Michael Kuman v Digicel (PNG) Ltd

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J, Manuhu & Logan JJ
• Judgment Date: 31 August 2017
• Citation: (2017) SC1638
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1638

Full : SCA No 75 of 2016; Michael Kuman (for and on behalf of himself and 158 other clan members of the Aura Gunua Clan) and Steven Dama (for and on behalf of himself and 416 other clan members of the Toisinowai Clan) v Digicel (PNG) Ltd (2017) SC1638

Supreme Court: Kandakasi J, Manuhu & Logan JJ

Judgment Delivered: 31 August 2017

SC1638

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No 75 of 2016

BETWEEN

MICHAEL KUMAN

(for and on behalf of himself and 158 other clan members of the Aura Gunua Clan)

First Appellants

AND

STEVEN DAMA

(for and on behalf of himself and 416 other clan members of the Toisinowai Clan)

Second Appellants

AND

DIGICEL (PNG) LTD

Respondent

Waigani: Kandakasi J, Manuhu & Logan JJ

2017: 21 February & 31 August

CIVIL PRACTICE AND PROCEDURE – Supreme Court – Notice of objection to the competency of the appeal – Supreme Court Rules Order 7, Rule 14 – at least one ground of appeal invoking Court's jurisdiction – notice of objection to the competency of the appeal overruled – inclusion in notice of appeal of some grounds raising question of fact alone – Supreme Court Act 1975, s 14(1) – failure to obtain prior grant of leave to appeal in respect of such grounds – ability of Supreme Court to control its own procedure so as to prevent abuse of process – grounds raising question of fact alone struck out.

Cases Cited:

Papua New Guinea Cases

Birch v. The State [1979] PNGLR 75

Boyepe Pere v. Emmanuel Ningi (2003) SC711

Charles Ombusu v. The State [1996] PNGLR 335

Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828

Coca Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52; SC1221

Dinge Damane v. The State [1991] PNGLR 244

Dr Arnold Kukari v. Don Polye & Ors (2008) SC 907

Felix Bakani v Rodney Daipo (2001) SC659

Gigmai Awal v. Salamo Elema [2000] PNGLR 288

Haiveta v. Wingti (No.2) [1994] PNGLR 189

In the Matter of Section 19 of The Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006) (2007) SC917

Ipili Porgera Investments Ltd v. Bank South Pacific Ltd (2007) SC1322

Jimmy Lama v. NDB Investments Ltd (2015) SC1423

Joseph v. Manau Sereva (2011) SC1152

National Capital Ltd v. Loi Bakanio (2014) SC1392

Nerau v. Solomon Taiyo Ltd [1993] PNGLR 395

Oio Aba v. MVIL (2005) SC779

Opai Kunangel v. The State [1985] PNGLR 144

Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812

Paul Bari v. John Raim (2004) SC768

Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431

PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456

PNG Forest Authority v Securamax Securities Pty Ltd (2003) SC 717; [2003] PGSC 17

Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691

Rolf Schubert v. The State [1979] PNGLR 66

Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249

Special Reference by Morobe Provincial Executive (2010) SC1089

Talibe Hegele v. Tony Kila (2011) SC1124

Timothy Neville v. IPBC (2012) SC1193

The State v. John Tuap (2004) SC765

The State v. John Talu Tekwie (2006) SC843

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

Turia & McKay v. Nelson (2008) SC949

Van Der Kreek v. Van Der Kreek [1979] PNGLR 185

Golpak v Malori, Kali, Siname and Niugini Lumber Merchants Pty Ltd [1993] PNGLR 491

Waghi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185; [1980] PGSC 4

Yakham v Merriam (1997) SC 533; [1998] PNGLR 555

Overseas Cases:

Attorney-General v Sillem (1864) 10 HL Cas 704; 11 ER 1200

Aviagents Ltd v Balstravest Investments Ltd [1966] 1 WLR 150

Belton v General Motors Holden's Ltd (No 1) (1984) 58 ALJR 352

North British Railway Company v Wauchope (or Niddrie Marischall) [1862] 4 M 348

Legislation Cited:

