Barrick (Niugini) Ltd v Nekitel [2021] PGSC 15; SC2092 (20 April 2021)

SC2092

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 18 OF 2020
BETWEEN:
BARRICK (NIUGINI) LIMITED
Appellant

AND:
STANLEY NEKITEL, IN HIS CAPACITY AS
REGISTRAR OF TENEMENTS
First Respondent

AND:
JERRY GARRY, AS CHAIRMAN AND REPRESENTING ALL OTHER MEMBERS OF THE MINING ADVISORY COUNCIL
Second Respondent

AND:
MINERAL RESOURCES AUTHORITY
Third Respondent

AND:
HON. JOHNSON TUKE MP, AS MINISTER FOR MINING
Fourth Respondent

AND:
HON. JAMES MARAPE MP, AS CHAIRMAN AND REPRESENTING ALL OTHER MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

AND:
MINERAL RESOURCES ENGA LIMITED
Seventh Respondent
AND:
HON. DAVIS STEVEN MP, AS ATTORNEY-GENERAL
AND NOMINAL DEFENDANT ON BEHALF OF THE HEAD OF STATE
Eighth Respondent

Waigani: David J, Yagi J, Makail J
2020: 16^th December
2021: 20^th April

PRACTICE & PROCEDURE – applications to summarily determine appeal Constitution, Section 155(4) – Supreme Court Rules, Order 13 Rule 16.

Cases Cited:
The State v Peter Painke [1976] PNGLR 210
SCR No.2 of 1981 [1982] PNGLR 150
Uma More v UPNG [1985] PNGLR 401
National Executive Council v Public Employees Association of PNG [1993] PNGLR 264
Anderson Agiru v Electoral Commissioner & The State (2002) SC687
William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government (2006) SC844
Philip Takori v Simon Yagari (2008) SC905
Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118
Department of Works v International Construction (PNG) Ltd (2011) SC1122
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC 1156
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2013) SC1230

Aisi Iuma Bore v Elias Wakore (2015) SC1410

The State v the Transferees (2016) SC1488
Michael Wilson v Clement Kuburam (2016) SC1489
Jacob Popuna v Ken Owa (2017) SC1564
Behrouz Boochani v The State (2017) SC1566
NCDC v Yama Security Services Ltd (2017) SC1575
Telikom (PNG) Ltd v Kila Rava (2018) SC1694

Benny Ilai v Michael Yasma (2019) SC1857

Counsel:

M.M. Varitimos, D. Wood & A. Edo, for the Appellant
N. Saroa, for the First, Third and Fourth Respondents
T. Tanuvasa, for the Second, Sixth and Eighth Respondents
L. P. Kandi, for the Fifth Respondent
G. Geroro, for the Seventh Respondent

JUDGMENT
20^th April, 2021

1. BY THE COURT: INTRODUCTION: The matters before the Court at the hearing were the Notice of Motion instituting the appeal filed on 7 September 2020, the Second, Sixth and Eighth Respondent’s Application to Summarily Dismiss the Appeal filed on 22 September 2020, the Seventh Respondent’s Notice of Objection to Competency filed on 10 September 2020, and the Seventh Respondent’s Application to Summarily Dismiss the Appeal filed on 22 September 2020. Upon discussions between the bench and counsel; the Seventh Respondent sought leave, which was granted, to withdraw its objection to the competency of the appeal; it was agreed to only deal with the applications for summary dismissal of the appeal; and the hearing of the appeal was deferred pending the outcome of the applications to summarily dismiss the appeal. The applications to summarily dismiss the appeal invoke Order 13 Rule 16(1)(a) and or (c) of the Supreme Court Rules and Section 155(4) of the Constitution as the jurisdictional basis for their applications. If they are granted, the Second, Sixth, Seventh and Eighth Respondents seek costs of and incidental to the applications and the appeal on a full indemnity basis.

2. The Appellant was the plaintiff in National Court proceedings instituted against the Registrar of Tenements and seven other defendants in OS (JR) No. 5 of 2020 filed on 28 April 2020 (judicial review proceedings). All those defendants are named as respondents in this appeal. The Appellant had applied for judicial review of decisions of the National Executive Council of 11 March 2020 and the Head of State, acting on advice, of 27 April 2020 to not renew the Porgera Special Mining Lease 1(P) which the Appellant had applied to extend through its application lodged on or about 29 June 2017 under the Mining Act 1992 on which the Porgera Gold Mine in Enga Province had been operated since the execution of the Mining Development Contract dated 12 May 1989. On 1 September 2020, the National Court dismissed the judicial review proceedings for being an abuse of process and for being incompetent.

