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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR NO. 21 OF 2010
REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b) AND SECTION 155(4)
APPLICATION BY JOSEPH KINTAU, ACTING DIRECTOR, CIVIL AVIATION AUTHORITY OF PAPUA NEW GUINEA
Waigani: Batari .J, Manuhu .J, Yagi .J
2010: 26 October
2011: 28 September
APPEALS — Appeal from National Court — Supreme Court as final court of appeal — Powers of – Whether Supreme Court has power to review decisions of differently constituted Court — Constitution, s 155 (2) (a), (4)
ADMINISTRATIVE LAW — Judicial review — Jurisdiction of Supreme Court — No power to review decision of differently
constituted court — Constitution, s 155 (2) (a), (4)
PRACTICE AND PROCEDURE — Supreme Court — Appeals — Judicial review — No appeal from Supreme Court —
No judicial review of Supreme Court decision — Constitution s 155 (2) (a), (4)
Constitution s. 155 (2) (a) provides that the Supreme Court is the final court of appeal.
Constitution s. 155 (4) provides that the Supreme Court has "inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders
as are necessary to do justice in the circumstances of a particular case".
Held
Where an appeal to the Supreme Court has been determined:
(a) Constitution s. 155 (2) (a) prohibits any further or other right of appeal;
(b) Constitution s 155 (4) does not permit a differently constituted Supreme Court to review that determination.
Cases Cited
Avia Aihi v The State [1982] (No 2) PNGLR, 44
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305,
The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138
SC Review No 4 of 1990; Application by Willy Kili Goiya [1991] PNGLR 170
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR, 522
Pogera Joint Venture & Placer (PNG) Ltd v Joshua Siapu & Ors (2008) SC 916.
Waghi Savings and Loans Society Ltd v Bank of South Pacific Limited (1980) SC185
Garamut Enterprises Ltd v Steamships Trading Ltd (1999) SC 652
TST Holdings Pty Ltd & Anor v. Tom Apelis (1997) SC 534
David Lambu v. Peter Ipatas & Ors (1999) SC 645
Application by Anderson Agiru (2003) SC704
Powi v Southern Highlands Provincial Government (2006) SC 844
Andrew Trawen and & Anor v. Steven Pirika Kama (SCRev 55 of 2008)
Michael Laimo v. Andrew Trawen & Ors (2010) SC 1063 (SCRev 56 of 2008)
Judicial review
This was an application for judicial review of a decision of the Supreme Court, dismissing an appeal for want of competence. The Respondent objected to the competency of the application.
Counsel
T. Manjin, for the Applicant/respondent.
I. Shepherd, for the Respondent/applicant.
1. BY THE COURT: OVERVIEW: The Supreme Court initially dismissed an appeal by Joseph Kintau Acting Director for Civil Aviation Authority, (the Applicant) against
a decision of the National Court. In this proceeding, he seeks a review of the Supreme Court decision dismissing his appeal. This
ruling is on the Respondent's Notice of Objection to Competency.
Application to review Supreme Court Decision – General Observations
2. Before we embark on the substantive issues, we note in passing that, this application for judicial review epitomizes the growing tendency of parties dissatisfied or aggrieved by a Supreme Court decision to appeal or seek a review of that decision. Such applications are pursued not under the slip rule principles, but under some perceived or postulated Supreme Court infinite power to review its own decision. This therefore raises the pivotal issue of whether this Court has jurisdiction to review its own decision or a decision of another Supreme Court.
3. The other matter we note is the lack of procedure for dealing with cases in the nature of the application before this Court where the Applicant seeks to review a decision of the Supreme Court where the right to appeal has been exhausted. This issue was not raised as part of the objection to competency. It is however, important to note that judicial review applications under Constitution s 155(2) and (4) to review a decision of the National Court do not lie without leave.
4. Such leave may be sought separately adopting Order 16 of the National Court Rules (the NCR) procedure or it may be argued together with the review application itself. In the pioneering cases of Avia Aihi v The State [1981] PNGLR, 81 and Avia Aihi v The State [1982] (No 2) PNGLR 44, leave was granted by the Full bench of the Supreme Court for the applicant to have her criminal conviction reviewed after she lost her right to appeal. By consent, the both applications for leave and the substantive review arguments were heard together. See also, Danny Sunu v The State [1984] PNGLR 305, another application from a criminal conviction. That now seems to represent the common practice for review applications from criminal convictions.
