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
• Court: Supreme Court
• Citation: (2019) SC1784
• Date: 12 April 2019
• Year: 2019

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...