Uhadi Iarogaha ILG No. 617 v Estate of the Late Jimmy Varika [2020] PGSC 131; SC2044 (11 December 2020)

SC2044

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 64 of 2019

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION
IN THE MATTER OF AN APPLICATION UNDER
ORDER 5 DIVISION 2 OF THE SUPREME COURT RULES

BETWEEN:
UHADI IAROGAHA ILG NO. 617
Applicant

AND

THE ESTATE OF THE LATE JIMMY VARIKA
First Respondent
AND
NEIL MARCUS DANIEL
Second Respondent

Waigani: Mogish J, David, J and Shepherd, J
2020: 27^th October & 11^th December

SUPREME COURT – Practice and Procedure - objection to competency of application pursuant to s.155(2)(b) Constitution to review decision of National Court to grant orders for possession of land – objection to competency on numerous grounds – whether application for review incorrectly commenced under Order 5 Division 2 of Supreme Court Rules 2012 instead of Order 5 Division 1 divests Supreme Court of jurisdiction – whether applicant lacked standing – whether pleading of vague, false and misleading matters and lack of particularity in pleading are proper grounds for objection – whether application to review in this instance is non-compliant with Supreme Court Rules Order 7 Rule 9(c) and Rule 10 - whether issues of law and fact not raised in National Court and grounds based on abuse of process are proper grounds for objection – principles developed for grounds of objection to notices of appeal and applications for leave to appeal equally applicable to grounds of objection to applications for review and leave to review – whether objection should be upheld on jurisdictional grounds.

The applicant filed an application under s.155(2)(b) of the Constitution seeking review of a decision of the National Court which ordered the return of possession of land for which the plaintiff had registered title. The respondents to the application for review filed a notice of objection to competency of the application. The objection was based on numerous grounds.

Held:

(1) The application for review was incorrectly entituled as an application under Order 5 Division 2 of the Supreme Court Rules 2012. The application should have been commenced under Order 5 Division 1 of the Rules. This was a material error which by itself rendered the proceedings incompetent.

(2) The issue of standing goes to jurisdiction. The applicant had no standing in this proceeding to institute the application for review as the applicant was not directly affected by the possessory relief sought in the National Court proceeding and granted by the primary judge.

(3) Objection to competency of an application to review can properly be made where the application refers to questions of law or questions of law and fact not raised in the National Court unless leave of the Supreme Court has been obtained to argue the point. However, the respondents’ objection in this instance that there were issues of law and fact not raised in the National Court proceedings was without foundation as those issues had been considered and rejected by the primary judge as being irrelevant.

(4) It is an accepted ground of objection that if a ground pleaded in a notice of appeal or application for leave is false, misleading or is vague or does not adequately state the nature of the case or the questions involved and the reasons why leave should be given, then these are matters which go to jurisdiction: Turia v Nelson (2008) SC949 applied.

(5) Non-compliance with Order 7 Rule 9(c) and Rule 10 of the Supreme Court Rules 2012 which require particularity of pleading is a valid ground of objection to an application for review which can divest the Supreme Court of jurisdiction.

(6) Abuse of process is not a valid ground of objection because it relates to the merits of an application for review or leave for review, not to jurisdiction.

(7) Although five grounds of objection were refused because they went to merit, seven grounds of objection were upheld as they were found to have divested this Court of jurisdiction. The objection to competency was accordingly upheld and the application for review was entirely dismissed.

Cases Cited:
Aihi v The State (No. 1) [1981] PNGLR 81
Aihi v The State (No. 2) [1982] PNGLR 44
Application by Anderson Agiru pursuant to Constitution, ss.155(2)(b) and 155(4) (2002) SC686
Application by Jeffery Balakau pursuant to Constitution, s.155(2)(b) [1998] 437
Application by Herman Leahy pursuant to Constitution, s.155(2)(b) (2006) SC855
Application pursuant to Constitution, s.18(1: Reference by Hon. Belden Namah (2020) SC1934
Bari v Rain (2004) SC768
Dynasty Estates Ltd v Nambawan Super Ltd (2015) SC1427
Gason v Mangu Clan of Astrolabe Bay (2016) N6163
Hegele v Kila (2011) SC1124
Independent State of Papua New Guinea v Gaian (2019) SC1879
Joseph v Sereva (2011) 1152
Kawaso Ltd v Oil Search (PNG) Ltd (2010) SC1082
Kalasim v Koglwa (2006) SC828
Kapty v Davai (2010) SC1161
Kandapaki v Enga Provincial Government (2011) SC1140
Kitogara Holdings Ltd v National Capital District Interim Commission [1988-89] PNGLR 346
Kuman v Digicel (PNG) Ltd (2013) SC1232
Kuman v Digicel (PNG) Ltd (2017) SC1638
Lama v NDB Investments Ltd (2015) SC1423
Marape v O’Neill (2016) SC1486
Namah v Pato (2013) SC1241
Pacific Equities & Investments Ltd v Goledu (2009) SC962
Papua Club Inc. v Nusaum Holdings Ltd (2005) SC 812
PK Investments Ltd v Mobil Oil New Guinea Ltd (2015) SC1456
Porgera Joint Venture v Yako (2008) SC916
Punagi v Pacific Plantation Timber Ltd (2011) SC1153
Ramu Nico Management (MCC) Ltd v Tarsie (2010) SC1056
SCR No. 5 of 2917: re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433
The State v Painke [1976] PNGLR 2010
Turia v Nelson (2008) SC949
Wilson v Kumaram (2016) SC1489

Counsel:

Mr G. Anis, for the Applicant
Mr D. Bidar, for the First and Second Respondents

DECISION

11th December 2020

1. BY THE COURT: This is a decision on an objection to competency.
2. The applicant is the incorporated land group of the Uhadi Iarogaha Clan of Korobosea Village, National Capital District. The members of this clan are members of the applicant ILG (the Applicant).
3. The land which is the subject of the Applicant’s application for leave to review is former customary land known as Ikuri Maku comprising an area of 208 hectares, being an estate in fee simple in all that land described as Portion 2369C, Milinch of Granville, Fourmil of Moresby contained in Certificate of Title Volume 33 Folio 42 (the Land). The late Jimmy Varika was the registered proprietor of the estate in fee simple named in the Certificate of Title. The Land extends from the southern end of Jacksons Airport towards the coast at Bootless Bay, National Capital District.
4. The Applicant seeks leave to review the decision of the National Court which was granted in favour of the first respondent, the Estate of the late Jimmy Varika (the Estate), on 27 July 2018 in proceeding WS No. 36 of 2014: In the Estate of the late Jimmy Varika v Mendikwae Ltd and Pam Logistic Ltd.
5. The late Jimmy Varika filed proceeding WS No. 36 of 2014 in the National Court on 28 January 2014 seeking a declaration and orders that as the registered proprietor of the Land, he was entitled to vacant possession as against Mendikwae Ltd and Pam Logistic Ltd. He claimed that these two defendants had wrongfully taken possession of the Land and were trespassing, despite notice to quit having been served. He sought orders that he be given possession of the Land.
6. The late Jimmy Varika (the Deceased) died on 11 March 2015. The second respondent (Mr Daniel) was granted probate of the Deceased’s will by the National Court in proceeding WPA No. 70 of 2015 on 2 February 2016.
7. Under the terms of the Deceased’s will dated 20 January 2015 and grant of probate, Mr Daniel as executor holds the whole of the Deceased’s estate in trust for the Deceased’s son James Esteven L Varika and his son’s children. The Land and the deceased’s title thereto are assets forming part of the Deceased’s estate.
8. On 12 February 2016 the primary judge in WS No. 36 of 2014 ordered that because of the death of the Deceased and grant of probate to Mr Daniel, the plaintiff in that suit be thereafter named “The Estate of the Late Jimmy Varika”.
9. After a series of interlocutory applications, the trial of WS No. 36 of 2014 was conducted by the primary judge on 14 February 2017. Despite having been an active party at the interlocutory stages of the case, Pam Logistic Ltd did not attend the trial. However, Mendikwae Ltd was represented at trial by Mr W. Bigi of Themis Lawyers.
10. The primary judge delivered the National Court’s reserved decision in WS No. 36 of 2014 on 27 July 2018. The terms of the primary judge’s order were these:

(1) It is declared that the Plaintiff as the registered proprietor of the Fee Simple Estate to the Land at Ikuri Maku, 2369C, Milinch of Granville, Foumil of Port Moresby is entitled to vacant possession of the Land as against the defendants.

