Simon Sanangke v Quentin Cholai as Chairman of the National Gaming Control Board and Others

• Jurisdiction: Papua New Guinea
• Judge: Yagi J,Geita J,Anis J
• Judgment Date: 06 June 2023
• Neutral Citation: SC2406
• Citation: SC2406, 2023-06-06
• Counsel: Ms E Dauma, for the Appellant,Mr P Tabuchi with counsel assisting Ms V Yala, for the First and Second Respondents,Ms P T Ohuma, for the Third and Fourth Respondents
• Docket Number: SCA NO. 161 OF 2022
• Hearing Date: 31 May 2023,06 June 2023
• Court: Supreme Court

SC2406

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 161 OF 2022

Between:

Simon Sanangke

Appellant

v.

Quentin Cholai as Chairman of the National Gaming Control Board

First Respondent

and

National Gaming Control Board

Second Respondent

and

Konsii Zebulon & Murray Kaia as the investigator of the National Fraud & Anti-Corruption Directorate of the Department of Police and Internal Security

Third Respondent

and

Independent State of Papua New Guinea

Fourth Respondent

Waigani: Yagi J, Geita J & Anis J

2023: 31^st May, 6^th June

OBJECTION TO COMPETENCY — Objection made under Order 7 Rule 15 — Supreme Court Rules 2022 as amended — whether notice of appeal filed failed to comply with mandatory requirements — Order 7 Rule 9(b) & (e) — Supreme Court Rules — want of pleading whether appeal lies against whole or part of the National Court decision — whether non-compliance fatal to the competency of the appeal — other grounds — whether necessary to consider

Cases Cited:

State v Betanjo (2023) SC2080

Dekena v Kuman (2018) SC1715 at [12]

Placer (PNG) Ltd v Yako (2019) SC1764

Counsel:

Ms E Dauma, for the Appellant

Mr P Tabuchi with counsel assisting Ms V Yala, for the First and Second Respondents

Ms P T Ohuma, for the Third and Fourth Respondents

Nelson: Lawyers for the Appellant

Young & Williams Lawyers: Lawyers for the First and Second Respondents

Solicitor General: Lawyer for the Third and Fourth Respondents

6^th June, 2023

1. BY THE COURT: The first and second respondents (the respondents) filed a notice of objection to competency of the appeal (Application) on 13 December 2022. We heard the Application, which was contested, on 31 May 2023 and reserved our decision to a date to be advised.

2. Parties have been notified so we now give our decision.

BACKGROUND

3. We give a brief background as follows. The appellant's cause of action before the National Court was for allege malicious prosecution and for breach of human rights under s37 of the Constitution. The trial Court dismissed the claim by the appellant on 12 September 2022.

4. The appellant was aggrieved and so he filed this appeal. His Notice of Appeal was filed on 21 October 2022 (NoA) which is located in the yellow tab of the Objection Book (OB).

GROUNDS OF OBJECTION

5. There are 13 grounds of objection pleaded in the Application. They are quite lengthy as pleaded therein. For this purpose, we will sumarise them into 3 categories as follows:

• purported failure to plead in the NoA whether the appeal was against “the whole of” or “part of” the decision of the trial Court – want of compliance with Order 7 Rule 9(b) and (e), Supreme Court Rules 2012 (as amended) (SCR);

• purported failure to seek leave of the Court on questions of facts as alleged in all the 13 grounds of appeal in the NoA – want of compliances with ss 4(2) and 14(1), Supreme Courts Act;

• purported failure to plead with particularity each of the grounds of appeal – want of compliance with Order 7 Rule 10, SCR.

6. The respondents rely on them and submit that the NoA is incompetent and must be dismissed. The third and fourth respondents support the Application.

7. The appellant, on the other hand, contests all the 13 grounds. Counsel submits that the NoA is competent, and that the Application is baseless and should be dismissed.

8. We note that the appellant initially raised challenges to the competency of the Application. However, counsel conceded at the start of her submissions that there was no basis for that and discarded arguments in that regard.

APPROACH

9. We will address the grounds of objection in 3 parts as we have summarised above. That said, we note that the first ground of objection may be described as standalone or decisive. We say this because if the said ground is established to our satisfaction, we may be in a position to determine the appeal without regard to the others.

ALLEGED BREACH OF ORDER 7 RULE 9(b) & (e)

10. We now address the first ground.

11. We begin by drawing our attention to the NoA. The relevant part for this purpose is para 1 at page 1 which reads:

“1. The APPELLANT APPEALS from the decision of Her Honour Acting Justice Tamade made on the 12 September 2022 in the National Court at Waigani in the proceedings styled as WS NO. 1072 of 2015 – SIMON SANAGKA v. QUEENTIN CHOLAI & 3 ORS (hereinafter referred to as the “Decision”) where Her Honour established that no cause of action for Malicious Prosecution and on breach of Human Rights under section 37 of the Constitution as pleaded in the Amended Statement of Claim against the First, Second, Third and Fourth Respondents respectively.”

12. The respondents submit that the appellant...