Ahwong v Ane [2021] PGSC 43; SC2108 (3 May 2021)

SC2108

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 22 OF 2020

BETWEEN:
JOHN DARREL AHWONG
First Applicant

AND:
JEREMIAH AHWONG
Second Applicant

AND:
THOMAS AHWONG
Third Applicant

AND:
ALA ANE,
in his capacity as the ACTING
REGISTRAR OF TITLES
First Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Respondent

AND:
JOHN THOMAS AH-WONG
Third Respondent

Waigani: Hartshorn J
2021: 30^th April, 3^rd May

SUPREME COURT – practice and procedure - Application for leave to review

Cases Cited:

Application by Anderson Agiru (2002) SC686
Application by Herman Joseph Leahy (2006) SC855
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Rava (2018) SC1694
National Airports Corporation v. Anthony Simitap (2019) SC1883

Counsel:

Ms. M. Wal, for the Applicants
Mr. R. Uware, for the First and Second Respondents
Mr. L. Dos, for the Third Respondent

3^rd May, 2021

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court, brought pursuant to s. 155(2)(b) Constitution.

Background

2. The National Court dismissed a judicial review proceeding on 20^th September 2020 (decision to be reviewed) following a successful application by the third respondent. The applicants had sought to judicially review the decision of the first respondent not to register a conditional surrender of a certain State Lease. The applicants appealed the decision to be reviewed to the Supreme Court within the prescribed appeal period of 40 days. The applicants then withdrew their appeal after the prescribed appeal period had elapsed.

3. The applicants filed this application for leave to review on 17^th November 2020. The applicants submit that they are entitled to file this application and did so after realising that an error had been made in the filing of their appeal after being notified of such by a notice of objection to competency which was filed in the appeal. The applicants submit that as their appeal was instituted by a notice of appeal and not a notice of motion, their appeal was incompetent from the beginning. There was no appeal as it was invalid and so there is not an abuse of process by filing this proceeding, the applicants submit.

4. The applicants also submit that the decision to be reviewed gives rise to serious questions concerning the primary judge’s findings and conclusions in law and on the facts, that the decision to be reviewed has resulted in substantial injustice affecting 11 families and that it is in the public interest that this Court determine that the first respondent has a mandatory duty to register the conditional surrender of the certain State lease.

5. The first and second respondents submit amongst others, that to file an application for leave to review a decision of the National Court pursuant to s.155(2)(b) Constitution in respect of which there is a withdrawn appeal, is an abuse of process.

6. The third respondent supports the abuse of process submissions and submits amongst others, that the criteria that must be satisfied for a successful application for leave to review have not been met by the applicants in this instance.

Consideration

7. As was stated in Jacob Popuna v. Ken Owa (2017) SC1564 at [15] and in National Airports Corporation v. Antony Simitap (2019) SC1883 at [7] the three categories of cases for which the power of review pursuant to s. 155(2)(b) Constitution may be invoked are:

a) where parties have allowed a statutory right to appeal to expire;
b) where a right of appeal is prohibited or limited by law;
c) where there is no other way of bringing a case to the Supreme Court.

(The Supreme Court cases of Application by Anderson Agiru (2002) SC686 and Application by Herman Joseph Leahy (2006) SC855 are cited as examples.)

8. In this instance, as to category one above, the applicants appealed within the appeal period and then withdrew their appeal. They did not allow the statutory right of appeal to expire without filing an appeal. The applicants submit that although they filed an appeal within the statutory appeal period, because they commenced the appeal with an incorrect document, a notice of appeal instead of a notice of motion, their appeal was incompetent from the beginning and so there was no appeal. Consequently, there was no abuse of process, the applicants submit.

9. The applicants did not cite any authority in support of this submission. To my mind, there was an appeal. It was filed, allocated a number and was served. That the appeal was incompetent does not lead to the conclusion that it did not exist. The applicants filed and served an appeal of the decision to be reviewed. The applicants did exercise their right of appeal by filing an appeal within the prescribed appeal period. They did not allow their statutory right of appeal to expire without filing an appeal.

10. As to category two above, a right of appeal is not prohibited or limited in this instance and the applicants exercised their right of appeal. They however, withdrew their appeal. As to category three above, there was a way of bringing this case to the Supreme Court. That way was by appeal. Consequently, this case does not fall with any of the above categories.

11. As the Court did in Simitap (supra), I also refer to the following Supreme Court cases and statements made therein reproduced in Jacob Popuna (supra):

a) SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170, per Kapi DCJ (as he then was):

“..... I would find it extremely difficult to accept any argument that the applicant, having exhausted the appeal procedure, can now go back and invoke the judicial review procedure under s 155 (2) (b) and review the same decision of the National Court and have a second bite at the cherry.”

b) Anderson Agiru v. Electoral Commission (2002) SC687:

“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 proceeding 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.”

c) Pokia v. Yallon (2014) SC1336 at [20]:

“An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Such an abuse can be committed when two proceedings are conducted simultaneously regarding the same cause of action (Telikom PNG Ltd v ICCC (2008) SC906) or when the plaintiff loses one proceedings then comes back to court for a “second bite at the cherry” to prosecute the same cause of action (Anderson Agiru v Electoral Commission (2002) SC687).”

12. I also reproduce the following passage from Jacob Popuna (supra) at [16] for completeness:

“It is immaterial that the appeal was summarily dismissed and not determined on its merits. It is also irrelevant that serious issues of public interest are involved. There must be finality in litigation. The applicants are now re-agitating the same grounds of grievance as they raised in appeal SCM 34 of 2015.By taking this course they are having “a second bite of the cherry”, which the Courts guard against as an abuse of process; Anderson Agiru v Electoral Commission and The State (supra) SC687, Application by Anderson Agiru (supra) SC704.”

13. That in this instance the applicants withdrew their appeal, as distinct from it being dismissed, does not detract from the applicants having exercised their right to appeal within the appeal period and then electing to forego their right of appeal by withdrawing the appeal. To then seek to review a National Court decision in respect of which they have withdrawn an appeal, is in my view, attempting to have, “a second bite at the cherry”.

14. Consequently, for the above reasons, I am satisfied that this proceeding is an abuse of process of the Supreme Court and accordingly it should be dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

15. It is ordered that:

a) This application for leave to review is dismissed;
b) The applicants shall pay the costs of the respondents’ of and incidental to the said application, to be taxed if not otherwise agreed.
__________________________________________________________________
Wal and Associates Lawyers: Lawyers for the Applicants
Office of the Solicitor General: Lawyers for the First and Second Respondent
Jema Lawyers: Lawyers for the Third Respondent