Alai v Waina [2015] PGSC 89; SC1615 (27 August 2015)

SC1615

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 108 OF 2012

BETWEEN:
FELIX ALAI
Appellant

AND:
NAKOT WAINA,
First Respondent

AND:
MASO APAI, MOSES ROWAI
Second Respondent

AND:
CONRAD C. KARO
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Injia CJ, Kandakasi & Sawong JJ
2014: 28^th October
2015: 27^th August

SUPREME COURT- Practice and procedure- Appeals from decisions in judicial review proceedings- Leave to appeal- Decision to grant leave for review interlocutory in nature and leave is required - Procedure for making application for leave - Decision to refuse leave for review is final and leave to appeal is not required - Supreme Court Rules 2012, Order 10; National Court Rules, Order 16 rule3 & 11; Supreme Court Act, s 14 (3)(b).

JUDICIAL REVIEW- National Court - Leave application- Undue delay- Application made 16 years after decision of tribunal- Undue delay- Leave application dismissed by the National Court- Excercise of discretion- Appeal dismissed.

Cases Cited:
Papua New Guinea Cases

Lowa v Akipe [1991] PNGLR 265
Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112
Christopher Haiveta, Leader of the Opposition v Pais Wingti, Prime Minister; and Attorney General and National Parliament (N2) [1994] PNGLR 189
Felix Bakani v Rodney Daipo (2002) SC 699
Garamut Enterprises v Steamships Trading Co. Limited [1999] SC 625
NEC & others v David Nelson (2004) SC 766
State v Lohia Sisia [1987] PNGLR 107
Nakun Pipoi v Viviso Seravo, Minister for Lands (2008) SC909
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
Otto Benal Magiten v Bilding Tabai Lawrence Acanufa trading as Acanufa & Associates Lawyers (2010) N3916
Wawoi Guavi Timber Company Limited & Or v Ken Norai Mondia & Ors, unreported and unnumbered judgment (SCA 22 of2007) dated 16 October 2007
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
R v Inland Revenue Commissioners; ex-parte National Federation of Self Olasco Niugini v Kaputin [1986] PNGLR 244
Ila Geno & Ors v PNG [1993] PNGLR 22

Overseas Cases

Employed and small Business Limited [1981] 2WLR 722

Counsel:

Appellant in Person
No appearance of Respondents

27^th August, 2015

1. BY THE COURT: INTRODUCTION: This is an appeal against part of a National Court decision made on 24^th August 2012. In 2012, the appellant applied to the National Court for leave to seek Judicial Review of the decision of a District Land Court made in 1995, dismissing an appeal by the appellant against a decision of a Local Land Court, which decided that the appellant's clan shared ownership of the customary land with the other clans.
   
2. The National Court refused to grant leave on the basis that there had been a long delay of more than 16 years since the decision was made by the District Land Court and there had been no satisfactory explanation offered by the appellant. The National Court also found that granting the relief sought by the appellant would be likely to cause substantial hardship and substantially prejudice the rights of other persons being members of the other clans whose interest in the disputed land recognized by the 1995 District Land Court decision and would be detrimental to good administration.
   

Background

3. It is necessary to state a brief background of the proceedings. The proceedings involved a dispute over customary ownership of land at and around Aitape town, Sandaun Province involving an area of 470 hectares. This area of land was declared National Land under the National Land Registration Act, Chapter 357. The National Land Commission ordered under section 43 of that Act that the conflicting claims for "settlement payments" due to the customary land owners be dealt with under the Land Dispute Settlement Act, chapter 45. The dispute involved four (4) parties who claimed customary ownership of the land in question. These were Polutulul Line, Tumleo Line, Vakau Line and Malol Line. The Local Land Court heard the dispute and on 17^th November 1992 the Local Land Court found that the Polutulul Line and the Tumleo Line are by native custom the traditional owners of the land in question. Being aggrieved by the decision of the Local Land Court the appellant and other representative representing the other clans lodged an appeal to the Provincial Land Court.
   
4. On 3^rd July 1995, the Provincial Land Court dismissed the appeal and confirmed the decision of the Local Land Court.
   
5. The appellant then being aggrieved by the decision of the Provincial Land Court appealed to the National Court in proceedings entitled CIA Appeal No. 256 of 1995. On 26^th July 2001, the appellant was granted leave to withdraw the Notice of Appeal.
   
