Uhadi Iarogaha Incorporated Land Group v Hari [2021] PGSC 113; SC2207 (6 April 2021)

SC2207

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 89 OF 2020 (IECMS)

BETWEEN:
UHADI IAROGAHA INCORPORATED
LAND GROUP
First Appellant

AND:
SCOT MORATA, VAHU MORATA
and GABUTA GEITA
Second Appellant

AND:
MORATA HARI as Principal Landowner
of Central Claim No. 79
First Respondent

AND:
SARUFA MORATA
Second Respondent

Waigani: Hartshorn J.
2021: 1^st, 6^th April

Application for joinder, for a stay and for restraining orders

Cases Cited

Kenn Norae Mondiai v. Wawoi Guavi Timber Co. Ltd (2007) SC886
Evan Paki v. Don Polye (2011) SC1095
Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614
Behrouz Boochani v. State (2017) SC1566

Counsel:

Mr. J. Kumbu, for the Appellants
Mr. T. Tape, for the Respondents

6^th April 2021

1. HARTSHORN J: This is a decision on a contested application for joinder of persons to be appellants, for a stay and for restraining orders, sought in an amended application filed by the appellants and applicants for joinder on 25^th March 2021.

Background

2. The appellants appeal a decision of the National Court which made certain orders including declarations after finding that the defendants had failed to comply with orders and failed to appear before the Court (decision appealed). The orders and declarations concern amongst others, the first appellant and land known as “Central Claim No 79 Dogura, National Capital District”

Application for joinder

3. Counsel for the three applicants for joinder as appellants conceded that as the application for joinder was filed on 23^rd November 2020, this was considerably more than the period of 40 days referred to in Kenn Norae Mondiai v. Wawoi Guavi Timber Co. Ltd (2007) SC886 by which it was held that a prospective appellant must apply for joinder. Consequently, pursuant to this authority, the application for joinder is refused.

Order 3 Rule 2(b) Supreme Court Rules

4. The first jurisdictional basis upon which the appellants rely for a stay is Order 3 Rule 2(b) Supreme Court Rules. This Rule may not be relied upon in this instance as the appeal is not a proceeding which relates to a matter or question within the original jurisdiction of the Supreme Court. Such is a requirement pursuant to Order 3 Rule 2 for Order 3 Rule 2 to be enlivened. Consequently, the relief sought pursuant to Order 3 Rule 2(b) Supreme Court Rules is refused.

Section 155(4) Constitution

5. The appellants also rely upon s. 155(4) Constitution. The reliance by parties and counsel in the National and Supreme Courts upon s. 155(4) is ubiquitous. It is settled law however, that amongst others, s. 155(4) may only relied upon to protect primary rights in the absence of other relevant law. I refer to Evan Paki v. Don Polye (2011) SC1095 and Behrouz Boochani v. State (2017) SC1566 as examples.

6. In this instance, s. 19 Supreme Court Act provides the jurisdiction to grant a stay and s. 5(1)(b) Supreme Court Act provides the jurisdiction to grant an interim order. So in this instance, there is not an absence of other relevant law. Consequently, the relief sought pursuant to s. 155(4) Constitution is refused.

Section 5(1)(a) and (b) Supreme Court Act

7. The appellant also relies upon s. 5(1)(a) and (b) Supreme Court Act for a stay and restraining orders. Section 5(1)(a) and (b) are:

“Where an appeal is pending before the Supreme Court –

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties;

may be made by a Judge.”

8. As to s. 5(1)(a), power is only given to make a direction. Here, the appellants seek an order.

9. As to s. 5(1)(b), in Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [25] the Court said:

“25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is “to prevent prejudice to the claims of the parties”, pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focused on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice?”

10. Putting aside whether s. 5(1)(b) may be relied upon for a stay, for s.5(1)(b) to be enlivened, it must be shown that whichever interim order is sought, it is necessary to prevent prejudice to the claims of the applicant.

11. In the evidence upon which the appellants rely, it is not specifically deposed as to any prejudice being occasioned to their claims in the appeal if the stay or restraining orders sought are not granted. Further, in submissions, the appellants do not refer to any prejudice being occasioned to their claims in the appeal if the stay or restraining orders are not granted.

12. The appellants claims in this appeal are concerned with the making of the orders including declarations in the decision appealed because of the finding that the defendants had failed in certain respects. In my view and given that the evidence does not indicate otherwise, the appellants will still be able to prosecute this appeal, subject to the content of their notice of appeal, without any prejudice to their claims in this appeal, if the stay and restraining orders sought are not granted.

13. As a consequence of the above, I am not satisfied that the appellants have satisfied the obligation to show that a stay or restraining orders are required to prevent prejudice to the claims in the appeal, as is necessary for s. 5(1)(b) to be invoked.

14. In regard to the eviction orders sought, counsel did not make any submissions. In any event, as the relief is sought under s. 5(1)(b), my comments referred to above, apply also to the eviction orders sought.

15. Consequently, all of the relief sought in the amended application should be refused and the amended application dismissed. Given this, it is not necessary to consider the other submissions of counsel apart from as to costs.

16. The respondents seek their costs on an indemnity basis as they had forewarned counsel for the appellants and applicants as to the competency and hence the futility of the orders sought in the amended application. The respondents had also given notice that if the amended application was not withdrawn and was subsequently dismissed, indemnity costs would be sought. Counsel for the appellants and applicants did not heed the warning. I am satisfied that the requirements for an order for indemnity costs have been satisfied and the respondents are entitled to their costs on the basis sought.

Orders

17. It is ordered that:

a) The amended application filed 25^th March 2021 of the appellants and applicants is dismissed;

b) The appellants and applicants shall pay the costs of the respondents of and incidental to the said amended application and application filed 23^rd November 2020 on an indemnity basis to be taxed if not otherwise agreed.
__________________________________________________________________
Gibson Bon Lawyers: Lawyers for the Appellants
Kandawalyn Lawyers: Lawyers for the Respondents