5. The case of, The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138 represents the first time an application was made under s 155 (2)(b) for judicial review of a National Court decision in a civil case. The Supreme Court resorted to an ad hoc procedure in the absence of established procedure for dealing with an application for judicial review pursuant to s 155 (2)(b) of the Constitution where the applicant's lawyer failed to lodge notice of appeal within the 40 day time limit due to his miscalculation of the 40 day period.
6. The Court did not hear submissions on the merits. However, it adopted the principles for judicial review in Avia Aihi v The State and by majority decision held that, "Negligence on the part of the lawyer in not protecting the right of appeal of the client in a civil case is not a valid ground for exercising power of judicial review unless there are exceptional circumstances beyond his control."
7. In New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR, 522 the issue of leave was heard separately and the applicant was granted leave on the basis that, "the merits of the case to be argued on review which were fully presented on application provided cogent and convincing reasons and exceptional circumstances in favour of granting leave to review." See also, Donigi v Base Resources Ltd [1992] PNGLR, 110.
8. While this matter has progressed thus far without leave, we express the view that this should not be regarded as setting a precedent. All future applications for judicial review of a Supreme Court decision should be filed in compliance with the requirement for leave or pursuant to directions sought under O 11 r 9 of the Supreme Court Rules (the SCR) where there is lack of prescribed procedure.
Background
9. In National Court proceedings in OS 493 of 2006, the Respondent sought a judicial review of a decision by the Applicant. In that review the Respondent sought an Order in the nature of certiorari to quash the decision of the Applicant. That proceeding was resolved by way of consent orders which were granted on 20 May, 2009. The matter then came before his Honour, Gavara-Nanu J on 14 October, 2009 for assessment of damages pursuant to O 16 r 7 of the NCR. On 19 October, 2009 the court awarded the plaintiff, US$4,945,813.02 in damages inclusive of profit, interests and costs.
10. The Applicant appealed that decision in SCA No. 156 of 2009. The Respondent challenged the competency of the appeal before a full Bench (Salika DCJ Batari J and Davani J) and by majority ruling (Salika DCJ and Davani J) the Court held that the grounds of appeal raised issues of facts only, so, leave having not been obtained rendered the appeal incompetent.
11. Batari J dissented on the issue of leave but joined the majority in holding that the appeal was incompetent for being commenced under a wrong originating process. In a unanimous decision, the court ruled that, the appeal ought to have come before the Supreme Court by way of Notice of Motion under O.10 of the Supreme Court Rules (the 'SCR') and not by way of Notice of Appeal under O.7 of the SCR. The court upheld the Respondent's objection and dismissed the appeal for want of form on 5th May, 2010.
Judicial Review Application – Grounds.
12. The Applicant then filed this application on 23rd June, 2010 alleging several grounds of errors against the Supreme Court as follows:
"I. REVIEW OF JUDICIAL ACTS OF THE NATIONAL COURT PURSUANT TO SECTION 155 (2)(b)
A. His Honour Justice Gavara-Nanu wrongly exercised his discretion to grant leave for judicial review when:
(i) the application brought by the Plaintiff under Order 16 of the National Court Rules ('NCR') was irregular as the proper mode for the Plaintiff to bring its complaint is by way of an appeal under section 310 of the Civil Aviation Act 2000 (the 'Act').
(ii) section 17 of the Act does not confer upon the Plaintiff the right to seek judicial review but a right of appeal under section 310 against the decision taken by the Director to amend the Plaintiff's operations specifications.
(iii) the decision by the Director to amend the operations specifications was made consistent with section 56 of the Act, which by operation of section 310(1) confers on the Plaintiff the right of appeal, and as such judicial review is not available to the Plaintiff.
B. His Honour Justice Gavara-Nanu wrongly exercised his discretion under Order 16 of the NCR to grant an order in the nature of certiorari quashing the decision of the Director made on 21 June 2006 to amend the Plaintiff's operations specifications when section 312(1) of the Act does not permit the National Court to make such an order against a decision taken by the Director.
