Kilanda v Enga Provincial Government (No. 2) [2023] PGSC 165; SC2515 (15 December 2023)

SC2515

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 34 OF 2022 (IECMS)

EMMANUEL KILANDA
Applicant

AND
ENGA PROVINCIAL GOVERNMENT
First Respondent

AND
ALA ANE REGISTRAR of TITLES
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND
NATIONAL HOUSING CORPORATION
Fifth Respondent

(No. 2)

Waigani: Batari J
2023: 31^st October, 15^th December

SUPREME COURT APPEAL – final decision – slip rule application – leave to re-open appeal – principles of – grounds for grant of – onus on applicant to demonstrate glaring mistake, error or slip of law or fact on a critical issue is clearly manifest, and not arguable – text of decision – misapprehension of – costs – proposed grounds amount to raising an issue that was open to raise on costs but not raised – no slip disclosed – leave to make application under slip rule refused.

Held:

1. In an application for leave to make a slip rule application, the applicant must first get past the strict process where a high standard of satisfaction is applied in demonstrating upon a quick assessment of the arguments and materials, a glaring mistake, error or slip of law or fact on a critical issue, is clearly manifest, and not arguable on the face of the records: Andrew Trawen v Steven Kama (2016) SC1063.
2. The public interest in finality of litigation must weigh heavily against busy bodies bent on resorting to slip rule applications as an open-ended pathway to rehash purported errors, mistakes, or slips on a point of law or fact: MVIL (PNG) Trust v Yama Security Services Ltd (2009) SC1004.
3. Where the applicant took no issues on costs in response to the respondent’s submissions, it is belated and mischievous to raise this under the slip rule principles.
4. The slip rule application failed to demonstrate a strong chance of success based on a glaring mistake, error or slip of law or fact: Robert Saga v PNG Law Society (2010) SC1074.
5. Leave is refused.

Cases Cited:
Andrew Trawen v Steven Kama (2016) SC1063
James Marape v Tom Tomiape [2007] PGSC 18; SC856
MVIL (PNG) Trust v Yama Security Services Ltd (2009) SC1004
Re Nomination of Governor General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752
Richard Dennis Wallbank and Jeanette Minifie v State [1994] PNGLR 78

Robert Saga v PNG Law Society (2010) SC1074

Counsel:
Mr R Lains, for the Appellant/Applicant.

Mr L Kandi, for the First Respondent, Enga Provincial Government.

15^th December 2023

1. BATARI J: This is an application seeking leave to make a slip rule application under O. 11 r. 32 (2) and (3) of the Supreme Court Rules.

Background

2. Before the primary court in the proceedings initiated by a Writ of Summons, the Enga Provincial Government sued for fraudulent conversion of its titled over a prime State land located within Wabag town. The land described as Section 8, Allotment 1, Folio 128, Volume 18, Wabag, Enga Province was allocated and registered to the Provincial Government under a Certificate Authorizing Occupancy (CAO) arrangement.
3. The Provincial Government alleged the respondent, Emmanuel Kilanda, now the principal appellant/applicant in this application, was instrumental in converting the land status from a CAO to registered leases in collusion with the Registrar of Land Titles. The fraudulent conversion created two additional allotments and the titles over the sub-divisions vested in the appellant, Emmanuel Kilanda.
4. The trial judge found, the conversion and transfers of the CAO over the property to the National Housing Corporation (NHC) and eventually to the first and fifth defendants were fraught with irregularities and breaches of the Land Act and Land Registration Act and that the trails of fraudulent dealings in the transfer of the title were apparent on the face of the records.
5. So, the National Court ordered inter alia, that:
   • (i) the decision by the delegate of the Minister for Lands and Physical Planning to revoke the CAO held by the plaintiff is null and void,
   • (ii) the decision by NHC to transfer leases to the first and fifth defendants were null and void.
6. The court also ordered the Secretary for Lands and Physical Planning Department to execute a notice of forfeiture of the State lease over the property in question, forthwith.
7. Aggrieved by the decision of the primary court, the appellant appealed the decision on the following grounds in questionnaire form:
   • Whether the revocation of the CAO was an issue for the learned trial judge to consider and determine?
   • Whether the first respondent pleaded the alleged fraud with sufficient particularity in its amended statement of claim?
   • Whether the learned trial judge erred when he awarded interest on costs?
     
