The third and fourth appellants being aggrieved have lodged an appeal against that decision.

6. The appellants filed their appeal against the decision of the National Court on 6th January 2011. The notice of appeal states that the appeal lies without leave as the grounds of appeal raises issues of law and mixed fact and law and therefore pursuant to Supreme Court Act, s. 14(1) (a) and (b), leave is not required. In the notice of appeal the appellants raised 18 grounds of appeal. They are reproduced below:

“3. Grounds

His Honour erred in both law and in fact as follows:

3.1 In his determination that the Plaintiff had a cause of action against all of the Defendants in the proceedings in OS No 872 of 2005, when clearly by law and in fact the Plaintiff had no such cause of action. The trial Judge failed and/or omitted to give reasons or cite any authority for his allowing the Plaintiff to maintain the proceeding OS No 872 of 2005 against the Defendants.

3.2 In his determination that the Plaintiff, albeit impliedly, had standing to commence proceedings in OS No 872 of 2005, in terms of the State Lease referred to in sub-paragraph 3.6 hereunder when the Plaintiff evidently did not as a matter of law. The trial Judge’s reasoning in support of that view is ambiguous, uncertain and vague and hence incontestably bad in law.

3.3 In his determination that the Plaintiff was formerly known as the Department of Enga and is sometimes referred to as the Enga Provincial Administration, thereby confusing the separate identity of the Plaintiff, which is a legal entity, with that of Enga Provincial Administration, which is the mere name of the office of the Enga Provincial Administrator. The trial Judge has repeated this confusion of names throughout his judgement thereby rendering the judgment ambiguous, certain and vague with the end result that it cannot be sustained in law in the interest of justice.

3.4 In his determination by failing and/or omitting to address and determine the incidental question of law as to whether the Enga Provincial Administration is a separate entity and, therefore, one which has legal capacity to hold and dispose of property, and sue or be sued in its own name and style.

3.5 In his determination that the Enga Provincial Administration is the Plaintiff in proceedings OS No 872 of 2005, and thereby insinuating that the names Enga Provincial Administration and Enga Provincial Government mean one and the same thing, for purposes of the proceedings OS No 872 of 2005 including the State Lease referred to in sub-paragraph 3.6 hereunder.

3.6 In his determination that the State Lease issued by the Minister to the Enga Provincial Administration by way of Direct Grant on the 28th June 1999 over all that parcel of land described as Allotments 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 25 and 26 (inclusive), Section 34, Wabag, Enga Province, was valid.

3.7 In his determination where His Honour failed and/or omitted to address and decide on the incidental and yet a critical question as to why the Enga Provincial Administration, as grantee/holder of the State Lease referred to in the sub-paragraph 3.6 above, was not or ought not to be a party or added as a party in the proceedings in OS No 872 of 2010.

3.8 In his determination by making a declarative order in favour of an Enga Provincial Administration who or which was neither party in the proceedings in OS No 872 of 2005 nor interested in any way with respect of the State Lease referred to in sub-paragraph 3.6 above. Alternatively, if the intended beneficiary of such declarative order was the Enga Provincial Government which also was not a party in the said proceedings, the trial Judge notwithstanding acted erratically and/or ultra vires in making such order.

3.9 In his determination that the Plaintiff, other than the Defendants, has a valid interest in all that parcel of land and referred to in sub-paragraph 3.6 above. The trial Judge failed and/or omitted to give reasons for his deciding so.

3.10 In his determination that the presence or absence of a Certificate of Occupancy was not relevant to the question of whether the direct grant of the State Lease referred to in sub-paragraph 3.6 above was valid. The trial Judge failed and/or omitted to give his reasons for deciding so.

3.11 In his determination that the Fourth Defendant’s application to the Land Board was for subdivision and that Section 71 of the Land Act Chapter 185 applied thereto.

3.12 In his determination that in virtue of the law enunciated in Wandaki v Minister for Lands & Anor [1996] PNGLR 116 the Minister had a discretion under to Section 71 of the Land Act Chapter 185 which the Minister had duly exercised in rejecting the recommendations the subject of the minutes of the Land Board Meeting No 1879, as well as dispensing with the requirements under Section 12(2)(a) and (b) of the Land Act Chapter 185.

3.13 In his determination that the Plaintiff, as opposed to the Enga Provincial Administration, had a valid title over that parcel of land referred to in sub-paragraph 3.5 above.

3.14 In his determination...