National Housing Estate Ltd v Decision 2000 Ltd [2020] PGSC 17; SC1931 (27 February 2020)

SC1931

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO.23 OF 2017

BETWEEN
NATIONAL HOUSING ESTATE LTD
First Appellant

AND
KOREA HOUSING LIMITED
Second Appellant

AND
DECISION 2000 LIMITED
First Respondent

AND
LUTHER SIPISON, Acting Secretary of the Department of Lands & Physical Planning
Second Respondent

AND
YANJOI APIN, Acting Registrar of Titles
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Batari, Makail & Berrigan JJ
2020:27^th February

APPEAL -

Cases Cited:

Hariki v. The State (2007) SC 1320

Counsel:

Mr. C. Gagma, for the First Appellant
Mr.L. Kari, for the Second Appellant
Mr. D. Mel, for the First Respondent
Nil Appearance for the Second, Third & Fourth Respondents

JURISDICTIONAL ISSUE OF WHETHER THE APPEAL WAS PROPERLY ORDERED FOR RE-HEARING

27^th February, 2020

1. BY THE COURT: This re-hearing of the appeal today was ordered by Cannings J, as a single judge of the Supreme Court on 31^st July 2019, under s.3(2)(a) of the Supreme Court Act. The appeal was heard and reserved for decision on 6^thNovember 2017 by the full Supreme Court (Injia, CJ, Toliken J and Pitpit J). In the meantime, judge’s term of appointment (Injia, CJ) expired before the Court could hand down its decision. The matter was then listed in a special call-over before Cannings J who heard the parties and ordered that the appeal be re-heard.

2. In a situation where a judge hearing the appeal is unable through illness, or any other cause to attend the proceedings or otherwise exercise his or her functions as a judge, the hearing of the appeal shall continue and the judgement shall be given by the remaining judges provided the parties agree to that course of action. This is the jurisdictional requirement under s.3 of the Supreme Court Act which reads:

Continuation of appeal notwithstanding absence of Judge.

(1) Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgement, a Judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge –

(a) the hearing of the appeal shall, subject to Subsection (2), continue; and

(b) the judgement shall be given by the remaining Judges; and

(c) the Court shall be deemed to be duly constituted.

(2) Where-

(a) either party does not agree to the remaining Judges continuing to hear the appeal; or

(b) in any case, there is only one Judge remaining able to hear the appeal, the appeal shall be reheard

3. In Hariki v. The State (2007) SC 1320 (Injia CJ, Cannings J) stated at paragraph 6:

“In interpreting this provision one must by virtue of s.158(2) of the Constitution give paramount consideration to the dispensation of justice. We should if possible avoid multiplicity of hearings and further delay”.

4. In this case the appeal proceedings was/is still current before the remaining judges who heard and reserved for decision. The Court’s remaining members, Toliken, &Pitpit JJ was and is still seized of the matter at the time this case was ordered for re-hearing by a single judge of the Supreme Court. That decision purportedly resulted from the exercise of the powers under section 3 of the Supreme Court Act that should have been properly exercised by the remaining Supreme Court Judges.

5. Jurisdictionally, the matter in our view is not properly before this Court. The hearing of the appeal is still before the original Court. The decision has been reserved to a date for parties to be advised.

6. The matter must go back to that Court (Toliken J, Pitpit J) under Section 3 of the Supreme Court Act. The parties are then at liberty to agree or not to agree with the remaining judges continuing to hear the appeal.

7. The Orders of the Court are:-

1. The Orders of 31^st July 2019 setting down this matter for re-hearing is set aside for want of jurisdiction.
   
2. Today’s hearing date is vacated.
   
3. The appeal shall come before remaining judges who are still seized of the matter to proceed with the appeal under Section 3 of the Supreme Court Act.
   
4. The matter be placed in the next directions hearing list on Monday 2^nd March 2020 for re-listing before the remaining members of the Supreme Court under Section 3 of the Supreme Court Act.
   
5. Cost shall be in the appeal.
   

Ruling and orders accordingly.
_______________________________________________________________
Gagma Legal Services Lawyers: Lawyer for First Appellant
PNG Legal Services Lawyers: Lawyer for Second Appellant
Mel & Henry Lawyers: Lawyer for the First Respondent