6. On 20^th of March 2012, the appellant filed an originating summons for leave to seek judicial review of the decision of the Provincial Land Court made in 1995. On 24^th of August 2012 the National Court refused leave.
   
7. The respondent was served with the Notice of Hearing but they did not appear and we granted leave to the appellant to proceed ex parte.

8. The present appeal is against part of that decision to refuse leave.

Grounds of Appeal

9. The grounds of appeal as set out in the Notice of Appeal are:

1. After His Honour found that the appellants had maintained their genuine interest in seeking relief of the 3^rd July 1995 Aitape District Land Court decision, the fact that lawyers had been negligent should not have barred His Honour to exercise his discretion.
2. The appellants had established that they took all reasonable steps all along and eventually commenced proceedings themselves where lawyers had failed them consecutively for 16 years where this should have prompted His Honour to exercise discretion favourably.
3. His Honour may have exceeded his jurisdiction by expressed or implied considered that the Appellants cause may have come to finality of litigation and certainty when the Supreme Court is the final Court of the land.

4. That in not removing the delay of 16 years where leave was refused,
His Honour failed to take account of the fact and law that he perceived injustice manifest in the District Land Court decision of 3^rd July 1995 had not been judicially dispensed which IS against the public interest.

5. Regardless of the current case laws as well as Order 16 Rule 4 of the National Court Rules, the Spirit of the PNG Constitution states or implies that no citizens shall be bound by any laws denying relief or redress where in this case, relief or redress had not been dispensed where, in accordance with the Constitution, the paramount consideration of the dispensation of justice should have taken precedence over delay.

10. The appellant seeks the following orders:

1. the Supreme Court exercise its discretion to uphold this appeal and
   allow leave for judicial review where it ought to remove the delay of
   16 years, 4 months, 1 week, and 2 days and remitted the matter back
   to the National Court for the hearing of the substantive review;
   2. a new underlying law ought to be established by this Honourable
      Court to take proper account of poor, underprivileged, and
      disadvantage National and Supreme Court litigants from less
      developed area as of Papua New Guinea pursuant to s55(2) and 60 of the Constitution, and also considering the National Goals and
      Directive Principles:
   3. if the Honourable Court dismisses Appellants appeal where leave is refused, this Honourable Court to make orders for Appellants to seek alternative remedy outside the judicial system, the underlying principles of which are also set by the Supreme Court in its ruling in SCR NoA of 1990; Application by Wili Kili Goiya [1991] PNGLR 170 (paras 8 and 9 of page 3 of4);
      

iv. Such other orders the Court may make under the circumstances.

11. We consider this Appeal on two principal grounds.

Competency of Appeal

12. Before we consider the merits of the grounds of appeal, in our view there
    are competency grounds that may determined this appeal.
13. In that regard, we note that the Appeal before us is by way of a Notice of
    Appeal. The proceedings before the National Court were by Originating
    Summons seeking leave of the Court to apply for Judicial Review of a
    decision of the District Land Court. Such proceedings were brought to
    pursuant to 0.16 of the National Court Rules.
14. Any appeals from a National Court decision under 0.16 are to proceed by
    way of a Notice of Motion under 0.10 of the Supreme Court Rules 2012
    and under Order 16 r 11 of the National Court Rules. Order 10 of the

Supreme Court Rules reads:

"ORDER 10 - APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF
THE NATIONAL COURT RULES

Division 1.-lnstitution of appeal

1. (a) An appeal under this Order shall be instituted by a notice of motion.
   (b) Where the appeal lies only with leave the provisions of Order 7
   Division shall apply.
2. The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.
3. The notice of motion shall-
   

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; and

(b) have annexed-

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and

(c) be in accordance with form 15; and

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

(e) be filed in the registry."

15. Order 16 r l1 of the National Court Rules reads:

"11. Appeal.

An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review."

