Francis Fayana v Michael Waipo in his capacity as Commissioner for Correctional Services and Others

• Jurisdiction: Papua New Guinea
• Judge: David J,Frank J,Narokobi J
• Judgment Date: 09 May 2023
• Neutral Citation: SC2389
• Citation: SC2389, 2023-05-09
• Counsel: Mr. L. Giyomwanauri, for the Appellant,Mr. K. Kipongi, for the other Respondents
• Docket Number: SCM NO. 25 OF 2022 (IECMS)
• Hearing Date: 24 April 2023,09 May 2023
• Court: Supreme Court

SC2389

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 25 OF 2022 (IECMS)

Between:

Francis Fayana

Appellant

v.

Michael Waipo in his capacity as Commissioner for Correctional Services

First Respondent

and

The Independent State of Papua New Guinea

Second Respondent

Waigani: David J, Frank J & Narokobi J

2023: 24^th April and 9^th May

APPEAL — Practice & Procedure — Objection to competency of an appeal — Appeal pursuant to National Court Rules Order 16 rule 11 and Supreme Court Rules Order 10 rule 3 — Mandatory requirements — Failure to comply with the requirements — Supreme Court Rules — Order 11 r 28 (a), Order 7 r 15 & Order 10 rule 3 (b) (ii).

Cases Cited:

Manda v Yatala (2005) SC795

Maser v Salin (2021) SC2093

Madang Timbers Ltd v Kambori (2009) SC992

National Capital Ltd v Bakani (2014) SC1392

GR Logging Limited v David Dotaona (2018) SC1690

Sarea v Moutu (2019) SC1893

Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2001) SC659

Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699

Kukari v Polye (2008) SC907

Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273

Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408

Nipo Investment Limited v Nambawan Super Limited (2017) SC1642

Palaso v Elliott (2020) SC2030

Nandali v Curtain Brothers Ltd (2012) SC1483

Papua New Guinea Law Society v Cooper (2016) SC1553

Kore v Lapa (2021) SC2103

Legislation:

Supreme Court Rules 2012 (as amended)

Counsel:

Mr. L. Giyomwanauri, for the Appellant

Mr. K. Kipongi, for the other Respondents

Leslie Mamu, Public Solicitor: Lawyer for the Appellant

Tauvasa Tanuvasa, Solicitor General: Lawyer for the Respondents

JUDGMENT

9^th May, 2023

1 BY THE COURT: Before this court is the respondents' amended notice of objection to competency filed on 12 April 2023 in respect of the appeal instituted herein on 31 August 2022 by a notice of motion filed under Order 10 of the Supreme Court Rules 2012 (as amended)¹ (“Notice of Motion”) against a decision made on 18 August 2022 in National Court proceedings OS(JR) 765 of 2014 (“Orders under Appeal”). The amendment only corrected the date of the Orders under Appeal pleaded in the original notice of objection to competency (“Notice of Objection”). At the hearing of it, the appellants argued that the Notice of Objection is incompetent because:

(a) it was not served as required by Order 7 rule 15 (b) within 14 days after the respondents had been served with the Notice of Motion;

(b) it is an abuse of process; and

(c) it does not raise a serious threshold issue as to the validity of the mode of certification under Order 10 rule 3 (b) (ii).

2 The appellant's first preliminary objection, which is made by reference to the dates of service of the Notice of Motion and the Notice of Objection, is advanced on these factual basis:

(a) on 9 September 2022, a sealed copy of the Notice of Motion was served on the respondents;

(b) on 26 September 2022, a sealed copy of the Notice of Objection was served on the appellants' lawyers.

