Henganofi Development Corporation Limited v Public Officers Superannuation Fund Board (2010) SC1025

• Jurisdiction: Papua New Guinea
• Judge: Gavara Nanu, Lenalia & Makail, JJ
• Judgment Date: 03 May 2010
• Court: Supreme Court
• Citation: (2010) SC1025
• Docket Number: SCA NO 59 OF 2009 & SCA NO 60 OF 2009
• Year: 2010
• Judgement Number: SC1025

Full Title: SCA NO 59 OF 2009 & SCA NO 60 OF 2009; Henganofi Development Corporation Limited v Public Officers Superannuation Fund Board (2010) SC1025

Supreme Court: Gavara Nanu, Lenalia & Makail, JJ

Judgment Delivered: 3 May 2010

SC1025

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 59 OF 2009 & SCA NO 60 OF 2009

BETWEEN

HENGANOFI DEVELOPMENT CORPORATION LIMITED

Appellant

AND

PUBLIC OFFICERS SUPERANNUATION FUND BOARD

Respondent

Waigani: Gavara Nanu, Lenalia & Makail, JJ

2009: 25th November &

2010: 3rd May

SUPREME COURT APPEALS - Civil appeals - Practice & Procedure - Objection to competency - Application for leave to appeal - Notice of appeal - Simultaneously filed - Appeal arising from same decision of National Court - Identical or duplication of grounds of appeal - Whether permissible - Questions of fact - Questions of law - Questions of mixed fact and law - Whether application for leave to appeal incompetent - Whether notice of appeal incompetent - Supreme Court Act - Sections 4, 14 & 17 - Supreme Court Rules - Order 7, rules 1-8, 14 & Forms 7 & 8.

Facts

The appellant simultaneously filed an application for leave to appeal and a notice of appeal from the same decision of the National Court. The proposed grounds of appeal in the application for leave to appeal were identical to the grounds of appeal in the notice of appeal. The respondent objected to the competency of the application for leave to appeal and notice of appeal on the grounds that the appellant was in breach of the rule in Henzy Yakham & Ors -v- Dr Stuart Hamilton Merriam & Anor [1998] PNGLR 555; (1997) SC533, which prohibited simultaneous filing of application for leave to appeal and notice of appeal; the proposed grounds of appeal in the application for leave to appeal and the grounds of appeal in the notice of appeal were identical; the decision of the National Court was final and the principles relied upon for seeking leave to appeal were inapplicable and misconceived and the proposed grounds of appeal in the application for leave to appeal raised questions of law and questions of mixed fact and law where leave to appeal was not required.

Held:

1. The appellant was permitted to simultaneously file an application for leave to appeal and a notice of appeal so long as the proposed grounds of appeal in the application for leave to appeal raised questions of fact and the grounds of appeal in the notice of appeal raised questions of law and questions of mixed fact and law: see Henzy Yakham’s case (supra).

2. The proposed grounds of appeal in the application for leave to appeal and the grounds of appeal in the notice of appeal were identical as they raised questions of law and questions of mixed fact and law.

3. The appellant was not permitted to plead identical grounds of appeal in the application for leave to appeal and notice of appeal as it was not only improper but also an abuse of process. However, it is not the sole determinative ground to dismiss the application for leave to appeal and notice of appeal as being incompetent.

4. The test or criteria to determine whether an application for leave to appeal and a notice of appeal pleading identical grounds of appeal were incompetent was whether the proposed grounds of appeal in the application for leave to appeal raised questions of law and questions of mixed fact and law where leave to appeal is not required under section 14(2)(b) of the Supreme Court Act and whether the grounds of appeal in the notice of appeal raised questions of fact where leave to appeal is required under section 14(2)(c) of the Supreme Court Act.

5. In this case, the application for leave to appeal was incompetent because the proposed grounds of appeal raised questions of law and questions of mixed fact and law where leave was not required under section 14(2)(a)&(b) of the Supreme Court Act and was dismissed.

6. The notice of appeal was competent because the grounds of appeal raised questions of law and questions of mixed fact and law where leave was not required under section 14(2)(a)&(b) of the Supreme Court Act and was allowed.

