SCA No. 129 Of 2018; Rev. Mabata Ata of Mavara Clan of Roku Village and Kore Kore Gaudi of Mavara Clan of Roku Village and Mabi Momo for and on behalf of Kuriu Clan of Roku Village and Sarani Ahuta for and on behalf of Kuriu Clan of Roku Village and Rei Auda for and on behalf of Tanomotu Clan of Roku Village and Tabu inogo for and on behalf of Gaibudubu Clan of Roku Village v Gaudi Logae, Chairman of Kuriu Land Group Incorporation and Kuriu Land Group Incorporation and Dr. Ken Ngangan as the Acting Secretary for Finance and Dairi Vele the Acting Secretary for Treasury and The Independent State of Papua New Guinea (2019)

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 12 April 2019
• Court: Supreme Court
• Citation: (2019) SC1784
• Year: 2019
• Judgement Number: SC1784

Full Title: SCA No. 129 Of 2018; Rev. Mabata Ata of Mavara Clan of Roku Village and Kore Kore Gaudi of Mavara Clan of Roku Village and Mabi Momo for and on behalf of Kuriu Clan of Roku Village and Sarani Ahuta for and on behalf of Kuriu Clan of Roku Village and Rei Auda for and on behalf of Tanomotu Clan of Roku Village and Tabu inogo for and on behalf of Gaibudubu Clan of Roku Village v Gaudi Logae, Chairman of Kuriu Land Group Incorporation and Kuriu Land Group Incorporation and Dr. Ken Ngangan as the Acting Secretary for Finance and Dairi Vele the Acting Secretary for Treasury and The Independent State of Papua New Guinea (2019)

Supreme Court: Makail, J

Judgment Delivered: 12 April 2019

SC1784

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 129 OF 2018

BETWEEN

REV. MABATA ATA of MAVARA CLAN of ROKU VILLAGE

First Appellant

AND

KORE KORE GAUDI of MAVARA CLAN of ROKU VILLAGE

Second Appellant

AND

MABI MOMO for and on behalf of KURIU CLAN of ROKU VILLAGE

Third Appellant

AND

SARANI AHUTA for and on behalf of KURIU CLAN of ROKU VILLAGE

Fourth Appellant

AND

REI AUDA for and on behalf of TANOMOTU CLAN of ROKU VILLAGE

Fifth Appellant

AND

TABU INOGO for and on behalf of GAIBUDUBU CLAN of ROKU VILLAGE

Sixth Appellant

AND

GAUDI LOGAE, CHAIRMAN OF KURIU LAND GROUP INCORPORATION

First Respondent

AND

KURIU LAND GROUP INCORPORATION

Second Respondent

AND

DR. KEN NGANGAN as the ACTING SECRETARY FOR FINANCE

Third Respondent

AND

DAIRI VELE the ACTING SECRETARY FOR TREASURY

Fourth Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

Waigani: Makail, J

2019: 5th & 12th April

PRACTICE & PROCEDURE – Application for leave to amend application for leave to appeal – Leave sought to include appeal from interlocutory judgment – Supreme Court Act – Section 14(3)(b) – Supreme Court Rules – Order 11, rule 11 – Form 7

PRACTICE & PROCEDURE – Objection to competency – Objection to application for leave to appeal – Two modes of commencing Supreme Court appeal – Notice of appeal – Application for leave to appeal – Two distinctive modes of proceedings and must be commenced separately – Abuse of process to have both commenced in one proceedings– Supreme Court Rules – Order 7, rules 3, 4, 5, 6 & 7

PRACTICE & PROCEDURE – Objection to competency – Objection to application for leave to appeal – Jurisdiction of single judge to determine objection to competency – Supreme Court Act – Section 10(1)(a)

Cases Cited:

Henzy Yakham & Ors v. Dr Stuart Merriam & Anor (1997) SC533

MVIL v. Niugini Nominees Limited (2014) SC1334

NCDC v. Central Provincial Government (2013) SC1289

Tom Amaiu v. Sir Albret Kipalan (2009) SC991

Counsel:

Ms. P. Tamutai with Ms. Ngombo, for Appellants

Mr. J. Posi, for the First and Second Respondents

Mr. J. Aku, for Third Respondent

Mr. H. Maliso, for Fourth Respondent

No appearance, for Fifth Respondent

RULING ON APPLICATION FOR LEAVE TO AMEND APPLICATION FOR LEAVE TO APPEAL

12th April, 2019

1. MAKAIL, J: In the pre Henzy Yakham days, a party appealing a decision of the National Court to the Supreme Court on grounds raising questions of fact, or law, or mixed fact and law was allowed to file a notice of appeal and where required, leave was sought at the hearing to appeal grounds raising questions of fact: see Section 4(2)(a), (b) & (c) and 14(1)(A), (b) & (c) of the Supreme Court Act.

2. This all changed when the Supreme Court in Henzy Yakham & Ors v. Dr Stuart Merriam & Anor (1997) SC533 held that an appeal raising questions of law or mixed fact and law must be commenced as by notice of appeal in accordance with Form 8 of the Supreme Court Rules. Where questions of fact are raised, leave is required by Section 4(2)(c) and Section 14(3)(b) and leave must be sought by way of an application for leave to appeal in Form 7 of the Supreme Court Rules.

3. In this case there is no contest that on 17th August 2018 the appellants filed a notice of appeal. Subsequent to that, on 22nd August they filed an application for leave to appeal in the same proceedings SCA No 129 of 2018. By the application for leave, they seek leave to appeal grounds raising questions of fact. Both the notice of appeal and the application for leave were filed within 40 days of the National Court decision as prescribed by Section 17 of the Supreme Court Act.

4. They now seek leave to amend the application for leave to appeal to include leave to appeal an interlocutory ruling of the National Court refusing to join a party to the National Court proceedings. The first and second respondents oppose leave submitting that it was made outside 40 days prescribed by Section 17 and thus, incompetent and secondly, it was in breach of the rule in Henzy Yakham’s case.

Jurisdiction of Single Judge

5. A jurisdictional issue was raised as to whether a single judge may determine a competency issue arising from an application for leave to appeal. Except for the contention that there is no expressed provision in the Supreme Court Act or Supreme Court Rules conferring jurisdiction on a single judge to determine an objection and secondly that the application for leave to amend was time barred under Section 17, the respondents accept that the objection to competency is made to the application for leave to appeal.

6. This being that case the appellants submitted and is accepted that a single judge of the Supreme Court is conferred jurisdiction under Section 10(1)(a) of the Supreme Court Act to determine an application for leave to appeal which includes the power to deal with any competency issues that may arise including objection to competency of the application for leave to appeal. A single judge must be possessed with such power because competency issues go to addressing the question of a valid engagement of the Court’s jurisdiction by a party to determine the matter, in this case, the application for leave to appeal: Tom Amaiu v. Sir Albret Kipalan (2009) SC991 and adopted in NCDC v. Central Provincial Government (2013) SC1289 and MVIL v. Niugini Nominees Limited (2014) SC1334.

7. It is on this basis that the objection to competency by the first and second respondents will be determined. As to the objection that the amendment sought is being made out of time thus, time barred pursuant to Section 17, as there is no contest that the application for leave to appeal was filed within time, the time limitation...