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Sanangke v Cholai [2023] PGSC 44; SC2406 (6 June 2023)

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

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 failed to expressly state therein, in conformity with Order 7 Rule 9(b) and Form 8, whether the appeal is against the whole of or part of the decision of the trial Court.

13. The appellant does not deny the claim of want of compliance of Order 7 Rule 9(b) and (e) of the SCR. We note that there is no issue in regard to this failure by the appellant. However, counsel submits that the said pleading was sufficient; that the appellant has expressly pleaded (under para 1 of the NoA) the Court decision that is being appealed against including the date of the said decision; counsel further submits that no prejudice was or is caused to the respondents by the said pleading; that the parties herein all know that the appeal is against the final decision of the trial Court that was made on 12 September 2022.

14. We note the submissions of the parties.

15. Order 7 [Rules 9 and 10] of the SCR states:

9. The notice of appeal shall—

(a) state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and

(b) state whether the whole or part only and what part of the judgment is appealed from; and

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

(d) state what judgment the appellant seeks in lieu of that appealed from; and

(e) be in accordance with Form 8; and

(f) be signed by the appellant or his lawyer; and

(g) be filed in the Registry.

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 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.

(Underlining ours)

16. We also refer to Form 8 in the SCR which is the prescribed form for filing a Notice of Appeal. It reads in part, and we quote:

“......

NOTICE OF APPEAL

1. THE Appellant appeals from the whole (or if a part specific part) of the judgment of (specify National Court or National Court Judge) given on (specific date) at (place).

......”

(Underlining ours)

17. In our view, the provisions of Order 7 Rule 9(b) and (e) are written in mandatory terms. Failure to comply with them will or should render an appeal incompetent and be subject to dismissal. Our view is certainly not the first. See cases: State v Betanjo (2023) SC2080, Dekena v Kuman (2018) SC1715 at [12] and Placer (PNG) Ltd v Yako (2019) SC1764. In the present matter, we see no valid or exceptional reason(s) why we should depart from this Court’s earlier decisions.

18. We therefore find the NoA incompetent, that is, for failure to comply with Order 7 Rule 9(b) and (e) of the SCR.

SUMMARY

19. We uphold the Application and dismiss this appeal.

20. Premised on our finding on ground 1, it is not necessary to consider the other 2 summarised grounds of the Application.

COST

21. We will order cost to follow the event to be taxed if not agreed.

ORDERS OF THE COURT

22. We make the following orders:

1. The Notice of Objection to the Competency of the Appeal is upheld.
   
2. The appeal is dismissed in its entirety.
   
3. The Appellant shall pay the Respondents’ costs of the appeal on a party/party basis to be taxed if not agreed.
   

The Court orders accordingly

________________________________________________________________
Nelson: Lawyers for the Appellant
Young & Williams Lawyers: Lawyers for the First and Second Respondents
Solicitor General: Lawyer for the Third and Fourth Respondents