(2) It is ordered that:

(a) The Defendants and all other occupants shall deliver possession of the Land to the Plaintiff;

(b) Leave is granted to the Plaintiff to issue a Writ of Possession to the Land;

(c) The Defendants and all other occupants (by themselves, their agents or servants or otherwise) are restrained from remaining in possession of the Land and premises and from carrying out their businesses on the Land;

(d) The Defendants are liable for mesne profits from the Land from the time of occupation until possession is delivered to the Plaintiff with such mesne profits to be assessed.

(e) The Defendants are liable for damages to the Plaintiff, such damages to be assessed.

(f) The Defendants shall pay interest to the Plaintiff on the judgment for damages, pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Chapter 52).

(g) Time for entry of these Orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

11. On 7 January 2019 Pam Logistic Ltd, being aggrieved by the decision of the primary judge despite that company not having produced any evidence or submissions at trial because of its non-attendance at trial, filed an application pursuant to s.155(2)(b) of the Constitution seeking leave to review the decision of the primary judge. The application was filed as SCRev No. 5 of 2019 and was lodged almost 5 months after Pam Logistic Ltd had lost its right of appeal.
12. The present Applicant, on being informed by the lawyers then acting for Pam Logistic Ltd of the review application in SCRev No. 5 of 2019, filed an application for joinder in that review proceeding on 4 July 2019 seeking to challenge the Estate’s fee simple title to the Land and for customary title to the Land to be restored to the members of the Uhadi Iarogaha Clan represented by the Applicant.
13. The Applicant asserts however that before its joinder application could be heard in SCRev No. 5 of 2019, Pam Logistic Ltd filed a notice of discontinuance because it is said that the company had realised that the Applicant intended to raise issues of illegality and fraud in connection with the Deceased’s acquisition of the Land. Pam Logistic Ltd’s notice of discontinuance abandoning SCRev No. 5 of 2019 was filed on 16 July 2019 and confirmed by order made by Dingake J sitting as a single judge of the Supreme Court on 7 August 2019.
14. The Applicant then filed its own application for leave to apply for review under s.155(2)(b) of the Constitution on 2 September 2019 (Application). The Applicant’s right of appeal of the primary judge’s decision in WS No. 36 of 2014 had expired a year before in September 2018.
15. The Respondents replied by filing their present notice of objection (Objection) to the Application on 4 October 2019. The Objection was filed within 14 days of the Respondents being served with the Application and is therefore compliant in that regard with the time limit prescribed by Order 7 Rule 15 of the Supreme Court Rules 2012 (Rules).

Preliminary Observations

16. The power of review of decisions of the National Court conferred on the Supreme Court by s.155(2)(b) of the Constitution is not restricted in any way. Section 155(2) provides:

155(2) The Supreme Court –

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court.

17. However it is well-established law that this unfettered discretion of the Supreme Court under s.155(2)(b) of the Constitution to review decisions of the National Court is exercised by the Supreme Court only in exceptional circumstances, the onus being upon the applicant to persuade the Supreme Court that some substantial injustice is manifest or that the case is of special gravity: Aihi v The State (No. 1) [1981] PNGLR 81 (from the headnote).
18. In Application by Anderson Agiru pursuant to Constitution, ss.155(2)(b) and 155(4) (2002) SC686 and Application by Herman Leahy pursuant to Constitution, s.155(2)(b) (2006) SC855, cited with approval in Wilson v Kuburam (2016) SC1489, the Supreme Court observed that the cases in which the Supreme Court’s power of review under s.155(2)(b) of the Constitution may be invoked are restricted to three categories. Those categories are:

(1) Where parties have allowed a statutory right of appeal to expire. This principle was first applied in the landmark decisions of the Supreme Court in Aihi v the State (No. 1) (supra) and Aihi v The State (No. 2) [1982] PNGLR 44.

(2) Where a right of appeal is prohibited or limited by law. An example of this is the prohibition of any appeal in respect of a decision of the National Court which determines an election petition.

(3) Where there is no other way of going to the Supreme Court. An illustration of this type of situation is SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.

19. As the Applicant here was not a party to the proceeding in WS No. 36 of 2014, the Application comes within the third restricted category of those cases which prima facie are amenable to the Supreme Court’s power of review under s.155(2)(b) of the Constitution. Against this, the Respondents by their Objection contend that the Application is incompetent because it has failed to properly invoke the jurisdiction of the Supreme Court on grounds now relied on by the Respondents. The Respondents seek the dismissal of the Application on those grounds.
    

Grounds of the Application

20. The Applicant relies on 5 grounds for its Application, which we summarise as follows:

(1) Ground 1 – plaintiff’s failure to identify the subject land as Portion 2369C

The primary judge erred in law and fact by not dismissing the plaintiff’s claim for possession of the Land because the plaintiff in his writ of summons had misdescribed the Land as “Land at Ikuri Maku, 2369C, Milinch of Granville Fourmil of Port Moresby” instead of “Land at Ikuri Maku, Portion 2369C, Milinch of Granville Fourmil of Port Moresby”.

(2) Ground 2 – non-compliance with provisions of Land (Tenure Conversion) Act 1963

The primary judge erred in law by not dismissing the plaintiff’s claim for possession of the Land and by not declaring the Applicant and its members to be the rightful customary owners of the Land when the evidence showed that the process for conversion of the Land under the Land (Tenure Conversion) Act 1963 from customary ownership to fee simple was not complied with.

(3) Ground 3 – the will of the registered proprietor of the fee simple of the Land, the late Jimmy Varika, was forged

The decision of the primary judge was unsafe because Mr Daniel, the abovenamed second respondent, was substituted by order of the Court to be the executor and trustee of the Estate of the Deceased when there were issues relating to forgery of the will of the Deceased and the signing of the will by the Deceased under duress.

(4) Ground 4 – non-transfer of the Land back to the customary landowners upon the death of the late Jimmy Varika

The primary judge erred in law and in fact in failing to consider whether ownership of the Land reverted back to the customary landowners upon the death of the late Jimmy Varika.

(5) Ground 5 – introduction of fresh evidence to establish new ground based on fraudulent involvement of the lawyers acting for the Estate of the late Jimmy Varika in the Registrar of Titles’ reinstatement of the Estate’s fee simple title to the Land following the Registrar’s cancellation of that title

By this ground the Applicant gave notice that it would seek leave pursuant to s.6(1)(a) and s.8 of the Supreme Court Act to introduce fresh evidence to show that the lawyers acting for the Estate of the Deceased had fraudulently withheld information which wrongfully resulted in the Registrar of Title’s reinstatement of the Estate’s fee simple title in the Land following the Registrar’s cancellation of that title.