C. His Honour misconstrued section 310(1) of the Act and wrongly exercised his discretion under Order 16 of the NCR when section 310(1) provides, not expressly but by implication, that all decisions taken by the Director in the exercise of his powers under the Act can only be brought for review before the National Court by way of an appeal under Part XVII (Rights of Appeal) of the Act.
D. the National Court wrongly invoked its judicial review powers to quash the decision of the Director made on 21 June 2006 to amend the Plaintiff's operations specifications contrary to the requirements (either expressly or by implications) of sections 310(1) and 312(1) of the Act.
II. REVIEW OF SUPREME COURT DECISOIN PURSUANT TO SECTION 155(4)
(i) The Court should have vacated the hearing of the objection to competency to allow the applicant to amend the notice of appeal to be dealt with separately, because:
(a) Important legal issues were raised for determination particularly the application of Order 7 Rule 24 of the Supreme Court Rules ('SCR') when the date appointed for settlement of the appeal book was voluntarily vacated by the Deputy Registrar and the appeal book was not settled.
(b) The hearing on that date (26 April 2009) was specifically for the determination of the objection to competency pursuant to Order 7 Rule 16 of the SCR.
(c) The determination of the objection to competency would bring finality to the appeal if the objection was upheld.
(ii) The Supreme Court was wrong in presuming that on consideration of the application to amend the notice of appeal by another Supreme Court, the decision would be the same because it was the wrong process invoked when that is a matter to be determined by the presiding Judge or Judges, and also the matter was not before the Supreme Court for determination.
(i) The Supreme Court failed to exercise its inherent power under section 155(4) of the Constitution to make such other orders in the interest of justice in this case when:
- (a) The question of proper evidence to support the claim for damages is at issue.
- (b) The amount of money involved is quite substantial to be summarily determined only on the issue of compliance with procedural requirements under the National and Supreme Court Rules.
(ii) The decision of the Supreme Court is harsh and oppressive within the meaning of section 41 of the Constitution.
ORDERS SOUGHT:
(i) That the orders of the National Court of 19 October 2009 awarding damages to the Plaintiff for the total sum of US$4,945,813.02 be quashed thereby rendering the Supreme Court Appeal (SCA No. 159 of 2009) to be of no consequence.
(ii) Alternatively, that the decision of the Supreme Court of 5 May 2010 be vacated and substituted with an order that the Respondent's objection to competency be dismissed.
(iii) That the matter be returned to the Supreme Court Registry for listing.
(iv) Alternatively, the matter be remitted to the National Court for re-trial."
Preliminary objection to competency of the Respondent's application
13. Mr. Manjin of Counsel for the Applicant has objected at the outset, to the competence of the Respondent's application on the grounds that, it was filed outside the time limit of 14 days as required under O. 7 r.14 of the SCR.
14. It is undisputed that the Respondent filed and served its Notice of Objection following grant of leave by the Supreme Court. Upon service of the Notice, it was then open to the Applicant to contest the grant of leave under O.11 r.27 of the SCR. This provision authorizes a party dissatisfied with or aggrieved by a direction given by a single judge sitting as a Supreme Court to challenge that direction.
15. Without resorting to that process the Applicant raised his objection on the 11th hour. The Rule requires him to give notice to the other party by filing a notice of motion. He cannot be seriously contesting strict adherence when he himself failed to comply with a fundamental rule of practice. The preliminary objection is dismissed for being unmeritorious.
Grounds of Objection to Competency of proceeding
16. The Respondent advances two primary contentions as follows:
17. So, the issues fairly raised from these contentions are:
Constitution Section 155 (2)(b) and (4)
18. Constitution s.155 (2) and (4) provide:
"155. The National Judicial System.
(1) .......
(2) The Supreme Court—
(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.
(3) ......
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."
Relevance of grounds for review s. 155 (2)(b) Constitution.
19. We will deal with the second issue first. It pertains to relevance as well as abuse of process. The first part of this review purports to set out grounds for application for judicial review of a decision of the National Court under Constitution s 155 (2)(b).
