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Yoto v Sampson [2023] PGSC 5; SC2351 (13 February 2023)

SC2351

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NO. 67 OF 2021 (IECMS)


BETWEEN:
HON. TABOI AWI YOTO, MP, in his capacity as the Chairman of the Fly River Provincial Executive Council
-First Appellant-


AND
PROVINCIAL EXECUTIVE COUNCIL OF THE FLY RIVER PROVINCIAL GOVERNMENT
-Second Appellant-


AND
FLY RIVER PROVINCIAL GOVERNMENT
-Third Appellant-


AND
ROBERT ALPHONSE KAIYUN
-Fourth Appellant-


V


AQUILA SAMPSON
-First Respondent-


AND
NATIONAL EXECUTIVE COUNCIL
-Second Respondent-


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Respondent-


Waigani: Kassman J, Anis J, Narokobi J
2022: 28th September
2023: 13th February


TWO APPLICATIONS – Application to dismiss appeal for alleged abuse of the court process – Order 13 Rule 16(1)(a) – Supreme Court Rules – Inherent jurisdiction of the Supreme Court - Application to remove a party from the appeal proceeding – Order 11 Rule 11 – Supreme Court Rules – whether party sought to be removed has interest in the matter or is a relevant party - whether Supreme Court can depart or deviate from one of its earlier decisions on law – s 155(1)(2) and Schedule 2.9(1) – Constitution – considerations - ruling

PRACTICE AND PROCEDURES – application of Order 11 Rule 11 – whether Order 11 Rule 11 may be invoked as an appropriate source to apply to remove a party from an appeal proceeding – whether the Supreme Court Rules 2012 as amended, permits or have provisos for removal of parties from appeal proceedings

PRACTICE AND PROCEDURE – Composition of the bench – circumstances arising that would or may warrant an increase in the number of judges to a bench to hear an appeal discussed – circumstance include situation where an issue may cause the Court to consider whether to depart from its earlier decision on a law


Cases Cited:
Barrick (Niugini) Limited v Stanley Nekitel & Ors (2021) SC2092
National Capital District -v- Yama Security Services Limited (2017) SC1575
SCM No 2 of 2022 – National Executive Council and Ors v Aquila Sampson (delivered on 1 July 2022)
Acquila Sampson v. the National Executive Council and Ors (2021) N9275
Acquila Sampson v. the National Executive Council and Ors (2021) N9347
Titi Christian v Rabbie Namaliu (1996) SC1583


Counsel:


M P Tamutai, for the Appellants [First – Fourth Appellants]
G J Sheppard, for the First Respondent

L P Kandi, for the Second & Third Respondents


13th February, 2023

  1. KASSMAN J: On 8th September 2022, the directions and listings judge set for hearing two applications which this court heard on 28th September 2022 and reserved. I have had the benefit of reading the draft decision of my brother Anis J. This is my ruling on both applications.
  2. For the purpose of my ruling:
  3. At the hearing, all parties were represented by counsel. Mr Tamutai appeared for Yoto, PEC, FRPG and Kaiyun (together “the Appellants”), Mr Sheppard appeared for Samson and Mr Kandi appeared for NEC and the State.

PRELIMINARY


  1. At commencement of the hearing of the two applications, the Court invited counsel for the parties to indicate whether there were any preliminary issues to be raised. All counsel said there were none. The Court was conscious a member of our bench Narokobi J was also a member of the bench (with Makail and Collier JJ) which upheld an objection to competency of the substantive appeal in proceeding SCM 2 of 2022 on 1 July 2022 and that may have a bearing on the two applications before this court and the substantive appeal in this proceeding. Without any further discussion, this court, as constituted, proceeded to hear the two applications.

THE TWO APPLICATIONS


5. The application filed first in time, on 20 July 2022 by Samson, sought orders to dismiss the substantive appeal. In support of the application to dismiss, Samson relied on his affidavit filed 20 July 2022. Samson states his grounds for dismissal are:


“(a) On 29 June 2022, this matter returned before the full Court (Batari, Collier, Narokobi JJ) for hearing of the First Respondent’s Objection to Competency.

(b) That hearing was vacated by the full Court pending the decision of the full Supreme Court (Makail, Collier, Narokobi JJ) in SCM 2 of 2022 – NEC & Ors v Aquila Sampson on a Notice of Objection to Competency on similar grounds.

(c) On 1 July 2022, the full Supreme Court (Makail, Collier, Narokobi JJ) in SCM 2 of 2022 – NEC & Ors v Aquila Sampson (“SCM 2”) delivered its decision and dismissed SCM 2 as an abuse of process because the Court found that the Fly River Provincial Government did not exist as a legal entity.

(d) The herein appeal is also commenced by the non-existent Fly River Provincial Government.