Grounds of Objection

21. The Respondents’ Objection to the competency of the Application pleads 13 grounds of objection. At the hearing of the Objection, the Respondents relied on 12 grounds of objection after abandoning their ground 2.
22. We summarise the Respondents’ 12 grounds of objection to the application for leave for review under the following headings:

(1) Objection 1 - lack of jurisdiction - the Application is incorrectly entituled as an application under Order 5 Division 2 of the Rules

(2) Objection 3 - no standing of Applicant

(3) Objection 4 - improper joinder of second respondent

(4) Objections 5 and 11 - issues of law and fact not raised in the National Court

(5) Objection 6 - false and misleading matters

(6) Objections 7 and 8 - excessive delay in challenging decisions of the Land Titles Commission and the National Court

(7) Objections 9 and 10 - lack of particularity

(8) Objection 12 - abuse of process

(9) Objection 13 - not a special case to warrant Supreme Court invoking its power of review under s.155(2)(b) Constitution

Evidence in support of the Objection

23. In support of their 12 grounds of objection, the Respondents rely on the lengthy affidavits of Mr Daniel filed on 18 October 2019 and 30 October 2019. These affidavits are contained at pp. 24 to 428 and 429 to 445 of the Objection Book.
24. The Applicant filed no affidavit material in response to the Objection.

Consideration of Grounds of Objection

Objection 1 - lack of jurisdiction - the Application is incorrectly entituled as an application under Order 5 Division 2 of the Rules

25. The Respondents submit that the Application is defective and incompetent because having stated that it is an application under s.155(2)(b) of the Constitution, the entituling of the Application asserts that the Application is made under Order 5 Division 2 of the Rules. Division 2 of Order 5 relates exclusively to election petition reviews, which have nothing to do with general applications for review under s.155(2)(b) of the Constitution. The Respondents argue that by bringing the Application under an incorrect Division of the Rules, the Applicant has improperly purported to invoke the jurisdiction of this Court, thereby rendering the proceeding incompetent.
26. The issues raised by this ground of the Objection are therefore these:

(a) Is the mode of commencement of the Application compliant with the Rules?

(b) If not, what are the consequences of that non-compliance?

We now address these two issues.

(a) Is the mode of commencement of the Application compliant with the Rules?

27. Order 5 of the Rules consists of two Divisions. Division 1 of Order 5 of the Rules deals with the general jurisdiction of the Supreme Court bestowed under s.155(2)(b) of the Constitution to review judicial acts of the National Court. Division 2 of Order 5 of the Rules relates to the special jurisdiction of the Supreme Court under s.155(2)(b) of the Constitution to review non-appealable decisions of the National Court made pursuant to Part XVIII of the Organic Law on National and Local-Level Government Elections.
28. We therefore agree with the Respondents that the proper mode of commencement of an application made under s.155(2)(b) of the Constitution seeking a review by the Supreme Court of a decision of the National Court which is not a decision relating to election petitions is by way of application made under Division 1 of Order 5, not Division 2 of Order 5 of the Rules.
29. The Applicant made no submissions at all in response to this ground of objection.
30. The title page of the Application is incorrectly styled: “In the Matter of an Application Under Order 5 Division 2 of the Supreme Court Rules”. The correct description of the proceeding in the title page of the Application should have been: “In the Matter of an Application Under Order 5 Division 1 of the Supreme Court Rules”. We therefore find that the title of the Application is clearly non-compliant with Order 5 Division 1 of the Rules because the Application is an application seeking to invoke the general powers of this Court under s.155(2)(b) of the Constitution to review the decision of the primary judge, a decision which relates to possession of land. The decision of the primary judge sought to be reviewed is not a decision having any connection at all with an election petition. The mode of commencement of the Application selected by the Applicant was wrong.

(b) What is the consequence of the mode of commencement of the Application being non-compliant with the Rules?

31. The Respondents submit that because the Application was erroneously commenced under Order 5 Division 2 of the Rules, the Application is defective and incompetent as it invokes the wrong jurisdiction of this Court under s.155(2)(b) of the Constitution and should be dismissed.
32. The approach of this Court in the past where the applicant has used an improper mode of commencement of proceedings has repeatedly been to conclude that this is an issue which goes to the jurisdiction of the Court and renders the proceedings incompetent.
33. In Kawaso Ltd v Oil Search (PNG) Ltd (2010) SC1082 Sawong J presiding as a single judge of the Supreme Court ruled that an application for a stay of a National Court order of costs made by way of a notice of motion to the Supreme Court instead of in Form 4 of the Rules was incompetent. The application for a stay had been commenced by improper mode. It was non-compliant with the Rules and was dismissed on that ground.
34. In Bari v Rain (2004) SC768 this Court, when determining an objection to competency, dismissed an application for leave to appeal as leave was not required in the circumstances of that case. The leave application was held to be incompetent as it had wrongly and unnecessarily invoked the jurisdiction of the Supreme Court. Similar situations arose in Punagi v Pacific Plantation Timber Ltd (2011) SC1153 and Joseph v Sereva (2011) 1152 where unnecessary leave applications were held to be incompetent and dismissed for being non-compliant with the Rules.
35. In Namah v Pato (2013) SC1241 an application for relief under s.18(1) of the Constitution was instituted by originating summons instead of Form 1 of the Rules. The application therefore failed to comply with the requirements of Order 4 Rules 1 and 3 of the Rules. An objection to competency was upheld and the application was dismissed. The Court found that the applicant had used an improper mode of commencement and that therefore the Court had no jurisdiction to entertain the application as the proceeding was incompetent.
36. In Application pursuant to Constitution, s.18(1): Reference by Hon. Belden Namah (2020) SC1934 it was held by the Supreme Court (Kandakasi DCJ, Cannings J, Shepherd J) that the applicant had wrongly entituled the proceeding as a reference instead of an application under s.18(1) of the Constitution, a serious error which had divested this Court of jurisdiction because the Supreme Court has no power to entertain references as distinct from applications made under s.18(1) of the Constitution. The Court said:

It is settled law that such defects cannot be cured by any amendment. The decisions of this Court in many cases including Lucas Dekena v Nick Kuman (2018) SC 1715 (at paragraph 26) and James Lovika & 79 Others v Carl Mapo & The State (2019) SC 1895 confirm that position.

We see no reason to depart from that approach. The consequence is that these proceedings are fatally flawed. The application is incompetent. We uphold ground 4(b) of the objection.

37. In the present case the Applicant is seeking a last resort remedy only available in the Supreme Court in exceptional cases where all other appeal and review avenues are no longer available. We therefore agree with the Respondents that it was incumbent on the Applicant in this instance to have ensured that its mode of commencement of this proceeding was in compliance with Order 5 Division 1 of the Rules. Order 5 Division 2 of the Rules has no relevance to the Application. As the Application is non-compliant with the Rules, it is incompetent and consequently this Court has no jurisdiction to deal with the Application. We uphold ground 1 of the Objection and would dismiss the Application on this ground alone.

