The Independent State of Papua New Guinea v Peter Gaian & 82 Ors (2019) SC1879

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J, Polume-Kiele J, Liosi J
• Judgment Date: 18 November 2019
• Court: Supreme Court
• Citation: (2019) SC1879
• Docket Number: SCA NO. 28 OF 2018
• Year: 2019
• Judgement Number: SC1879

Full Title: SCA NO. 28 OF 2018; The Independent State of Papua New Guinea v Peter Gaian & 82 Ors (2019) SC1879

Supreme Court: Hartshorn J, Polume-Kiele J, Liosi J

Judgment Delivered: 18 November 2019

SC1879

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 28 OF 2018

BETWEEN

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA
Appellant

AND

PETER GAIAN & 82 ORS
Respondents

Waigani: Hartshorn J, Polume-Kiele J, Liosi J

2018: 29th October

2019: 18th November

PRACTICE AND PROCEDURE – Objection to competency – Supreme Court Rules, 2012; Order 7 Rules 9 (c), and 10 – Objections must raise issues concerning the jurisdiction of the Court or the validity of the appeal

Cases Cited:

Waghi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Yakham & The National v. Merriam & Merriam (1997) SC533

PNG Forest Authority v. Securamax Ltd (2003) SC717

Turia McKay v Nelson (2008) SC949

Talibe Hegele v Tony Kila (2011) SC 1124

Coca Cola Amati (PNG) v. Kennedy (2012) SC1221

Michael Kuman & Ors v. Digicel (PNG) Ltd (2013)SC1232

James Marape v. Peter O’Neill (2016) SC1486

Lucas Dekena v Nick Kuman (2018) SC1715

Counsel:

Mr. G. Pipike, for the Appellant

Mr. H. Monei, for the Respondents

JUDGMENT

18th November, 2019

1. HARTSHORN J: I have read the draft judgment of Justice Polume-Kiele and agree with the decision to refuse the objection to competency. I have my own few comments.

2. I refer to ground 3.2 of the Supplementary Notice of Appeal. This ground specifies that the trial judge failed to consider the fact that there were 82 plaintiffs claiming damages but that only 67 signed the authority to act. Only 67 were entitled to reasonable compensation and not the 82. Ground 3.4 specifies that there was a lack of evidence to support the claim for special damages, a lack of evidence as to the extent of the loss suffered by each plaintiff and of the personal details of each plaintiff, that the evidence was uncorroborated and that there were clear inconsistencies in the loss stated to have been suffered by each plaintiff when compared with the evidence of each plaintiff.

3. I am satisfied that the appellants have satisfied the requirements of Order 7 Rule 9(c) and 10 Supreme Court Rules in regard to grounds 3.2 and 3.4. Further, I am satisfied that this Court’s jurisdiction has validly been invoked. Consequently, the objection to competency should be refused. In this regard I refer to this Court’s decision in James Marape v. Peter O’Neill (2016) SC1486 and the decisions referred to by Polume-Kiele J.

4. POLUME-KIELE J: Before us on the 29 of October 2018 was the respondents’ notice of objection to competency of the appeal. The Objections seeks to dismiss or strike out the appeal for alleged non-compliance with the requirements of Order 7 Rules 9 (c) and 10 of the Supreme Court Rules 2012 (abuse of court’s process).

Facts

5. The appellants appealed against a judgment delivered on 9 February 2018 by the National Court, Madang, in WS (HR) No. 18 of 2015, Peter Gaian for himself and Villagers of Bagildig Village, Sumkar District; and Wesley Don for himself and on behalf of the Villagers of Sildig Village, Sumkar District, in which the Court made orders for an award of a total sum of K3, 516, 754.50 in damages in favour of the respondents.

6. The appeal was commenced pursuant to s 14 (1) (a) (b) and (3) (b) (iii) of the Supreme Court Act, Chapter 37.

7. A copy of the Supplementary Notice of Appeal is marked pages 135 to 140 of the Objections Book filed on 27 April 2018.

Objection to competency

8. In regard to the objection to competency, the respondents argue that the appeal fails to comply with the requirements of Order 7 Rules 9 (c) and 10 which are in the following terms:

“9 The notice of appeal shall –

(a) …

(b) …

(c) state briefly but specifically the grounds relied upon in support of the appeal; and

(d) …

(e) …

(f) …

(g) …

10 Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and that the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law”

9. A copy of the order made, certified by the Judge’s Associate or the Registrar is contained in page 12-13 of the Objection Book.