(e) Consistent with the full Court decision in SCM 2, the herein appeal is also an abuse of process and should be dismissed with costs.”
6. The application filed second in time, on 29 July 2022 by the Appellants, sought orders to remove Samson as a party to the proceedings. In support of the application for removal of Samson, the Appellants relied on four affidavits filed on 29 July 2022. Those affidavits were each sworn by Mathew Tamutai, Elizabeth Ngomba, Guia Asiri and Kaiyun respectively. The Appellants state their grounds for removal of Samson are:


“(a) The Appeal emanates from the National Court proceedings number OS (JR) No. 734 of 2018 filed by the First Respondent as the Plaintiff seeking to review the NEC Decision No. 223/2018 made on 2 August 2018 which rescinded its earlier decision titled NEC Decision No. 153/2018 of 7 June 2018 to appoint the First Respondent as the Provincial Administrator for Western Province.

(b) The First Respondent’s claim was that the Court should uphold NEC Decision No. 153/2018 of 7 June 2018 and quash NEC Decision 223/2018 of 2 August 2018 in-spite of the fact that he did not have a gazettal notice of his appointment.

(c) On 9 December 2021, the National Court made Orders that the Judicial Review of the Plaintiff, now First Respondent, is granted and NEC Decision No. 223/2018 of 2 August 2018 is null and void and ordered that the Plaintiff is duly appointed pursuant to NEC Decision No. 153/2018 of 7 June 2018. The gist of the Appeal is against this decision.

(d) It is noteworthy that the NEC Decision No. 153/2018 of 7 June 2018 proclaims, in paragraph 3 (ii), that Aquila Sampson is appointed for a period of four (4) years effective from the date of the decision, which is 14 June 2018, and that has expired on 14 June 2022.

(e) Due to the expiry of the term of his purported appointment, the First Respondent no longer has any interest in the outcome of the Appeal.”


PRIORITY WHEN CONSIDERING BOTH APPLICATIONS


7. Mr Sheppard argued the court should hear first Samson’s application to dismiss which was filed first in time and, if granted, would determine the proceeding leaving nothing further for consideration. Mr Kandi argued we should hear first the Appellants’ application for removal of Samson as a party to the proceedings. Mr Tamutai argued we should hear and determine both applications together.


8. At times, the court may consider it expedient to hear and determine first an application that has the effect of determining the substantive proceeding and rendering unnecessary any other application. That was the rationale relied on by Samson’s lawyer. In the interests of time, we heard both applications on the same day and reserved. We now deliver our rulings on both applications. The nature of the respective applications suggest we first consider and rule on the application to remove Samson as a party to the appeal and then rule on the application to dismiss the appeal. The main reason for this is that both applications were heard and reserved on the same day. Further, we must also rule on the costs of the respective applications.


BACKGROUND


9. I set out some pertinent background facts including that about the various proceedings in the National Court and the Supreme Court. At the relevant time, Samson was appointed and employed as Provincial Administrator of the Fly River Provincial Government. That appointment was subsequently revoked. The revocation was then challenged by Samson in an application for judicial review in National Court proceeding OS(JR) 734 of 2018. In the course of that judicial review proceeding, the National Court refused an application to refer Constitutional questions to the Supreme Court. That refusal was then challenged in an application to the Supreme Court in proceeding SCM 2 of 2022. On 9 December 2021, the National Court upheld Samson’s judicial review application and granted a number of declarations (“the primary decision”).


10. The primary decision was then challenged by the Appellants in an application to the Supreme Court filed in proceeding SCM 67 of 2022 which is the substantive proceeding from which the two applications, now before us, emanate. In both SCM 2 of 2022 and SCM 67 of 2022, notices of objection to competency were filed. The objection in SCM 2 of 2022 was heard by the Supreme Court presided over by Makail, Collier and Narokobi JJ and was reserved. The hearing of the objection in SCM 67 of 2022 was vacated by the Supreme Court comprising Batari, Collier and Narokobi JJ pending determination of the objection in SCM 2 of 2022. That court was of the view both objections were premised on similar grounds. The objection in SCM 67 of 2022 remains to be heard and determined. The objection in SCM 2 of 2022 was upheld on 1 July 2022 which resulted in the dismissal of the proceeding SCM 2 of 2022.


JURISDICTION – GENERALLY


11. Before considering any application or matter, this court must first determine whether it has jurisdiction to hear and determine the application. That involves an examination of the applicable law. Even where the court is of the view that we have jurisdiction according to law, the court must also consider whether the court should exercise that power and that is an exercise of discretion taking into account the applicable law and the relevant facts and circumstances of the application or matter before the court.