Objection 3 - no standing of the Applicant

38. The Respondents contend that the Applicant has no standing to have instituted the Application as it was not a party to National Court proceeding WS No. 36 of 2014.
39. In answer, the Applicant and its members submit that the decision of the primary judge in WS No. 36 of 2014 sanctioned an illegal and fraudulent acquisition of the Land by the Deceased which was customary land owned by the Applicant’s Clan. The Applicant contends from the bar table and without evidence that because it was not a party cited in WS No. 36 of 2014, the case was filed, pursued and concluded in the absence of the Applicant and its members, who, it is said, were not aware of the primary judge’s ruling and orders until April 2019, approximately 9 months after the primary judge’s decision was delivered on 27 July 2018. The Applicant asserts in its submissions that it was aggrieved by the primary judge’s decision but that by the time the Applicant and its members found out about the primary judge’s decision, the 40-day period allowed by s.17 of the Supreme Court Act to appeal that decision had long expired.
40. Dealing first with the issue of a person’s right to appeal a decision of the National Court to the Supreme Court, s.14 of the Supreme Court Act provides that “an appeal lies from the National Court”. Section 17 of the Act refers to “a person who desires to appeal”. There is no statutory requirement that an appellant from a decision of the National Court must be a party to the National Court proceeding. However the general principle is that a person who was not a party to the proceeding at National Court level will only have standing to appeal if the appellant can show good reasons why the appellant was not a party to the proceeding and how that appellant’s interests are directly affected by the National Court decision which is the subject of the appeal: Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346; Dynasty Estates Ltd v Nambawan Super Ltd (2015) SC1427; Gason v Mangu Clan of Astrolabe Bay (2016) N6163.
41. With reference to the Applicant’s assertion that it had no notice of the proceeding in WS No. 36 of 2014 until 9 months after the primary judge had delivered his decision, the National Court’s own record shows that this contention is patently untrue.
42. On 13 March 2015 Themis Lawyers acting for the first and second defendants Mendikwae Ltd and Pam Logistic Ltd filed a notice of motion in WS No. 36 of 2014 seeking orders that the then interim chairman of the Applicant in this review, Chief Rabura Charlie Madaha, be granted leave to be joined as third defendant in WS No. 36 of 2014 and that as third defendant on behalf of the Iarogaha Uadi Clan’s ILG he be granted leave to file a cross-claim against the plaintiff out of time. Five days later Themis Lawyers filed an amended notice of motion on 18 March 2015 again seeking that Chief Madaha be joined as third defendant to the proceeding, but that the first defendant Mendikwae Ltd instead of Chief Madaha be granted leave to file a cross-claim against the plaintiff out of time. The purpose of the proposed cross-claim was to belatedly dispute the conversion of the title to the Land from customary land under provisions of the Land Titles Commission Act 1962 to a fee simple estate under the Land Registration Act. The proposed cross-claim sought to challenge a Conversion Order made by the Land Titles Commission in LTC Application No. 45/1995 which was made on 2 October 1996 in respect of the Land in favour of the Deceased and which Conversion Order was subsequently registered in the name of the Deceased as registered proprietor on issuance by the Registrar of Titles of Certificate of Title Volume 33 Folio 42 on 28 October 1996.
43. Chief Madaha asserted in his affidavit sworn and filed in WS No. 36 of 2014 on 13 March 2015 in support of his application for joinder that he is the elder son of the former chief of the Iarogaha Uadi Clan, Charlie Madaha Geita, and that by virtue of clan custom he was at that time the new chief of his Clan. He deposed that he was also the interim chairman of the Iarogaha Uhadi Land Group Inc. registered number ILG 8131. His affidavit goes on to allege that the Deceased and certain deceased members of his Clan fraudulently colluded to mislead the Land Titles Commission back in 1996 into granting the Conversion Order which allowed title to the Land to be converted from customary land in the ownership of the Iarogaha Uadi Clan into registered fee simple in the name of the Deceased.
44. Chief Madaha stated at [10] and [11] of his affidavit sworn on 13 March 2015 filed in WS No. 36 of 2014:
    10. On the 8 March 2015, an Authority to Act was signed by the executives of the ILG and myself giving consent and authority for me to act for my clan to join as a party and file a cross-claim against the Plaintiff. Annexed hereto and marked as “B” is a true copy of the said Authority to Act.
    11. My appointment as their representative enables me to file this application to join them as a defendant and file a cross-claim against the Plaintiff to seek orders to declare that the conversion of “Ikuri Maku” and its registration as a titled land was fraudulent and to nullify it and order for the return of the land to Iarogaha Uhadi Clan.
45. The interlocutory applications of Chief Madaha for joinder and Mendikwae Ltd for leave to file a cross-claim out of time were heard by the primary judge on 25 March 2015. His Honour’s reserved decision on those two applications was delivered on 12 February 2016.
46. The primary judge ruled on 12 February 2016 that as the principal relief sought in the plaintiff’s statement of claim in WS No. 36 of 2014 was a claim for possession of the Land from Mendikwae Ltd and Pam Logistic Ltd as first and second defendants, the case did not involve historical issues which gave rise to the Deceased’s ownership of the fee simple estate. His Honour therefore rejected Chief Madaha’s application for joinder due to insufficiency of interest in the outcome of the proceeding, which only concerned the return of possession of the Land by Mendikwae Ltd and Pam Logistic Ltd, not ownership.
47. The primary judge’s reasons for refusing Chief Madaha’s application for joinder are set out at [7] to [10] at p. 198 of the Objection Book. His Honour said:
    7. The relief sought in the statement of claim seeks amongst others vacant possession of certain land from the defendants and is not concerned with the conversion of that land from customary land to a fee simple estate. The dispute is concerned with the ownership of a fee simple estate. If the Varika Estate is unsuccessful, Mendikwae and the second defendant Pam Logistic Ltd will be. Mr Madaha will not be affected regardless of whether the relief sought in the statement of claim is granted or rejected. Consequently I am not satisfied that Mr Madaha has a sufficient interest in this proceeding to warrant his joinder.
    8. As to whether Mr Madaha’s joinder is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon, from the pleadings and the evidence relied upon, I am not satisfied that Mr Madaha’s joinder is necessary for this purpose given the matters in dispute as pleaded. If necessary, Mr Madaha may be a witness if any party determines that his evidence could be of assistance.
    9. Further, as mentioned, in the normal course a plaintiff is entitled to pursue his remedy against the defendants of his choosing: Dollfus Mieg et Compagnie S.A. v Bank of England^[1]; Coecon Ltd v Westpac Bank (PNG) Ltd^[2]; Timbers PNG v PNG Forest Authority^[3] and Enda v Pouru^[4]. A factor that may require the joinder of a party in opposition to the plaintiff’s wishes is if the party seeking to be joined will be directly affected if the relief sought in the proceeding is granted: Enda v Pouru (supra).
    10. As previously referred to, in my view Mr Madaha will not be directly affected if the relief sought is granted. Further no relief is sought against him and his joinder is not necessary to satisfy any orders that may be made. Give the above, the application for Mr Madaha’s joinder should be refused.
        [underlining added]
48. In the same interlocutory decision delivered by the primary judge on 12 February 2016 His Honour rejected Mendikwae Ltd’s application for leave to file a cross-claim against the plaintiff out of time because His Honour was not satisfied on the evidence presented in support of the proposed cross-claim and a consideration of the relevant provisions of the Land Titles Commission Act 1962 that the belated cross-claim had any real possibility of ultimate success.
49. A leading case on the scope and purpose of an objection to competency of an appeal is Turia v Nelson (2008) SC949 where it was held at [7]:
    7. A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185). It must raise serious threshold issues concerning legality or viability of the appeal (PNG Forest Authority v Securimax Ltd (2003) SC717).
50. In Turia v Nelson, the Supreme Court enumerated five grounds of objection which can successfully challenge jurisdiction, one of which is objection based on the ground that the applicant for leave does not have sufficient interest in the subject matter of the National Court decision sought to be appealed against. The Court referred in this regard to Porgera Joint Venture v Yako (2008) SC916 where it was held that to have standing, an appellant must have a sufficient interest in the subject matter of the decision from which an appeal emanates and the decision must directly, not indirectly, affect the rights of the appellant.
51. If an appellant cannot demonstrate sufficiency of interest because the appellant’s rights have not been directly affected by the decision, Turia v Nelson and Porgera Joint Venture v Yako are authorities for the proposition that this demonstrates lack of standing to bring the appeal and divests the Supreme Court of jurisdiction to entertain the appeal.
52. Turia v Nelson has been cited with approval and applied in numerous subsequent cases, which have in turn added further grounds of objection which can divest this Court of jurisdiction: see for instance Hegele v Kila (2011) SC1124; Kandapaki v Enga Provincial Government (2011) SC1140; Kuman v Digicel (PNG) Ltd (2013) SC1232; Marape v O’Neill (2016) SC1486; Independent State of Papua New Guinea v Gaian (2019) SC1879. These cases all emphasise that the grounds of objection which go to jurisdiction are not exhaustive.
53. In our view, the principles in the cases just mentioned dealing with objections to leave to appeal and notices of appeal are no different to issues of competency in respect of applications for leave to apply for review under s.155(2)(b) of the Constitution: see Order 5 Rule 1 of the Rules which places applicants for leave on the same footing as appellants. As with the appeal process, lack of standing to bring an application for review divests the Supreme Court of jurisdiction.
54. It is clear on the evidence presented to us in the Objection Book that no appeal against the primary judge’s decision delivered in WS No. 36 of 2014 on 12 February 2016 to refuse Chief Madaha’s application for joinder was ever instituted by Chief Madaha or by the present Applicant. The Applicant and its executive members at the time would have been well aware either on or shortly after 12 February 2016 that the primary judge had refused Chief Madaha’s application for joinder as a party in WS No. 36 of 2014. They would also have been aware, or should have been aware via Themis Lawyers who were then acting for Chief Madaha, of the primary judge’s reasons for refusal of Chief Madaha’s joinder application. They could have, but did not, appeal that interlocutory decision of the primary judge. It is therefore disingenuous for the Applicant by its counsel to now endeavour to persuade this Court from the bar table and without evidence that the Applicant and its members had no knowledge of and did not become aware of the National Court proceeding in WS No. 36 of 2014 until 9 months after the primary judge had delivered his final orders on 27 July 2018 requiring Mendikwae Ltd and Pam Logistic Ltd to deliver up possession of the Land to the Deceased’s Estate.
55. We are satisfied that the Applicant and its executive members were on adequate notice of the existence of proceeding WS No. 36 of 2014 by early March 2015, that the Applicant’s interim chairman Chief Madaha then applied on 13 March 2015 for joinder in that proceeding on behalf of the present Applicant ILG and its members, which joinder was refused by the primary judge for cogent reasons delivered by him on 12 February 2016.
56. It is clear that Chief Madaha failed to satisfy the primary judge that he and the Applicant ILG had any good reason to have been joined as a party to that proceeding because the Applicant ILG and its members were not in occupation or possession of the Land and could not have been affected by any of the relief sought by the Deceased’s Estate against Mendikwae Ltd and Pam Logistic Ltd.
57. No proper explanation has been given to this Court as to why Chief Madaha or the Applicant did not appeal to the Supreme Court against the interlocutory decision of the primary judge given on 12 February 2016 refusing Chief Madaha’s joinder as a party to WS No. 36 of 2014. Indeed the Applicant has misled this Court by its denial that it had any knowledge of the proceedings in WS No. 36 of 2014 until 9 months after the primary judge had delivered his decision on 27 July 2018.
58. The Applicant has similarly failed to persuade this Court that it should now have belated standing to bring its Application to challenge by way of judicial review under s.155(2)(b) of the Constitution the primary judge’s granting of the possessory relief in respect of the Land which was sought by the Deceased’s Estate against Mendikwae Ltd and Pam Logistic Ltd in WS No. 36 of 2014. The Applicant has not demonstrated that its former right to customary ownership of the land, extinguished by the Conversion Order of the Land Titles Commission more than 24 years ago on 2 October 1996, was directly affected by the relief sought by the Deceased’s Estate in WS No. 36 of 2014 for possession of the Land. That case was never concerned with establishing the reasons which gave rise to the Deceased’s title to the land. It was concerned with restoring possession of the Land to Jimmy Varika, and then following his death to his Estate, as registered proprietor of the fee simple. As the Applicant had no sufficient interest in the subject matter of the National Court’s decision that it now seeks to be reviewed by this Court under s.155(2)(b) of the Constitution because the Deceased, as subsequently represented by his Estate, sought no orders against the Applicant, only against Mendikwae Ltd and Pam Logistic Ltd, the Applicant has no standing to bring the Application. Ground 2 of the Respondents’ Objection is upheld.

