Kimas v Boera Development Corporation Ltd [2017] PGSC 12; SC1587 (15 May 2017)

SC1587
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 59 OF 2017

BETWEEN
PEPI KIMAS, as Delegate of the MINISTER FOR LANDS
First Appellant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND
BOERA DEVELOPMENT CORPORATION LIMITED
First Respondent

AND
APAU BESENA COMPANY LIMITED
Second Respondent

AND
NAMONA OALA & IGO NAMONA OALA for and on behalf of IDUATA GUBAREI NO. 2 CLAN OF BOERA VILLAGE
Third Respondent

AND
MOI ENO & OALA MOI for and on behalf of KOKE GUBAREI NO. 1 CLAN OF BOERA VILLAGE
Fourth Respondent

AND
RAHO KEVAU for himself and on behalf of TABUMAGA CLAN OF BOERA VILLAGE
Fifth Respondent

AND
TAU MOI for himself and on behalf of IDUATA GUBAREI NO. 1 CLAN OF BOERA VILLAGE
Sixth Respondent
AND
MEA DARO for himself and on behalf of IDUATA GABAREI NO. 2 CLAN OF BOERA VILLAGE
Seventh Respondent

AND
SERI ALESA for himself and on behalf of RURUA CLAN OF BOERA VILLAGE
Eighth Respondent

AND
REI MIRIA for himself and on behalf of IDUATA SINAVAI NO. 1 CLAN OF BOERA VILLAGE
Ninth Respondent

AND
HOMOKA LOA for himself and on behalf of IDUATA SINAVAI NO. 2 CLAN OF BOERA VILLAGE
Tenth Respondent

AND
SIR MOI AVEI for himself and on behalf of KOKE SINAVAI CLAN OF BOERA VILLAGE
Eleventh Respondent

AND
HELAI LOHIA for himself and on behalf of TAURAMA CLAN OF BOERA VILLAGE
Twelfth Respondent

AND
KOHU MURI for himself and on behalf of KOKE GUBAREI NO. 1 CLAN OF BOERA VILLAGE
Thirteenth Respondent

AND
LOHIA KOHU for himself and on behalf of KOKE GUBAREI NO. 2 CLAN OF BOERA VILLAGE
Fourteenth Respondent

AND
SENEKA KEVAU for himself and on behalf of LAURINA CLAN OF BOERA VILLAGE
Fifteenth Respondent

AND
GUDIA MEHA for himself and on behalf of NENEHI CLAN OF BOERA VILLAGE
Sixteenth Respondent

AND
REV. MOREA SERI for himself and on behalf of ISUMATA CLAN OF BOERA VILLAGE
Seventeenth Respondent

AND
IAVA GOMARA for himself and on behalf of IDU ARAUA CLAN OF BOERA VILLAGE
Eighteenth Respondent

AND
ESSO HIGHLANDS LIMITED
Nineteenth Respondent

Waigani: Makail, J

2017: 9^th&15^th May

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal interlocutory judgment –Ruling on vacation of trial and leave to amended Order 16, rule 3 Statement – Whether arguable case established – Substantive issues pending determination – No substantive rights of parties determined – Appropriate Court to determine issue – Leave refused – Supreme Court Act – Section 14 (3) (b)

Cases cited:

Boyope Pere v. Emmanuel Ningi (2003) SC711
Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853
Joshua Kalinoe v. Paul Paraka Lawyers (2014) SC1366
Mathew Vingome v. Diala& UPNG (2014) N5710
Madang Timbers Limited v. Henry Wasa (2012) SC1196
Morobe Provincial Government v. Tropical Charters Limited (2010) N3977
Peter Makeng v. Timbers (PNG) Limited (2008) N3317
Patrick Pruaitch v. ChronoxManek& Ombudsman Commission (2010) SC1052
Sir Julius Chan v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 240
The State v. Timothy Gitua (2016) SC1479

Counsel:

Mr. T. Griffiths, for Appellants
No appearance, for 1^st to 4^th Respondents
Mr. L. Henao with Mr. G. Gaudi, for 5^th to 18^thRespondents

RULING

15^th May, 2017

1. MAKAIL, J: This is an application for leave to appeal made pursuant to Section 14 (3) (b) of the Supreme Court Act. The Appellants seek leave to appeal an interlocutory ruling of the National Court to first vacate the trial date of 8^th March 2017, secondly, grant leave to the 5^th to 18^thRespondents to further amend a Statement made pursuant to Order 16, rule 3 (2) (a) of the National Court Rules and further, file a Notice of Motion for substantive relief under Order 16, rule 5.Leave is required because the judgment sought to be appealed is interlocutory in nature and the substantive matter in the National Court is still pending.

Principles of Leave

2. The purpose of an application for leave to appeal is stated by the Supreme Court in Patrick Pruaitch v. ChronoxManek& Ombudsman Commission (2010) SC1052. It is a “filtering process designed to prevent cases going to a higher tribunal which have no merit”.