16. It is now settled that a competency issue maybe raised at any time before
    judgment at the discretion of the Court. The issue of competency of an
    appeal remains open and the Court may of its own discretion address it
    anytime before judgement, see Lowa v Akipe [1991] PNGLR 265, Bruce
    Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112,
    Christopher Haiveta, Leader of the Opposition v Pais Wingti, Prime
    Minister; and Attorney General and National Parliament (N2) 1994
    PNGLR 189.
17. An appellant who desires to appeal against the decision of the National
    Court involving in the review jurisdiction of the National Court must
    comply with all the requirements of the Order 10 rules (1), (2 ) & (3) of the
    Supreme Court Rules in order to institute a valid appeal. In Felix Bakani v
    Rodney Daipo (2002) SC 699 the Supreme Court said:

"Unlike ordinary appeals, an appeal under Order 10 is a special
category of appeal. It is an appeal from a decision of the National

Court under the review jurisdiction in Order 16 of the National Court
Rules. This review jurisdiction of the National Court is available to a
person aggrieved by the decisions of the statutory, administrative or
quasi judicial tribunal. The enabling statutes often contain provisions
pronouncing the finality of the decision and precludes appeals.
Therefore, the procedural requirements for invoking the review
jurisdiction are stringent. The review jurisdiction is very
discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural
requirements of Order 10, in particular Order 10 r 3 are also
restrictive and onerous. They are couched in strictly mandatory terms
and all those requirements must be complied with by an appellant.. .. "

18. In Garamut Enterprises v Steamships Trading Co. Limited [1999] SC 625 the Supreme Court stated:

"But Order 16 rule 11 of the National Court Rules expressly refer to
"an appeal" under Order 10 of the Supreme Court Rules and
construed in that context, it is our view that whilst Order 16 rule 11 of
the National Court Rules grants original power, it is directory only in
that it is effected through the procedure stipulated in Order 10 of the
Supreme Court Rules which is the overall regulatory provision. And
if one accepts this argument, then it logically follows that both order
16 rule 11 of the National Court Rules and Order 10 of the Supreme
Court Rules are subject to section 14(3)(b) of the Supreme Court
Act."

19. This was subsequently applied in NEC & others v David Nelson (2004) SC 766.
    
20. This Court's decisions in Felix Bakani v Rodney Daipo (2002) SC699,
    Garamut Enterprises v Steamships Trading Co. Limited [1999] SC625
    and NEC & Others v David Nelson (2004) SC766 are said to have settled
    the law with regard to the need to obtain leave to appeal against the
    National Court's decision on grant or refusal of leave to apply for judicial
    review made under 0.16 r.3 of the National Court Rules. Bakani and
    Garamut affirm the principle that an appeal against decision under 0.16 of
    the National Court Rules must be instituted by notice of motion pursuant
    to 0.10 of the Supreme Court Rules. In Garamut Enterprises it was held
    that such appeal allowed by 0.16 r.11 of the National Court Rules and
    an appeal instituted under 0.10 of the Supreme Court Rules are both
    subject to s 14(3)(b) of the Supreme Court Act.

21. Section 14(3)(b) of the Supreme Court Act is in the following terms;

"(3) No appeal lies to the Supreme Court without leave of the Supreme Court-

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) From an interlocutory judgement made or given by the National Court except-

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) From an order of the National Court as to costs only that by law are left to the discretion of the National Court. 14. ".

22. Pursuant to s 14(3) (b ) (iii), an interlocutory decisions that is "in the nature of final decision" is excluded from the requirement for leave to appeal
    from interlocutory decisions. In other words leave is not required for
    interlocutory decisions which is or are in "the nature of final decisions." A
    final decision is one which disposes of the whole proceedings or brings the
    proceedings to a end. The question whether a decision of the National
    Court is final or interlocutory depends on the nature of the application and
    the decision made in respect of it rather than the order itself: Provincial
    Government of North Solomons v Pacific Architecture Pry Ltd
    [1992] PNGLR 145, Phillip Takori & Ors v Simon Yagari & Ors (2007) SC 905. In the case of an application for leave to apply to judicial review
    made under 0.16 r.3 of the National Court Rules, the application
    commenced by Originating Summons may be treated as interlocutory in
    nature because the outcome of the application determines whether or not
    the applicant is granted leave to make the substantive application for
    judicial review. If leave were granted, the decision remains interlocutory
    because the proceedings continue on a substantive application for judicial
    review that is filed after the grant of leave. An appeal from the grant of
    leave lies with leave because the decision does not qualify under any of the
    three exceptions under s 14(3)(b). If leave to apply for review is refused,
    there is no question that that decision is final because the decision brings to
    an end those proceedings. Therefore, an appeal from a refusal of leave to
    apply for judicial review made under 0 16 r.3 of the National Court Rules
    lies without leave, a situation falling under the exception in s 14(3)(b)(iii).
    