Objection 4 - improper joinder of second respondent

59. The Respondents object to the Application on the basis that the second respondent, Mr Daniel, has been cited in his personal capacity. No submission in answer to this ground of objection was made by the Applicant.
60. We observe that Mr Daniel was not a party to National Court proceeding WS No. 36 of 2014. The interlocutory order made by the primary judge on 12 February 2016 following the demise of the Deceased on 11 March 2015 which substituted “The Estate of the Late Jimmy Varika” as the name of the plaintiff in WS No. 36 of 2014 in lieu of the name of the Deceased was made pursuant to s.34(1) of the Wrongs (Miscellaneous Provisions) Act Chapter 297 and Order 5 Rule 10 of the National Court Rules. Mr Daniel was not named as the substituted plaintiff, whether in his capacity as the probated executor and trustee of the Estate of the Deceased or in his personal capacity.
61. However the citation of Mr Daniel as second respondent to the Application is not a matter which goes to the jurisdiction of this Court to entertain the Application. Mr Daniel has been at liberty at any time since commencement of the Application to apply to the Duty Judge pursuant to Order 13 Rule 15 in Form 4 of the Rules for an interlocutory order for his removal from the Application as second respondent. We find no substance to ground 4 of the Respondents’ Objection. Ground 4 of the Objection is rejected.

Objections 5 and 11 - issues of law and fact not raised in the National Court

62. The Respondents object to the grounds pleaded in the Application on the basis that those grounds relate to matters which were never pleaded and argued at trial. The Respondents refer to paragraphs 2.7, 2.8, 2.10(vi), (vii) and (viii) of the Application, all of which paragraphs relate to issues of law and fact concerning: (1) the alleged illegality and purported fraud by the Deceased and others when obtaining the Conversion Order from the Land Titles Commission in 1996 which resulted in the issuance of the Certificate of Title for the Land to the Deceased, and (2) the purported subdivision of the Land and sale of parts of the Land by the Applicant to Mendikwae Ltd and Pam Logistic Ltd, this having supposedly been done in ignorance of the Deceased’s fee simple title to the Land.
63. The Respondents submit that neither of these two issues and the evidence contained in certain affidavits filed in WS No. 36 of 2014 (but untendered at trial because of objection) were the subject of judicial determination by the primary judge and that this is a further reason why the Application is incompetent and should be dismissed. The Respondents rely in this regard on Kalasim v Koglwa (2006) SC828 where it was held that an application for leave to appeal is incompetent if it raises matters not raised at trial:

Where a question of law is not raised in the trial and the facts do not give rise to the question of law, a party may not raise such a point of law on appeal. The reason is that such a point of law is irrelevant.

