Placer (PNG) Ltd as Manager for and on behalf of the Porgera Joint Venture (Applicant/Cross-Respondent) v Joshua Siapu Yako (Respondent/ Cross-Appellant) (2019) SC1764

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu & Pitpit, JJ
• Judgment Date: 20 February 2019
• Court: Supreme Court
• Citation: (2019) SC1764
• Docket Number: SCA No. 184 of 2010
• Year: 2019
• Judgement Number: SC1764

Full Title: SCA No. 184 of 2010; Placer (PNG) Ltd as Manager for and on behalf of the Porgera Joint Venture (Applicant/Cross-Respondent) v Joshua Siapu Yako (Respondent/ Cross-Appellant) (2019) SC1764

Supreme Court: Gavara-Nanu & Pitpit, JJ

Judgment Delivered: 20 February 2019

SC1764

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 184 of 2010

BETWEEN:

PLACER (PNG) LTD as Manager for and on behalf of the PORGERA JOINT VENTURE

Applicant/Cross-Respondent

AND:

JOSHUA SIAPU YAKO

Respondent/ Cross-Appellant

Waigani: Gavara-Nanu & Pitpit, JJ

2016: 1 September

2019: 20 February

PRACTICE & PROCEDURE – Cross-appeal – Pleadings – Objection to competency – Principles discussed.

Cases Cited:

Cocoa Cola Amati (PNG) Ltd v. Yanda [2012] PGSC 52

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

Ipili Porgera Investments Ltd v. Bank South Pacific Ltd (2007) SC 1322

Issaac Lupari v. Sir Michael Somare, MP. Prime Minister & Chairman of the National

Executive Council & Ors (2010) SC1071

Henganofi Development Corporation Ltd v. POSF Board (2010) SC1025

Henzy Yakam & Ors v. Dr Stuart Hamilton Merriam & Anor (1997) SC533

Hermit Island Ltd v. National Fisheries Authority (2010) SC1026

Jimmy Lama v. NDB Investment Ltd (2015) SC 1423

National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea & Ors (2014) SC1392

Counsel:

T. Injia, for the Appellant/Cross-Respondent

20th February, 2019

1. BY THE COURT: The third member of the Court Sawong J, retired sometime after this Application was heard. Thus, the remaining two members of the Court having put the requirements of s. 3 of the Supreme Court Act, Chapter No. 37, to the applicant/cross-respondent (applicant) which was the only party heard at the hearing; and the applicant having agreed that the remaining two members of the Court could decide the Application, we now deliver the decision of the Court, which is unanimous.

2. This is an application by the applicant made by way of an objection to competency against the cross-appeal filed by the respondent/cross-appellant (respondent) against the decision of His Honour, Justice Graham Ellis given at Wabag on the 23 November, 2010, in proceeding CIA No. 184 of 1999, in particular Order No. 1, which stated “appeal allowed”.

3. The applicant had appealed against a decision of a Mining Warden given against it on 24 February, 1999. His Honour, allowed the appeal but ordered costs against the applicant. In its appeal the applicant successfully raised issues of land ownership. His Honour, in allowing the appeal held that issues of land ownership should have been brought under the Land Dispute Settlement Act, Chapter 45.

4. His Honour ordered costs against the applicant because his Honour was of the view that the appeal would not have been necessary had the applicant raised the land ownership issues before the Mining Warden.

5. The applicant raised seven grounds of objection to competency. They are as follows:

1. The Notice of Cross Appeal does not comply with Order 7 Rule 8 (b) of the Rules of the Supreme Court of Justice (Rules) in that it does not state whether the whole or part only and what part of the judgement is appealed from.

2. The Notice of Cross Appeal does not comply with Order 7 Rule 2 (c) of the Rules as it does not state: The Nature of the Case, or Questions involved, or Reasons.

3. The Notice of Cross Appeal does not comply with Order 7 Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (a) the grounds relied on to demonstrate that the judgment is against the evidence.

4. The Notice of Cross Appeal does not comply with Order 7Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (b) and 3 (c) and 3 (d) the specific reasons why the judgment is alleged to be wrong in law where the National Court considered evidence not presented in the lower court when the National Court was conducting a hearing de novo in accordance with Sections 229 and 230 of the District Courts Act.