JURISDICTION TO REMOVE A PARTY TO AN APPEAL


12. In the application filed 29 July 2022 to remove Samson as a party to this appeal, the Appellants rely on various provisions of the Supreme Court Rules, National Court Rules and the Constitution. Specifically, Order 11 Rule 11 of the Supreme Court Rules, Order 2 Rule 1(h) of the Supreme Court Rules and Order 5 Rule 9(b) of the National Court Rules and Section 155(4) of the Constitution.


13. Order 11 Rule 11 of the Supreme Court Rules provides “The court or a judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just and give all consequential directions.” It is instructive that rule 11 is contained under the Division 8 which is titled “Adding parties and amendment”. So firstly, the rule makes specific provision for the addition of parties. Rule 11 however does not provide the power to remove a party that is already named as a party in the appeal.


14. The Supreme Court Rules, generally and specifically, do not provide the power to remove a party to an appeal. We say that was deliberate. The assumption should always be that the parties to an appeal must always be the parties who were before the National Court when the decision of the National Court, now under consideration in the appeal, was delivered. Those parties would be affected by the outcome of the appeal and must be allowed the opportunity to be heard. That is procedural fairness. Any other person not a party in the National Court may be added as a party to the appeal and the power to add a party is specifically provided by Rule 11. Samson was the principal plaintiff in the National Court and the decision of the National Court resulted in declarations made in Samson’s favour. That decision is now under appeal. Samson is a necessary party as he will be directly affected by the decision of the Supreme Court when the objection to competency and the substantive appeal are heard and determined.


15. Mr Tamutai also relied on other provisions of the Supreme Court Rules and the Constitution. Order 2 Rule 1 of the Supreme Court Rules provides the power to this court to apply certain Rules of the National Court with necessary modification. The power to remove a party is not included in Rule 1. Firstly, I say again, the framers of the Rules were deliberate in deciding to exclude the power to remove a party to an appeal.


16. By Order 2 Rule 1(h), power is provided to this court to apply Rules of the National Court with necessary modification where there is no provision in the Supreme Court Rules. Order 5 Rule 9(b) of the National Court Rules provides “Where a party (a) has been improperly or unnecessarily joined; or (b) has ceased to be a proper or necessary party, the Court, on application by any party or of its own motion, may, on terms, order that he cease to be a party and make orders for the further conduct of the proceedings.” Firstly, and reiterating my discussion above, I say the framers of the National Court Rules made the deliberate decision to include the power to remove in proceedings in the National Court under the circumstances provided. A party may have been improperly or unnecessarily named as a party.


17. For completeness, I will address the question whether Samson has been improperly or unnecessarily joined or has Samson ceased to be a proper or necessary party to this appeal. I repeat my discussion above. Samson was the principal plaintiff in the National Court and the decision of the National Court resulted in declarations made in Samson’s favour. That decision is now under appeal. Samson is a necessary party as he will be directly affected by the decision of the Supreme Court when the objection to competency and the substantive appeal are heard and determined.


18. Section 155(4) of the Constitution provides “Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”


19. Firstly, I say the Supreme Court has repeatedly said this section is not itself a source of a cause of action or, as in the matter before this court, this section does not itself provide the source of power to do what is sought by the appellants. The section provides the court with unlimited power and jurisdiction to fashion orders to give effect to rights or powers that exist principally in law and equity.
20. Secondly, the Supreme Court has repeatedly said this section cannot be applied where there already exists substantive and procedural power in law and equity for the orders sought. As discussed above, the power to remove a party is provided in the National Court Rules in Order 5 Rule 9(b) and is deliberately excluded in the Supreme Court Rules in Order 11 Rule 11.


21. In Barrick (Niugini) Limited -v- Stanley Nekitel & Others SC2092, an applicant relied on Order 13 Rule 16(1)(a) and (c) of the Supreme Court Rules and Section 155(4) of the Constitution in seeking various relief including summary determination. The Supreme Court said “As to reliance on Section 1554(4) of the Constitution, it is trite law that the provision does not confer primary jurisdictional power. It however confers jurisdiction to issue facilitative orders in aid of enforcement of a primary right: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402. Where remedies are already provided for under other law, Section 155(4) does not apply: William Powi (Acting Administrator of Southern Highlands Province) v Southern Highlands Provincial Government (2006) SC844, Medaing v Ramu Nico Management (MCC) Ltd (2011) SC 1156, Behrouz Boochani v The State (2017) SC1566. There is no need to rely on Section 155(4) when Order 13 Rule 16 is invoked.”


22. The application filed 29 July 2022 to remove Samson as a party to this appeal is refused.


JURISDICTION TO DISMISS THE APPEAL


23. In the application to dismiss this appeal as an abuse of process filed on 20 July 2022, Samson relies on Order 13 Rule 16(1)(a) of the Supreme Court Rules and this court’s inherent jurisdiction. Order 13 Rule 16(1)(a) provides “The Court may summarily determine a matter: (a) on application by a party;” There is no dispute this provides a party with the power to apply to summarily dismiss an appeal. That power to dismiss is applicable where there is non-compliance with any applicable procedural requirement in the Supreme Court Rules or there is non-compliance with a direction or order of the court issued with a view to progressing an appeal to hearing.