64. We agree that Kalasim’s case is authority for the proposition that a ground of objection to the competency of an application for leave to appeal or an application for leave for review can properly be made where the application refers to questions of law or fact not raised the National Court and that this can divest this Court of jurisdiction: Turia v Nelson (supra); Kandakapi v Enga Provincial Government (supra).
65. Against this proposition is the qualification made in the earlier ruling of the Supreme Court in Papua Club Inc. v Nusaum Holdings Ltd (2005) SC812 that an appellant can raise an issue of law before the Supreme Court that was not raised in the trial provided the question of law is set out in the notice of appeal and it does not concern a question of fact only and leave of the Court is obtained to argue the point. In other words, such a question of law goes to the merits of an application for leave to appeal (and, by analogy, we say also to the merits of an application for leave for review), not to jurisdiction, and is not a valid objection which could warrant dismissal of a proceeding prior to determination of the application for leave.
66. In the present instance the Respondents point out that the Applicant was not a party to WS No. 34 of 2016, the Applicant was not present at the trial and therefore the Applicant did not give evidence at trial or cross-examine any of the first respondent’s witnesses who had given evidence, did not call any witnesses in rebuttal and did not make any oral or written submissions to the primary judge at trial. The Respondents submit that the Applicant is estopped from raising any matters of law or fact reflected in the grounds relied on in its Application which were not pleaded by Mendikwae Ltd or Pam Logistic Ltd in their defence of the Deceased’s claim for possession of the Land in WS No. 34 of 2016 or which were not raised at trial.
67. However, we disagree in part with the Applicant’s submission on this point. Even though the Applicant was not a party to the National Court proceeding because of the primary judge’s rejection of the Applicant’s joinder application, the primary judge did consider issues now sought to be raised by the Applicant in grounds 2 and 4 of the Application. While it is correct that the Applicant was not involved in the pleadings for the case and even though the Applicant was not called upon by Mendikwae Ltd to give evidence at trial, questions of law and fact raised at trial by Mendikwae Ltd which went to the acquisition of the Deceased’s fee simple title to the Land and the purported fraud in connection with the Conversion Order granted by the Land Titles Commission in favour of the Deceased in 1996, more than 20 years before the trial, were considered by the trial judge but then rejected by him on grounds of relevancy. The primary judge found that those issues, pleaded by Mendikwae Ltd and Pam Logistic Ltd as defendants in WS No. 34 of 2016, were irrelevant to the relief sought by the Deceased’s Estate at trial, which was the return to the Estate of vacant possession of the land to which the Estate via the Deceased now had indefeasible title. We quote in this regard the following extracts from the primary judge’s findings and reasons for decision at [14] to [18] set out in the Objection Book at pp. 60 to 62:

14. From a perusal of the submissions, pleadings and evidence, I concur with the plaintiff and am satisfied that:

(a) On 2nd October 1996, the plaintiff obtained a fee simple title to the Land;

(b) Both the first and second defendants admit that they purported to buy parcels of land with the Land without the plaintiff’s knowledge and consent;

(c) The first defendant ‘s purported land through its Managing Director is located on Portion 2369C containing 9.75 hectares under a purported SBAL which has now been cancelled;

d) The second defendant’s purported land is located on Portion 2786C containing 5 hectares. The second defendant does not have a registered title to Portion 2786C. No official title has been awarded in respect of Portion 2786C. Portion 2786C is a subdivision of Portion 2369C and was purportedly obtained by the second defendant 14 years after the plaintiff obtained title to Portion 2369C;

e) Notwithstanding that the plaintiff is the registered proprietor of Portion 2369C, the plaintiff’s approval was not sought and approval was not given prior to parcels of land within Portion 2369C being purportedly sold to the first and second defendants by third parties with no interest or title to transfer;

f) That the first and second defendants may have been under a mistaken belief that the plaintiff did not own Portion 2369C when they purportedly purchased land within Portion 2369C, does not affect the plaintiff’s title over Portion 2369C;

g) there are no proceedings, or any action taken either by the first and second defendants or other landowner or landowning groups to challenge the title awarded to the plaintiff on 2nd October 1996 by the Land Titles Commission and reaffirmed on 5th September 2014 by the Registrar of Titles;

h) both the first and second defendants admit to receiving the eviction notice from the plaintiff on 29th October 2013. They have refused to deliver up vacant possession of the Land to the plaintiff and continue to wrongfully occupy the Land therefore denying the plaintiff the right to quiet enjoyment of the Land.

15. I concur with the submissions of the plaintiff that this case concerns the indefeasibility of title to the Land in the plaintiff’s name. The plaintiff was successfully awarded a fee simple estate over Portion 2369C on 2nd October 1996 and has continued to hold the title since then with no successful challenge by either the defendants or by any landowner or landowning groups.

16. Despite there being allegations of fraud, there is no evidence of any fraud or of any steps taken by the defendants to challenge the plaintiff’s title to the Land. There are no appeals or court proceedings filed to challenge the plaintiff’s title. On 12th February 2016 this Court refused the application by the first defendant that sought leave to file a cross claim on the basis that there were serious allegations of fraud in the transfer of the title to the plaintiff ...

17. Over 20 years have elapsed since the grant of the fee simple title to the plaintiff and any claim against the title would very likely be statute barred.

18. I am satisfied that the plaintiff is entitled to the relief that is sought in its statement of claim as pursuant to s.31(1) Land Registration Act, the plaintiff holds an indefeasible title to the Land. I refer in this regard to amongst others: Eric Kiso v Bennie Otoa and Anor (2013) SC 1222. Given this it is not necessary to consider the other submissions of counsel.

68. We therefore disagree with the Respondents that new issues of law and fact are raised in the Application which were not raised at trial and which in turn render the Application incompetent. Those issues were raised on the pleadings and in evidence given by Mendikwae Ltd but were considered and rejected by the trial judge. It is immaterial that those issues were not raised by the Applicant or that no evidence on those issues was given by the Applicant at trial. Furthermore, to the extent that the Application may be said to raise questions of law alone which were not raised at trial in WS No. 36 of 2014, for example ground 2 of the Application which refers to alleged error of law by the primary judge in not considering the evidence as to the Conversion Order made by the Land Titles Commission, then on the qualification made by the Supreme Court in Papua Club Inc. v Nusaum Holdings Ltd those questions of law should more properly be canvassed at any hearing on the merits of the Application, not at an objections hearing, assuming of course that the Objection does not succeed, which for the reasons we are now giving will not be the case. We accordingly consider that ground 5 of the Objection cannot be sustained and will for that reason be rejected.
    

Objection 6 - false and misleading matters

69. The Respondents assert in ground 6 of their Objection that various matters set out in the Application at paragraphs 2.10, 2.12, 2.14, 2.15, 2.16 and 2.18 under the heading Nature of the Case and at ground 2 (paragraph 4.2) of the Application, headed Non-Compliance with Provisions of the Land Tenure Conversion Act, are false and misleading.
70. It is an accepted ground of objection that if a ground pleaded in a notice of appeal or application for leave is false, misleading or is vague or does not adequately state the nature of the case or the questions involved and the reasons why leave should be given, then these are matters that go to jurisdiction: Turia v Nelson (supra).
71. It was said in PK Investments Ltd v Mobil Oil New Guinea Ltd (2015) SC1456 at [11]:

Where the grounds of appeal are vague, false and misleading, the Court may at any stage of the proceeding determine whether the appeal is competent.

