Somare v Nen [2023] PGSC 104; SC2449 (29 August 2023)

SC2449

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 10 OF 2016

REVIEW PURSUANT TO CONSTITUTION, S 155(2)(b)

BETWEEN:
SIR MICHAEL THOMAS SOMARE, Prime Minister and Chairman of the National Executive Council
- First Applicant -

AND:
NATIONAL EXECUTIVE COUNCIL
- Second Applicant -

AND:
YANTA DEVELOPMENT ASSOCIATION INCORPORATED
- Third Applicant -

AND:
HENGAMBU LANDOWNERS ASSOCIATION
- Fourth Applicant –

AND
THOMAS NEN Representative for and on behalf of
the Babwaf Clan
- First Respondent -

AND:
PIU INCORPORATION LAND GROUP
- Second Respondent –

AND:
ELEVEN OTHER CLAIMANTS

Waigani: Logan J.
2023: 29^th August
(Heard on the papers)

APPEALS AND REVIEWS – PRACTICE AND PROCEDURE – Application by respondents for leave to make slip rule application – Supreme Court Rules, Order 11, rule 32(3) – leave application grounded in attempt to rehash submissions rejected on substantive hearing, in misapprehension as to the reasons for the making of orders on that substantive hearing and in endeavour to raise controversy as to facts immaterial to the making of those orders – application for leave dismissed

Cases Cited:
Dick Mune v Paul Poto (No 2) [1997] PNGLR 356
Gibson Nad v BSP Limited (SCA 138/2011, 1 July 2016, unnumbered judgment).
Independent State of Papua New Guinea v Transferees [2016] PGSC 6, SC1488
James Marabe v. Tom Tomiape & Anor (No. 2) (2007) SC856
Red Coco Properties Limited v Gimiseve (2023) SC2383
Robert Saga v PNG Law Society [2010] SC1070
Trawen v Kama [2010] PGSC 15; SC1063

Legislation Cited:
Land Dispute Settlement Act 1975 ss 4, 4(1), 4(3)
Supreme Court Rules, Order 11, rule 32(3)

Counsel:
Heard by court order on the papers on the basis of written submissions filed by the lawyers for the respondents (applicants for leave to make a slip rule application) and by the lawyers for the fourth and fifth applicants (as active party respondents to the leave application). The other applicants did not file submissions in response to the leave application.

29^th August 2023

1. LOGAN J: On 30 October 2018, this Court called up and quashed certain orders made by the National Court on 6 November 2015. One order made by the National Court had quashed a decision of the National Executive Council (second applicant in this court, second defendant below) of 11 January 2011 to advise the Head of State to revoke the appointment of the fourth, fifth and sixth respondents (the fourth, fifth and sixth plaintiffs in the court below) as Commissioners of the Special Land Titles Commission hearing the long standing customary landownership dispute in relation to the land known as “PIU” and identified as Portion 8C, Milinch of Wasus, Fourmil of Markham, Morobe Province (the PIU land): see Somare v Nen [2018] PGSC 81; SC1722 (principal judgment). Another order made by the National Court on 6 November 2015, also quashed by this court on 30 October 2018, was an order in the nature of a mandamus compelling the first and second applicants (first and second defendants below) and the State to facilitate the reinstatement of the fourth, fifth and sixth respondents (fourth, fifth and sixth plaintiffs in the court below) as Commissioners of the Special Land Titles Commission to hear and determine the customary landownership dispute in relation to the PIU land.
   
2. On 20 November 2018, the first to sixth respondents, lodged an application, at least purportedly pursuant to Order 11, rule 32(3) of the Supreme Court Rules for leave to “slip rule” application in respect of the orders made on 30 October 2018. In the event that leave were granted, the respondents sought, pending the determination of the slip rule application, a stay of the orders made on 30 October 2018. An amended application for leave was filed on 2 August 2019 by the first respondent.
   
3. It is the amended application for leave which falls for determination. Originally, that application was listed for hearing in 2020 before another of the judges who, with me, had constituted the Supreme Court for the purpose of hearing and, on 30 October 2018, determining the applicants’ application for review. It did not prove possible for the leave application to be heard then. Although the particular reason is not apparent from the court file, it is a notorious fact that the then prevailing COVID-19 pandemic impacted upon the ordinary conduct of court business. However that may be, but perhaps in recognition of that ongoing impact, it was eventually directed that the leave application be heard by me on the papers, following the filing and service of written submissions. That direction was made on 10 May 2021. This notwithstanding, and also for reasons which are not apparent from the court file, it did not come to my attention until recently. Whatever the fate of the leave application may be, an apology is due to the parties for the delay.
   
