Boyepe Pere v Emmanuel Ningi (2003) SC711

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [2003] PNGLR 58
• Date: 30 June 2003
• Year: 2003

Full Title: Boyepe Pere v Emmanuel Ningi (2003) SC711

Supreme Court: Los J, Kandakasi J, Mogish J

Judgment Delivered: 30 June 2003

1 APPEAL—PRACTICE AND PROCEDURE—Application for leave to appeal—Leave sought in a case where leave is not required—Objection as to competency of application for leave raised on the basis that leave is not required—Objection dismissed as having no merit—It is good practice for a party to seek leave when in doubt as to whether leave is required or not—Where there is no issue on a party's right to appeal as of right is taken, that party should be allowed to pursue his appeal—s14 of the Supreme Court Act.

2 STATUTORY INTERPRETATION—Requirement for leave to appeal under s14 of the Supreme Court Act—The purpose for requiring leave is to enable and to ensure only meritorious cases go to the Supreme Court on Appeal—Where the Act or any other legislation vests a right of appeal as of right in a party, it is not against the purpose of the legislation to allow a party to proceed with his appeal where leave is inadvertently or deliberately sought in circumstances where it is difficult to tell whether leave is required and need to be obtained before appealing—s14 Supreme Court Act.

3 Henzy Yakham v Stuart Merriam [1998] PNGLR 555, Steven Pokawin v The Independent State of Papua New Guinea [1998] PNGLR 456, Imambu Alo v MVIT [1993] PNGLR 1, Sir Julius Chan v The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240, Lawrence Bokele v The Police Commissioner (2001) N2105, SCR No 41 of 2001; Application by Lawrence Bokele (2002) SC682, Olasco Niugini Pty Ltd v John Kaputin [1986] PNGLR 244 and Ila Geno v The Independent State of Papua New Guinea [1993] PNGLR 22 referred to

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By the Court: The respondent objects to the competency of the appellant's application for leave to appeal. Three grounds have been pleaded in the notice of objection. The first two state that leave is not required by reason of s14(3)(b)(iii) and s14(1)(b) Supreme Court Act. The third is a claim that grounds 1 and 2 in the application for leave to appeal are frivolous and vexatious in terms of s11 of the Supreme Court Act. This ground was however, abandoned at the outset of the hearing of the objection, leaving only the first two grounds to be argued and determined.

Hence the hearing was only in respect of the first two grounds. After having heard the parties' arguments, we reserved a ruling. This is the ruling of the Court.

Arguments of the Parties

The respondent argues that, although the judgment, which gives rise to this appeal, is an interlocutory one, it finally determined the rights as between the parties. This brings into operation s14(3)(b)(iii) Supreme Court Act, which gives the appellant a right to appeal as of right and not with leave of the Court. The argument is thus that, it follows therefore that, the application for leave to appeal is incompetent.

As for the objection based on s14(1)(b) of the Supreme Court Act, the respondent argues that the grounds of the appeal raise questions of mixed fact and law. By reason of that, the appellant does not require leave of this Court to appeal. But since the appellant has sought leave of the Court, the process is incompetent. Therefore, it argues that the application and hence the appellant's wish to appeal should be struck down as being incompetent.

The only authorities relied upon by the respondent in support of his arguments, apart from s14(3)(b)(iii) and s14(1)(b) of the Supreme Court Act, is this Court's judgment in Henzy Yakham v Stuart Merriam [1998] PNGLR 555. This authority requires leave to be separately sought and...