Popuna v Owa [2017] PGSC 3; SC1564 (22 February 2017)

SC1564

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 40 OF 2016

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

BETWEEN

JACOB POPUNA, THE PUBLIC CURATOR
First Applicant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Applicant

AND

KEN OWA, as Chairman of MOIWA LAND GROUP INCORPORATED

First Respondent

MOIWA LAND GROUP INCORPORATED
Second Respondent

Waigani: Gavara-Nanu, Kariko &Kassman, JJ

2016: 13^th December

2017: 31^st January&22^nd February

PRACTICE & PROCEDURE – application for review under Section 155(2)(b),Constitution – inherent power of the Supreme Court under Section 155(2)(b),Constitution – application following the summary dismissal of a competent appeal– inherent power cannot be invoked where application for review raises same grounds of grievance as in the appeal –abuse of the process of the court.

Facts:
After their appeal against a National Court decision was summarily dismissed for want of prosecution, the applicants filed for a review of the same National Court decision pursuant to Section 155(2)(b) of the Constitution.

Held:

(1) A dismissal of an appeal by the Supreme Court is a final determination and cannot be appealed against or reviewed except by way of a “slip” application.

(2) An application for review under Section 155(2)(b) of the Constitution raising the same grounds of grievance as in an appeal previously dismissed by the Supreme Court amounts to an abuse of process of the Court.

Cases cited:
Anderson Agiru v Electoral Commission and The State (2002) SC687
Application by Anderson Agiru (2002) SC686
Application by Anderson Agiru (2003) SC704
Application by Herman Joseph Leahy (2006) SC 855
Application by Joseph Kintau(2011) SC1125
James Marabe v Tom Tomiape & Anor (2007) SC856
Michael Wilson v Clement Kuburam (2016) SC1489
Pokia v Yallon (2014) SC1336
SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 17

Legislation:
Constitution
Supreme Court Rules

Counsel:
Mr D Kipa, for the Applicants
Mr F Kuvi, for the Respondents

JUDGEMENT

22^nd February, 2017

1. BY THE COURT: This is an application pursuant to Section 155(2)(b) of the Constitution for a review of the decision of the National Court at Waigani given on 30^th September, 2015.

2. After hearing the parties on 13^th December, 2016, we reserved our decision only to recognize while conferring on the merits of the application and upon a closer perusal of the Court file, that an appeal referenced SCM 34 of 2015 – Jacob Popuna & The State v Ken Owa & Moiwa Land Group Incorporated–against the same decision the subject of this review was summarily dismissed by the Supreme Court (Lenalia, Geita and Neill, JJ) on 30^th June, 2016. This fact was not properly brought to our attention by the parties in their oral submissions when the application for review was heard. As we considered the matter would have a bearing on the competency of the application, the case was recalled and the parties addressed the issue.

3. Counsel confirmed that the appeal SCM 34 of 2015 was properly lodged (including within the stipulated statutory time-limit) against the National Court decision of 30^th September, 2015 and the appeal was indeed dismissed for want of prosecution on 30^th June, 2016.

Issues

4. The preliminary question to be decided is whether this application for review is an abuse of process in circumstances where an otherwise competent appeal raising the same issues as in this application has been determined by the Supreme Court by way of a summary dismissal.

5. Only if the question is answered in the negative can this Court consider the merits of the application for review.

Submissions

6. Counsel for the applicants, Mr Kipa, informed the Court that on the dismissal of his clients’ appeal he considered the only option to further pursue his client’s case was to file for a review pursuant to Section 155(2)(b) of the Constitution, as there was no other course for a further appeal. Counsel was unable however to assist the Court with relevant case authority or statutory basis upon which that view was based. Mr Kipa urged the Court to nevertheless determine the review application as important legal issues of public interest are raised.

7. Mr Kuvi for the respondents advised that while the issue was not raised before us, his clients argued the point in the application for leave before a single Judge Supreme Court. The argument then and which he now submitted is that the summary disposal determined the appeal, there was no legal basis for this application for review and the application for review therefore amounts to an abuse of process. He referred to the case of SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 17 in support of the submission. Mr Kuvi conceded that his client could have applied under Order 11 Rules 25, 26 and 27 of the Supreme Court Rules to have the decision of the single Judge set aside but he did not consider that option.

Legal principles

8. In discussing the issue of abuse of process posed by this case, we consider it relevant to refer to the three related cases of Application by Anderson Agiru (2002) SC686, Anderson Agiru v Electoral Commission and The State (2002) SC687 and Application by Anderson Agiru (2003) SC704.

