Maniha v Sia [2023] PGSC 108; SC2460 (18 September 2023)

SC2460

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 64 OF 2023 (IECMS)

BETWEEN:
IPAE MANIHA
Applicant

V
HON. SIMON SIA MP, as Governor and Chairman of the
Eastern Highlands Provincial Executive Council
First Respondent

AND
HON. JAMES MARAPE, MP, as Prime Minister and
Chairman of the National Executive Council
Second Respondent

AND
THE STATE
Third Respondent

Waigani: Anis J
2023: 15^th August, 18^th September

PRACTICE AND PROCEDURES – Application for leave to appeal – appeal against final decision of judicial review Court refusing leave for judicial review – leave sought on grounds that raise questions of facts only – s.14(c) – Supreme Court Act Chapter No. 37 – consideration - ruling

Cases Cited:

Anis Kore v. The State (2011) SC1136
Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307
Heni Totona and Ors v. Alex Tongia and Ors (2012) SC1182

Counsel:

B Nahupa, for the Appellant
R Uware, for the Respondents

RULING

18^th September 2023

1. ANIS J: The appellant filed his Application for Leave to Appeal on 26 May 2023 (leave application). On 15 August 2023, I heard arguments from the parties on the leave application. I reserved my decision thereafter to a date to be advised.
   

2. This is my ruling.

BACKGROUND

3. Briefly, the leave application stems from a final decision of a judicial review Court, that is, the National Court, and the decision was made on 28 April 2023 (Review Decision). The trial Judge therein refused to grant leave to the appellant to apply for judicial review.

4. The appellant had intended to review the following 2 decisions (my summary):

(a) The decision of the Eastern Highlands Provincial Executive Council dated 9 December 2022 that had recommended to the National Executive Council, Alan Los, the appellant, and Samson Akunai as first, second and third preferences respectively, for the post - Provincial Administrator of Eastern Highlands Province; and

(b) The decision of the Prime Minister and Chairman of the National Executive Council dated 1 February 2023 (NEC Decision No. 21/2023 of Special Meeting No.03/2023) to, (i), revoke the appointment of the appellant as the Acting Provincial Administrator of Eastern Highlands Province and, (ii), appoint Alan Los as the Administrator of Eastern Highlands Province for a term of 4 years.

5. In the Review Decision, a copy of which is adduced in evidence, the trial Judge refused to grant leave on the premise that the appellant had not established (i), sufficient interest, (ii), arguable case, (iii) exhausted administrative remedies and (iv) that granting leave would not be detrimental to good administration.

6. Aggrieved by the Review Decision, the appellant lodged 2 appeals, one was filed as of right against errors of law and mixed fact and law, and the second is this leave application on alleged questions of facts only.

QUESTIONS OF FACTS

7. I refer to the part C of the leave application and restate the purported questions of facts that the appellant intends to seek leave of the Court to appeal, and restate them herein:

(1) The trial Judge erred in fact in failing to take into account and give proper weight to the Applicant/Plaintiff’s ground of ultra vires pleaded under paragraphs 4(G) to 4 (J) if his “Statement in Support” supported by evidence contained in paragraphs 9 and 10 of the Applicant/Plaintiff’s Supplementary Affidavit filed on the 12^th of April 2023 as raising a serious and arguable case warranting leave to apply for judicial review? (sic)

(2) The trial Judge erred in fact in failing to consider and give proper weight to evidence of fraudulent affixation of photocopy of Hon. James Marape’s signature on the subject NEC Decision and evidence that the NEC Secretary Grace So-on was coerced into signing alongside Marape’s signature in that decision.

(3) The trial Judge erred in fact in failing to consider and give proper weight to evidence that there was no decision made at all by members of the NEC present at that meeting which considered appointment of the Provincial Administrator for Eastern Highlands Province.

