Nikint Investment Ltd v Niganu [2018] PGSC 72; SC1739 (2 November 2018)

SC1739

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO: 65 OF 2018

BETWEEN:
NIKINT INVESTMENT LIMITED
Appellant

AND:
THOMAS PILLAR NIGANU
First Respondent

AND:
CATHLEEN A’O
Second Respondent

AND:
GETRUDE MARIKA
Third Respondent

AND:
DOREEN TATU
Fourth Respondent

AND:
MUAMBE FIROMPA
Fifth Respondent

AND:
WARI KAPI
Sixth Respondent

AND:
LUKE VAI
Seventh Respondent

AND:
STEVEN OI
Eight Respondent

AND:
JOHN SENDY SIREH
Ninth Respondent

AND:
BENJAMIN SAMSON
Tenth Respondent

AND:
YANJOL APIN
Eleventh Respondent

AND:
HON. BENNY ALLEN MP, MINISTER FOR LANDS
& PHYSICAL PLANNING
Twelfth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Thirteenth Respondent

Waigani: Dingake J
2018 : 23 May, 20 June, 4 July & 21 August

PRACTICE AND PROCEDURE – Application for leave to appeal – Applicant demonstrated that it had an arguable case – Leave granted.

Case Cited:
Mission Asiki v The State [2005] SC797;

Matiabe Oberia v. Chief Inspector Michael Charlie and Ors [2005] SC801;

Sir Julius Chan v Ombudsman Commission (1999);
Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea [2005] SC788;

Pastor Steven Bagari v Hon. James Marape [2014] SC 1364.
Counsel:

Ms. M Doiwa, for the Appellant
Mr. Yapa, for the First Respondent
N/A, for the Second– Seventh Respondents
N/A, for the Eight Respondent

2 November, 2018

1. DINGAKE J: This is an application for leave to appeal the decision and Order of the National Court (per Cannings J) made on the 11^th of April, 2018, in proceedings WS (HR) No. 267 of 2016 – Thomas Niganu v Nikit Investment Limited & 12 Others, refusing to dismiss the entire proceedings for failure to give proper notice to make a claim against the State pursuant to Section 5 of the Claims By and Against the State Act.
2. In the lower Court proceedings, the first respondent alleged fraud, constitutional breaches, statutory breaches of the Land Act, Land Registration Act, Physical Planning Act, at the instance of the Appellant and eleven (11) other defendants including, the State. Eight (8) of these defendants are or were employees of the State, sued in such capacity. The first respondent alleged that the actions of the State and or omissions deprived him of proprietary interest in the proposals the subject matter of the litigation, comprising of six (6) State Leases situated in Hohola, National Capital District.
3. The first respondent alleged that the thirteenth (13^th) defendant was vicariously liable for fraudulent actions, various breaches of statutory and Constitutional provisions, committed by the tenth, eleventh and twelfth respondents.
4. By way of notice of motion filed on the 15^th of February, 2018, the thirteenth (13^th) respondent applied to dismiss the proceedings for failure to give notice to make a claim against the State.
5. The application was not successful.
6. Aggrieved by the above decision, the applicant filed this leave application, setting out several grounds, upon which it sought to be granted leave to appeal. In a nutshell, the applicant alleges that the Court below fell into error when in exercising its discretion, the Court failed to dismiss the proceedings in their entirety on account of first respondent’s failure to give notice to make a claim against the State within six (6) months pursuant to Section 5 of the Claims By and Against the State Act, after determining that the cause of action arose in July, 2011.
7. The applicant also complains that the trial judge erred in law and in fact in the exercise of its discretion by separating the State from its servants, agents and employees (namely, the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 9^th, 10^th, 11^th and 12^th respondents contrary to the principles of vicarious Liability and Wrongs (Miscellaneous Provisions Act).
8. The applicant also complains that the lower Court erred in law and in fact in intervening in the pleadings of the first respondent in the lower Court proceedings and in doing so, allowed the claim against all other parties to proceed, to the exclusion of the State.
9. In considering an application for leave to appeal, the relevant tests to guide the Court were stated in the often cited case of Oberia v Charlie (2005) SC 801.
10. The Court in the above case stated the pre-requisites as including the following:
    • (a) Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?
    • (b) Does the Appellant have other recourse in the court below?
    • (c) Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?
    • (d) Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
    • (e) Will substantial injustice be caused by allowing the decision to stand?
    • (f) Has cause been shown that the trial process should be interrupted by an appeal.
11. The onus is on the applicant to show that there is an arguable case or prima facie case that the decision was wrong in principle and that substantial injustice would be done by leaving the erroneous decision unrevised on appeal.
12. In the case of Sir Julius Chan v Ombudsman Commission (1999) PNGLR 240, in relation to an application for leave to appeal against any interlocutory order, the Court stated as follows:
    • “So to obtain leave to appeal an interlocutory judgment, it is not simply a matter asserting there is an arguable case; that there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but also that the error affects a party’s substantive rights or will prevent the proper determination of the issues. That is, there is error in the interlocutory judgment that goes to jurisdiction.”
13. There are plenty of authorities that support the proposition that in determining an application for leave to appeal, the Court must take into account the strong presumption of correctness which attaches to the decision involving the exercise of discretion in a civil case on a procedural matter within the Court’s jurisdiction (Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788).
14. I turn now to the application of the above test/principles to the facts of this case.
15. I emphasise that I approach this matter by first considering the case of the (plaintiff) first respondent as pleaded in the lower Court. The first respondent pleaded vicarious liability of the State for actions or omissions of its agents/employees.
16. Secondly, I have considered the peculiar circumstances of this case, in particular that the first respondent (plaintiff), cause of action arose in September, 2011 and in the pleadings the various allegations of fraud and breaches of the law by the servants/employees of the State are intertwined with those of the applicant.
17. I remind myself that in determining this matter, I am not required to decide whether the grounds of appeal will succeed but only whether they present an arguable case.
18. It seems to me that there is an arguable case on whether the absence of a Section 5 notice against the State rendered the entire proceedings a nullity in law and incapable of severability and further that if severability was permissible, what in concrete terms are the parameters of the consideration of justice that would make any severability permissible. It is trite learning that Section 5 notice is a condition precedent to valid legal proceedings against the State.
19. It seems to me that there may well be merit to the argument that proceeding instituted against the State without Section 5 notice are null and void and if this is so, then it may well be said that the applicant/appellant has no further recourse in respect of the lower Court’s decision (Pastor Steven Bagari v Hon James Marape (2014) SC1364).
20. It seems to me that the issues raised by the appellant go to the very validity of the proceedings, which justifies the interruption of the trial process.
21. In all the circumstances of the case, I am satisfied that the interests of justice favour the granting of the leave sought.
22. In the result the application succeeds.
23. The Court orders that the applicant/appellant is hereby granted leave to appeal the decision of the National Court made on the 11^th of April, 2018.
24. There is no order as to costs.

___________________________________________________________
Makap Lawyers: Lawyers for the Appellant

Guardian Legal Services: Lawyers for the First Respondent
Office of the Public Solicitor: Lawyers for the Second – Seventh Respondents
Bradshaw Lawyers: Lawyers for the Eight Respondents
No Appearance for the Ninth Respondents
No Appearance for the Tenth – Twelfth Respondents
Office of the Solicitor General: Lawyers for the Thirteenth Respondents