In Felix Bakani, Garamut Enterprises and David Nelson, the Court in
each case was dealing with appeals against grant of leave for judicial
review under 0 16 r 3 of the National Court Rules. These decisions are
consistent in holding that leave is necessary to appeal against grant of leave for judicial review. These cases do not deal with the point arising
from refusal to grant leave which we have dealt with above.

24. In this case, we come to the conclusion that the present Appeal is
    incompetent for two reasons. First the appellant has not filed a Notice of
    Motion as required by Order 10 (1) ( a) of the Supreme Court Rules and
    016 r11 of the National Court Rules. Instead the appellant has filed a
    Notice of Appeal. This is not permissible.
    
25. Secondly in ground 1 of his Notice of Appeal the appellant relies on order 7 division 3 rule 8 of the Supreme Court Rules 1984. That order and those
    rules do not apply to appeals under Order 16 of the National Court Rules.

Merits of the grounds of Appeal

26. As to the merits of the grounds of Appeal, all the grounds of the appeal,
    whilst differently worded really attack or attempt to attack the exercise of
    the discretion by the learned trial judge in refusing to grant leave. The
    principle ground for learned trial judge in refusing leave was that there had
    been an undue delay in seeking leave and which delay had not been
    reasonably explained. The appellant's grounds of appeal is really is
    against the exercise of discretion by the trial judge on the issue of delay.
    Accordingly, we propose to consider these grounds together. We
    paraphrase these grounds into the following issue; whether the learned trial
    judge exercised his discretion improperly in considering the issue of undue
    delay when he refused leave.
27. The learned trial judge addressed the issue of delay in the judgment. The
    trial judge said:
    

"As the plaintiff is seeking leave to apply for an order in the nature of
certiorari to quash the District Land Court decision the "relevant
period" is four months after "the proceedings", ie four months after
3^rd July 1995: 3^rd November 1995. The application for leave was filed
on 12 March 2012, 16 years, 4 months, 1 week and 2 days after the
expiry of the relevant period. The plaintiff is obliged to provide a
satisfactory explanation for the delay and the court is required to form an opinion on the matters set out in Rule 4( I).

The longer the delay the better the explanation should be. In the State
v Lohia Sisia [1987] PNGLR 107 and Nakun Pipoi v Viviso Seravo,
Minister for Lands (2008) SC909 delays of six years and 11 years in
seeking leave to apply for review of decisions concerning declaration
of National Land under the National Land Registration Act were held
to be unreasonable and not satisfactorily explained; so when it is
considered that the delay in the present case is considerably longer
than in those cases it is apparent that the plaintiff needs to provide a
very good explanation. The plaintiffs explanation is that the task of
challenging the District Land Court's decision was given to four
different law firms each of which mishandled the matter. He deposes
in a lengthy and detailed supporting affidavit the details of
instructions given to the law firms and fees paid and how the matter
was allegedly mishandled. The plaintiffs argument is essentially that
he has been vigorously pursuing the matter since 1995 but his
attempts to challenge the decision have been thwarted by a lack of
diligence on the part of successive lawyers who have had carriage of
the matter.

I accept that the plaintiff has maintained a genuine interest in the
decision of the District Land Court and that instructions have been
given to a number of different law firms. I am in no position,
however, to form an opinion on how well those firms have handled
the matter or whether certain lawyers have been guilty of professional negligence. Even if I were to have concluded that a particular lawyer was negligent and responsible for the delay in making the application for leave that would not provide a good excuse. The general rule is that a client is bound by his lawyer's conduct of a matter. If a lawyer fails to file process within a stipulated time and the client's interests are prejudiced that is usually not a good reason for the court to extend time or to disregard the failure to meet a time limit (The State v Colbert [1988] PNGLR 138, Small Business Development Corporation v Danny Totamu (2010) SCI054); though it might enable the client to establish a cause of action in negligence against the lawyer and an entitlement to damages (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364, Otto Benal Magiten v Bilding Tabai and Lawrence Acanufa trading as Acanufa & Associates Lawyers (2010) N3916). I conclude that there is no satisfactory explanation for the delay of 16 years, 4 months, 1 week and 2 days".

