Pote v Smith [2018] PGSC 105; SC1770 (9 November 2018)

SC1770

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 66 OF 2018

APPLICATION FOR REVIEW PURSUANT TO
CONSTITUTION, SECTION 155 (2) (B)

BETWEEN:
APEL POTE, suing for and on behalf of late DENISI POTE
(a deceased), in his capacity as the father and next friend
First Appellant

AND:
JOHN POTE, NEWMAN POTE, KUIAWI KINIPA, LEPOS YAWIRI, STEVEN TIWA, REBECCA PEAPE, VINCENT WANPIS, BENJAMIN IMAMBU, PASTOR JACK PAUL PETER, MAS PUALA, WAIMOL LAGARI, as Plaintiffs in their personal and collectively capacities as well
Second Appellant

AND:
CONST. ROBERT MARK SMITH
First Respondent

AND:
SENIOR SERVEANT HANSION TOKALI,
POLICE STATION COMMANCER, GORDONS
Second Respondent

AND:
ANDY BAWA, METROPOLITAN SUPERINTENDENT,
NCD, PNG ROYAL CONSTABULARY
Third Respondent

AND:
TOAMI KULUNGA, POLICE COMMISSIONER,
PNG ROYAL CONSTABULARY
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Dingake J
2018: 15 & 22 August, 5 & 26 September, 17 & 24 October

Cases Cited:

Luke Marano v Jack Nouari (2013) SC1307

Counsel:

Mr. J. Napu, for the Appellants
Mr. T. Mileng, for the Respondents

9^th November, 2018

1. DINGAKE J: This is an application for leave to review the decision of the National Court, per Cannings J, of the 22^nd of February 2018, in proceedings WS (HR) No. 724 of 2013 – Apel Pote & Ors v State and Others.
2. The application is brought in terms of Section 155(2) (b) of the Constitution.
3. The background facts to this matter are that the plaintiff’s commenced proceedings by writ of summons against the first respondent and other members of the Police force and the State claiming damages for breach of their constitutional rights. The State was alleged to be vicariously liable for such violations.
4. The alleged violations of the plaintiff’s constitutional rights are particularised in the Statement of Claim attached as Annexure ‘A’ to the affidavit of Apel Pote filed with this Court on the 25^th of September, 2018.
5. The applicants, in their Statement of Claim alleged, among other things, that they were detained for days without being formally arrested and charged; that during the period of the detention, they were deprived of food and water and denied use of proper toilet facilities and were also physically and mentally tortured.
6. The defendants disputed the entire claim.
7. A trial was conducted to determine whether any of the defendants were liable. The plaintiff’s evidence was in the form of affidavits and oral testimony by two plaintiffs. The defendants presented affidavit evidence.
8. The court after considering evidence entered liability against the State for human rights breaches committed against some plaintiffs and dismissed all other claims, including the entire proceedings against the first, second, third and fourth defendants.
9. The applicants, aggrieved by the decision of the lower Court, have now filed this application, after failing to file an appeal within the required 40 days, raising wide ranging grounds as appears in their amended application for leave to review, filed with this Court on the 19^th of October, 2018, all of which I have taken into account.
10. The net effect of the grounds canvassed is that the lower Court made findings of fact that were unjustifiable having regard to the pleadings and or were against the weight of the evidence.
11. The applicants also allege certain errors of law committed by the trial judge as particularized in their amended application for leave to review, including that the trial judge erred in failing to treat the proceedings as class action, with the result that a finding in favour of one would apply to all the applicants.
12. In the affidavit of Apel Pote filed on the 25^th of September, 2018, the applicants aver that after the trial, all the appellants went home to Porgera, and were unable to file an appeal. He says he had to travel, after 40 days to get all the appellants to sign the leave for review application. No further details are given as to when the applicants came to know of the judgment that caused them unhappiness.
13. It is common cause that the decision of the lower Court was made on the 22^nd February, 2018.
14. The applicants had until the 3^rd of April, 2018 to appeal, which they failed to do.
15. It took more than three (3) months to file this current application reckoned from the 3^rd April, 2018.
16. The test to be applied in an application for leave to review involves the following considerations.
    • (1) Locus standi;
    • (2) Satisfactory explanation for the default in filing the appeal within the required time;
    • (3) Satisfactory explanation for the delay in filing the appeal within the required time for leave for review;
    • (4) Exceptional circumstances showing manifestation of substantial injustice; or serious legal or factual issues that raise an arguable case for a full review of the decision; and
    • (5) Interest of justice.

(Luke Marano v Jack Nouari (2013) SC1307)

17. There can be no issue with the first consideration relating to the applicants standing to bring this application.
18. There is, on the evidence, plainly no satisfactory explanation for failing to file the appeal within time and the delay in bringing the application for leave for review.
19. I have read the judgment of lower Court with extreme care. If there be factual errors, which I have not identified, they inconsequential and fall far short of the requirement to show the occurrence of substantial injustice. I am not satisfied that there are any glaring errors of law and fact manifest on the face of the evidence. In a nutshell the applicants have failed to show exceptional circumstances showing manifestation of substantial injustice.
20. I have not been persuaded that the interests of justice favour leave to review being granted in this case.
21. Having regard to the totality of all the essential considerations alluded to above, the applicants have failed to satisfy the Court that leave to review should or ought to be granted.
22. In the result the application is dismissed with costs.

___________________________________________________________
Napu & Co Lawyers: Lawyers for the Applicant
Office of the Solicitor General: Lawyers for the Respondent