4. As it happens, the amended leave application is utterly misconceived, for reasons which I shall now detail. That recorded, it is regrettable that it has taken this long for that misconception to be determined. I am all too aware that the background to the proceeding is a decades long controversy concerning the PIU land. That a misconceived slip rule application may perhaps have added to that controversy in the face of what was, by the principal judgment, a final determination by the country’s highest court of one dimension of it is unfortunate.
   
5. Although they were filed on 20 November 2018, the original slip rule applications were not served on the fourth and fifth respondents until 22 November and 3 December 2018 respectively. Order 11, rule 32(3) requires that a slip rule application be both filed and served, “within 21 days of the order disposing of the proceeding”. In the absence of any order relaxing that requirement, that meant that a leave application had to be both filed and served on or before 20 November 2018 (not 19 November 2018, as the fourth and fifth respondents contended, because the date of the order is excluded from the calculation of the period).
   
6. There is authority to which attention is drawn by the fourth and fifth respondents: Independent State of Papua New Guinea v Transferees [2016] PGSC 6, SC1488, that the time limit specified in Order 11, rule 32(3) must be strictly complied with. An authority to like effect is Gibson Nad v BSP Limited (SCA 138/2011, 1 July 2016, unnumbered judgement). This is the position in the absence of any order abridging time. Although made after the time had expired, such an order might to be made to operate nunc pro tunc so as to regularise what would otherwise be non-compliance with the specified time limit.
   
7. There is no consensus between the parties as to whether the order originally setting the amended leave application down for hearing carried with it such an abridgement. The court file does not indicate the position one way or the other. In any event, against the background of such a longstanding controversy, and given that the missed time limit is so short and the impossibility of any prejudice to the respondents arising therefrom, I should unhesitatingly grant any necessary abridgement of time for the filing of a leave application in the event that the application had any reasonable prospect of success. It is overwhelmingly in the interests of justice, which extend beyond those just of the parties in a case like the present, that this leave application be determined on the merits. The applicants should not be left with an impression that their application ever had any merit and failed merely because of some technicality.
   
8. Recently, in Red Coco Properties Limited v Gimiseve (SCA 41 and 42 of 2021, 28 April 2023, as yet unnumbered), at [3], the Court observed, with reference to Robert Saga v PNG Law Society [2010] SC1070 and Dick Mune v Paul Poto (No 2) [1997] PNGLR 356:
   

The purpose of a slip rule application is to correct a glaring error or mistake in a judgement of the Court: Robert Saga v PNG Law Society [2010] SC1070. One type of error could be, and in this case is, a manifest, not merely arguable, error of fact. Such applications are not an opportunity to re-litigate the merits of a case, only to correct such errors so as to avoid an injustice. Where, truly, there is such an error, a party should not hesitate to bring such an application for fear of in some way offending the judge or judges who constituting the Court by the highlighting of an error or mistake. While it is to be hoped such errors are avoided, to err is human and no judge true to his or her judicial oath should take umbrage or offence at acknowledging an error so as to avoid an injustice. We certainly do not. Indeed, we apologise to the parties and Red Coco in particular for the error and consequential inconvenience. The Court has an inherent jurisdiction to rectify such glaring errors or mistakes: Dick Mune v Paul Poto (No 2) [1997] PNGLR 356.

9. Earlier, in Trawen v Kama [2010] PGSC 15; SC1063, a Full Court of five judges conducted an extensive review of authority, in this jurisdiction and overseas, concerning slip rule applications. The Court referred with particular approval to an identification of relevant principles in James Marabe v. Tom Tomiape & Anor (No. 2) (2007) SC856. Those principles are:
   

(1) There is a substantial public interest in the finality of litigation.

(2) On the other hand, any injustice should be corrected.

(3) The Court must have proceeded on a misapprehension of fact or law.

(4) The misapprehension must not be of the applicant's making.

(5) The purpose is not to allow rehashing of arguments already raised.

(6) The purpose is not to allow new arguments that could have been put to the Court below.

(7) The Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue."

10. I have approached the determination of whether to grant leave with these authorities in mind.
    
11. One finding for which the respondents contend if leave be granted to make a slip rule application is that the application ought to have been dismissed because “the wordings in the Gazettal Notice ... was clear with the references to section 4(1) of the Act and was clear in its intent and purport to declare or order that the Land Settlement Act did not apply to the particular dispute as is clear from the text of the Gazettal Notice”. Just to set out the finding for which the respondents contend is immediately to demonstrate that, in this regard, the leave application is a blatant, and thus impermissible, endeavour to rehash arguments already made.
    