28. The appellant has filed extract of submissions. In the introduction part of
    his submissions the appellant submits that "the appellant appeals for
    review of what was legally sound decision by the National Court in
    relation to time limits for Judicial Review application ... the grievances is
    after satisfying all other elements for review including the existence of a
    cause of action seeking redress, as a citizen, I should not be denied redress, thus justice, because of some procedural rules".
    

29. In paragraph 6, of his submissions he submits that the "appeal therefore is
    not against any errors made by the National Court, however, we asked this
    Honourable Court to thoroughly re-examine the circumstances giving rise
    to the delay of sixteen (16) years to establish if Order 16 rule 4 of the
    National Court Rules can be widened to open up this case .... "
30. The appellant is therefore in effect asking this Court to review the trial
    judge's exercise of discretion in refusing leave to the appellant.
31. In the process, the appellant submits that the Court should expand and
    open up the ambit of the requirements of the Order 16 rule 4, in particular
    the principles relating to the issue of whether there is or has been an undue
    delay.
32. As the appeal is against the exercise of discretion by the trial Judge, the
    principles of appeals against exercise of discretion are quiet settled. In
    Wawoi Guavi Timber Company Limited & Or v Ken Norai Mondia &
    Ors, unreported and unnumbered judgment (SCA 22 of 2007) dated 16^th
    October 2007, the Chief Justice stated at 2:

"The grant of leave to apply for Judicial Review under National Court Rule Order 16 rule 3 is a special discretionary judgment in a civil matter within the Court's jurisdiction. The error to be demonstrated must relay to the nature of the discretion exercise by the trial Court. In an application for leave to apply for judicial review under order 16 rule 3 of the National Court Rules, the applicant is required to demonstrate an arguable case under any of the recognised grounds on which judicial review relief is available: Kekedo v Bums Philip (PNG) Ltd [1988-89] PNGLR 122. In an application under order 16 rule 3, the Court is not determining the merits of any application for judicial review. The Court simply forms an opinion on whether there are arguable or trial-able issues to warrant a full hearing on the merits, based on the quick perusal of the matter pleaded in the Statement filed under Order 16 rule 3 and the material placed before the Court in support of or in defence of the application for leave. R v Inland Revenue Commissioners; ex-parte National Federation of Self Employed and Small Business Limited [1981] 2WLR 722 at 739, 749; Olasco Niugini v Kaputin [1986] PNGLR 244 at 245; Ha Geno & Ors v PNG [1993] PNGLR 22 at 24."

33. Much of the submissions by the appellant relates to powers of the Supreme Court. There is no issue that the Supreme Court has power to hear and determine appeals from the National Court.
34. He has also in his submissions spent considerable effort in analysing the
    principles set out in numerous cases which are not really relevant to his
    arguments. He submits that the learned trial Judge exercise his discretion
    wrongly in refusing to grant leave on the basis of his finding that there had
    been an unreasonable and undue delay by the applicant. The appellant
    therefore submits that this Court ought to consider formulating a new or
    modifying the underlying law to open up Order 16 rule 4 of the National
    Court Rules.
35. In our view the appellant has not demonstrated where and how the trial
    judge erred in the exercise of his discretion.
36. As to the issue of opening of the ambit of 0.16 Rule 4, this issue was not
    raised before the trial judge and therefore it cannot be raised before the
    Supreme Court.
    
37. In summary the Appeal is incompetent because it is not by way of a Notice of Motion as prescribed by 0.10 rule 1 (a) of the Supreme Court Rules and 0.16 r.11 of the National Court Rules.
38. As to the merits of the grounds of appeal, the appellant has not shown how the trial judge had exercised his discretion wrongly.

39. For those reasons, the Appeal is dismissed.

40. We make no order as to Costs.
_____________________________________________________________________
Appellant in Person
No appearance for Respondents