Porgera Joint Venture and Placer (PNG) Limited v Joshua Siapu Yako for himself and on behalf of the members of his Wapini Sub Clan (2008) SC916

• Jurisdiction: Papua New Guinea
• Judge: Kapi, CJ, Kirriwom & Lay, JJ
• Judgment Date: 13 May 2008
• Court: Supreme Court
• Citation: (2008) SC916
• Docket Number: SCA NO. 63 OF 2005
• Year: 2008
• Judgement Number: SC916

Full Title: SCA NO. 63 OF 2005; Porgera Joint Venture and Placer (PNG) Limited v Joshua Siapu Yako for himself and on behalf of the members of his Wapini Sub Clan (2008) SC916

Supreme Court: Kapi, CJ, Kirriwom & Lay, JJ

Judgment Delivered: 13 May 2008

SC916

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 63 OF 2005

PORGERA JOINT VENTURE

First Appellant

AND:

PLACER (PNG) LIMITED

Second Appellant

AND:

JOSHUA SIAPU YAKO for himself and on behalf

Of the members of his Wapini Sub Clan

Respondents

Waigani: Kapi, CJ, Kirriwom & Lay, JJ.

2005: 2 November

2008: 13 May

SUPREME COURT RULES 07 r14 – objection to competency – whether it is necessary for the appellant to have an interest in the subject matter of the appeal- whether Appellant has sufficient interest in decision on appeal.

Facts

In the National Court, the respondent sought certain orders against the appellants with respect to royalty sharing for the use of customary land. The appellants by motion sought a declaration that there was a dispute as to customary land ownership between the respondents and the fourth defendants in the National Court and as a consequence an order that the proceedings be dismissed. The National Court found that there was no dispute as to customary land ownership between the respondents and the fourth defendants. The appellant's motion did not challenge the claims to ownership of the respondent or the fourth defendants in the National court. The appellants seek leave to appeal.

Held

1. An appellant in order to have sufficient interest to found an appeal must have a sufficient interest in the subject matter of the decision from which the appeal is taken. The decision must directly affect the rights of the appellant.

2. The only persons who can be persons with a direct interest in whether there is a dispute between customary claimants to interests in customary land as to the ownership of customary land are indigenous inhabitants of the country;

3. Where parties to litigation who are or claim to be customary land owners are bound by a decision of the National Court to the effect that there is no dispute between them concerning their claimed interests in customary land, a person not qualified to be a customary land owner and which does not claim a customary interest in that land and which does not directly challenge the claimed interests, does not have sufficient interest in the subject matter of the decision to appeal it.

4. The objection upheld, application for leave to appeal dismissed.

Cases Cited:

Papua New Guinea Cases

Re-Kerevat Land (1972) N 702

Waghi Savings & Loan Society Ltd v Bank of South Pacific Ltd SC 185.

Aaron v Solomon Taiyo Ltd [1993] PNGLR 395.

Garamut Enterprises Ltd v Steamships Trading Ltd SC 625.

Placer (PNG) Ltd v Leivers SC 781.

Chief Inspector Robert Kalosim & The State v Ana Mond & Ors SC 828.

Don Pomb Polye v Jimson Sauk Popaki, SC 643.

Geoffrey Balakau v Ombudsman Commission [1994] PNGLR 346.

Malipu Balakau v Paul Torato [1982] PNGLR 242.

Kitogara Holdings v NCDC [1988-89] PNGLR 346.

Overseas Cases

In re Lamb: Ex parte Board of Trade [1894] 2QB 805

Peter v Shipway (1908) 7 CLR 232

Ex parte National Federation of Self Employer and Small Business Ltd [1981] 2 LLR 722.

Counsel

D. Gonol, for the applicant respondent

D. Wood, for the respondent appellant

1. BY THE COURT: The Respondent objects to the competency of the Appellants application for leave to appeal on the basis that the Appellant does not have sufficient interest in the subject of the decision under appeal. The objection to competency has been filed pursuant to a direction of the Court.

Background

2. The Second Appellant entered into a Compensation Agreement dated 31 January 1998 with persons identified as having customary interests in land the subject of mining leases issued to the Appellants; after a study conducted for that purpose. Two hundred and fifty (250) groups with relevant interests in the land were identified and from these 33 agents were appointed to a Land Negotiating Committee to negotiate with the Appellants. The Respondent is not a party to that agreement.

