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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 57 OF 2023 [IECMS]
BETWEEN
DELTA CORPORATION LIMITED
Applicant
V
NATIONAL SUPERANNUATION FUND LIMITED
First Respondent
AND
YAWENAIK HOLDINGS LIMITED ALSO KNOWN AS YAWENAIK HOLDINGS LIMITED
Second Respondent
AND
CHRIS MANDA IN HIS CAPACITY AS SURVEYOR GENERAL
Third Respondent
AND
ROMILLY KILA PAT AS A DELEGATE OF THE MINISTER OF LANDS AND PHYSICAL PLANNING
Fourth Respondent
AND
HON. BENNY ALLAN IN HIS CAPACITY AS MINISTER OF LANDS AND PHYSICAL PLANNING
Fifth Respondent
AND
HON. POWES PARKOP IN HIS CAPACITY AS CHAIRMAN AND OTHER MEMBERS OF THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Sixth Respondent
AND
BENJAMIN SAMSON IN HIS CAPACITY AS REGISTRAR OF TITLES
Seventh Respondent
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Respondent
AND
SANAMO LAND GROUP
Ninth Respondent
AND
KEITH LAHUI, CHAIRMAN AND OTHER MEMBERS OF THE PNG LAND BOARD
Tenth Respondent
AND
ALLAN BANIYAMAI
Eleventh Respondent
AND
BARRICK SOMI TEMERI
Twelfth Respondent
Waigani: Geita, J, Anis, J & Carey, J
2024: 29th May, 18th June
APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal against an interlocutory ruling of a judicial review proceeding – Application for leave made under s.14(3)(b) of the Supreme Court Act Chapter No.37 and Order 10 Rules 1(b) and 5 of the Supreme Court Rules 2012 (as amended to date) - Application for leave initially heard and refused by single Judge of the Supreme Court exercising his power– s.10(1)(a), Supreme Court Act Chapter No. 37 - Applicant requests for application for leave to appeal to be heard by the full Court de novo – s.10(2), Supreme Court Act Chapter No. 37 – Order 11 Rule 27 – Supreme Court Rules 2012 (as amended) - whether there are sufficient ground(s) to allow leave to appeal – consideration - ruling
PRACTICE AND PROCEDURE – Objection to competency raised as an issue without a formal application – whether the Court may consider the objection at the leave stage – consideration - ruling
Cases Cited:
Papua New Guinean Cases
Joel Luma v. John Kal and Ors (2014) SC1608
Philip Vitolo v. Mararea Land Group Incorporated and Ors (2022) SC2298
Mathew Sisimolu and 1 Or. v. Philip Kende and Ors (2022) SC2267
Petrus Nane Thomas v. William Wai Bando and 1 Or (2024) SC2537
Arnold Amet v Peter Yama (2010) SC1064
Patterson Lowa and Ors v Wapula Akipe and Ors [1992] PNGLR 399
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Chief Inspector Robert Kalasim v Aina Mond and Ors (2006) SC828
Oberia v Charlie [2005] SC801
O’Neil v Eliakim (2016) SC1524
Hannet v. ANZ Banking Group (PNG) Ltd [1996] SC505
Makop v. Billy Parako (2004) N2593
Barlow Industries Pty Ltd v. Uvau Imani [1983] PNGLR 125; N414
Overseas Cases
Anlaby v. Praetorius (188) [1888] UK Law Rp KQB 55; 20 QBD 764; 4 TLR 439 CA
Hughes v. Justin [1894] UK Law Rp KQB 33; [1894] 1 QB 667; 10 TLR 291, CA
Hamp-Adams v. Hall [1911] UK Law Rp KQB 129; [1911] 2 KB 942; 27 TLR, CA
Counsel:
P Mawa with counsel assisting E Wembri, for the Applicant
G Geroro with counsel assisting E Mapusa, for the First Respondent
P Wariniki, for the Ninth Respondent
Nil appearances by the other parties
18th June, 2024
1. BY THE COURT: This was a hearing de novo of an Application for Leave to Appeal (Application) that was moved by the applicant, pursuant to s.10(2) of the Supreme Court Act Chapter No. 37. (SC Act). The Application was filed on 12 May 2023. It was initially heard on 5 December 2023 by Cannings J who sat as a single Judge of the Supreme Court. His Honour refused to grant the Application and made the following orders:
RELEVANT BACKGROUND
2. The decision the subject of the Application, stems from an interlocutory ruling by Miviri J made on 3 April 2023, in a consolidated judicial review proceeding, that is, OS (JR) 789 of 2015 and OS (JR) 682 of 2013 (JR proceeding). In the JR proceeding, leave has been granted and the matter is pending hearing. The main issue in the judicial review concerns or challenges a decision of the State made over a portion of land at 9 Mile, Port Moresby. The said land is described as Portion 2123 (the Land) where it has been granted by the State to the applicant as its registered proprietor. The first respondent initially owned the Land as its registered proprietor. When the term of the lease over the Land expired in 1996, the first respondent applied to the Land Board to re-issue a new lease over the Land to it. The Land Board recommended and issued a gazettal notice in that regard to grant of the Land to the first respondent. But later in 2012, the first respondent received notice from the Land Board that the Land was awarded to the applicant. The first respondent was aggrieved, and so it appealed the decision to the Land Board. On or about 7 May 2013, the Land Board considered the first respondent’s appeal and dismissed it. So, on 20 September 2013, the first respondent commenced a judicial review proceeding which was later consolidated as described above.