3. Having been aggrieved by the National Court’s decision, the Appellant instituted this appeal.
EVIDENCE

4. The affidavits relied on by the parties are contained in the Application Book inclusive of those specifically set out in the respective applications and referred to by the parties in their oral and written submissions, extracts of submissions and the Appellant’s Chronology of Events filed on 16 November 2020 which we have considered. Reference has also been made in submissions to materials forming part of the substantive notice of motion filed on 7 September 2020 which we have taken note of and also considered.

5. In support of the Second, Sixth and Eighth Respondents’ application, they rely on and read the affidavits sworn by:

1. Ethel Heagi sworn on 8 September 2020 and filed on 9 September 2020;
2. Lubia Evore sworn and filed on 9 September 2020;
3. Anthony Ian Esplin sworn on 7 September 2020 and filed on 9 September 2020;
4. Kurubu Ipara sworn and filed on 15 September 2020;
5. Stanley Nekitel sworn and filed on 15 September 2020;
6. Lubia Evore sworn and filed on 16 September 2020;
7. Betty Makis sworn on and filed on 24 September 2020;
8. Ruth Busun sworn on 5 October 2020 and filed on 6 October 2020;
9. Austin Edo sworn on 25 October 2020 and filed on 26 October 2020;
10. Tau Embora sworn on 29 October 2020 and filed on 30 October 2020;
11. Kurubu Ipara sworn and filed on 2 November 2020; and
12. Belden William sworn and filed on 14 December 2020.
    

6. In support of the Seventh Respondent’s application, it relies on and reads the affidavits sworn by:

1. Ethel Heagi sworn on 8 September 2020 and filed on 9 September 2020;
2. Lubia Evore sworn and filed on 9 September 2020;
3. Anthony Ian Esplin sworn on 7 September 2020 and filed on 9 September 2020;
4. Kurubu Ipara sworn and filed on 15 September 2020;
5. Stanley Nekitel sworn and filed on 15 September 2020;
6. Lubia Evore sworn and filed on 16 September 2020;
7. Austin Edo sworn on 25 October 2020 and filed on 26 October 2020;
8. Anthony Ian Esplin sworn on 6 October 2020 and filed on 9 October 2020;
9. Anthony Ian Esplin sworn on 25 October 2020 and filed on 26 October 2020;
10. Kurubu Ipara sworn and filed on 2 November 2020;
11. Anthony Ian Esplin sworn and filed on 6 November 2020; and
12. Gibson Geroro sworn and filed on 13 November 2020;
    

8. In opposing the respective applications, the appellant relies on and reads the affidavits sworn by:

1. Austin Edo sworn and filed on 7 September 2020;
2. Austin Edo sworn on 7 September 2020 and filed on 9 September 2020;
3. Ethel Heagi sworn on 8 September 2020 and filed on 9 September 2020;
4. Lubia Evore sworn and filed on 9 September 2020;
5. Anthony Ian Esplin sworn on 7 September 2020 and filed on 9 September 2020;
6. Rocky Madi sworn on 7 September 2020 and filed on 9 September 2020;
7. Austin Edo sworn on 7 September 2020 and filed on 9 September 2020;
8. Stanley Nekitel sworn and filed on 15 September 2020;
9. Rocky Mado sworn and filed on 15 September 2020;
10. Lubia Evore sworn and filed on 16 September 2020;
11. Austin Edo sworn and filed on 2 October 2020;
12. Anthony Ian Esplin sworn on 6 October 2020 and filed on 9 October 2020;
13. Austin Edo sworn on 14 October 2020 and filed on 15 October 2020;
14. Anthony Ian Esplin sworn on 25 October 2020 and filed on 26 October 2020;
15. Huva Gavey sworn and filed on 2 November 2020; and
26. Anthony Ian Esplin sworn and filed 6 November 2020.
    

