Jeffrey Turia and Michael Mckay v Gabriel Nelson and National Housing Corporation (2008) SC949

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 06 November 2008
• Citation: (2008) SC949
• Docket Number: SCA NO 126 0F 2006
• Year: 2008

Full Title: SCA NO 126 0F 2006; Jeffrey Turia and Michael Mckay v Gabriel Nelson and National Housing Corporation (2008) SC949

Supreme Court: Kirriwom J, Cannings J, Yagi J

Judgment Delivered: 6 November 2008

PRACTICE AND PROCEDURE – objection to competency of application for leave to appeal – whether it is a proper ground of objection to competency that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary.

The appellants filed an application for leave to appeal against an interlocutory judgment of the National Court. The respondents objected to the competency of the application for leave, on various grounds, viz that the proposed grounds of appeal lacked merit and were frivolous or vexatious; that the second appellant was not a party to the proceedings; that the appellants failed to name proper parties; that the proposed grounds of appeal are not stated with sufficient particularity; and that the application for leave was unnecessary.

Held:

(1) A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction.

(2) It is not a proper ground of objection to competency of an application for leave to appeal that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary.

(3) It might, depending on the circumstances, be a proper ground of an objection to competency of an application for leave to appeal, that incorrect parties are named as appellants or that proposed grounds of appeal are not stated with sufficient particularity.

(4) In this case, all grounds of objection arguing that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary were not properly before the court and were refused.

(5) All other grounds of objection were also refused as not being sustainable in the circumstances of this case.

(6) Consequently the objection to competency was dismissed, with costs against the respondent.

Case cited

The following cases are cited in the judgment:

Boyepe Pere v Ningi [2003] PNGLR 58; Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828; Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279; Gigmai Awal v Elamo Elema [2000] PNGLR 288; Gregory Puli Manda v Yatala Ltd (2005) SC795; Hii Yii Ann v Canisius Kami Karingu (2003) SC718; Ipili Porgera Investments Ltd v Bank South Pacific Ltd SCA 15 of 2006, 27.06.07; Kitogara Holdings v NCDIC [1988–89] PNGLR 346; Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC801; Oio Aba v MVIL (2005) SC779; Paul Bari v John Raim (2004) SC768; Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC899; Porgera Joint Venture v Joshua Siapu Yako (2008) SC916; Sir Julius Chan v The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240; The State v John Talu Tekwie (2006) SC843; The Independent State of Papua New Guinea v John Tuap (2004) SC765; Wahgi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185; Henzy Yakham v Stuart Merriam [1998] PNGLR 555

OBJECTION

This was an objection to the competency of an application for leave to appeal against a judgment of the National Court.

1. BY THE COURT: This is a ruling on an objection to the competency of an application for leave to appeal against a judgment of the National Court.

2. The judgment was by Justice Salika. It concerns a dispute over ownership and possession of a property at Gerehu in the National Capital District. His Honour ordered amongst other things that the person then in possession of the property, Michael McKay, give up vacant possession to Gabriel Nelson within 14 days and that Mr McKay be removed as a party to the proceedings. It was an interlocutory judgment, ie the orders were made subject to a pending trial.

3. Mr McKay and another person aggrieved by the orders, Jeffrey Turia, filed an application for leave to appeal against His Honour’s judgment. This was done under s14(3)(b) of the Supreme Court Act, which generally provides that (with some exceptions) if a person wishes to appeal against an interlocutory judgment of the National Court...