24. In National Capital District -v- Yama Security Services Limited (2017) SC1575, it was said “The Supreme Court has consistently said the power to summarily determine a matter is discretionary, similar to the power to dismiss an appeal for want of prosecution pursuant to Order 7 Rule 48 (formerly Rule 53) of the Supreme Court Rules. In General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331 the Supreme court held that:-


“1. The power to dismiss an appeal for want of prosecution pursuant to Rule 53(a) of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation.

  1. Matters relevant to the want of due diligence include failure to attend on settlement of the appeal book, failure to explain non-attendance, failure to respond to correspondence and failure to provide an explanation for dilatory conduct where an explanation could properly be expected
  2. The discretionary power under Rule 53(a) should not be exercised where no explanation for want of due diligence is made.”

The Supreme Court has adopted and applied the common law principles in two English cases ...Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v. James [1978] AC 297 at 298. The relevant principles adopted was “That the power of the Court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to service prejudice to the defendant.”

These principles have been applied in numerous authorities including Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55: Joshua Kalinore v Paul Paraka (2007) SC874; Peter Norr v Domini Ikamata (2005) SC815: Bore v Wakore (2015) SC1410: State v the Transferrees (2016) SC1488.”


25. In Barrick (Niugini) Limited -v- Stanley Nekitel & Others (supra), the Supreme Court said:


“20. Case authorities demonstrate that the types of applications that may be made under Order 13 Rule 16 in connection with a matter are:

  1. Where there has been a failure to prosecute a matter with due diligence resulting in delay: Department of Works v International Construction (PNG) Ltd (2011) SC1122.
  2. Where there is want of prosecution of a matter: Department of Works v International Construction (PNG) Ltd (2011) SC1122, The State v the Transferees (2016) SC1488, Benny Ilai v Michael Yasma (2019) SC1857, Aisi Iuma Bore v Elias Wakore (2015) SC1410.
  3. Where there is a default and failure to comply with the Court’s directions: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2013) SC1230.

21. In Department of Works v International Construction (PNG) Ltd (2011) SC1122, the Court held that the principles that apply to an application to dismiss an appeal for want of prosecution ought to be adopted and applied with necessary modification in dealing with matters brought before it under Order 13 Rule 16(1).

22. The case authorities mentioned above demonstrate that Order 13 Rule 16 should only be invoked in dealing with procedural matters. In that context, we would also add to the above list that a matter can be summarily determined for abuse of the process of the Court under the rule.

23. The law as to abuse of the process of the Court is that by its inherent jurisdiction, the Court has power to protect and safeguard its own processes and protect its dignity and integrity from any possible abuse by its users or litigants: The State v Peter Painke [1976] PNGLR 210, National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Andersons Agiru v Electoral Commissioner & The State (2002) SC687, Philip Takori v Simon Yagari (2008) SC905, Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118, Jacob Popuna v Ken Owa (2017) SC1564, Telikom (PNG) Ltd v Kila Rava (2018) SC1694. The types of abuses of process may vary from case to case: National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Michael Wilson v Clement Kuburam (2016) SC1489.

24. We agree with the Appellant’s submission that the rule neither contemplates summary determination of an appeal on substantive grounds nor is to be used as a vehicle to contest substantive issues raised in an appeal.”
26. Here, Samson is asking this court to follow the decision of the Supreme Court (Makail, Collier, Narokobi JJ) in SCM 2 of 2022 and dismiss this appeal because SCM 2 of 2022 was dismissed as an abuse of process on the basis the Supreme Court found the FRPG did not exist as a legal entity. Samson argues this appeal SCM 67 of 2022 was also commenced by the non-existent FRPG and “Consistent with the full Court decision in SCM 2, the herein appeal is also an abuse of process and should be dismissed with costs.”


27. It is correct that in this proceeding SCM 67 of 2021, FRPG is named as the Third Appellant. I have perused the Notice of Motion filed on 15 December 2021 commencing this proceeding SCM 67 of 2021 and note it is signed by Tamutai Lawyers as lawyers for all appellants including FRPG.


28. I have also perused the two Notice of Objection to Competency both filed on 20 December 2021 documents numbered 12 and 13 and note this issue now raised by Samson was not raised in the Notice of Objection filed by Samson’s lawyers.


29. My brother Narokobi J was a member of the bench in the decision issued in SCM 2 of 2022. With respect, it will not be appropriate for this court, as constituted, to express an opinion on the application filed on 20 July 2022 other than to make the following observations.