GROUNDS OF APPLICATIONS

9. The grounds of the application relied on by the Second, Sixth and Eighth Respondents overlap to a significant degree and or are materially similar with most of the grounds relied on in the Seventh Respondent’s application and they are distilled and crystallized as follows:

1. The Appellant has by its own conduct and unequivocal election waived, abandoned or renounced its claim in the judicial review proceedings from which this appeal emanates.
2. The Appellant’s actions give rise to an estoppel by acquiescence or conduct to the effect that it has accepted the State’s decision to refuse its application for extension of the SML hence it is permanently estopped from further challenging the decision.
3. The further continuation of this appeal and the judicial review proceedings amounts to an abuse of process on the basis that the Appellant has and continues to approbate and reprobate on the issue of whether the State’s decision to refuse the Appellant’s application for extension of the SML was valid at law.
4. The grant of the new SML has rendered this appeal and the judicial proceedings futile, unnecessary, hypothetical and or academic.
5. The Appellant’s application for SML-12 demonstrated that it has acquiesced or agreed with the Seventh Respondent that commercial reserves of ore are no longer available to the Porgera Joint Venture thereby terminating the joint venture pursuant to Clause 20(b) of the Joint Venture Agreement.
6. This appeal is incompetent or an abuse of process as it was instituted by the Appellant without proper authorization (of the Seventh Respondent) in breach of Clause 4(b)(vi)(d) of the Joint Venture Agreement.
   

10. The fifth and sixth grounds are only relied on by the Seventh Respondent.

ISSUE
11. The key issue to determine is whether the Court should summarily determine this appeal in accordance with the respective applications both filed on 22 September 2020 by the Second, Sixth, Seventh and Eighth Respondents based on the substantive grounds set out in each of the applications.

SUBMISSIONS

12. A tome of material in the form of extracts of submissions, extensive written submissions including case authorities were relied on by the parties particularly by the Second, Sixth, Seventh and Eighth Respondents and the Appellant including oral submissions ventilated by all the parties at the hearing. We have considered the submissions and the case authorities.

13. The submissions of the Second, Sixth, Seventh and Eighth Respondents supported by the First, Third, Fourth and Fifth Respondents essentially are that the Court has a wide discretionary power under Order 13 Rule 16(1)(a) and or (c) of the Supreme Court Rules and Section 155(4) of the Constitution to summarily determine the appeal because:

1. The Appellant has by its own conduct and or unequivocal election waived, abandoned or renounced its entire claim in the judicial review proceedings and this appeal.
2. The consequences of an election are unavoidable even if made on a “without prejudice basis” as is claimed by the Appellant.
3. The equitable principles of estoppel by representation or conduct and estoppel by acquiescence apply.
4. The Appellant cannot approbate and reprobate having made an unequivocal election between two inconsistent courses of conduct and having made such an election, it cannot resile once it has taken some benefit or advantage from the chosen course.

14. No specific submissions were made in relation to Grounds 5 and 6 particularly by the Seventh Respondent who raised them and we consider them to have been abandoned and are dismissed.
15. The Appellant’s main contention is that the two applications have been improperly brought before the Court and should be dismissed for abuse of process as:

1. They contain grounds which are substantive in nature and therefore not appropriate to rely on Order 13 Rule 16 of the Supreme Court Rules which does not contemplate summary determination of an appeal on substantive grounds.
2. As the grounds relied on agitate substantive issues of fact, law and mixed fact and law, the applications are not of a type envisaged by Order 13 Rule 16 of the Supreme Court Rules.
3. The substantive grounds raise facts and arguments that could have been, but were not, put before the primary judge in the judicial review proceedings, i.e., the applications seek to introduce additional evidence on appeal while avoiding the procedure prescribed under Section 6 of the Supreme Court Act and Order 7 Division 20 of the Supreme Court Rules for the introduction of “fresh evidence”. The grounds in support of the applications rely on two main facts and these are that; on or about 11 August 2020, the appellant applied for a special mining lease subsequently designated SML-12; and that on or about 25 August 2020, Kumul Minerals Holdings Ltd (Kumul) was granted a special mining lease designated SML-12.
4. The substantive grounds pleaded in the applications are without merit as they proceed on a fundamental misunderstanding of the relationship between the present appeal and the actions taken and proceedings commenced by the appellant in respect of SML-11 and SML-12.
5. The grounds or some of them deliberately ignore and do not disclose the elementary fact that the appellant’s for SML-12 was from the outset made on a “without prejudice basis” to its contention that SML-1 remains on foot and has not expired. The appellant in making the application for SML-12 fully reserved its rights in relation to the matters before the National Court in the judicial review proceedings.
6. The grant of SML-11 to Kumul has not rendered the present appeal or the judicial proceedings futile, unnecessary, hypothetical and or academic.
7. The validity of the purported grant of SML-11 to Kumul has yet to be determined by the National Court in OS (JR) 51 of 2020 and CIA No.8 of 2020 and it is premature to contend that the purported grant of SML-11 to Kumul has rendered the present appeal and judicial proceedings futile, unnecessary, hypothetical and or academic.
8. As SML-1(P) is the earlier tenement over which the purported grant of SML-11 was made, its status (which is yet to be determined by the present appeal and the judicial review proceedings) cannot be affected by SML-11.

