Eleana Tjandranegara and Others v TST 4 Mile Limited previously Patu No.27 Limited and Others

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ,Kandakasi DCJ,Hartshorn J,Murray J,Dingake J
• Judgment Date: 10 February 2025
• Neutral Citation: SC2696
• Date: 10 February 2025
• Counsel: Mr. I. Molloy and Mr. C. Joseph for the respondents/objectors,Mr. A. Donigi for appellants/respondents,Counsel
• Citation: SC2696, 2024-10-28
• Docket Number: SCA NO. 129 OF 2024
• Court: Supreme Court

SC2696

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO. 129 OF 2024

Between:

Eleana Tjandranegara

First Appellant

and

Patu No. 27 Limited previously Raku No. 52 Limited

Second Appellant

and

Naima Investment Limited

Third Appellant

v.

TST 4 Mile Limited previously Patu No.27 Limited

First Respondent

and

Jimm Trading Limited

Second Respondent

WAIGANI: Salika CJ, Kandakasi DCJ, Hartshorn J, Murray J, Dingake J

14 January, 10 February 2025

SUPREME COURT — PRACTICE AND PROCEDURE — whether leave to appeal is required — Supreme Court Act, s.14(3) — whether a judgment on liability with mesne profits or damages and loss of rent still to be assessed is an interlocutory judgment requiring leave of the court to appeal against it — objection to competency of appeal on ground that no leave to appeal was sought to file the notice of appeal.

SUPREME COURT — PRACTICE & PROCEDURE (per Kandakasi DCJ) — Objection to competency — Appeal against whole of the judgement — Part final and part interlocutory — Supreme Court Act ss4 and 14 — What is provided for — Lack of provision made for part final and part interlocutory decisions — Meaning and effect of — Whole judgment to be considered interlocutory with right of appeal to be exercised upon final decision in the matter — No appeals against part final and part interlocutory decisions neither with leave nor as of right permitted — Purpose or objective or legislature to avoid mischief or harm cause by ready resort to appeals or reviews.

Facts

The appellants were defendants in the National Court proceeding. After a trial, by notice of appeal, the appellants appealed against the “whole decision and judgment” which ordered in favour of the first respondent for the appellants to deliver possession of a certain property after 60 days failing which a writ of possession would issue. The judgment of the primary judge delivered after the trial also ordered that the cross claims were dismissed, that directions shall issue for the separate hearing of the first respondent's claims for mesne profits, general damages and loss of rent and that costs were reserved until the determination of that hearing. The first respondent objects to the competency of the appeal on the ground that no leave to appeal was sought when leave is required as the judgment appealed is an interlocutory judgment.

Facts (per Kandakasi DCJ)

In the trial Court (the National Court), the Respondents claimed ownership of a Property against the Appellants. They also claimed there was no valid lease or any legal right for the Appellants to be in possession of the Property and sought an order for vacant possession against the Appellants. Additionally on insufficiently pleaded pleadings, the Respondents also sought mesne profits, damages and lost of rentals. At the commencement of the trial, the appellants counsel sought and the trial court granted leave to the lawyers to cease acting for the appellants, denied the appellants time and opportunity for them to seek and secure the services of a new lawyer despite the second and third appellants being corporate entities which according to Or4,r5 of the National Court Rules necessitated representation by a lawyer or a solicitor. At the end of the trial, the trial court found for the Respondents as owners of the Property and the Appellants had no valid lease or right to remain on the Property and order them to give vacant possession within 60 days from the date of the order. The trial court also found and held the respondents were entitled to mesne profits, damages and loss of rentals despite the lack of any proper foundation for that part of the claim and ordered such profits and loss and damages be assessed in a separate trial and order the issue of directions for that purpose. Aggrieved by those decisions the appellants appealed proceeding on the basis that the decision was final. The respondents objected on the basis that the decision was interlocutory which meant that the appellant had to seek and secure leave to appeal before appealing which it failed to do. According to the Respondents, that rendered the appeal incompetent. The Court heard the objection at which the parties argued for their respective positions.

Held:

1. To determine whether a judgment of the National Court is an interlocutory or a final judgment, the “order approach” should be continued to be adopted and followed. That is, the judgment or order should be assessed to determine whether it finally determines the matter or proceeding, finally disposes of the rights of the parties in the proceeding and finally determines all of the issues between the parties in the proceeding.

2. Here, the judgment appealed does not finally determine the matter, the proceeding, the litigation in the National Court. It does not finally dispose of the rights of the parties in the proceeding and does not finally determine all of the issues between the parties in the proceeding.

3. Under the “order approach” and the “application approach” the judgment appealed is not a final judgment. It is an interlocutory judgment.

4. As the judgment appealed is interlocutory, leave to appeal is required but has not been sought or obtained. As the appeal has been commenced by a notice of appeal, without leave where leave is required the appeal is incompetent and should be dismissed.

