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Frabelle (PNG) Ltd v Papua New Guinea Radiocommunications and Telecommunications Technical Authority [2010] PGNC 216; N4566 (20 August 2010)

N4566

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APPEAL CIA NO. 190 OF 2008

BETWEEN

FRABELLE (PNG) LIMITED
Appellant

AND

PAPUA NEW GUINEA RADIOCOMMUNICATIONS AND TELECOMMUNICATIONS TECHNICAL AUTHORITY commonly referred to as PANGTEL
Respondent

Lae: Gabi, J
2010: 20th August

APPEAL – District Court decision to allow respondent to retain seized equipment - respondent has right to withdraw proceedings - appellant properly compensated with an order for costs - appellant has no approval or license to operate network in the country - appellant's conduct unlawful - learned Magistrate correct in allowing respondent to retain seized equipment for safe keeping – appeal dismissed

Facts:

This is an appeal from the decision of the Lae District Court of 14th October 2008 whereby the learned Magistrate made the following orders: (i) the Information is withdrawn; (ii) Informant pays the Defendant's costs to be taxed if not agreed; and (iii) the seized equipment is to be kept in Informant's safe custody.

Held:

The respondent has the right to withdraw the proceeding. The appellant was properly compensated with an order for costs. The appellant has no approval or license to operate the network in the country. The appellant's conduct appears to be unlawful. The learned Magistrate was correct in allowing the respondent to retain the seized equipment for safe keeping.

Cases Cited

Fly River Provincial Government vs. Pioneer Health Services Ltd (2003) SC705

Counsel

J. Kais, for the appellant
I. Mileng, for the respondent

DECISION

20th August, 2010

1. GABI, J: Introduction: This is an appeal from the decision of the Lae District Court of 14th October 2008 whereby the learned Magistrate made the following orders: (i) the Information is withdrawn; (ii) Informant pays the Defendant's costs to be taxed if not agreed; and (iii) the seized equipment is to be kept in Informant's safe custody.

Facts

2. The brief facts were that Frabelle (PNG) Ltd, the appellant, imported, erected and operated a Very Small Aperture Terminal (VSAT) system, a mini telecommunications network. The installation and operation of this network was done without the approval and licensing of Pangtel, the respondent, and Telikom (PNG) Ltd. The appellant commenced operating the network without being licensed. Subsequently, it lodged an application for a VSAT license. The respondent rejected the application on the basis that there was no approval or consent from Independent Consumer and Competition Commission (ICCC) and/or Telikom (PNG) Ltd for the appellant to erect and operate such a network. The respondent issued a direction pursuant to section 112 of the Radio Spectrum Regulations 1997 requiring the appellant to undertake certain steps in order to legitimize its installation and operation of the VSAT system. The appellant refused the proposals by Telikom (PNG) Ltd and instead made a counter proposal to Telikom (PNG) Ltd to use its own VSAT system in exchange for payment of royalty to Telikom (PNG) Ltd. The respondent then proceeded to exercise its powers to seize the VSAT system.

Grounds of appeal

3. The grounds of appeal are:

"2.1 The learned Magistrate erred in law and fact in that his whole decision and orders were made entirely upon the erroneous assumption that the Respondent had standing/legal authority to prosecute the information and standing/legal authority to withdraw the Information.

2.2 if the appeal court finds that the Respondent had standing to prosecute and withdraw the Information then the learned Magistrate erred in law and fact in that:-

(a) he allowed the Respondent to move an oral application and heard the application, despite the fact that it was the Appellant's written application that was set down for hearing at that time;

(b) he allowed the oral application of the Respondent and granted it leave to withdraw it's Information without giving the Appellant the opportunity to be heard on the Respondents application;

(c ) he gave no or insufficient weight to the Appellants written submissions filed in court on 22/09/08 which argued that the search warrants were invalid and the Information was brought by a wrong party and contained fatal errors of law.

2.3 The learned magistrate erred in law and fact in that he awarded costs to the Respondent despite the fact that the proceedings were withdrawn due to serious errors of law by the Respondent and without giving the Appellant the right to be heard.

2.4 The learned magistrate erred in law and in fact in making an order for the Appellant's equipment to remain detained in the custody of the Respondent in that there was no legal basis for such an order.

2.5 The learned magistrate erred in law in making an order for the Appellant's equipment to remain in the custody of the Respondent "until finalization of" in that, upon withdrawal of the Information there existed no further matter of fact or law for the court to determine."

District Court Depositions

4. The worksheet for 14th October 2008 shows the reasons for the learned Magistrate's decision (see page 15 of the Appeal Book). He said:

"Court has the Defendant's motion for strike out on foot. Complainant has come to court to apply for withdrawal. Since it is the Complainant/Informant's matter he has the right to have it withdrawn. As a result the Defendant's motion cannot be moved."

5. It is abundantly clear to me that the appellant's application filed in the District Court was not heard. The appellant's application was to dismiss the Information on the following grounds: (i) the Informant is not a legal entity; (ii) the Informant (even if properly named) does not have the legal standing to bring this Information; (iii) the Information is time-barred; (iv) the Information is bad for duplicity; (v) the Information is bad for uncertainty; (vi) the offences alleged in the Information are substantively defective in that they do not follow the language of the law creating the offences. The counsel for the appellant filed detailed written submissions and I have had the benefit of reading them as well.

6. The application was not moved and no decision was made by the learned Magistrate on the issues raised by the appellant. The purpose of an appeal is to correct errors committed by the court below. It can hardly be argued nor do I accept the argument that the learned Magistrate erred when the application was not argued before him.

7. In Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, the Court said:

"It is settled law that unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal."

8. With respect to ground 2.1 relating to legal standing, the matter was not raised in the District Court and it cannot be raised now. As for ground 2.2, the proceeding was filed by the respondent and it chose to withdraw it. This terminated the entire proceeding. The application by the appellant in the court below was to terminate the entire proceeding as well. This has been done. I agree with the learned Magistrate that the respondent has the right to withdraw the proceeding. The appellant was properly compensated with an order for costs. Grounds 2.4 and 2.5 relate to the retention of equipment by the respondent. It is clear that the appellant has no approval or license to operate the network in the country. The appellant's conduct appears to be unlawful. The learned Magistrate was correct in allowing the respondent to retain the seized equipment for safe keeping. It is a matter for the parties to address as the issue was not raised in the court below. I see no error on the part of the learned Magistrate. Accordingly, I dismiss the appeal with costs to be taxed if not agreed.

________________________________

Pryke & Jansen Lawyers : Lawyer for the Appellant
Mileng Lawyers: Lawyer for the Respondent