3. On 3 March 2000 the Respondent, and those he represents, amongst themselves entered into an agency agreement purporting to appoint the Respondent, a person not included in the 33 agents, as agent for the Wapini people (“the agency agreement”) for the purposes of the Compensation Agreement. The issues in the National Court proceedings are the validity of the agency agreement and whether it binds the Appellants with respect to the Compensation Agreement.

4. The Appellants, defendants in the substantive proceedings, seek leave to appeal from a decision of Hinchliffe J, refusing an order to strike out the National Court proceedings. The order was sought by the Appellants on the allegation that there was a dispute as to interests in customary land between the Respondent, who is Plaintiff in the proceeding below, and Kule Layo, Pera Itawi and Peakape Aukini of Ambo Sub-clan, the Fourth Defendant in the proceedings below. The Appellants submitted in the National Court that the Mining Act s.4(2) provides that where a dispute arises as to interests in customary land or the position of boundaries of customary land, that dispute “shall be settled as provided for by the Land Disputes Settlement Act (Ch.45)”. It was submitted that there was such a dispute, and the Court should strike out the proceedings on the basis there was no jurisdiction to determine that dispute in the National Court. The National Court held that there was no such dispute and declined to make the order sought.

5. The Fourth Defendant has not appealed to this Court.

OBJECTION TO COMPETENCY

6. On this Objection to Competency the respondent submits that the Appellants do not have an interest or sufficient interest to maintain the appeal because the only issue is whether there is a dispute as to interests in customary land. The Appellants cannot be a party to such a dispute. The issue does not affect the appellant's interests.

7. The Appellants submit that they have sufficient interest because:

1. The Agency agreement was not signed by the appellants;

2. The agency agreement purports to amend the compensation agreement;

3. The Land Liaison Office whose signature appears on the agency agreement says he did not sign it;

4. The Appellants must have been made a party to the proceedings below for a purpose. That purpose must be that the Respondents seek to receive compensation from the Appellants.

5. Further it is submitted that the Appellants would be required to consent to be a party to the Agency agreement and on that basis the Appellants have standing in the appeal notwithstanding that the First and Fourth Defendants below are not parties to this appeal.

6. Nor, it is submitted, is it necessary for the First and Fourth Defendants to be parties to this appeal because the effect of the Agency Agreement is to purport to amend the Compensation Agreement even though Placer and the fourth Defendant were not made parties to the Agency Agreement.

Our Reasons

8. “An objection to competency is really an objection to the jurisdiction of the court to entertain the point,.....”: See Waghi Savings and Loan Society Ltd. v Bank of South Pacific Ltd. SC185 (1980) (Kearney DCJ, Andrew and Kapi JJ, (as he then was), per Kearney DCJ).

9. Examples of grounds on which an objection to competency has been made are as follows:

1. The form of commencement of the appeal, whether the appeal should have been preceded by an Application for Leave to Appeal: See Waghi Savings-And-Loan Society Limited v Bank of South Pacific Ltd. (1980) S. C. 185, Nerau v Solomon Taiyo Ltd.[1993] PNGLR 395 (Amit Woods and Hinchliffe J. J.) or commenced by Notice of Motion: See Garamut Enterprises Ltd v Steamships Trading Limited (1999) SC625 (Hinchliffe , Injia and Kirriwom JJ); or whether the form has been correctly completed: See Placer(PNG)Ltd. v Leivers (2005) SC781 (Kapi C.J., Injia D.C.J. and Cannings J.) for discussion on the completion of a Form 7 Application for Leave to Appeal;

2. where the appeal cannot possibly succeed as a question of law, for example:

a. raising on appeal admissibility of a document admitted into evidence on trial without objection;

b. raising on appeal a point of law not raised at the trial and the facts do not give rise to the question of law.

See Chief Inspector Robert Kalasim & The State v Aina Mond & Ors (2006) SC 828;

c. the point has already been decided by the appellate court between the parties or their privies so that there is an issue estoppel or res judicata; See for example Don Pomb Polye v Jimson Sauk Papaki (1999) SC643 (Sheehan, Jalina and Sawong JJ);

3. the appeal has been filed outside the statutory time limit: See for example Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346 (Amet CJ, Kapi DCJ, Los J);

10. The right to appeal is given by the Supreme Court Act. s4 provides:

4. Right of appeal from National Court.

(1) An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.

(2) An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

11. Section 17 provides "where a person desires to appeal to or obtained leave to appeal from the Supreme...