72. Putting aside the Respondents’ objections to matters set out in the Applicant’s Nature of the Case in the Application because those matters are not pleaded as grounds of the Application, we concentrate instead on ground 2 of the Application. We accept that ground 2 purports to present a ground which is false and misleading. It is false and misleading in the sense that ground 2 pleads to the effect that the primary judge erred in law in not dismissing the claim of the Deceased’s Estate when, on the evidence presented, the primary judge should have made a declaration that the Applicant and its members are the rightful customary owners of the Land. This ground borders on the absurd. The Applicant had no cross-claim against the Deceased’s Estate, neither did Mendikwae Ltd after the latter’s application for leave out of time was dismissed at an interlocutory stage by the primary judge. No relief was claimed by the Applicant against the Deceased’s Estate in WS No. 36 of 2014. The primary judge had no power to make a declaration in favour of the Applicant because the Applicant was not a party to the suit. Ground 2 of the Application is false. It is misleading because it is illogical. The pleadings which determined the issues on which the case was decided had nothing to do with the validity or otherwise of the Conversion Order made by the Land Titles Commission in 1996. The case concerned the Deceased Estate’s entitlement to the return of vacant possession of the Land by Mendikwae Ltd and Pam Logistic Ltd, not the legality or otherwise of the process by which the Deceased obtained the fee simple title to the Land. We accordingly uphold ground 6 of the Respondent’s Objection.

Objections 7 & 8 - excessive delay in challenging Conversion Order made by Land Titles Commission and National Court decision

73. The Respondents contend that the Applicant has failed to give any reasonable explanation for its inordinate delay in attempting to challenge:

(1) issues regarding the grant of the fee simple estate to the First Respondent following the Conversion Order made by the Land Titles Commission in 1996, more than 24 years ago, and

(2) the decision of the primary judge in WS No. 36 of 2014 delivered on 27 July 2018, following the lapse of the appeal period on 5 September 2018.

74. In Turia v Nelson (supra) it was held that where a proposed ground of appeal referred to in an application for leave to appeal lacks merit, this is not a proper ground for objection. Arguments as to whether grounds of appeal or review have merit, that is to say whether the grounds are arguable, should be dealt with at the hearing of an application for leave, if leave is required, or at the substantive hearing. This has been cited with approval and confirmed in subsequent numerous decisions of the Supreme Court: see for instance Kapty v Davai (2010) SC1161; Hegele v Kila (supra); Kuman v Digicel (PNG) Ltd (2017) SC1638.
75. As to whether delay by an applicant goes to jurisdiction, it does not. We refer to Wilson v Kuburam (supra) per Logan J at [63]:

It is important to distinguish the position which obtains in respect of an objection to competency from the question as to whether, if there is jurisdiction, leave to apply for judicial review ought to be granted. The question of whether or not leave ought to be granted entails the exercise of a judicial discretion in relation to which, apart from whether an arguable case of error is raised, considerations such as delay on the part of the applicant and any resultant prejudice to a respondent or other person affected by the decision or judgment sought to be challenged can be relevant. Such discretionary considerations are not relevant to a determination of whether there is jurisdiction. There is a fundamental difference between the existence of judicial power and whether or not, as a matter of discretion, a case is one which calls for the exercise of that power.

76. Grounds 7 and 8 of the Objection do not challenge any specific ground in the Application but because they go to the absence of reasonable explanation by the Applicant for its delay in challenging the Conversion Order made by the Land Titles Commission in 1996 and the primary judge’s decision in WS No. 36 of 2014, these are issues which are relevant to the exercise of this Court’s discretion under s.155(2(b) of the Constitution when determining whether to grant leave for review. These are issues which therefore go the merits of the Application and do not divest this Court of jurisdiction. The Respondents’ grounds 7 and 8 of their Objection are refused.

Objections 9 & 10 – lack of particularity

77. Order 7 Rule 9(c) of the Rules states that a notice of appeal shall “state briefly but specifically the grounds relied upon in support of the appeal”. Order 7 Rule 10 provides:

10. Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgement is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

These Rules apply equally to applications for leave by operation of Order 5 Rule 1 of the Rules.

78. In Pacific Equities & Investments Ltd v Goledu (2009) SC962, approved and applied in Lama v NDB Investments Ltd (2015) SC1423, the Supreme Court, when referring to those provisions which were equivalent to Order 7 Rules 9(c) and 10 in the earlier Supreme Court Rules 1984 (as amended), observed at [18]:

18. If the notice of appeal fails to meet those requirements, the Supreme Court has discretion to strike out the offending ground(s) of appeal. Examples of cases where it did that are Haiveta v Wingti (No. 2) [1994] 189, Henao v Coyle (2000) SC655 and NCD Water and Sewerage Ltd v Tasion (2002) SC696. Alternatively, the Court could dismiss the entire appeal as incompetent. If, for example, all of the grounds set out in a notice of appeal were defective in that they failed to comply with the requirements of Order 7, Rules 8(c) and 9, the natural conclusion to draw would be that the appeal is incompetent.