30. Firstly, the Appellants are now raising issue with the decision of the Supreme Court issued in SCM 2 of 2022 and that challenge should have been brought by a slip rule application and heard by the same bench of Makail, Collier and Narokobi JJ. That is a process provided by Order 11 Rule 32 of the Supreme Court Rules.


31. I also note the point was not raised in the trial court. Firstly, FRPG was a party in the trial court and participated throughout without objection or complaint as to its status. It is settled law that to now raise this issue on appeal, leave of the court is required. Secondly, to properly address this issue and consider all appropriate evidence including documents which the court may wish to take judicial notice, application to adduce fresh evidence should be filed and considered. With respect, I am also of the view that the issue as to the status of the FRPG needs to be better articulated and addressed by the parties.


32. As general comment, the confusion that is apparent may also arise in discussions about “Northern Province” and “Oro Province”, “West Sepik Province” and “Sandaun Province” and “Chimbu Province” and “Simbu Province”.


33. With respect, I am also of the view this issue should return before another bench of the Supreme Court and, with respect, I agree with my brother Anis J that the Chief Justice empanel a bench of a greater number of judges of at least five judges to hear and determine the application filed on 20 July 2022 and also the substantive appeal or Notice of Motion filed 15 December 2021.


COSTS


34. As to costs, the standard approach is that costs shall follow the event. I have refused the Appellants application filed 29 July 2022 and so the Appellants shall pay the First Respondent’s costs of that application on a party and party basis to be taxed if not agreed. I have declined to determine the First Respondent’s application filed 20 July 2022. The costs of that application can be argued on the hearing of that application as proposed by this court.


35. ANIS J: We heard 2 applications on 28 September 2022. The first was by the first respondent where he sought to dismiss the proceeding based on the ground abuse of court process, and the second was by the appellants where they sought to remove the first respondent as a party to the appeal proceeding.


36. This is my decision.


APPLICATIONS


37. The application by the first respondent seeks this primary relief:


“(a) An Order pursuant to Order 13 Rule 16(1)(a) of the Supreme Court Rules (“the Rules”), and the inherent jurisdiction dismissing the appeal herein as an abuse of process given the decision of the full Supreme Court (Makail, Collier, Narokobi JJ) in SCM 2 of 2022 – NEC & Ors v Aquila Sampson delivered 1 July 2022.”


38. And the application by the first, second, third and fourth appellants (appellants) seeks this main relief:

“An Order pursuant to Order 11 Rule 11 of the Supreme Court Rules (“SCR”), and/or Order 2 Rule 1(h) of the SCR and Order 5 Rule 9(b) of the National Court Rules and Section 155(4) of the Constitution, the First Respondent, Aquila Sampson, has ceased to be a proper or necessary party and therefore ought to be removed as a party and the hearing of the Appeal should proceed on that basis.”

REMOVAL AS A PARTY
39. In regard to the appellants’ application to remove the first respondent as a party, which I prefer to deal with first, the main reason raised to support the application is this. The appellants submit that the 4-year tenure of the first respondent as Administrator of the third appellant has expired. As such, they submit that he should be removed as a party to this appeal.


40. We had observed and had pointed to counsel for the appellants whether the application was without foundation or was baseless in general, and whether counsel would like to withdraw it without it being considered and determined by us. Counsel was inclined to concede but for completeness, we allowed the parties to complete their submissions.


41. I would dismiss the application. I find it, with respect, baseless. The first respondent was the plaintiff in the National Court in proceeding OS (JR) No 734 of 2018 – Acquila Sampson v The National Executive Council and Ors (OS 734 of 2018). He was the party that challenged, by way of judicial review, the decision of the second respondent that purportedly revoked his appointment as Administrator of the third appellant, and the National Court, on 9 December 2021, granted his judicial review application. The appellants herein were aggrieved by this decision and thus have filed this Supreme Court Motion (Appeal). The Appeal is against the said final decision of the National Court in OS 734 of 2018. The first respondent therefore has a direct interest in the appeal and its outcome since the appellants are seeking to over-turn the National Court’s decision of 9 December 2021, which was made in his favour, that is, concerning his appointment as Administrator of the third appellant.


42. Let me expound on this. If the Supreme Court overturns the decision of the trial Court, it will no doubt directly affect the first respondent’s interest, and it may also have legal implications. Evidence adduced by the appellants suggests that his 4-year term may have ended. However, that to me is inconsequential for the above stated reasons, and of course, not to mention the grounds of appeal that are pending where the first respondent will be expected to contest. I had also queried counsel for the appellants that if the appellants were seriously going to rely on this ground, then the converse argument to that would be the relevance or utility of the appeal. In response, counsel submitted that it was within his clients’ rights to challenge the said decision. Whilst I accept this response, I ask myself this. ‘Would it not also be the first respondent’s right to defend or protect his appointment which was granted by the National Court?’ I would answer this question in the affirmative. The appeal was instigated by the appellants, not the respondents. If it is indeed true that the first respondent’s term was up, then perhaps the real question or query is not whether the first respondent should be removed as a party, but rather, the utility of the appeal, and the question should be directed at the appellants and not at the first respondent or the respondents in general. The appellants, in my view, cannot have it both ways to suit their purposes, that is, to impliedly concede on the one hand that the appointment term of the first respondent as Administrator is valid and has ended, and on the other hand, to retain this appeal and challenge the validity of the first appellant’s appointment with the intention to argue (at the appeal proper) that his appointment was void or unlawful and seek to overturn the decision of the trial Court.


