Frontier Holdings Limited v James Hariva Lohoro & Others
| Jurisdiction | Papua New Guinea |
| Judge | Hartshorn,Toliken,Berrigan JJ |
| Judgment Date | 16 December 2022 |
| Neutral Citation | SC2334 |
| Citation | SC2334, 2022-12-16 |
| Counsel | Mr I. Molloy and Mr W Frizzell, for the Appellants,Mr A. Ona, for the First to Sixteenth Respondents,Mr. E Isaac, for the Nineteenth Respondent |
| Hearing Date | 13 December 2022,16 December 2022 |
| Docket Number | SCM NO. 1 OF 2020 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM NO. 1 OF 2020
Frontier Holdings Limited
Appellant
v.
James Hariva Lohoro & Others
Respondents
Waigani: Hartshorn, Toliken and Berrigan JJ
2022: 13th and 16th December
APPEAL — OBJECTION TO COMPETENCY — An objection to competency raised at the substantive hearing of an appeal, in non-compliance with the Rules, without notice, and without leave is an abuse of process — Objection dismissed.
APPEAL — NATURAL JUSTICE — Procedural fairness requires that a party to a proceeding is given a reasonable opportunity to be heard — A reasonable opportunity to be heard means that a party is informed in advance of the issues to be determined and an opportunity to adduce evidence going to those issues — A failure to afford procedural fairness constitutes an error of law — Appeal upheld.
Cases Cited
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Yama v Singirok (2020) SC1982
Ume More v University of PNG (1985) SC310
Sharp v Andrew (2016) SC1797
Kuso Maila Anda Ltd v United Pacific Corporation Ltd (2019) SC1894
Kumul Petroleum Holdings Ltd v Alina (2022) SC2253
Yakasa v Piso (2014) SC1330
Kuman v Digicel (PNG) Ltd (2013) SC1232
MVIT v John Etape [1994] PNGLR 596
Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452
Covec (PNG) Ltd v Kama (2020) SC1912
Herman Sahale v Francis Karogo & Ors (2019) SC2129
References cited
Section 59 of the Constitution
Order 7, Rules 15 to 19 of the Supreme Court Rules, 2012
Counsel
Mr I. Molloy and Mr W Frizzell, for the Appellants
Mr A. Ona, for the First to Sixteenth Respondents
Mr. E Isaac, for the Nineteenth Respondent
Warner Shand: Lawyer for the Appellant
Ona Lawyers: Lawyer for the First to Sixteenth Respondents
Emmanuel Lawyers: Lawyer for the Nineteenth Respondent
DECISION ON APPEAL
16th December, 2022
1. BY THE COURT: This is a decision on an appeal by Notice of Motion from a decision of the National Court given in judicial review proceedings.
BACKGROUND
2. The Appellant was granted a Timber Permit No. 2–16 under the Forestry Act, Chapter 216, on or about 24 June 1992 for a period of ten years over an area described as Vailala TRP Block 2 and 3. The Plaintiffs, now the First to Eighteenth Respondents, sought leave to apply for judicial review of the recommendation of the Nineteenth Respondent, the PNG Forest Authority, to the Twentieth Respondent, the Minister, and the Minister's consequent decision, to renew or extend TP2–16 on 25 July 2002. The Plaintiffs claimed to be clan leaders or incorporated land groups within the Vailala TRP area and sought to have the decisions of the PNG Forest Authority and the Minister quashed. They also claimed that the Appellant, so far as it continued operations after 24 June 2002, was acting unlawfully and that the proceeds of the sale of timber harvested after that date should be paid into Court.
3. The matter was referred to mediation some eleven years later on 12 February 2015, following which the matter returned to Court. On 3 June 2015 the Court made orders giving leave to proceed to judicial hearing and determination on the following issues (the Issues):
i. Whether the Plaintiffs are entitled to any premium payments made by the Third Defendant (the Appellant) to landowner companies pursuant to timber permit 2–16 up until 2008;
ii. Whether the premium payments made by the Third Defendant (the Appellant) to landowner companies up until 2008 were in compliance with the agreements between the Third Defendant and those landowner companies;
iii. Whether the Plaintiffs are to pursue the relief sought in these proceedings and whether they have standing to maintain the proceedings;
iv. Whether other parties are to be joined in these proceedings.