5. The Notice of Cross Appeal does not comply with Order 7 Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (e) and 3 (f) the specific reasons why the judgment is alleged to be wrong in law where the National Court exercised its powers in accordance with Sections 230 and 232 of the District Courts Act.

6. The Notice of Cross Appeal does not comply with Order 7Rule 9 of the Rules as it does not specify with particularity in paragraph 3 (g) the specific reasons why the judgment is alleged to be wrong in law.

7. The Notice of Cross Appeal does not comply with Order 7 Rule 9 of the Rules as it does not specify or with particularity in paragraph 3 (h) the specific reasons why the judgment is alleged to be wrong in law or fact.

6. The respondent raised eight grounds of cross-appeal. They are as follows:

1. The Cross Appellant appeals from part of the judgment of His Honour Justice Graham Ellis given at Wabag on the 23rd November, 2010 in the matter in proceeding CIA No. 184 of 1999 in particular Order No. 1 allowing the Appeal.

2. The Appeal lies without leave as it is a final judgment and it involves grounds that raise questions of law and questions of mixed fact and law.

3. Grounds

a) His Honour erred in law and fact in allowing the appeal, filed in that (sic.) National Court after he rejected all the 8 grounds of appeal raised by the Appellant/Cross-Respondent.

b) His Honour erred in law in allowing the Appeal based on a ground he determined and rejected in his decision, in that the appellant who was a party in the proceedings before the Mining Warden cannot raise an issue for the first time in an appeal, which was not raised in the Mining Warden hearing to have the matter resolved under the Land Dispute Settlement Act.

c) His Honour erred in law in venturing into issues, which were not properly before the Court in particular the referral of the matter to be resolved under the Land Dispute Settlement Act.

d) His Honour erred in law in allowing the appeal based on issues and evidence which the appellant failed to raise at the Mining Warden’s Court.

e) His Honour erred in law in allowing the appeal when, that order was not sought in the Notice of Appeal.

f) His Honour erred in law by not dismissing the appeal, when there was (sic.) no reliefs at all sought in the Notice of Appeal filed.

g) His Honour erred in law when he allowed the appeal without giving further directions/orders as to what becomes of the award by the Mining Warden, after the disputes are resolved under the Land Dispute Settlement Act, thus creating confusion.

h) His Honour erred in law and fact in allowing the appeal, stating the dispute be dealt with under the Land Dispute Settlement Act, when that issue was already dealt with by a Court of Competent jurisdiction.

7. The respondent also sought that the decision of Ellis J be set aside and the decision of the Mining Warden confirmed.

8. The respondent’s cross-appeal is without leave because the decision of Ellis J was said to be final.

9. The applicant’s grounds of objection to competency in our view fall into following three broad categories:

(i). The cross-appeal failed to comply with Order 7 r 8 (b) of the Supreme Court Rules, in that it failed to state that the appeal is against the whole of the judgment of Ellis J, or part of the judgment only. If it is against part of the judgment then he failed to specify the particular part of the judgment that is being appealed.

(ii). The cross-appeal raised issues of fact only for which leave had not been obtained, thus breaching the requirements of s. 14 (1) (c) of the Supreme Court Act, Chapter 37.

(iii). The cross-appeal failed to comply with Order 7 r 9 of the Supreme Court Rules, in that it failed to particularize parts of the judgment, which were claimed to have amounted to errors of law or errors of law and fact and the reasons why the learned trial judge fell into those errors.

10. The applicant has relied on a number of Supreme Court decisions, one of which is Jimmy Lama v. NDB Investment Ltd (2015) SC 1423. In that case the Supreme Court held among others, that grounds of appeal must make grammatical and legal sense and be intelligible. If the judgment is claimed to be wrong in law, the grounds relied upon must clearly show such errors, and the alleged errors must be clearly pleaded with reasons why the judgment was wrong in law. See, Ipili Porgera investments Ltd v. Bank South Pacific Ltd (2007) SC 1322 and Haiveta v. Wingti & Ors (No. 2) [1994] PNGLR 189.

11. The applicant has raised threshold issues in its objection to competency. These issues reflect mainly the mandatory requirements of Order 7 r 9 of the Supreme Court Rules, which a notice of appeal must satisfy. Under Order 7 r 9, a notice of appeal is required to be pleaded clearly and the pleadings must be comprehensible and must relate to the...