79. In the present case the Respondents submit that grounds 1 to 4 of the Application fail to plead with the requisite particularity the specific reasons why the primary judge’s decision is alleged to be wrong in law or wrong in law and fact.
80. Ground 1 of the Application makes the vague statement that the primary judge was wrong in law in dismissing the Deceased Estate’s claim because “the subject matter of the cause of action in the proceedings was non-existent” due to the Deceased having failed to identify the Land as “Portion 2369C” and had instead referred to it in his statement of claim as “the Land at Ikuri Maku, 2369C, Milinch of Granville Fourmil of Port Moresby”. Without going into the merits of this ground, the drafting of the ground does not specify with particularity the specific reasons why the absence of the word “Portion” in the description of the land abrogated the Deceased’s cause of action such that the primary judge fell into error of law when granting the relief sought by the Deceased’s Estate. Ground 1 of the Application is defective because it is non-compliant with the subject Rules.
81. Ground 2 of the Application pleads that the primary judge erred in law by not dismissing the Deceased’s claim against Mendikwae Ltd and Pam Logistic Ltd for the return of possession of the Land because the primary judge should instead have made an order “declaring the applicant and its members the rightful customary landowners of the land”. Ground 2 pleads that the evidence showed that the conversion of customary land under the process provided for by the Land (Tenure Conversion) Act 1963 (incorrectly referred to by the Applicant as the Land Tenure Conversion Act) was not complied with for various reasons. However, ground 2 does not plead how any of those reasons demonstrated why the findings of the primary judge that that process was irrelevant to the Deceased’s cause of action was against the evidence or weight of evidence. Nor does ground 2 plead any basis on which the primary judge could have made the judicial declaration now sought by the Applicant when no such declaration was sought after Mendikwae Ltd’s application for leave to file a cross-claim out of time was refused by the primary judge. Ground 2 of the Application is poorly pleaded and lacks the particularity required by the subject Rules.
82. Ground 3 of the Application contains no pleading of error of law by the primary judge. Ground 3 endeavours to introduce issues relating to the validity of the Deceased’s will by alleging forgery and duress. There is no attempt in the drafting of this ground to demonstrate how the primary judge fell into error of law by not taking into account evidence which was or was not before the Court at trial. Ground 3 of the Application is not a proper ground for pursuing leave for judicial review under s.155(2)(b) of the Constitution. It is merely surmise and conjecture. The content of ground 3 of the Application is inexcusably non-compliant with the subject Rules.
83. Ground 4 of the Application pleads that the primary judge erred in law and in fact in failing to consider whether customary ownership of the Land reverted back to the Applicant and its members on the death of the Deceased. Again, without considering ground 4 on its merits, we observe that ground 4 is a bald statement, posed as a question, which does not specify with any particularity at all how the “error in law and fact” alleged against the primary judge was against the evidence and the weight of the evidence. Ground 4 of the Application is an embarrassment. It fails to comply with the particularity required by the subject Rules.
84. Ground 5 of the Application is, as we have already observed, not a ground at all but notice of intention by the Applicant, if leave were to be granted, that it intends to make application to this Court to adduce evidence additional to the evidence which was before the primary judge at trial. Applications to the Supreme Court to receive fresh evidence are made pursuant to s.6(1)(a) of the Supreme Court Act and Order 7 Division 20 of the Rules. Order 7 Rule 55(a) of the Rules states that an application to introduce fresh evidence is made by notice stating the nature of the evidence sought to be called and supported by an affidavit stating the grounds of the application. In this instance, no matter what that fresh evidence might be, notice of intention to adduce fresh evidence cannot, to our minds, constitute a ground for the exercise of the Supreme Court’s discretion under s.155(2)(b) of the Constitution to grant leave to proceed with judicial review. Ground 5 is misconceived. It is non-compliant with the subject Rules.
85. We therefore uphold the Respondent’s objections 9 and 10. We agree with the Respondents’ submission that grounds 1 to 4 of the Application lack the particularity of pleading required by Order 7 Rules 9(c) and 10 of the Rules, that those grounds relate to irrelevant matters which were not the subject of determination by the primary judge in WS No. 36 of 2014 and that those grounds, being so defectively flawed, divest this Court of jurisdiction. As to ground 5 of the Application, that ground is a nullity as it is not a ground at all.
    

Objection 12 - abuse of process

86. The Respondents contend in ground 12 of their Objection that the Application is an abuse of process because it seeks to have heard by the Supreme Court matters which have previously been unsuccessfully attempted to be raised by the Applicant and Pam Logistic Ltd subsequent to delivery of the primary judge’s decision in WS No. 36 of 2014 on 28 July 2018. The Respondents submit that because of this abuse of process, grounds 1 to 4 in the Application divest this Court of jurisdiction. The Respondents refer to the following litigation:

(1) SCA No. 137 of 2018: Pam Logistic Ltd v Estate late Jimmy Varika

The appellant sought to appeal the subject decision of the primary judge in WS No. 36 of 2014 delivered on 27 July 2018. The appeal was found to be incompetent and was discontinued.

(2) SCRev No. 98 of 2018: Pam Logistic Ltd v Estate late Jimmy Varika

The applicant Pam Logistic Ltd sought leave of the Supreme Court for review of the same decision of the primary judge pursuant to s.155(2)(b) of the Constitution. The application was found to be incompetent and the proceeding was discontinued.

(3) SCRev No. 5 of 2019: Pam Logistic Ltd v Estate late Jimmy Varika

The applicant Pam Logistic filed a second review application pursuant to s.155(2)(b) of the Constitution for review of the same decision of the primary judge. The Applicant ILG in this present SCRev No. 64 of 2019 filed an application for joinder but Pam Logistic Ltd filed a notice of discontinuance for its second review application before the joinder application could be heard.

87. The Respondents also refer to other civil proceedings involving land adjacent to Portion 2369C and to criminal proceedings taken by the Applicant’s chairman against Mr Daniel and the Estate’s lawyers as well as a complaint made by the Applicant’s chairman against the first respondent’s lawyers to the PNG Lawyers Statutory Committee. The Respondents state that all of the other civil proceedings, criminal proceedings and the Applicant’s complaint to the PNG Lawyers Statutory Committee have been dismissed as being without foundation.
88. We concur with the Respondents that there must a finality to litigation. We unreservedly endorse what was said by O’Leary AJ in The State v Painke [1976] PNGLR 2010:

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 proceedings 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.

89. However, we consider that arguments based on abuse of process are better suited for determination at the application for leave stage or at substantive hearing. We refer in this regard to the observations made in Ramu Nico Management (MCC) Ltd v Tarsie (2010) SC1056 at [24]:

We agree with the submission of counsel for the Appellants that a claim of abuse of process is distinct from and does not raise an objection to competency. Given this, it is not necessary to decide if the appeal is an abuse of process or that the appellants are estopped.

90. This proposition that a claim of abuse of process does not go to competency was echoed in Marape v O’Neill (2016) SC1486 (Hartshorn J, Makail J, Sawong J) where the Court said at [16]:

As in our view a claim that an appeal is an abuse of process does not question the court’s jurisdiction to hear an appeal and does not go to the competency of appeal, we agree with the decision in Ramu Nico v Eddie Tarsie (supra) on that point.

91. We therefore reject ground 12 of the Respondent’s Objection.

Objection 13: not a special case to warrant Supreme Court invoking its power of review under s.155(2)(b) Constitution

92. The Respondents submit in ground 13 of the Objection that a final reason why the Application should be dismissed at this preliminary juncture is because review applications under s.155(2)(b) of the Constitution are a last resort remedy. The Respondents rely on Application by Jeffery Balakau pursuant to Constitution, s.155(2)(b) (supra) and Application by Anderson Agiru pursuant to Constitution, ss.155(2)(b) and 155(4) (supra) to argue that the power of judicial review reposed in the Supreme Court by s.155(2)(b) of the Constitution is a reserve supervisory power that can only be invoked in the discretion of the Court in exceptional circumstances upon good grounds being established after every other avenue of appeal and review has been exhausted – and that this is not an appropriate case for this Court to exercise its discretion to allow because of issues such as the lack of standing of the Applicant and the Applicant’s inordinate delay in bringing this Application. While these are valid issues to raise, we consider that ground 13 of the Objection is in itself a submission and a rehash of grounds 3, 8 and 9 of the Objection rather than a separate ground of objection. We reject ground 13 of the Objection.

Conclusion

93. For the reasons given we have rejected grounds 4, 5, 11, 12 and 13 of the Objection as those grounds predominantly go to merit, not jurisdiction. However, we have upheld grounds 1, 3, 6, 7, 8, 9 and 10 of the Objection. We are unanimous in the view that the Applicant’s failure to have commenced the Application under Order 5 Division 1 of the Rules coupled with the Applicant’s lack of standing and the other grounds of objection we have upheld are serious issues which have divested this Court of jurisdiction to entertain the Application. The result is that this proceeding must be dismissed in its entirety. Costs will follow the event.

Order

(1) The objection to competency is upheld.

(2) This proceeding is entirely dismissed.

(3) The Applicant shall pay the Respondents’ costs of and incidental to the Application, such costs to be taxed if not agreed.

Judgment accordingly.

_______________________________________________________________

Nicholas Tame Lawyers: Lawyers for the Applicant
Bidar Nutley Lawyers: Lawyers for the First and Second Respondents

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^[1] [1951] 1 Ch 33
^[2] (2012) N5097
^[3] (2012) N4638
^[4] (2013) N5314