4. The parties' legal representatives (except for those then representing the 17th and 18th Plaintiffs) signed a Statement of Agreed and Disputed Facts and Legal Issues which was ultimately filed on 16 August 2017. The Agreed Facts were:
(a) The Independent State of Papua New Guinea granted timber permit 2–16 to Frontier Holdings;
(b) Agreements between landowner companies and Frontier Holdings were made in or about 1998.
5. The Statement of Agreed Facts and Disputed Facts and Legal Issues under the sub-heading “Legal Issues” stated that pursuant to the orders made on 3 June 2015 granting leave the Court was to determine the “following issues”, namely the same issues contained in the order of that date, as set out in [3] above.
6. Further, by order of 27 April 2019 the National Court relevantly ordered that:
“(2) For the avoidance of doubt the issues for hearing in the substantive judicial review are the legal issues set out in the statement of agreed and disputed facts and legal issues filed 16.08.17 by lawyers for the 1st to 16th plaintiffs, and the first, second and third defendants.”
7. The National Court set out the Issues for determination in its decision.
8. It went on to order judgment in the sum of K4,751,553.90 to be paid to the principle plaintiff for distribution in equal parts to all incorporated land groups of Vailala Blocks 2 and 3 Forest Management Agreement under Timber Permit 2–16. Costs were ordered to be in the cause.
ISSUES ON APPEAL
9. It is essentially the Appellant's contention on the appeal that despite correctly setting out the issues for determination, the National Court erred by considering other issues which were not before it, and thereby denied the Appellant natural justice and the reasonable opportunity to be heard, contrary to s 59 of the Constitution.
10. The First to Sixteenth Respondents contend that the National Court made no error.
11. The Seventeenth, Eighteenth and Twentieth Respondents did not appear.
12. The Nineteenth Respondent appeals only against the order of costs against it. It contends that the trial judge erred in awarding costs against it when the issues following mediation were concerned only with the Appellants and the First to Eighteenth Respondents. It is willing to bear its own costs in the proceedings.
OBJECTION TO COMPETENCY
13. Before considering the substantive issues on the appeal it is necessary to deal with an objection to competency raised belatedly by the First to Sixteenth Respondents at the hearing.
14. The Respondents object to the competency of the appeal on the basis that the Appeal Book failed to include the written submissions of the parties in the Court below, in breach of Order 10 Rule 3(b)(i) of the Supreme Court Rules, 2012.
15. We refuse the objection for the following reasons.
16. The same objection was raised by the First to Sixteenth Respondents by a Notice of Objection to Competency filed 28 April 2020. The objection was dismissed by the Supreme Court on 25 May 2020 on the basis that the notice of objection was itself incompetent for failing to set out the jurisdictional basis for the objection. An application for leave to make a slip rule application against the decision was refused on 1 August 2022.
17. The First to Sixteenth Respondents submit that the objection may nevertheless be raised again because the Supreme Court did not determine the objection on its merits and that an objection to competency may be raised at any time as it goes to the jurisdiction of the Court. It relies on Sir Arnold Amet v Peter Charles Yama (2010) SC1064 for this submission.
18. The submission is misconceived.
19. Division 5 of the Supreme Court Rules, 2012, consolidated to 1 May 2022, governs the procedure for challenging the competency of an appeal to the Supreme Court (emphasis ours):
Division 5—Objection to competency of appeal
15. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service of the notice of appeal or application for leave to appeal—
(a) file an objection in accordance with Form 9; and
(b) serve a copy of the objection on the appellant in any manner including by service on the appellant's lawyers in the National Court proceedings.
16. Any party may file affidavits.
17. (1) An objection of which notice has been given shall be determined by:
(a) in the case of an objection to a matter that is within the jurisdiction of a Judge, the Court or any Judge; and
(b) in any other case, the Court.
(2) An objection to competency shall be heard and determined before the substantive matter to which the objection relates is set down for hearing unless a Judge decides in a special case that it is in the interests of justice to set down the matters together.
18. Upon the hearing of an objection to competency the burden of establishing the incompetency of the matter the subject of objection is on the party making the objection.
19. If notice of objection is not given and the appeal...
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