Martin Landu and Others v Hitron Limited and Others

• Jurisdiction: Papua New Guinea
• Judge: Toliken J,Liosi J,Anis J
• Judgment Date: 08 March 2024
• Neutral Citation: SC2540
• Citation: SC2540, 2024-03-08
• Counsel: J Napu, for the Appellants,P Tabuchi, for the First Respondent,Nil appearances by the Second & Third Respondents,K Kipongi, for the Fourth Respondent
• Docket Number: SCM NO. 21 OF 2023
• Hearing Date: 29 February 2024,08 March 2024
• Court: Supreme Court

SC2540

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 21 OF 2023

Between:

Martin Landu

First Appellant

and

Bill Adams in his capacity as the next friend, heir and successor of his deceased mother Late Ato Bernadette Adams

Second Appellant

v.

Hitron Limited

First Respondent

and

Harriet Kokiva as Registrar of Companies

Second Respondent

and

Clarence Hoot in his capacity as the Managing Director of the Investment Promotion Authority for and on behalf of the Investment Promotion Authority

Third Respondent

and

The Independent State of Papua New Guinea

Fourth Respondent

Waigani: Toliken J, Liosi J & Anis J

2024: 29^th February, 8^th March

OBJECTION TO COMPETENCY — Objection premised on want of standing, want of compliance with mandatory provisions under Order 10 Rule 3(b)(i)(ii) and (c), want of compliance with Order 10 Rule 4(a), and want of compliance with Order 7 Rules 9(c) and 10 — Supreme Court Rules as amended — consideration — ruling

Cases Cited:

Ken Mondiai v. Wawoi Guavi Timber Company Ltd (2007) SC886

Madang Timbers v. Kambori (2009) SC992

Peter Neville v. National Executive Council of PNG (2015) SC1431

Rai v. Imbuni (2021) SC2080

Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC962

Betty Palaso v Paru Elliott (2020) SC2030

Counsel:

J Napu, for the Appellants

P Tabuchi, for the First Respondent

Nil appearances by the Second & Third Respondents

K Kipongi, for the Fourth Respondent

Napu: Lawyers for the Appellants

Young & Williams: Lawyers for the First Respondent

In-house Counsel: For the Second and Third Respondents

Solicitor General's Office: Lawyers for the Fourth Respondent

8^th March 2024

1. BY THE COURT: We heard the first respondent's Notice of Objection to Competency filed 18 September 2023 (the Application) on 29 February 2024. The Application challenged the competency of the appellants' Supreme Court Notice of Motion filed 22 August 2023 (SCM).

2. We reserved our ruling thereafter to this March's sittings. However, we have waived that and moved the date forward; and we note that the parties have been notified of today's ruling.

BACKGROUND

3. The appellants filed a judicial review proceeding in the National Court described as OS (JR) 95 of 2022, Martin Landu and Or v Hitron Limited and Ors (JR proceeding). Briefly, the appellants had intended to challenge or compel the second respondent to exercise her powers under s.395A of the Companies Act 1997 and amend the records of the first respondent so that their names could be added as shareholders. After they had obtained leave but prior to the judicial review hearing, the first respondent applied to dismiss the proceeding premised on, amongst other reasons, abuse of process. On 14 July 2023, the primary Court granted the first respondent's application and dismissed the JR proceeding.

4. The appeal stems from that decision.

PRELIMINARY OBJECTIONS

5. The appellants raise various objections to the competency of the Application. We will address them now.

6. The appellants first claim the Application is premised on sources or jurisdictions that are invalid. The Application cites its sources, namely, Order 11 Rule 28(a) and Order 7 Rule 15 of the Supreme Court Rules 2012 as amended (SCR). The appellants submit the correct source that should have been invoked was Order 11 Rule 9 of the SCR and s.185 of the Constitution. The appellants refer to and rely on this Court's earlier rulings in Ken Mondiai v. Wawoi Guavi Timber Company Ltd (2007) SC 886 and Madang Timbers v. Kambori (2009) SC992, in support of their submission.

7. In response, the first and fourth respondents submit that the above cases considered and decided on the issue premised on the old Supreme Court Rules which has since been amended by the SCR in 2012. They submit that under the SCR, the correct rules to insert as sources in a notice of objection to competency of an appeal that is filed under Order 10, are Order 7 Rule 15 and Order 11 Rule 28(a). They refer to and rely on the case of Peter Neville v. National Executive Council of PNG (2015) SC1431 in support of their submissions.