National Court Rules 1983, Order 12, rule 40

Supreme Court Act 1975, ss 14, 17

Supreme Court Rules 2012, Order 7, rules 14, 24, 25, 33

Supreme Court Rules 2012, Order 11, rule 11

Other authorities Cited:

J Macqueen, A Practical Treatise on the appellate jurisdiction of the House of Lords & Privy Council together with the Practice on Parliamentary Divorce, A Maxwell & Son, Lincolns Inn, 1842

Counsel:

Mr R Bradshaw, for the Applicant/Respondent

Mr C M Gagma, for the Respondent/Appellants

REASONS FOR JUDGEMENT

31st August, 2017

1. KANDAKASI J: Before us is an objection to the competency of the Appellants’ Notice of Appeal. The main ground for the objection is that the Notice of Appeal contains a number of grounds which raises questions of fact alone without prior leave of the Court. Relying on the decision in Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221, per Lenalia, Kawi and Logan JJ., the Appellants argue against a dismissal of their appeal because they say their Notice of Appeal pleads a number of grounds that invoke the jurisdiction of this Court.

2. The draft judgment of my learned brother Logan J, which I had the privilege of reading, sets out the relevant factual background to this case. His Honour also outlines the respective parties’ arguments. I wish not to repeat them here. For reasons I will shortly give, I do not, with the greatest respect, agree with the outcome His Honour proposes and the reasons he gives for his decision.

Reasons for Decision

3. Objections to competency of appeals, applications for leave to appeal and references and or other applications or process brought to the Supreme Court is a well-trodden road in Papua New Guinea. The principles governing such objections are well settled. I note as did the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 (per Cannings, David and Sawong JJ), the “law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v. Nelson (2008) SC949, per Kirriwom, Cannings, Yagi JJ. These have been elaborated and complimented upon by other decisions. According to these decisions, an objection to competency would properly be in Court if it raises issues that:

(1) draws the Court’s attention to a question of jurisdiction: See Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v. Gabriel Nelson (supra) and Talibe Hegele v. Tony Kila (supra);

(2) there are serious threshold issues concerning legality or viability of the appeal: See PNG Forest Authority v. Securamax Ltd (2003) SC717;

(3) leave has not being sought and obtained separately in cases where some of the grounds of appeal require leave and some do not: See Yakham & The National v. Merriam & Merriam (1997) SC533, per Amet CJ, Kapi DCJ and Los J;

(4) an application for leave or notice of appeal’s ground is false, misleading or is vague or not adequately stating the nature of the case, the questions involved and the reasons why leave should be given: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456, per Batari, David and Makail, JJ; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, per Amet CJ, Kapi DCJ and Sevua J; To validly plead the grounds they must briefly state but:

(a) specifically make grammatical and legal sense and be intelligible;

(b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that; and

(c) if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: See Jimmy Lama v. NDB Investments Ltd (2015) SC1423, per Cannings, Collier and Geita JJ;

(5) an application for leave or notice of appeal has being filed outside the 40 days period allowed by s. 17 of the Supreme Court Act without leave of the Supreme Court: See The State v. John Tuap (2004) SC765, per Sawong, Mogish and Cannings JJ;

(6) an application for leave includes questions of law or fact not raised in the National Court: See Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828, Kapi CJ, Injia DCJ and Hinchliffe J;

(7) an applicant for leave does not have sufficient interest in the subject matter of the National Court’s decision that it wishes to appeal against: See Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691, per Kapi CJ, Kirriwom and Lay JJ;

(8) the notice of appeal raises factual questions for which leave had not been first sought and obtained separately: Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431,per Gavara-Nanu, David and Murray JJ;

(9) an application for leave has been filed unnecessarily, that is, where the objecting party points out that leave to appeal was not actually required and leave is being sought. Earlier decisions of the Court held this could not be a valid ground to object: See Boyepe Pere v. Emmanuel Ningi (2003) SC711, per Los, Kandakasi and Mogish JJ; Oio Aba v. MVIL (2005) SC779, per Injia DCJ, Sawong and Lay JJ; The State v. John Talu Tekwie (2006) SC843, per Salika, Lay and Gabi JJ. This...