3. It is, therefore, necessary for the Appellants to satisfy the Court that there is an arguable case:Sir Julius Chan v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 240 at 249 - 250 and adopted in Patrick Pruaitch. Some Supreme Court judgments such as Boyope Pere v. Emmanuel Ningi (2003) SC711, Chief Collector of Taxes v. Bougainville Copper Limited(2007) SC853 and The State v. Timothy Gitua (2016) SC1479 used the expression “meritorious and arguable case”. The use of these expressions interchangeably does not alter the onus of proof and it remains for the Appellants to make out a case.

4. Equally, as the substantive rights of the parties have yet to be finally determined by the National Court, the other consideration the Appellants must satisfy is what the Supreme Court in Madang Timbers Limited v. Henry Wasa (2012) SC1196 referred to as “.....that not only is there a patent error but that the error affects the parties’ substantive right.”And further, as the Supreme Court said,this is because “That it will also prevent the proper determination of the issues and that because of that, there is error in the interlocutory judgment that goes to jurisdiction.”I am guided by these principles in my consideration of the application.

Background Facts

5. The case under consideration has a long history going back to the time the first Liquefied Natural Gas (“LNG”) project was established in the country. As is in any resource project development, land was needed. In this instance, a number of portions of land were identified to build the LNG facility between Boera and Papa villages in the West Hiri area of Central Province.

6. The disputed portions of land were Portions 2457C and 2458C. They were identified for the LNG project. They became the subject of a declaration by notice under the hand of the First Appellant as delegate of the Minister for Lands and Physical Planning on 10^th March 2009 pursuant to Section 5 of the Land Act. It was essentially a declaration that these portions were State land and the Second Appellant will use them for the LNG project. The declaration was published in a notice in the National Gazette No. G70 dated 17^th April 2009.Before the declaration was made, a three-month notice was given for anyone to object to thisproposal as required by Section 5 of the Land Act and the Respondents did.

7. The declaration became a subject of judicial review proceedings OS (JR) No. 485 of 2009 in the National Court. By those proceedings, the First to Fourth Respondents disputed the declaration and alleged, amongst other things, that they were traditional owners of Portion 2458C and through the First Respondent were in the process of acquiring them in the form of leases when the declaration was made.As a result, they missed out. It is also relevant to mention that they further alleged that the declaration was contrary to a number of provisions in the Constitution, therefore, unconstitutional. This aspect was dismissed by the Supreme Court in appeal SCM No. 6 of 2012 against the grant of leave for judicial review while the balance of the review was remitted for hearing in the National Court on 9^th March 2012.

Arguable Case

8. This is a summary of the facts giving rise to the substantive dispute but the real issue is this, the declaration covered Portion 2457C and Portion 2458C and following the declaration, it was the First to Fourth Respondents who commenced the judicial review proceedings to challenge its validity. Their claim and challenge was directed solely at Portion 2458C which was the portion of land located at the waterline mark, seabed and offshore which was essentially the sea area. They did not claim and challenge the Second Appellant’s entitlement to Portion 2457C which was the land located adjacent to Portion 2458C and stretching further inland from the waterline mark.

9. It was not until June 2013 when the 5^th to 18^th Respondents were joined in the proceedings that these Respondents did. From there it was them who obtained leave of the Court in August to make amendments to the Order 16, rule 3 Statement to include their claim and challenge the declaration for Portion 2457C. However, it was not quite clear from the pleadings whether they sought specific orders to have the declaration made for Portion2457C set aside. I make this observation because the Amended Statement does not make that clear although I should say there was reference to Portion 2457C in some parts of it.
10. It was the recent amendment to the Amended Statement following grant of leave by the Court on 10^th March 2017 that it became clear that the 5^th to 18^th Respondents were also challenging the Second Appellant’s entitlement to Portion 2457C and it brought their claim on par with the First to Fourth Respondents’ claim to Portion 2458C.They even sought atpara. 19 of the Further Amended Statement filed on 16^th March 2017 leave to apply for judicial review.

11. It was at this point that according to the Appellants, the ruling of the National Court raised a number of contentious issues which they submitted pointed to errors made by the National Court and demonstrated an arguable case for which leave should be granted to appeal it.

12. First and foremost is the significant delay in bringing the application to amend. They submitted seven and a half years had lapsed since the grant of leave to apply for judicial review or almost four years since the joinder of the 5^th to 18^th Respondents. Despite the significant delay, the National Court vacated the trial and granted leave to the 5^th to 18^th Respondents to further amend the Statement.

13. The second significant error is that the amendment sought to introduce relief that was not contained on the Originating Summons or any documentation filed in support of the application for leave for judicial review and further not considered by the National Court during the grant of leave stage of the proceedings.

14. Thirdly, no leave was granted to review the declaration in relation to Portion 2457C. In other words, the challenge to the grant of Portion 2457C was never a subject of the National Court proceedings. Consequently, it was not open to the 5^th to 18^th Respondents to amend the said Statement to include and challenge the declaration in relation to this portion.

15. Fourthly, delay is against the Respondents to file the Notice of Motion for substantive relief. They said that the filing of the Notice of Motion is a requirement under Order 16, rule 5 of the National Court Rules following grant of leave for judicial review.Again, in the case of the First to Fourth Respondents, seven and a half years had lapsed since the grant of leave for judicial review while the other Respondents allowed almost four years to lapse before seeking to fileit. Despite the long and unexplained delay, the Court allowed them to do that.