CONSIDERATION
16. As we have noted earlier, the applications invoke Order 13 Rule 16(1)(a) and or (c) of the Supreme Court Rules and Section 155(4) of the Constitution as the principal jurisdictional basis for seeking the various relief sought in their respective applications.

17. As to reliance on Section 155(4) of the Constitution, it is trite law that the provision does not confer primary jurisdictional power. It however confers jurisdiction to issue facilitative orders in aid of enforcement of a primary right: SCR No.2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402. Where remedies are already provided for under other law, Section 155(4) does not apply: William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government (2006) SC844, Medaing v Ramu Nico Management (MCC) Ltd (2011) SC 1156, Behrouz Boochani v The State (2017) SC1566. There is no need to rely on Section 155(4) when Order 13 Rule 16 is invoked.

18. Order 13 Rule 16(1) confers on the Court general discretionary jurisdiction to summarily determine a matter in four situations: NCDC v Yama Security Services Ltd (2017) SC1575. The rule states:

“ 16. Summary Disposal
(1) The Court may summarily determine a matter:
(a) on application by a party; or
(b) on referral by a Judge; or
(c) on the Court’s own initiative; or

(d) upon referral by the Registrar in accordance with the procedure set out in sub-rule (2) below or pursuant to Section 11 of the Act...”

19. The expression “matter” is defined in Order 13 Rule 1 (Interpretation) and it “means any appeal, application, review or other proceeding on the General List and includes any interlocutory application in respect of such matter.”

20. Case authorities demonstrate that the types of applications that may be made under Order 13 Rule 16 in connection with a matter are:

1. Where there has been a failure to prosecute a matter with due diligence resulting in delay: Department of Works v International Construction (PNG) Ltd (2011) SC1122.

2. Where there is want of prosecution of a matter: Department of Works v International Construction (PNG) Ltd (2011) SC1122, The State v the Transferees (2016) SC1488, Benny Ilai v Michael Yasma (2019) SC1857, Aisi Iuma Bore v Elias Wakore (2015) SC1410.

3. Where there is default and failure to comply with the Court’s directions: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2013) SC1230.

21. In Department of Works v International Construction (PNG) Ltd (2011) SC1122, the Court held that the principles that apply to an application to dismiss an appeal for want of prosecution ought to be adopted and applied with necessary modification in dealing with matters brought before it under Order 13 Rule 16(1).

22. The case authorities mentioned above demonstrate that Order 13 Rule 16 should only be invoked in dealing with procedural matters. In that context, we would also add to the above list that a matter can be summarily determined for abuse of the process of the Court under the rule.

23. The law as to abuse of the process of the Court is that by its inherent jurisdiction, the Court has power to protect and safeguard its own processes and protect its dignity and integrity from any possible abuse by its users or litigants: The State v Peter Painke [1976] PNGLR 210, National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Anderson Agiru v Electoral Commissioner & The State (2002) SC687, Philip Takori v Simon Yagari (2008) SC905, Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118, Jacob Popuna v Ken Owa (2017) SC1564, Telikom (PNG) Ltd v Kila Rava (2018) SC1694. The types of abuses of process may vary from case to case: National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Michael Wilson v Clement Kuburam (2016) SC1489.

24. We agree with the Appellant’s submission that the rule neither contemplates summary determination of an appeal on substantive grounds nor is to be used as a vehicle to contest substantive issues raised in an appeal.

25. The grounds contained in the applications are substantive in nature. The arguments raised go to substantive matters which should be ventilated at the hearing of the appeal.

26. For these reasons, we find that both applications amount to an abuse of the process of the Court and must be refused and dismissed.

27. Given this, it is not necessary to consider other arguments raised by the parties.

ORDER

28. The orders of the Court are:

1. The application filed by the Second, Sixth and Eighth Respondents on 22 September 2020 is refused and dismissed.
2. The application filed by the Seventh Respondent on 22 September 2020 is refused and dismissed.
3. The Second, Sixth, Seventh and Eighth Respondents shall pay the Appellant’s costs of and incidental to their respective applications filed on 22 September 2020.

_____________________________________________________________
Ashurst: Lawyers for the Appellant
Nelson: Lawyers for the First, Third & Fourth Respondents
Solicitor-General: Lawyer for the Second, Sixth & Eighth Respondents
MS Wagambie: Lawyers for the Fifth Respondent
Geroro: Lawyers for the Seventh Respondent