A notice of appeal with 29 grounds sounds formidable. This one did not survive the objection to competency, and the reasons are a drafting lesson.
Jimmy Lama, Lilly Lama and Bibra Trading Ltd v NDB Investments Ltd and National Development Bank Ltd [2015] PGSC 15; SC1423
Supreme Court, Waigani — Cannings, Collier and Geita JJ, 1 May 2015. SCA 102 of 2014.
What happened
The Lamas and their company sued NDB Investments and the National Development Bank for damages for breach of contract and negligence. After a trial the National Court dismissed the claim. They appealed on at least 29 grounds.
The respondents filed a notice of objection to competency on two broad bases: the grounds did not comply with Order 7 rules 9(c) and 10 of the Supreme Court Rules 2012, and many of them raised questions of fact for which no leave had been sought under section 14(1)(c) of the Supreme Court Act.
What was argued
The appellants said their grounds, read fairly and together, identified errors of law and mixed fact and law that could be argued without leave. The respondents took the Court through the grounds one by one, arguing that each was either unintelligible, a bare complaint against the weight of the evidence, or a factual challenge dressed as law.
What the Court decided
1. Order 7 rules 9(c) and 10 impose three requirements for a ground of appeal. (a) It must be stated briefly but specifically: it must make grammatical and legal sense and be intelligible. (b) If the judgment is said to be against the evidence or its weight, the notice must specify with particularity the ground relied on to demonstrate that. (c) If the judgment is said to be wrong in law, the notice must specify with particularity the specific reasons why.
2. If a ground raises a question of fact, as distinct from a question of law or of mixed fact and law, leave must be granted under section 14(1)(c) before it can be argued.
3. An objection to competency is decided by assessing each ground against the nature of the objection to it.
4. Every one of the grounds offended against one or both objections. 5. All were incompetent, the objection was upheld and the appeal was dismissed entirely.
Did it make new law?
The drafting requirements were already established in Supreme Court decisions such as Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322 and Pacific Equities v Goledu (2009) SC962, and the leave requirement is in the Act. No National Court ruling was affirmed. Lama is the leading case because it stated the requirements as a numbered test under the 2012 Rules, confirmed that a ground of fact without leave is incompetent rather than merely weak, and demonstrated the ground-by-ground method that later benches have adopted.
Why it matters
Classify every ground. Is it law, mixed fact and law, or fact only? If fact only, apply for leave in the notice or lose the ground.
Say why. “The judge erred in law” is not a ground. The notice must state what the error was and why it is an error.
Fewer, better grounds. A long list of overlapping complaints invites a line-by-line objection, and each ground is judged on its own wording.
Where no ground survives, the appeal is dismissed without any consideration of the merits. Because the 40-day limit will usually have run, there is no second chance to file a better notice.
What it does not decide
Lama does not define the line between a question of fact and a question of mixed fact and law, which continues to be argued case by case. Nor does it address the Court’s power to allow amendment of a notice of appeal, which is governed by Order 7 Division 9 and the 40-day limit explained in Tsang v Credit Corporation [1993] PNGLR 112.
Recent cases applying it
- Geru Holdings Ltd v Kruse [2022] PGSC 118; SC2318 — the three requirements and the leave rule restated from Ipili Porgera, Pacific Equities and Lama on an objection to competency.
- Charlie v Paki [2020] PGSC 158; SC2123 — holding (1) of Lama quoted with emphasis; the objection in that case was dismissed because the grounds did comply.
- Kugi v Foo [2020] PGSC 57; SC1967 — a ground alleging error in the exercise of discretion was dismissed for failing the Lama requirements.
- Nelulu Land Group Inc v Rimbunan Hijau (PNG) Ltd [2019] PGSC 95; SC1840 and Awesa v PNG Power Ltd [2019] PGSC 70; SC1848 — Lama cited on competency of grounds.
Sources
- Lama v NDB Investments Ltd [2015] PGSC 15; SC1423 (Cannings, Collier and Geita JJ, 1 May 2015)
- Supreme Court Rules 2012 — Order 7 rules 9(c), 10; Division 9
- Supreme Court Act (Chapter 37) — ss 14(1)(c), 17
- Pacific Equities & Investments Ltd v Goledu [2009] PGSC 4; SC962; Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- Geru Holdings Ltd v Kruse [2022] PGSC 118; SC2318; Charlie v Paki [2020] PGSC 158; SC2123; Kugi v Foo [2020] PGSC 57; SC1967; Nelulu Land Group Inc v Rimbunan Hijau (PNG) Ltd [2019] PGSC 95; SC1840; Awesa v PNG Power Ltd [2019] PGSC 70; SC1848
Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322 is cited as it appears in the judgment and was not separately opened for this brief.
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