20. However, the Applicant has merely repeated the grounds of appeal earlier dismissed by this Court in SCA No. 156 of 2009. Those grounds were held to be incompetent for being filed without leave and for being filed in contravention of O.16 r.11 of the NCR and O.10 of the SCR.
21. The requirement for strict compliance with procedures for bringing matters before the Supreme Court by way of appeal or judicial review application is well settled in this jurisdiction. An objection to competency in respect to the form of commencement of the appeal goes to the jurisdiction of the court to entertain the point. See, Pogera Joint Venture & Placer (PNG) Ltd v Joshua Siapu & Ors (2008) SC 916. Hence, an objection to competency can be made where leave is required but was not sought: Waghi Savings and Loans Society Ltd v Bank of South Pacific Limited. (1980) SC 185 or where an appeal is required to be commenced by Notice of Motion: Garamut Enterprises Ltd v Steamships Trading Ltd (1999) SC 652
22. It was open to the Applicant to file a Notice of Motion under O 10 of the SCR which he failed to do. The statutory appeal period having lapsed, his application for judicial review under Constitution s 155(2)(b) before this Court required leave. Supposing for a moment that the application for judicial review is properly before this Court, the Applicant must show, "cogent and convincing reason and exceptional circumstance" before leave can be granted for judicial review as per the principles enunciated in the celebrated case of Avia Aihi v The State [1982] PNGLR, 44.
23. In order to obtain leave for judicial review under s 155 (2)(b) the applicant must satisfy the court why the statutory period was allowed to expire. A deliberate choice not to appeal under O 16 r 11 of the NCR and O 10 of the SCR can hardly be regarded as a "special and substantive", "very exceptional circumstance", "satisfactory and substantive reason", or "cogent and convincing reason and exceptional circumstance" for granting leave for judicial review. See, Application by Anderson Agiru (2003) SC704.
24. The grounds couched in the terms of an appeal against a National Court decision are intended to form part of this review. This is apparent from the terms of the reliefs sought in paragraphs 4 (i) and (ii). We agree with the submissions by Mr Shepherd of counsel for the Respondent that the grounds are irrelevant. A review of a Supreme Court ruling is the essence of this proceeding. The application is not seeking a review of a National Court decision.
25. Those grounds are not only irrelevant but they are clearly intended to ride at the back of an application to review a decision of the Supreme Court. What the Applicant wants this court to do is to review a National Court decision under the auspicious of an application to review a Supreme Court decision. This is an attempt to rectify a serious blunder the Applicant and his lawyers have made after failing to comply with the prescribed form and procedure in the first place. It is an attempt to circumvent and avoid the stringent requirements of O.10 of the SCR.
26. He cannot have it both ways. This is an abuse of the court process. The court is duty-bound to preserve the integrity of its process in s.14 of the Supreme Court Act O.16 r.11 of the NCR and Orders 7 and 10 of the SCR.
27. In our respectful view the application to review the National Court decision was filed in complete disregard of due process and is otherwise mischievous and without foundation in law.
Whether the Supreme Court can review its own decision under s. 155(2)(b).
28. Section 155 (2) (b) vests in the Supreme Court, inherent power to review all judicial acts of the National Court. It is a limited grant of power to review a decision of the National Court in situations where:-
29. In Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686 this Court affirmed that the power of review under s.155(2)(b) is restrictive. It stated:
"Section 155(2)(b) is a grant of power to the Supreme Court. The provision does not deal with a right of any person to invoke that power. The Supreme Court Act and other laws determine rights of appeal or review. However, the Supreme Court in Avia Aihi v The State ... held that the Court may in its absolute discretion allow a limited class of cases for review under Section 155(2)(b. See also, Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) on the nature and limitations of Constitution ss 155 (2) (4) applications."
30. Mr. Shepherd contends that, neither the Supreme Court Act nor s. 155(2)(b) of the Constitution authorizes an appeal from a judgment of the Supreme Court. Counsel submitted that, the Supreme Court is the court of final appeal
under s. 155(2)(a) of the Constitution. So, any further appeal to the Supreme Court against its own decision has no legal or constitutional basis.