8. We uphold the submission by the first and fourth respondents. The case law on point is Peter Neville v National Executive Council (supra). The Supreme Court therein stated at [18 – 20] as follows:

18. Under the new SCR, a respondent to an appeal filed under Order 10 can now file a notice of objection to competency of such an appeal under Order 11 Rule 28 of the SCR. The Rule states:

28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:

(a) Order 7 Division 5 (Objection to competency);

(b) Order 7 Division 19 (Time, and want of prosecution).”

19. This Rule was promulgated in the SCR, 2012 which came into force on 19th December 2012. It is a Rule of general application.

20. Order 7 Division 5 (Rules 15 to 19) of the SCR regulates the filing of an objection to competency of an ordinary civil appeal. Order 7 Rule 15 in particular requires a respondent who objects to the competency of an appeal to within 14 days after service on him of a notice of appeal file an objection in accordance with Form 9 and serve a copy of the objection on the appellant.

9. We note that the argument and case authorities as raised by the appellants herein were also raised earlier before this Court in the case Rai v. Imbuni (2021) SC2080. The Court, having rejected the submission, held on point as follows:

(1) The jurisdictional basis for the Supreme Court to entertain an objection to competency of an appeal from an order made by the National Court in judicial review proceedings is Order 7 rule 15 Supreme Court Rules.

(2) Order 11 rule 28(a) Supreme Court Rules is an auxiliary provision which allows objections to competency of notices of motion by way of appeal in judicial review and certain other proceedings to be filed and pursued in the Supreme Court pursuant to Order 7 rule 15 Supreme Court Rules.

10. The Supreme Court therein agreed with Peter Neville v National Executive Council (supra) on the issue. At pp. 10 and 11, it gave its reasonings as follows:

10. We disagree. Order 11 r.28 became operative when the SCR came into force on 19 December 2012. The previous Supreme Court Rules 1984 (consolidated to 2011) contained no specific provision which allowed for an objection to competency as of right to be filed in respect of a notice of motion by way of appeal in judicial review proceedings instituted under O.16 of the National Court Rules. This anomaly came to light in Mondiai v Wawoi Guavi Timber Co. Ltd (2007) SC886 (Kapi CJ, Davani & Lay JJ) where the Supreme Court held that no such objections to competency could be filed. That decision was followed by the Supreme Court in Madang Timbers Ltd v Kambori (2009) SC992 (Davani, Cannings, Kariko JJ), a case decided before the latest SCR came into force in 2012, which held that a respondent who was objecting to an Order 10 appeal under the Supreme Court Rules 1984 could apply to the Supreme Court for directions under s.185 of the Constitution or apply to the Supreme Court or a single judge of the Supreme Court under (then) O.11 r.9 for leave to file an objection to competency. See also Hegele v Kila (2011) SC1124 (Cannings, David, Sawong, JJ) which approved the guidance on this issue given in Madang Timbers Ltd v Kambori.

11. This procedural anomaly was rectified when the SCR came into operation on 19 December 2012. The SCR of 2012 repealed and replaced the former Supreme Court Rules 1984.

11. The preliminary objection is therefore baseless, and we dismiss it.

12. The appellants secondly claim that the Application is defective because the Objection Book filed 7 November 2023 (OB) did not attach a copy of the SCM. When the argument was raised, we drew the appellants' counsel's attention to a sealed copy of the SCM at [92–100] of the OB. The attached copy did not have the complete attachments. We can see why because the attachments are in 4 Volumes as part of the Appeal Book for the matter. In our view, what is attached to the OB is sufficient for this purpose. This is not the actual appeal hearing of the matter. And we note that it would be a voluminous exercise if the parties or the registry is tasked to reprint the 4 volumes of the SCM for each of the parties and members of the bench. There is already one complete set filed which is available to us to consider if necessary.

13. We note that counsel for the appellants did not press on with the argument when he realized that a sealed copy of the SCM, minus the attachments, was included in the OB. So, for these reasons, we dismiss the second preliminary objection to the Application.

14. The final preliminary objection raised is this. The appellants claim the first respondent did not plead the law or jurisdictional basis for ground 1 of the Application. Counsel referred to and relied on the case of Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC962. We note that we drew counsel's attention to the pleaded jurisdiction in the Application. We also...