43. In regard to the interpretation and application of Order 11 Rule 11 of the SCR, I have read my brother Kassman J’s opinion on this, and I agreed with it accordingly. Order 11 Rule 11 is not an applicable source that may be invoked to seek removal of a party from an appeal proceeding.


44. I dismiss the appellants’ application.


ABUSE OF COURT PROCESS


45. In regard to the dismissal application of the first respondent, the second and third respondents raise this preliminary issue. They say the ground, abuse of court process, is not or cannot be a proper ground for dismissal of an appeal under Order 13 Rule 16 of the Supreme Court Rules (SCR); they submit the Court’s power for summary dismissal is limited to procedural matters only.


46. References were made to case authorities on this matter which included this Court’s decision in Barrick (Niugini) Limited v Stanley Nekitel & Ors (supra). At [20], the Supreme Court, based on case authorities, summarised 3 types of situations that may warrant an applicant to apply under Order 13 Rule 16 of the SCR to summarily dismiss an appeal. They are:


“1. Where there has been a failure to prosecute a matter with due diligence resulting in delay: Department of Works v International Construction (PNG) Ltd (2011) SC1122.

2. Where there is want of prosecution of a matter: Department of Works v International Construction (PNG) Ltd (2011) SC1122, The State v the Transferees (2016 SC1488, Benny Ilai v Michael Yasma (2019) SC1857, Aisi Iuma Bore v Elias Wakore (2015) SC1410.

3. Where there is default and failure to comply with the Court’s directions: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2013) SC1230.”


47. Counsel for the first respondent also relied on the same case but submits the Court therein also cited abuse of the court process as one of the grounds where the Court may, if satisfied, also summarily dismiss an appeal. I partly uphold the submission on this point by the first respondent. This Court in Barrick Niugini did say at [22] that a matter can be summarily determined for abuse of the process of the Court under the rule..., that is, referring to Order 13 Rule 16 of the SCR. The Supreme Court, however, qualified that at [23] and stated that the ground, abuse of the Court process, may be granted by the Court by invoking its inherent jurisdiction, that is, to protect and safeguard its own processes and protect its dignity and integrity from any possible abuse by its users.


48. I note that the first respondent has also pleaded or requested this Court to exercise its inherent jurisdiction under relief 1 of his application. Given that, and in light of what was stated in Barrick Nuigini, the foundation or basis for the relief is properly before me for consideration.


49. I therefore reject the preliminary argument raised by the second and third respondents.


50. The real question though is whether I should exercise my inherent jurisdiction for the stated reason in the application.


51. The only reason put forward by the first respondent is this. He claims that this Court has made an earlier decision which is binding whereby the Court has found the third appellant, the Fly River Provincial Government to be an entity that is non-existent. The Supreme Court decision concern was made in SCM No 2 of 2022 – National Executive Council and Ors v Aquila Sampson (Makail, Collier, Narakobi JJ, delivered on 1 July 2022) (SCM No. 2). A member of the said bench Justice Narokobi is part of the members of this bench. We note that no issue was raised regarding the composition of this bench at the hearing of the 2 applications.


52. SCM No 2 was an appeal by a number of parties named in this appeal, namely, the third appellant, the fourth appellant, the second respondent and the fourth respondent (appellants in SCM No. 2 or defendants in OS 734 of 2018). The defendants in OS 734 of 2018 had appealed against an interlocutory decision of the National Court in OS 734 of 2018. The rather peculiar but relevant background of the 2 matters (i.e., SCM No. 2 and the present Appeal) which requires clarity, is this. On 21 October 2020, the first respondent, who was the plaintiff in OS 734 of 2018, was granted leave to apply for judicial review. On 19 October 2021, the defendants in OS 734 of 2018, applied to the National Court to refer (to the Supreme Court) for interpretation certain constitutional questions (pursuant to Section 18(2) of the Constitution). On 1 November 2021, the National Court refused to grant their request. The decision is published as an unreported judgment, Acquila Sampson v. the National Executive Council and Ors (2021) N9275. The substantive judicial review proceeded and was heard on 3 and 8 December 2021. On 8 December 2021, which was a day before the trial Court was set to hand down its final decision, the defendants in OS 734 of 2018 applied to the Supreme Court for leave to challenge the trial Court’s interlocutory decision of 1 November 2021. On 9 December 2021, the trial Court handed down its final decision and granted the first respondent’s judicial review application. It is also published as an unreported decision, Acquila Sampson v. the National Executive Council and Ors (2021) N9347. Since then, a number of things occurred. First, leave to appeal against the interlocutory decision of the trial Court of 1 November 2021 was granted and SCM No 2 was filed as a result. However, SCM No 2 was later dismissed on 1 July 2022 as I will further address below. The other thing that occurred after 9 December 2021 was the filing of this Appeal by the appellants herein on 15 December 2021, that is, against the final decision of the trial Court made on 9 December 2021.