The following cases are cited in this ruling:

Papua New Guinea cases:

Henzy Yakham & Ors -v- Dr Stuart Hamilton Merriam & Anor [1998] PNGLR 555; (1998) SC533

Opai Kunangel -v- The State [1985] PNGLR 144

Nerau -v- Solomon Taiyo Ltd [1993] PNGLR 395

Bruce Tsang -v- Credit Corporation (PNG) Ltd [1993] PNGLR 112

Hii Yii Ann -v- Canisus Kami Karingu (2003) SC718

Boyope Pere -v- Emmanuel Niningi (2003) SC711

Oio Aba -v- Motor Vehicles Insurance Limited (2005) SC779

The State & Ors -v- John Talu Tekwie (2006) SC846

Paul Bari & Ors -v- John Raim (2004) SC768

Vincent Kaupa & Anor -v- Simon Poraituk & Ors (2008) SC955

Jeffrey Turia & Anor -v- Gabriel Nelson & Anor (2008) SC949

Wahgi Savings & Loans Society -v- Bank of South Pacific Limited (1980) SC185

Dillingham Corporation of New Guinea Pty. Ltd. -v- Constantino Alfredo Diaz [1975] PNGLR 262

Overseas cases:

British Launderers' Research Association -v- Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21

Counsel:

Mr K Frank, for Appellant

Mr T Anis, for Respondent

03rd May, 2010

RULING ON OBJECTION TO COMPETENCY

1. BY THE COURT: Before us are two objections to competency by the respondent to dismiss first, the appellant’s application for leave to appeal filed on 09th June 2009 and secondly, the notice of appeal filed on 09th June 2009. The objections were filed on 25th June 2009 pursuant to Order 7, rule 14 of the Supreme Court Rules and raised four grounds, which we will come to shortly.

Brief background facts

2. The back ground facts giving rise to the application for leave to appeal and appeal and the objections are these: on 06th June 1989, the appellant signed the agreement with the respondent to obtain funds to construct a building in Goroka town.

3. It was agreed the respondent would lend K1 million to the appellant and in consideration, the appellant would issue 1 million worth of cumulative preferential shares to the respondent. It was also agreed that during the duration of the loan which was, 10 years, the respondent would enjoy a fixed cumulative preferential dividend of 13% per annum that was payable, 6 months in arrears. It was also agreed that at the end of the 10 years, the appellant would redeem its shares after it had fully repaid its loan plus interest. The shares were redeemed at the end of the 10th year in 1999 with the principal loan sum. From the 10 year period, the appellant had only declared interest once and that was on the 10th year. The appellant claimed that it had not made profits for the other 9 years.

4. The respondent disputed the appellant’s claim and in the year, 2000, took the matter to the National Court by commencing proceeding, WS No 748 of 2000. The appellant also cross claimed against the respondent, claiming inter-alia declaratory orders that it was not indebted to the respondent. The matter was tried on 05th November 2007 and on 30th April 2009, the National Court handed down its decision by finding the appellant liable and awarding K1,053,164.38 in favour of the respondent. In so doing, it refused the appellant’s cross claim. This is the decision which is the subject of the appeal.

Grounds of objections

5. In the meantime, we are being asked by the respondent to dismiss the application for leave in SCA No 59 of 2009 and notice of appeal in SCA No 60 of 2009 for four reasons and they are:

1. The appellant has simultaneously filed the application for leave to appeal in SCA No 59 of 2009 and notice of appeal in SCA No 60 of 2009 in respect of the same decision of the National Court of 30th April 2009 which is in breach of the rule in Henzy Yakham’s case (supra), where the Supreme Court comprising of Amet CJ, Kapi DCJ, and Los J, held that, where a person desires to appeal against questions of law as well as questions of fact in the same matter or decision of the National Court, a notice of appeal must be filed in accordance with Form 8 of the Supreme Court Rules in respect of questions of law and mixed fact and law and an application for leave to appeal must be filed in accordance with Form 7 of the Supreme Court Rules in respect of questions of fact alone.

2. The proposed grounds of appeal in the application for leave to appeal in SCA No 59 of 2009 are identical to the grounds of appeal raised in the notice of appeal in SCA No 60 of 2009. This is in breach of the Supreme Court Practice Direction No 1 of 1998.

3. The present appeal is against a final decision of the National Court and the principles relied upon by the appellant in the application for leave to appeal in SCA No 59 of 2009 are inapplicable and misconceived.

4. Alternatively, proposed grounds of appeal 2.1, 2.2, and 2.8 of the application for leave to appeal do not require leave to appeal and proposed grounds 2.3, 2.4, 2.5, 2.7 and 2.9 of the application for leave to appeal partially do not require leave to appeal.

Issues

5. Except for the first ground of objection, we shall address the remaining three grounds of objection together because in our view, they are inter-related and raise the same issues. The first ground of objection raises the issues of whether or not the appellant is permitted to simultaneously file an application for leave to appeal and a notice of appeal in...