PRELIMINARY CONSIDERATION

8. I make the following preliminary observations. When I consider the first proposed ground of appeal, I note that it does not allege an error of fact but rather refers to a claim that no proper weight was given by the trial Judge to the appellant’s pleaded ground of ultra vires. Then it refers to evidence that he filed that supported his said ground (i.e., ultra vires).

9. My second observation is this. I note that all the 3 proposed grounds of appeal appear to allege errors of law and mixed law and fact. As such, and in my view, they may not require leave as alleged by the appellant herein in this leave application.

10. But my third observation appears crucial and fatal to the leave application. I note that the power of a leave Court to grant or refuse to grant leave in an application for leave to apply for judicial review is discretionary. And it was in the exercise of the said discretion by the trial Judge that her Honour refused to grant leave to the appellant to apply for judicial review. So, given that this is an intended appeal against an exercise of discretion by the trial Judge, the proposed grounds of appeal should contain grounds or allegations that would say how the trial Judge had erred in the exercise of her discretion. The Supreme Court in Anis Kore v. The State (2011) SC1136 adopted Kapi J’s decision in Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307 where it stated:

5. The principles on an appeal against exercise of discretion are settled. This was explained by Kapi J in the Supreme Court case of Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307, thus:

"On matters of judicial discretion the High Court of Australia in House v. The King [1936] HCA 40;55 C.L.R. 499 at pp. 504-5.20 said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

"These principles have been recently approved in the case of Gronow v. Gronow (1979) 54 A.L.J.R. 243.21. The recent decision of the High Court of Australia is also referred to in the judgment of Mr. Justice Miles in Brian John Lewis v. The Independent State of Papua New Guinea Unreported judgment No. SC178, 29th August, 1980.22. All these principles have been adopted in numerous cases in this jurisdiction after Independence and they can be properly regarded as part of the underlying law of Papua New Guinea."

11. Also, in Heni Totona and Ors v. Alex Tongia and Ors (2012) SC1182, the Supreme Court stated in part at para 2 which I adopt herein as follows:

Where an appeal is against a primary judge's exercise of discretion, the onus is on an appellant to show that the exercise of discretion is clearly wrong or an identifiable error has occurred in the exercise of discretion. Alternatively, the judgment or order may be set aside where there is no identifiable error, but it is "unreasonable or plainly unjust" and such that an error can be inferred. See Curtain Bros (PNG) Ltd -v- UPNG (2005) SC788 which was subsequently endorsed and applied in The State -v- Sam Akoita & Others (2009) SC1016.

12. When I apply these criteria to the 3 proposed grounds of appeal, the so-called intended grounds of review or appeal not only appear non-compliant but are also frivolous and untenable. The grounds are drafted in a manner as if the trial Judge had dealt with the substantive judicial review where she had considered the evidence of the parties and had made a final decision when this was not the case; that all the trial Judge was required to do, as had been done in the matter, was make a quick assessment, that is, premised on what was pleaded in the Statement in Support (with brief perusal and consideration of the evidence) before deciding whether to allow or dismiss the leave application of the appellant. There is nothing in the proposed grounds of appeal to indicate whether the exercise of discretion by the trial Judge, (i), was clearly wrong, or (ii), an identifiable error was committed, or (iii) regardless of the 2 considerations, the outcome reached was unreasonable or plainly unjust which can be inferred from her Honour’s decision.

FINDING

13. Premised on the preliminary considerations and findings by this Court, I am not minded to grant this leave application. It shall fail on those reasons without the need to proceed further to consider the substantive arguments that are raised.

SUMMARY

14. The leave application is refused.

COST

15. I will order cost to follow the event.

ORDERS OF THE COURT

16. I make the following orders:

1. The Appellant’s Application for Leave to Appeal filed 26 May 2023 is refused.
   
2. The Appellant shall pay the Respondents’ costs of the application on a party/party basis which may be taxed if not agreed.
   

The Court orders accordingly

________________________________________________________________
Horizon: Lawyers for the Appellant
Solicitor General: Lawyer for the Respondents