53. So, the parties, as of 15 December 2021, had 2 Supreme Court appeals that were pending, that is, 2 appeals out of OS 734 of 2018. It was during that time that the Supreme Court, in an objection to competency hearing in SCM No. 2, made findings including a determination that the third appellant Fly River Provincial Government did not exist as a legal entity. The final decision of the Supreme Court in SCM No. 2 was made on 1 July 2022. It reads in part:


“The application by the fourth appellant (third appellant herein) for leave of the Court to withdraw from the appeal pursuant to Order 11 Rule 29(c) is refused.

The Notice of Motion filed on 29 January 2022 appealing the decision of the National Court in proceeding OS(JR) 734 of 2018 is dismissed as an abuse of the process of the Supreme Court.

The respondent’s costs of and incidental to the appeal are to be paid by the first, second and third appellants, such costs to be taxed if not otherwise agreed.”
54. The part of the decision by the Supreme Court in SCM No. 2 that addressed the legal status of the third appellant, is contained at [16] and [17] as follows:


“Secondly, the respondent correctly submitted that the fourth appellant, identified as the “Fly River Provincial Government”, is not a legal entity with capacity to commence or maintain an action. Failure to name the correct party to a proceeding has been held to constitute a “fundamental defect” in those proceedings: Kuli v Tande [2021] SC2099 at [6].

The relevant legal entity that encompasses the fourth appellant is the Western Provincial Government. This is evident in the National Gazette [No G11 of 1977], being annexure GK1 to the affidavit of Mr George Kult sworn on 10 March 2022.”


55. However, I observe that by the time the said decision was made (i.e., when SCM No. 2 was dismissed), OS of 734 of 2018 had concluded and this Appeal was already before the Supreme Court having been filed on 15 December 2021. This is of course not to suggest that the decision in SCM No. 2 is void or not binding. It is binding.


56. That said, I observe that the Supreme Court’s decision re ‘proper’ or ‘correct party’ was not the subject of the appeal in SCM No. 2. I observe that it was also not made based on the stated grounds of objections that had been relied upon by the respondent Mr Sampson. I observe that the issue was raised without notice as a preliminary matter and the Court, after hearing from the parties therein, exercised its inherent jurisdiction and dismissed SCM No 2 for abuse of court process.


57. This leads me to this next question, in light of the present application, which is this. Whether the decision on law made by the Supreme Court in SCM No. 2 of 1 July 2022 is also binding upon this Court.


58. The answer to that may be found under s 155(2) and Schedule 2.9(1) of the Constitution. As we had pointed out to all the counsel, the Supreme Court is the final Court of appeal that can review the decisions of the lower or other Courts except its own decision or a decision of another Supreme Court. We also intimated to counsel that the Supreme Court is also not bound by a decision of another Supreme Court. These views are based on the mother law of the Country, which is the Constitution, namely, 155(1) and (2), and Schedule 2.9(1). They read in part:

“155. THE NATIONAL JUDICIAL SYSTEM.

(1) The National Judicial System consists of–

(a) the Supreme Court; and

(b) the National Court; and

(c) such other courts as are established under Section 172 (establishment of other courts).

(2) The Supreme Court–

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.”

......

“Sch.2.9. Subordination of courts.

(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself.”

59. The case law gives clarity to these provisions and to the powers of the Supreme Court, particularly, in regard to Sch 2.9(1). All decisions of law made by the Supreme Court, as expressly stated, are binding on all the lower or other courts including the National Court in this jurisdiction except itself. What this means is that the Supreme Court, may in exceptional circumstances, deviate or depart from its earlier decision on law. I think the use of the term “review” should be treated with caution to avoid confusion. For this purpose, I prefer the term ‘depart’ or ‘deviate’ than ‘review’ where appropriate, to distinguish or describe the role of this Court when addressing s 155(2) and Schedule 2.9(1) of the Constitution.