16. They submitted that case authorities in the Supreme Court and National Court weighed heavily against the Respondents on the question of delay. One of the cases was Morobe Provincial Government v. Tropical Charters Limited (2010) N3977, a National Court decision. They submitted that, in that case, the Court rejected a late application to amend the Order 16, rule 3 Statement in a judicial review case holding that the amendment sought gave rise to new issues for which leave was not sought and granted for judicial review application and it would further prolong the hearing of the case causing undue hardships, delay and injustice to the opposite party.

17. In my view, all these issues could have been avoided if the First Appellant had made a separate declaration for each portion as required by Section 5 of the Land Act. And it may well be that these portions were adjacent to each other but it is not a requirement in Section 5. Indeed, Section 5 (2) sets out the requirements of a notice (declaration). They are:

(a) the name or names (if any) by which the land the subject of the notice is known; and

(b) a description or plan of the land; and

(c) the position of the land; and

(d) an estimate of the area of the land. (Emphasis added).

18. It is important to note how the word “land” is expressed in this provision. It is expressed in the singular form. It reinforces the proposition that a declaration must refer to a single portion of land. In this case, what this means is that having made one declaration covering these two portions of land, the First Appellant has more or less placed the First to Fourth Respondents’ interests and that of the 5^th to 18^th Respondents into one, even though, as it has now turned out, there were different clans within the area who claimed ownership rights in and over these portions.

19. There lies the heart of the problem. In other words, the interests of the First to Fourth Respondents in Portion 2458C and the interests of the 5^th to 18^th Respondents in Portion 2457C are inseparable because they are subject of the same declaration. It follows their interests must be determined together, even though one group of Respondents joined and challenged the declaration sometimes later.

20. It was a decision made by the First Appellant and he was bound by it. He cannot now opt out of it just because one group of Respondents has belatedly challenged it. Judging the case in its entirety, the Respondents’ concerns or grievances comes down to a common interest, the declaration. If it is found that the declaration is valid, it stands. If it is not, it must go and the portions of land the subject of the declaration must revert to their original state.The National Court alluded to this issue when it said at para. 22 of its ruling that it was appropriate to grant leave to amend so that there can be “a proper determination of their concerns in these proceedings.”The Appellants did not dispute thatthis is the issue but took issue with the delay.

21. As to the question of delay, the case authorities cited by the Appellants including Morobe Provincial Governmentare cases where significant delay was found to be adverse to the opponent’s case and the amendments sought gave rise to new issues where no leave was sought and granted for judicial review.

22. In this case, it is arguable that the National Court erred in allowing the amendment when the delay was against the Respondents. But it is clear that first the amendments did not raise anything new. Except for clarifying the challenge to Portion2457C, they reinforced the challenge by the First to Fourth Respondents to the validity of the declaration. Secondly, given that it is the same declaration sought to be challenged and leave has been granted in the case of Portion 2458C, it would have obviated the need to apply for leave in the case of Portion 2457C. It would follow that the reference to leave being sought to apply for judicial review in the Further Amended Statement may not be necessary. It suffices to say that what remains is the determination of the validity of the declaration.

Substantive rights of parties

23. Order 16 further provides for the practice and procedure after grant of leave to apply for judicial review. As correctly submitted by the Appellants, rule 5 of that Order requires the Respondents to file a Notice of Motion. Both sides accepted that this document must set out the substantive relief. There is also case law that says that the Originating Summons shall contain leave to apply for judicial review as the sole relief to be pleaded. The substantive relief are set out in the Order 16, rule 5 Notice of Motion: see Peter Makeng v. Timbers (PNG) Limited (2008) N3317 which was cited with approval by the Supreme Court in Joshua Kalinoe v. Paul Paraka Lawyers (2014) SC1366.

24. What the Respondents did to obtain leave to file the Order 16, rule 5 Notice of Motion was consistent with this rule of practice and necessary to avoid any competency challenges. As the National Court held in the case of Mathew Vingome v. Diala& UPNG (2014) N5710, where a Notice of Motion has been filed which does not plead the substantive relief, the proceedings are incompetent and liable to be dismissed. Thus, it is arguable that the importance of the mandatory procedural requirements of the rules outweighed the delay and the requirement to file and serve the Notice of Motion would give the Appellants adequate prior notice of the sort of relief the Respondents would be seeking at the substantive hearing.

25. The Appellants have made a strong case on the issue of delay for the Supreme Court to consider but because the issue of validity of the declaration is pending in the National Court and given that no substantive rights of parties have been finally determined in relation to this issue, it is appropriate that it be resolved by the National Court. The Appellants would be at liberty to oppose the judicial review proceedings on the grounds of delay.

Order

26. The application for leave to appeal is refused with costs, to be taxed, if not agreed.

Ruling and orders accordingly.
_____________________________________________________________
Ashurst Lawyers: Lawyers for Appellants
Henaos Lawyers: Lawyers for 5^th- 18^thRespondents