31. Mr Manjin submitted that under those constitutional provisions and in particular under s 155 (2)(a), this Supreme Court being
the final court of appeal may review a decision of a differently constituted Supreme Court. He also relied on s 155(4) as vesting
in this Court, the power to review a decision of another Supreme Court where the rights or interest of a party must be protected
and that party has no remedy available under any other law. Counsel cited the following passage from the case of Powi v Southern Highlands Provincial Government ( 2006) SC 844 as supporting his proposition:
"A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer such damage or prejudice and he has no remedy available under any other law."
32. Mr. Manjin submitted that there is a very serious public interest issue at stake and the State stands to lose unsubstantiated and unjustified amounts of public money to the Respondent if the Applicant is not granted the opportunity to argue his grounds of appeal on the merits. The Applicant having lost the appeal on mere technicality has no other remedy except to seek intervention by this Court by way of this judicial review application. A grant of leave will enable the Applicant to present a case to show the respondent's claim is overly excessive and is tantamount to unjust enrichment.
33. With respect, we are not persuaded by that contention. It is clear that s 155 (2)(a) does not assist the applicant at all. The phrase, "is the final court of appeal" in this provision would prohibit any further power of review.
34. The law relating to the power of review of a decision including interlocutory judgments made or given by the National Court by way of appeal in civil cases is found in s. 4, s. 14 and s. 17 of the Supreme Court Act (Ch 37). Under these provisions, civil appeals lie to the Supreme Court from the National Court on a question of law; or a question of mixed fact and law; or with leave of the Supreme Court, on a question of fact.
35. In the instant case, an order was made by the National Court against the applicant to pay the respondent, US$4,945,813.02 in damages, costs and interests. This award was made following consent orders in a judicial review proceeding for entry of default judgment and assessment of damages. The applicant is aggrieved by the decision of the National Court. According to s 4 (1), the applicant has the right to have this decision reviewed by a higher court.
36. It is clear from this provision and s. 17 that another National Court cannot review the same decision. The Supreme Court is the higher court vested with the power of review in accordance with the appeal process set out in the Supreme Court Act or "according to law". This, the applicant has attempted to do and the Supreme Court has given its decision. There is no further right under the Act to have the decision of the Supreme Court reviewed by any other court or tribunal. Section 155 (2) (a) which asserts that jurisdiction, in the terms, "The Supreme Court ... (a) is the final court of appeal;" puts the matter beyond doubt. That is where the matter ends as far as the judicial system or process is concerned.
37. On this point, the Supreme Court in SC Review No 4 of 1990; Application by Willy Kili Goiya [1991] PNGLR 170 per Kapi DCJ (as he then was) stated:
"According to the majority in Avia Aihi v The State [1981] PNGLR 81 what I have said up to this point only relates to the appeal procedure. Accepting that to be the law, I would find it extremely difficult to accept any argument that the applicant, having exhausted the appeal procedure, can now go back and invoke the judicial review procedure under s 155 (2) (b) and review the same decision of the National Court and have a second bite at the cherry. That of course is not the issue before us, so I cannot express a firm opinion on the matter."
(See also TST Holdings Pty Ltd & Anor v. Tom Apelis (1997) SC 534.)
Whether the Supreme Court can review its own decision under s.155(4)?
38. Mr Manjin submitted that the words, "such other orders as are necessary to do justice in the circumstances of a particular case" in Constitution s 155(4) gives the Supreme Court the power to review its own decision. Hence, the circumstances of this case are such that this Court should further review the decision of the earlier Supreme Court.
39. We reject that contention. It is plain, as Mr Shepherd submitted; the Supreme Court has no jurisdiction to review its own decision which finally determined the matter under s. 155(4). This constitutional provision only gives the Supreme Court, power to make orders in the nature of prerogative writs, for example, when reviewing decisions of inferior Courts.
40. The Supreme Court in Avia Aihi v. The State [1981] PNGLR 81 and Willie Kili Goiya [1991] PNGLR 170 make it clear that, once the Supreme Court has made a determination on any issue, that is final. Section 155(4) of the Constitution does not give the Supreme Court the power to review its own decision or a decision of a differently constituted Supreme Court. The case of Avia Aihi v. The State (supra) whilst of a different nature to this case, considered the question of whether a convicted person having lost the statutory right of appeal, could restore that right under the words, "such other orders as are necessary to do justice in the circumstances of a particular case".