3 Mr Giyomwanauri for the appellants relied on an affidavit of service of one Melinda Laki which — according to para 24 of his written submissions filed on 5 October 2022 — deposed that as at 22 September 2022, the Notice of Objection had not been served on the appellants. That affidavit of service was not before this court as part of the Objection Book. However, from the documents and correspondence annexed to the affidavit of Kevin Kipongi sworn 3 and filed 4 October 2022 which is part of the Objection Book:

(a) as to the date of service of the Notice of Motion, on the copy of the Notice of Motion is affixed a “SERVICE BY HAND ACKNOWLEDGED” stamp of the Solicitor General's office which bears the date, “9/9/22”. Mr Kipongi acknowledged as correct this date during the course of the hearing;

(b) as to service of the Notice of Objection, that date, 26 September 2022, is noted in the appellant's lawyers' letter dated 28 September 2022 to the respondents' lawyers as the date when the appellant's lawyers were served with the Notice of Objection. In the respondents' lawyers letter dated 4 October 2022, that date of service was not disputed. Nor was it disputed at the hearing of the Notice of Objection.

4 As the dates asserted by the appellants have either been accepted or not challenged by the respondents, we accept and find that the Notice of Objection was served outside the 14 days prescribed by Order 7 rule 15 (b) which expired on 23 September 2022.

5 In Manda v Yatala (2005) SC795 (Injia DCJ, Hinchliffe J & Mogish J), this court held that a notice of objection to competency served outside of the prescribed 14 days is incompetent and dismissed the notice of objection to competency in that case. Similarly, the notice of objection to competency in Maser v Salin (2021) SC2093 (Gavara-Nanu J, David J and Berrigan J), which was served outside the prescribed 14 days was dismissed as incompetent.

6 As the Notice of Objection has been served outside of the prescribed 14 days, it is, on those authorities of this court, incompetent.

7 As the issue of competence remains a live issue up to the determination of the substantive appeal, we address the ground of objection. It is common ground between counsel that the Notice of Motion annexes a copy of the Orders under Appeal which bears the seal of the National Court and was signed on behalf of the Registrar.

8 Therefore, this would be an appropriate case in which the views expressed in Madang Timbers Ltd v Kambori (2009) SC992 (11 September 2009) Davani J, Cannings J, Kariko J) and commented on in GR Logging Limited v David Dotaona (2018) SC1690 (Cannings J, Collier J, Dingake J) concerning the word “certified” as it appears in Order 10 rule 3 (b) (ii) could be further considered.

9 In Madang Timbers (supra), the appellants appealed against an order of the National Court made in judicial review proceedings under Order 16 of the National Court Rules (“National Court Order”). For the respondents to justify the grant of leave which they had sought to file a notice of objection to the competency of the appeal, they contended that the notice of motion instituting the appeal did not comply with Order 10 rule 3 (b) (ii). In concluding that a determination of that contention in favour of the respondents would not render the appeal incompetent, this court said, with reference to the word “certified” as it appears in Order 10 rule 3 (b) (ii), that:

“…the word “certified” in the Oxford English Dictionary 2^nd Edition, to be “made certain, assured, certainly informed, attested by certificate, furnished with a certificate” meant that the Registrar “made certain” these were the orders made by the trial judge. This is endorsed by the fact that (i) The National Court Act, National Court Rules, Supreme Court Act and Supreme Court Rules do not provide for any particular mode of certification, more particularly, they do not provide for a form of a certificate; that (ii) The Registrar of the National Court signed and entered the orders of 27th November, 2008, thereby certifying the trial judge's orders announced on 22nd October, 2008 and which are contained in his published reasons.”

10 In National Capital Ltd v Bakani (2014) SC1392 (Injia CJ, Gavara-Nanu & Kawi JJ), the notice of motion instituting the appeal filed on 22 December 2011 had annexed to it a copy of the judgment. Then on 4 April 2012, a minute of the National Court Order from that judgment was entered after the appeal had been filed. The court found the appeal incompetent as the notice of motion instituting it did not annex a minute of the National Court Order as required by Order 10 rule 3 (b) (ii). The observation which this court made there at paras 14 and 15 of Madang Timbers (supra) in the context of certification under Order 10 rule 3 (b) (ii) was as follows:

15. It is significant to note that the court in that case noted...