8. On 02/06/2023, this Court (Batari, Manuhu, Dowa JJ) dismissed the first two grounds and upheld the third ground of appeal.
9. The application for leave to re-open the appeal is opposed by the first respondent.

Applicant’s position.

10. The applicant proposes to show, this Court slipped when it said the mode of proceedings was only raised for the first time on appeal whereas the evidence on record showed the appellant raised the issue of mode of proceedings as a preliminary point of jurisdiction before the primary court. The primary judge heard that contention but failed to consider and rule on whether the matter was properly before the court.
11. The second nature of slip concerned award of costs on an indemnity basis. The applicant proposes to show the award of costs is inconsistent with settled principles that parties that parties would bear their own costs where the appeal partially succeeded on some grounds.
12. The applicant proposes to further argue, the Court denied it the right to be heard on whether punitive costs be ordered against it.

Respondent’s position.

13. The first respondent’s case is that the applicant has no prospect of success on the two grounds as they are founded on a misapprehension of the purpose and settled principles governing slip-rule applications which is, to correct a glaring error or mistake in a judgment or orders of the Court as per, Andrew Trawen v & Ors v Kama & Laimo (2010) SC1063. The grounds do not fall into any of the seven principles that govern a slip application under, James Marape v Tom Tomiape [2007] PGSC 18; SC856.
14. Hence, the anticipated grounds are not likely to succeed on the substantive hearing as they do not fall into the ambit of apparent mistake arising from some miscarriage in the judgment of the Court which ought to be corrected for public interest in the finality of the case.
15. On the second ground concerning orders for costs, Mr Kandi submitted the applicant is merely proposing to argue a point it had the opportunity to argue before this Court but failed to raise it.
16. Issue: The test to guide the Court determine an application for leave to make a slip rule application is: Whether, upon a quick perusal of the materials before the Court, there is demonstrated, a clear and manifest, not arguable, error of law or fact on a critical issue, as a ground or grounds to re-open the case under the slip rule principles.

Law and Principles on slip rule applications

17. The relevant principles that guide slip rule applications are settled. The seminal statement in, Richard Dennis Wallbank and Jeannette Minifie v State [1994] PNGLR 78 says, the case once finalized, can only be re-opened in the clearest slip error. The Supreme Court stated at p. 103:

“We consider that the public interest in the finality of litigation must preclude all but the clearest “slip” error as a ground to re-open.

To that extent, then, while the High Court of Australia may have been willing to widen its discretionary ambit of review, this Court is unwilling to go so far, for the mischief occasioned by the resultant uncertain nature of a Supreme Court decision following appeal would, in our view be contrary to the public interest.”

18. The public interest in finality of litigation must weigh heavily against busy bodies bent on resorting to slip rule applications as an open-ended pathway to rehash purported errors, mistakes, or slips on a point of law or fact. It is not as per MVIL (PNG) Trust v Yama Security Services Ltd (2009) SC1004 where the court stated:

“... the Slip Rule application is not an open-ended principle that one could invoke in every case when a party is unhappy about a decision or ruling against it. One has to show that there was an apparent mistake arising from some miscarriage in the judgment of the Court which ought to be rectified for the public interest in the formality of litigation. Otherwise for example this application would be a total abuse of process.”