41. Similarly in the case of Willy Kili Goiya v. The State, (supra) a convicted prisoner appealed against his conviction and sentence. His appeal against conviction was dismissed but was successful in his appeal against sentence. He then applied to a differently constituted Supreme Court to review the decision of another Supreme Court. The same issues raised here concerning the power of the Supreme Court under Constitution s.155 (2)(a) and s. 155 (4) were raised there.
42. The case of David Lambu v. Peter Ipatas & Ors (1999) SC 645 constituted by a 5 member bench also considered whether the Supreme Court can review its own decision under s. 155 (2)(a) and s. 155 (4). That case involved an election petition where the applicant sought a review of the decision of a Supreme Court which was itself a review of an earlier Supreme Court judgment. That initial judgment followed a review of a decision of the National Court striking out an election petition brought by the applicant. The Court held in that case:
"Under the Constitution, the Supreme Court is the final Court of appeal. Once the Supreme Court has made a determination on any issue, that is final. While there resides a discretionary power in the Court to correct its own mistakes, that power does not constitute a further extension of the appeal process. The issues have been fully explained in Willie Kili Goiya [1991] PNGLR 170; Wallbank & Manifie v The Independent State of Papua New Guinea [1994] PNGLR 78 and Apelis v. Chan SCR 99 (unreported)(.
These decisions make it clear that only where there have been mistakes which "could be seen to be little short of extra ordinary" will the Court entertain an application to revisit its decision."
As was said in the Wallbank case:
'It must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments that have already been considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put.'
And we will add such discretion will not be exercised simply because a party is dissatisfied with the ruling." (Underlining added)
43. The application of s.155 (4) was recently considered by another 5 member bench in SCRev 55 of 2008. Andrew Trawen and & Anor v. Steven Pirika Kama and SCRev 56 of 2008 Michael Laimo v. Andrew Trawen & Ors (2010) SC 1063 in the context of a discretionary power in the Supreme Court to correct mistakes, the Court adopted the view of Kearney DCJ in Avia Aihi v. The State [1981] PNGLR 81 that, "the sub-section gives unfettered discretionary power both to the Supreme Court and the National Court so to tailor their remedial process to the circumstances of the individual as to ensure that the primary rights of parties before them are protected".
44. The Court went on to hold:
"There is no right of appeal or review from the Supreme Court – there is no primary right to be enforced. Hence, in our view, s.155 (4) Constitution does not provide the opportunity for a slip rule application to be made to the Supreme Court to reopen one of its decision."
45. We pose the same question here as, what is the primary right of the applicant in this proceeding that has been adjudicated on by the Supreme Court? The answer based on the authorities we have alluded to is that there is no right of appeal or review from the Supreme Court. Hence, the Applicant having exhausted his right of appeal, has no primary right to be enforced or protected.
46. In conclusion, we adopt the following from the case of Willie Kili Goiya v. The State, (per Kapi DCJ (as he then was)) on the application of s.155(4):
"In summary, these cases establish that the first limb of s 155 (4) gives the Supreme Court and the National Court power to make orders in the nature of prerogative writs and the second limb power to make other orders which are remedial, adjectival as well as procedural in nature. In so far as power is given to make these orders in reviewing exercise of power by the courts, this supervisory jurisdiction is exercised over inferior courts. That is the nature of prerogative writs. It cannot be used by the same court to review a decision of the same level of court. If the constitutional framers intended this, they would have said so expressly. The applicant can find very little assistance in s 155 (4) of the Constitution. I am of the opinion that the applicant in this case has his remedies outside the judicial system."
47. In the upshot we hold that, where an appeal to the Supreme Court has been determined, Constitution s. 155 (2) (a) prohibits any further or other right of appeal and Constitution s 155 (4) does not permit a differently constituted Supreme Court to review that determination. We would therefore uphold the Objection to Competency of this Review Application and order as follows:
Orders
(1) The Objection to Competency of the Application for Judicial Review is upheld.
(2) The Application for Judicial Review is dismissed for being incompetent.
(3) Cost is awarded to the Respondent.
__________________________________________
Manjin Lawyers: Lawyer for the Applicant
Blake Dawson Lawyers: Lawyer for the Respondent
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