5. The objection to competency of the first respondent is upheld and the notice of appeal is dismissed.

Held (per Kandakasi DCJ):

1. The starting point is a consideration of the provisions of ss 4 and 14 of the Supreme Court Act (SC Act) as what is in fact provided for and what is not provided for.

2. Sections 4 and 14 provide for:

(a) appeals as of right out of final decisions, on pure questions of law and mixed fact and law as well as decisions in the nature of final decision out of interlocutory decisions;

(b) No appeals from consent orders;

(c) appeals on pure questions of fact with leave; and

(d) appeals from interlocutory decisions with leave of the Court except for decisions in the nature of final decisions as provided for in s14 (3) (a) to (b) and any others in the nature of final decisions that may be provided for by Court Rules promulgated by the Judges.

3. Appeals from a part final and part interlocutory decision is not provided for in ss 4 and s14 of the SC Act, purposely to avoid mischief that can be caused by ready appeals against such decision which has the potential of denying justice, when the parties have the right of appeal or review intact to be exercised at the end of the trial process where a final decision is delivered.

4. It is now settled law that, the orders approach is the correct approach or test to apply to determine whether a decision is final or interlocutory for the purposes of s14 (3) of the SC Act except for the exceptions under s14 (3) (b) (i) and (ii) and any thing additional that might be added by the Rules of the Court that may be promulgated by the judges: Approved and applied Steven Punagi v. Pacific Plantation Timber Ltd [2011] 2 PNGLR 92, SC1153; Lady Cragnolini v. Henry Leia (2023) SC2464 and others

5. The decision in the present case was a part final and part interlocutory decision in respect of which there can be no appeal until a final decision that finally concludes the matter. Hence, the appeal was held incompetent and consequently dismissed.

Cases cited

Akipa & Ors vs. Lowa & Ors [1990] PNGLR 502

Alfred Daniel v. Pak Domoi Ltd (2004) SC736

Battle v. Irish Art Promotion Centre Limited [1969] IR 252

BSP Financial Group Ltd v. Samuel Tupou (2023) SC2499

Diro v. Ombudsman Commission of Papua New Guinea (1991) N1385

Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ors as the Ombudsman Commission (2011) SC1118

Ian Augerea v. Patilias Gamato (2018) SC1745

Jack Kariko v. Ken Ngangan & Ors (2023) SC2422

Kappo Limited v. Hau and Ors (1997) SC520

Kule Layo & Ors v. Hon. Ano Pala (2024) SC2597

Lady Cragnolini v. Henry Leia (2023) SC2464

Maniosa Yakasa v. David Piso (2014) SC1330

Moran v. Lloyds (1981) 1 Lloyds Reports 423

MVIL v. Kauna Kiangua (2015) SC1476

National Capital District Commission v. Namo Trading Limited (2001) SC663

Odata Ltd v. Ambusa Copra Oil Mill Ltd (2001) N2106

Oio Aba v. MVIL (2005) SC779

Paru Aihi v. Peter Isoaimo (2013) SC1276

Pinpar Developer Pty Ltd v. TL Timber Development Pty Ltd (2019) SC1892

PNG Power Ltd v. Grant Hoffmeister (2024) SC2665

PNGBC v. Jeff Tole (2002) SC 694

Ruma Construction Pty Ltd v. Smith (1999) SC600

Salomon v. Salomon & Company Ltd [1897] AC 2

Simon Kauba & Ors v. Alphones Willie & Ors (2021) SC2162

Smith v. Ruma Constructions Ltd (2002) SC695

State v. Gelu, Solicitor General (2002) N2322

Steven Punagi v. Pacific Plantation Timber Ltd [2011] 2 PNGLR 92

The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013

Westly Nukundi Nukundj v. Steven Pim & Electoral Commission of Papua New Guinea (2025) SC2683

White v. Brunton [1984] 1 QB 570

Yapi Giwi v. Jacob Popuna (2024) SC2686

Zachary Gelu v. Sir Michael Somare MP (2008) N3526

Counsel

Mr. I. Molloy and Mr. C. Joseph for the respondents/objectors

Mr. A. Donigi for appellants/respondents

Lawyers for the appellants: Ama Wali Lawyers

Lawyers for the first respondent: Ashurst Lawyers

1. Salika CJ, Hartshorn J, Murray J and Dingake J: This is a decision on a contested objection to competency of the purported notice of appeal in this proceeding. The objection is that the judgment sought to be appealed (judgment appealed), is an interlocutory judgment and so leave is required to appeal. This appeal, however, has been commenced by a purported notice of appeal in which it is stated that the appeal lies without leave. Consequently, it is contended that the notice of appeal is incompetent.

Background

2. The dispute between the parties concerns real property. The first respondent (plaintiff) commenced proceedings in the National Court by writ of summons. It sought against each of the appellants...