19. In essence the Slip Rule application is restricted to determination of only genuine cases of a slip.
20. The applicant must first get past the strict leave process where a high standard of satisfaction is applied. There must be, upon a quick perusal, a glaring mistake or error in a judgment, or order of the Court, occasioned by clerical error or accidental omission in a judgment or order, or there has been a clear misapprehension of fact or law: Richard Dennis Wallbank; Re Nomination of Governor General, application by Sir Pato Kakaraya (No. 2) (2004) SC752; Andrew Trawen v Steven Kama (2016) SC1063.
21. The Court has no power to hear re-agitation of arguments already considered for its decision or hear arguments or issues which the applicant has failed to present or raise in the original hearing. See, Robert Saga v PNG Law Society (2010) SC1074.
22. In, Re-election of Governor General (2010) SC1085 the Supreme Court cautioned; “where an application does not demonstrate any glaring mistake, error or slip, it will be dismissed.”
    

Considerations

23. The applicant relies on two grounds. The arguments on each are set out in the parties’ written submissions. I have perused and considered those together with the parties’ oral submissions.
24. The contention by Mr Lains for the applicant on the first purported slip is based on what the Court stated at paragraph 17 of the judgment that:

“It is clear however that the appellant did not move any application before trial judge on this issue. By his silence, he is deemed to have submitted to the jurisdiction of the court to determine the claim as it was.”

25. The applicant’s contention, that the Court made a glaring oversight when it misapprehended the evidence on the mode of proceedings, is spurious and mischievously selective.
26. The full text of paragraph 17 under contention is in these terms:

“The argument is that if revocation of CAO was pleaded, the first respondent chose the wrong mode of proceedings. It should have sought a judicial review of the decision to revoke the CAO. It is clear however that the appellant did not move any application before the trial judge on this issue. By silence he is deemed to have submitted to the jurisdiction of the court to determining the claim as it was. Secondly, the claim was against the appellant and other individuals. It was pleaded that they were active participants in the fraudulent theft. They are not State officials. The argument on mode of proceeding being incorrect is therefore without merit.”

27. It is apparent, the applicant has knit-picked and labored on the first part of what the Supreme Court stated on the issue of mode of proceedings and circumvented the totality effect of the Court reasoning on the issue of mode of proceeding before the primary court.
28. The basis for this Court’s observations in paragraph 17 is founded on the transcript of proceedings before the primary court. First, there was no formal application on record that questioned the mode of proceedings.
29. Second, it is clear from the records, that the filing of the originating process was followed by close of pleadings as between the parties. The parties next proceeded to pre-trial conferences, concluding with a “Statement of Agreed and Disputed Facts and Legal Issues.”
30. The trial was then conducted and concluded on the basis of the cause being a claim of fraudulent theft against the appellant and others. It is clear the appellant had all along acquiesced to the plaintiff’s preferred originating process and had accepted the jurisdiction of the primary court to hear the case. It then belatedly raised the issue of mode of proceedings in final submissions in what may be aptly described as mischievous.
31. This Court has properly concluded, based on the history of the case, that the argument on mode of proceeding was incorrect and without merit.
32. Hence, no glaring mistake, error or slip has been demonstrated. The applicant has not shown the clearest “slip” error as a ground to re-open. The first ground will be dismissed for being misconceived and unmeritorious.
33. On the award of costs, the applicant is clearly seeking leave to argue a point of law that it should have raised but failed to do so at the hearing. It has not demonstrated a glaring mistake or error in a judgment or order of the Court, occasioned by clerical error or accidental omission. Nor has it shown existence of a clear misapprehension of fact or law. What the applicant seeks is, leave to agitate an issue it had the opportunity to argue but failed raise it.
34. It is settled that the Court has no power to hear re-agitation of arguments already considered for its decision or hear arguments or issues which the applicant has failed to present or raise in the original hearing: Robert Saga v PNG Law Society (2010) SC1074.
35. The award of costs is discretionary. In this case, the question of costs was before this Court in the respondent’s oral and written submissions. The applicant took no position on costs. It is belated and mischievous to raise this under the slip rule principles.
36. The application for leave to make a slip rule application is dismissed with costs to the respondent to be taxed if not agreed.

_______________________________________________________
Hardy & Stocks Lawyers: Lawyers for the Applicant
M S Wagambie Lawyers: Lawyers for the Fourth Respondent