9. In Application by Anderson Agiru(supra) SC686, the Supreme Court in May 2002 by a majority of 4-1 refused leave to the applicant who was seeking leave of the Court to apply under Section 155(2)(b) of the Constitution for review of the decision of the National Court refusing leave for judicial review of the Leadership Tribunal’s decision to have him dismissed from office. When the applicant in June 2002 in another proceedings ought to enforce Basic Rights under the Constitution alleged to have been breached by the Leadership Tribunal, the Supreme Court dismissed the second proceeding for being an abuse of process as the grounds for the application and the relief sought were essentially the same as in the application for leave before the five member Supreme Court; Anderson Agiru v Electoral Commission and The State (supra) SC687.

10. The Supreme Court (Hinchliffe, Jalina and Batari, JJ) explained abuse of process in these terms:

“... the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. ...

The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding.”

11. In April 2003, the applicant applied yet again to the Supreme Court, effectively raising the same grievance against the National Court decision, and the Court unsurprisingly dismissed that application as an abuse of the processes of the Court; Application by Anderson Agiru (supra) SC704.

12. The Supreme Court including in the recent case of Michael Wilson v Clement Kuburam (2016) SC1489 has approved and applied the principles regarding abuse of process enunciated in the two decisions in Anderson Agiru v Electoral Commission and The State (supra) SC687 and Application by Anderson Agiru (supra) SC704.

13. In Application by Wili Kili Goiya(supra) referred to by Mr Kuvi, the applicant applied for a review of the decision of the Supreme Court dismissing his appeal. The Court dismissed the application deciding that where an appeal to the Supreme Court has been determined, there is no further or other right of appeal. Kapi DCJ (as he then was) observed as obiter:

"... 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.”

14. In this jurisdiction, the Supreme Court is the final court of appeal. There is no right of appeal against a Supreme Court decision; Application by Joseph Kintau(2011) SC1125. In that case, the applicant sought a review of an earlier Supreme Court decision that dismissed his appeal against a decision of the National Court. The only option for redress is to file a ‘slip’ application based on an error or slip in the dismissal of the appeal; James Marabe v Tom Tomiape & Anor (2007) SC856.

15. We also note that it is settled law that there are three categories of cases for the exercise of the power of review under Section 155 (2) (b) of the Constitution. The categories are:

(1) where parties have allowed a statutory right of appeal to expire.
(2) where a right of appeal is prohibited or limited by law.
(3) where there is no other way of bringing a case to the Supreme Court.

See for example Application by Anderson Agiru (supra) SC 686, Application by Herman Joseph Leahy (2006) SC 855.

Decision

16. In relation to the application before us, the order of the Supreme Court summarily dismissing the appeal SCM 34 of 2015 was a final determination of the grounds of grievance the applicants have against the National Court decision appealed against. The Supreme Court’s order of 30^th June, 2016 was the end of that matter. It is immaterial that the appeal was summarily dismissed and not determined on its merits. It is also irrelevant that serious issues of public interest are involved. There must be finality in litigation. The applicants are now re-agitating the same grounds of grievance as they raised in appeal SCM 34 of 2015.By taking this course they are having “a second bite of the cherry”, which the Courts guard against as an abuse of process; Anderson Agiru v Electoral Commission and The State (supra) SC687, Application by Anderson Agiru (supra) SC704.

17. In Pokia v Yallon (2014) SC1336 the Supreme Court at[20] stated:

“An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Such an abuse can be committed when two proceedings are conducted simultaneously regarding the same cause of action (Telikom PNG Ltd v ICCC (2008) SC906) or when the plaintiff loses one proceedings then comes back to court for a "second bite at the cherry" to prosecute the same cause of action (Anderson Agiru v Electoral Commission (2002) SC687).”

18. In our view, the processes of this Court have been improperly used by the applicants. As Gavara-Nanu, J noted in Michael Wilson v Clement Kuburam (supra) at [25]:

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.”

19. For purposes of this judgement, we do consider it necessary to discuss whether or not any of the three categories of cases to properly invoke Section 155 (2) (b) of the Constitution apply in the present matter, but we are of the opinion that none of them do.

20. We conclude that this proceeding is an abuse of process of the court and we accordingly dismiss it.

Costs

21. The Court has a wide discretionary power in relation to awarding costs. Costs normally follow the event but in this case where the respondents failed to properly alert the Court to the fact of the dismissal of appeal SCM 34 of 2015, we award costs in their favour but only up to and including the hearing of the application for leave. Otherwise, the parties shall bear their own costs.

Order

22. The Court orders that:

(1) The application for review is dismissed as an abuse of process.
(2) The applicants shall pay the respondents costs up to and including the hearing of the application for leave, but otherwise the parties shall bear their own costs of the application for review.

________________________________________________________________
Twivey Lawyers: Lawyer for the Applicants
Elemi Lawyers: Lawyer for the Respondents