The Appeal

10. The appellants raised four (4) grounds of appeal. These are restated below:

“The learned trail judge erred in law (or mixed fact and law when his Honour upheld the evidence and the submission made by the Respondents when he:

“3.1 failed to allow the appellants to make proper submissions on the law in so far as the Respondents’ legal capacity was concerned as majority of the plaintiffs did not submit proper evidence to substantiate their claims for damages;

3.2 the trial judge erred in fact and law when he failed to consider the fact that although there were 82 plaintiffs claiming damages there were only 67 who signed the authority to act. In so far as assessment were, only the 67 plaintiffs were entitled to reasonable compensation and not all.

3.4 the trial judge erred in fact and law when he made a general ruling on the amount of compensation for each of the different heads of damages without considering:

(i) that there was no detailed evidence for special damages and no evidence to support the claim for special damages;

(ii) there was lack of evidence as to the extent of damages the plaintiffs suffered and lack of personal details of each plaintiffs’ claim that was un-collaborated;

(iii) there were clear inconsistencies in the loss stated in the statement of claim for each of the plaintiff’s compared to their evidence.

3.5 The trial judge’s decision to award to the 82Respondents; Three Million, Five Hundred Sixteen Thousand, Seven Hundred Fifty Four Kina and Fifty Toea (K3,516,754.50) was unreasonable and excessive when he failed to consider that most of the evidence submitted by the respondents were not properly tendered into court and even the Valuation Report had a lot of inconsistencies and did not correspond with the evidence tendered in court.”

The objections to competency

11. The respondents raise7 grounds of objections to the competency of the appeal (referred to in page 5 to 10 of Appeal Book. I will summarise these objections as follows: -

(1) …. all of the grounds 3.1.; 3.2; 3.4; and 3.5 of the Supplementary Notice of Appeal are too general and vague and do not specify the law and the error of law committed by the learned trial Judge and do not give specific reasons why the decision or finding or conduct of the trial judge were alleged to be wrong in law. All the grounds 3.1; 3.2; 3.4 and 3.5 of the Supplementary Notice of Appeal fail to comply with Order 7 Rules 9 (c) and 10 of the Supreme Court Rules 2012 and are therefore incompetent and should be dismissed or struck out.

(2) …, Grounds 3.4 and 3.5 raised issue relating to the failure of the trial judge to allow the appellants to make “proper” submissions on the law in so far as to the legal capacity of the respondents and does not specify what law gives the appellant the right to make “proper” submissions regarding the legal capacity of the respondents on a trial for assessment of damages and how the trial judge err in applying or misapplying the law. This ground does not comply with Order 7 Rule 9 (c) and 10 of the Supreme Court Rules and is therefore incompetent.

(3) … Ground 3.2 alleges error of mixed fact and law in that there were 82 plaintiffs claiming damages but only 67 signed the authority to act, however, the appellants did not state what law governs the awarding of damages to the plaintiffs following a trial on assessment of damages and what are the specific reasons why the learned trial Judge erred in applying or misapplying that law or demonstrate with particularity how it was an error of mixed fact and law. This ground of appeal fails to comply with Order 7 Rule 9 (c) and 10 of the Supreme Court Rules and is therefore incompetent.

(4) …Ground 3.4 alleges that the trial judge erred in mixed fact and law when he made a general ruling on the amount of compensation for each different heads of damages without considering the evidence properly however, this ground is to general and vague and does not specify the law or legal principles regarding assessment of damages and what different heads of damages are applicable or allowed by law and does not give specific reasons why it is alleged to be wrong in law as required by Order 7 Rule 9 (c ) and 10 of the Supreme Court Rules and is there incompetent and should be struck out.

(5) … Ground 3.4 raises questions of fact only as it requires the Court to evaluate and reassess the evidence before the trial court for which leave is required under Section 14 (1) (c) of the Supreme Court Act 1975. However, no leave was obtained and therefore this ground of appeal is competent and should be dismissed or struck out

(6) Ground 3.5 alleges that the learned trial judge decision to award damages to 87 plaintiffs...