60. The case on point is Titi Christian v Rabbie Namaliu (1996) SC1583. The Supreme Court, which comprised of seven (7) Judges including the Chief Justice, held, amongst others, as follows:

“3. a prior judgement is per in curiam if the earlier decision was given in inadvertence of some well established principle, or some other decision of a Court apparently binding on the court giving such judgement, which if the court were adverted to, it would have affected the decision given, such that the Court would have decided otherwise than it did, if in fact the Court had applied the authority or principle, per Amet CJ, Salika J at [244] and Andrew J at [280] agreeing; Doherty J to the same effect at [263-274];

  1. Care should be taken when questioning decisions of this Court in a short period of time when the later Court is constituted by different judges, because if this is encouraged then unsuccessful parties may challenge decisions of this Court before differently constituted benches in a short period of time, which could lead to uncertainty in the principles of law pronounced by the Supreme Court; per Amet CJ, Los J to the same effect at [224], Salika J at [244] and Andrew J at [280] agreeing with the Chief Justice;
  2. The Supreme Court should only depart from an earlier statement it had made on the law:
    1. In the most exceptional circumstances;
    2. When the Chief Justice is presiding, unless the Chief Justice is being asked to reverse one of his own decisions;
    1. after the most careful scrutiny of the precedent authority in question and after a full consideration of what may be the consequences of doing so;
    1. where the earlier decision can be said to be clearly and manifestly wrong, or in conflict with some other decision of the Court or well established principle, and that its maintenance is injurious to the public interest, per Amet CJ, Los J to the same effect at [224], and Salika J at [244] and Andrew J at [280] agreeing with the Chief Justice;”

61. With that, I make the following observations. The first respondent is asking this Court to invoke its inherent jurisdiction and dismiss the appeal given the existence of the Supreme Court’s decision in SCM No. 2, which has ruled that the third appellant is a non-existent entity. I firstly note that this Court is not bound by its own earlier decision on law. I also note that the substantive grounds of appeal and issues herein are separate and have not been decided by any earlier decision of the Supreme Court including SCM No. 2. Thirdly, and after having heard from all the parties herein, it appears certain that the parties intend to challenge the finding of law that was made by the Supreme Court in SCM No. 2 concerning the legal status of the third appellant. This is evident in their submissions whether it be for or against on the said issue. In my view, it raises that question of whether the Supreme Court should depart from its earlier decision, that is, on whether Fly River Provincial Government is a non-existing legal entity under law and that Western Provincial Government is. For that to happen and based on the 4 stated conditions in Titi Christian, this may or would require an increased number of judges from 3 to 5, 7 or more, and also that the composition of the bench may include the Chief Justice. Empanelling of increased number of judges to sit on an appeal before the Supreme Court is bestowed upon or within the prerogative of the Chief Justice. In practice, parties may be at liberty to make that request (i.e., empanelling of increased number of judges from 3 to 5 or more) before the Listings Judge who may then refer that to the Chief Justice for consideration.


62. Having made these observations and in summary, I will say this. If the parties wish to invite the Court to reconsider the law on the legal status of the third appellant, which is likely as they have done so in this hearing, and ask the Court to decide whether to depart from what was decided by the Supreme Court in SCM No. 2 or otherwise, then that is something that should be left for full argument and determination at the hearing of the Appeal. And if the Supreme Court is to consider the issue, then regard may be had in relation to the 4 conditions stated in Titi Christian including considerations on the composition of the bench that will hear the application and the Appeal.


63. As such, I decline to determine the application now. It should instead be adjourned to the Listings Court Judge where the parties can discuss to relist the application either together with the Appeal or otherwise for hearing, and also, where an increased number of judges may be impanelled for that purpose.


64. I will order cost in relation to the appellants’ application which has been dismissed, to the first respondent to be paid on a party/party basis to be taxed if not agreed. In regard to the first respondent’s application which is adjourned back to the Listings Court, cost is reserved to the application.


65. NAROKOBI J: I have read the judgments of my brother judges, Justice Kassman and Justice Anis, and with respect, I agree with their reasons and proposed orders, and I have nothing further to add.


FINAL ORDER OF THE COURT


66. The Court Orders that:

  1. The Appellants’ application filed 29 July 2022 to remove the First Respondent as a party to this appeal is refused.
  2. The Appellants shall pay the First Respondent’s costs of the Appellants application filed 29 July 2022 on a party and party basis to be taxed if not agreed.
  3. The First Respondent’s application filed on 20 July 2022 is referred to the Chief Justice to be heard by another bench of the Supreme Court.
  4. Costs incurred in this hearing, in relation on the First Respondent’s application filed 20 July 2022, shall be argued on the hearing of that application as proposed by this Court.
  5. The matter is referred to the Listings Court for relisting.

Tamutai Lawyers: Lawyers for the First -Fourth Appellants
Young and Williams Lawyers: Lawyers for the First Respondent
M S Wagambie Lawyers: Lawyers for the Second – Third Respondents


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