12. Moreover, the finding for which the respondents contend is based on a flawed reading of the principal judgement. As is recorded in the principal judgement, an interrogative note was raised in the course of oral submissions as to whether there had been compliance with s 4(1) of the Land Disputes Settlement Act. The Court expressed the view, as a matter of first impression that there had not been. However, as is made pellucid by the court, at [24], it proved unnecessary for a conclusion to be reached on that subject:
    

As it happens, answering the question which emerged in the course of submissions renders it unnecessary for a conclusion to be reached as to the correctness of that first impression in relation to the absence of lawful authority for the appointment of the Special Commissioners on the basis of the absence of an explicit declaration in the instrument as gazetted.

[Emphasis added]

13. As the principal judgment reveals, the invalidity in the appointment of the Special Commissioners resulted from a failure to comply with s 4(3) of the Land Disputes Settlement Act.
    
14. As the principal judgment reveals, at the issues in the review application, though initially diverse, came consensually to narrow to the meaning and effect of s 4 of the Land Disputes Settlement Act in the events which had transpired:
    

14. As oral submissions progressed, it became apparent that the resolution of the case turned not on the answering of such questions but rather upon the true construction and application in the circumstances of s 4 of the Land Disputes Settlement Act. Further, it became common ground that, if there existed lawful authority for the appointment of the Special Commissioners, the learned primary judge was correct in his conclusion that they had been denied natural justice prior to the revocation of their appointments, with the consequence that his Honour was correct to direct the quashing of the revocation decision.

15. In these circumstances, it is not necessary to set out the prolix grounds of review, much less to address them. It is sufficient just to address the question upon which the parties came to accept that the outcome of the review would turn.

15. Misconceiving the principles attending a slip rule application, the respondents sought in various ways to contend that the Court should have come to a different view about the invalidity of appointment because, “there was no real issue” about the appointment or in light of earlier decisions, be those of a Local Land Court or a Provincial Land Court. Quite how such earlier decisions could have any relevance whatsoever to the meaning and effect of s 4(3) of the Land Disputes Settlement Act is elusive. Further, as the extract from the principal judgement just quoted reveals, there was a very real issue on the hearing of the review application as to the meaning and effect of that provision. Indeed, subject to consideration of whether a denial of procedural fairness to the Special Commissioner respondents could ever in the circumstances entail practical injustice to them, the meaning and effect of that provision proved to be the only issue between the parties. As it happens, for reasons given in the principal judgement, the Court concluded there no practical injustice existed.
    
16. Having found that there had been invalid appointments and that no practical injustice resulted from a denial of procedural fairness, the Court added, at [5] of the principal judgment:
    

55. Finally and lest it be thought that it has escaped our attention, we add that, even if the appointment of the Special Commissioners had been valid, it could never lawfully have been within their remit to determine any question as to the customary ownership of any land the ownership of which had already been the subject of a final judicial determination under the Land Disputes Settlement Act prior to their appointment.

17. This supplementary observation excited another ground of the leave application. It was put for the respondents that this observation entailed some error of fact as to earlier court decisions concerning the PIU land. Even if this were so, it could have had no relevance to the meaning and effect in the circumstances of s 4(3) of the Land Disputes Settlement Act and the resultant invalidity in the appointment of the Special Commissioner respondents. Moreover, as the principal judgement reveals, such facts had no role whatsoever in the conclusion reached as to the invalidity of appointment. Any error, even if there were one, was immaterial to the disposal of the application for review. In those circumstances, it is quite unnecessary to delve further into that subject.
    
18. The observation was nothing more than confirmation by the Court of an awareness that there had been much prior litigation and what would have been the consequence, were the Special Commissioner respondents appointments to have been valid of an earlier determination of ownership by a court of competent jurisdiction. Moreover, and as the fourth and fifth applicants pointed out in their submissions, any earlier Local Land Court determination that compensation was payable to them necessarily carried with it a conclusion that they were entitled to such compensation because of ownership.
    
19. It necessarily follows that the amended leave application must be dismissed, with costs.
    

Orders

1. The amended application filed on 19 August 2019 for leave to make a slip rule application pursuant to Order 11, rule 32(3) of the Supreme Court Rules be dismissed.
   
2. The respondents pay the fourth and fifth applicants’ costs of and incidental to that amended application, and those of and incidental to the applications for leave under that rule as originally filed on 20 November 2018, to be taxed by a registrar, if not agreed.
   

____________________________________________________________________
Twivey Lawyers: Lawyers for the Fourth and Fifth Applicants
Ketan Lawyers: Lawyers for the First Respondent
HBEST Wally Lawyers: Lawyers for the Second to Sixth Respondents