Ikowari v Minister for Foreign Affairs [2022] PGSC 139; SC2340 (26 October 2022)

SC2340

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 120 OF 2018

BETWEEN:
IAN SMITH IKOWARI
First Appellant

AND:
AUSTRALIAN PAPUAN CIVIL
RIGHTS COUNCIL INC.
Second Appellant

AND:
MINISTER FOR FOREIGN AFFAIRS
First Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Respondent

Waigani: Salika CJ, Hartshorn J, Yagi J
2022: 1^st July, 26^th October

SUPREME COURT – Appeal – decision subject of appeal first brought as part of enforcement of human rights under s57 Constitution - relief sought was a declaration that all persons born in the former Territory of Papua before Independence Day who were recognised under Australian law as Australian citizens, are still Australian citizens and not Papua New Guinea citizens - respondents contend amongst others, that the primary judge did not fall into error as contended by the appellants or at all - respondents submit appeal is incompetent in its form and content and the grounds of appeal are vague, ambiguous and incomprehensible - there is no law of Papua New Guinea that gives jurisdiction or power to any court including the National and Supreme Courts to declare that a person is a citizen of a country other than Papua New Guinea – appeal is frivolous and is bound to fail – appeal dismissed

Cases Cited:
Don Polye v. Jimson Papaki & Ors (2000) SC637
Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978
Rimbao v. Pandan (2011) SC1098
Mendepo v. National Housing Corporation (2011) SC1169
Moime v. National Housing Corporation (2012) SC1191
Minicus v. Telikom (2014) SC1368
Amben v. Telikom (2015) SC1422
National Airports Corporation v. Simitap (2019) SC1883
State v. Nimbituo (2020) SC1974

Counsel:

Mr. I. S. Ikowari, the First Appellant in person
Mr. E. Geita, for the First and Second Respondents

26^th October, 2022

1. BY THE COURT: The appellants appeal a judgment of the National Court which refused all of the relief which they had sought and dismissed their proceeding.

2. The appellants had commenced their proceeding in the National Court for the enforcement of human rights under s. 57 Constitution. The relief sought was a declaration that all persons born in the former Territory of Papua before Independence Day who were recognised under Australian law as Australian citizens, are still Australian citizens and not Papua New Guinea citizens.

3. The appellants are Mr. Ian Smith Ikowari and the Australian Papuan Civil Rights Council Incorporated of which Mr. Ikowari is the President.

4. The appellants contend amongst others, that the primary judge in the National Court fell into error in his consideration of the appellants claim in not upholding their case on the evidence; in finding that there was no merit in the claim that the appellants had been denied the right to choose as no referendum had been conducted; in his consideration of the referendum question generally and in his consideration of various provisions of the Constitution of Papua New Guinea.

5. The respondents contend amongst others, that the primary judge did not fall into error as contended by the appellants or at all. Further, the respondents submit that the appeal is incompetent in its form and content and the grounds of appeal are vague, ambiguous and incomprehensible.

Consideration

6. The relief that the appellants seek in this appeal includes that the appellants claim as to Australian citizenship should be upheld. That claim as to Australian citizenship in the National Court was for a declaration that certain persons are Australian citizens. As referred to by the primary judge at [10] in his written reasons, the question of whether any pre-Independence Papuan is granted Australian citizenship is a matter entirely for the Government of the Commonwealth of Australia. Then at [35], the primary judge refers to there being an argument that seeking relief to declare that a person is a citizen of another country, is beyond the jurisdiction of the National Court.

7. We concur with the observations of the primary judge in this regard. Put simply, there is no law of Papua New Guinea that gives jurisdiction or power to any court including the National and Supreme Courts to declare that a person is a citizen of a country other than Papua New Guinea. Even if we found merit in this appeal, which we do not, we would not be able to grant the relief sought. This appeal is bound to fail as the relief sought cannot be granted by this Court. Consequently, the appeal is frivolous. In such circumstances this Court is able to exercise its inherent jurisdiction to determine the appeal to ensure the integrity of its process.

8. In Don Polye v. Jimson Papaki & Ors (2000) SC637, the Court said:

“This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly, any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process.”

9. In ensuring the integrity of its processes this Court may exercise that power of its own volition: Moime v. National Housing Corporation (2012) SC1191; Minicus v. Telikom (2014) SC1368; Amben v. Telikom (2015) SC1422; National Airports Corporation v. Simitap (2019) SC1883; State v. Nimbituo (2020) SC1974 - see also Don Polye v. Jimson Papaki (supra); Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978; Rimbao v. Pandan (2011) SC1098 and Mendepo v. National Housing Corporation (2011) SC 1169. Consequently, as this appeal is frivolous as it is bound to fail the appeal should be dismissed.
10. We mention further, that after considering the written and oral submissions of the appellants and the other documentation that was before this Court on behalf of the appellants, we are not satisfied that the appellants have demonstrated that the primary judge fell into error in any respect in his consideration of their case in the National Court. For the above reasons the appeal should be dismissed. Given this it is not necessary to consider the other submissions of the parties.

Orders

11. The Court orders that:

a) This appeal is dismissed.

b) The appellants shall pay the costs of the respondents of and incidental to this appeal.

__________________________________________________________________
Lawyers for the Appellants: First Appellant in person
Solicitor General: Lawyers for the First and Second Respondents