3. Many other events have occurred including various appeals to the Supreme Court. However, they are not directly relevant for this purpose.
4. What is relevant are as follows. The JR proceeding was scheduled to return on 28 February 2022 for directions hearing. That day fell on a public holiday and so the matter was not heard. It was later re-scheduled for directions hearing before Dingake J on 7 March 2022. On that day, what appears to be a draft consent order was handed up to the Court by the first respondent. The purported draft consent order was then endorsed by Dingake J (Court Order of 7 March). On 14 March 2022, the applicant filed an application to set-aside the Court Order of 7 March. That application was struck out for want of prosecution. On 12 April 2022, the second and ninth respondents applied to dismiss the JR proceeding. On 3 May 2022, His Honour dismissed the JR proceeding. The first respondent appealed the decision to the Supreme Court in proceeding SCM No. 12 of 2022. On 15 December 2022, the Supreme Court upheld the appeal, quashed the National Court Order of 3 May 2022, and reinstated the JR proceeding.
5. On 20 February 2023, the applicant filed an application to set-aside the Court Order of 7 March and to dismiss the proceeding (set-aside application). The set-aside application was heard on 24 March 2023 by Miviri J. On 3 April 2023, His Honour handed down his decision where he refused the set-aside application. The final orders of the Court read:
(i) The Notice of Motion seeking to strike out the Order of 7th March 2022 is refused.
(ii) And the pray to dismiss of the proceedings for failure of the Plaintiff to comply with the term (1)(b) of the Court Orders of the 08th November 2018, and failure to prosecute the proceedings with due dispatch is also refused and dismissed.
(iii) The matter will be called on Monday 17th April 2023 to confirm trial date.
(iv) Costs will follow the event forthwith.
6. The Application stems from the said decision, that is, seeking leave to appeal against the interlocutory decision of the National Court, pursuant to s.14(3)(b) of the SC Act and Order 10 Rules 1(b) and 5 of the Supreme Court Rules 2012 (as amended to date) (SCR).
LEAVE APPLICATION
7. As stated, the applicant invokes the jurisdiction of the full Court under s.10(2) of the SC Act to hear the Application de novo.
8. The first respondent contests the Application. The ninth respondent, on the other hand, supports it. The other respondents have not shown interest in the matter at this juncture; they did not appear to participate.
PRELIMINARY ISSUE
9. The first respondent raised a preliminary issue regarding the competency of the Application. Counsel refers to a letter that was written by the applicant’s lawyers dated 28 November 2023 that had been sent to the Deputy Registrar of the Supreme Court. A copy of the letter is located at Annexure SGD3 to the supporting affidavit of Simon Goiye Dewe filed 15 April 2024.
10. The letter reads in part:
On Friday, 17th November 2023 at 4pm, the Supreme Court constituted by his Honour Justice Cannings heard the Applicant’s Application for Leave to Appeal filed 12 May 2023 and at the same time delivered an ex-tempore ruling refusing the leave application.
Our client being aggrieved by the decision, issued instruction for the same Leave Application to be moved before the Court pursuant to Order 11 Rule 27 of the Supreme Court Rules 2022 as amended (SCR) and section 10(2) of the Supreme Court Act (SCA).
Therefore, this letter serves as our request pursuant to Order 11 Rule 27 of SCR for our client’s Leave Application filed 12 May 2023 to be relisted for hearing before the Court at the earliest possible date.
[Underlining ours]
11. Section 10(2) and Order 11 Rule 27 of the SC Act and SCR are relevant for this purpose, and they read:
10. POWERS THAT MAY BE EXERCISED BY JUDGE.
......
(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.
......
Division 13 – Appeal and application to court from orders or directions of judge
27. Where a Judge refuses an order sought on an application pursuant to Section 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to Section 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief.
12. To begin, we first make this clarity. Section 10(2) of SC Act and Order 11 Rule 27 of the SCR, make it clear that the Supreme Court may hear afresh a leave application that had been refused in the first instance by a single Judge of the Supreme Court. An aggrieved applicant need not file or make a fresh or new application for leave to appeal to the full Court. Rather, the aggrieved party is required to comply with Order 11 Rule 27, that is, by making a formal request to the Registrar of the Supreme Court with 14 days after the date when leave is refused by a single Judge of the Supreme Court, to have the same leave application relisted for hearing but before the full Court. And the hearing shall be de novo (or hearing afresh of the leave application). It shall not be regarded or treated as a review or an appeal against the decision of the single Supreme Court Judge that refused leave in the first instance. See cases: Joel Luma v. John Kal and Ors (2014) SC1608, Philip Vitolo v. Mararea Land Group Incorporated and Ors (2022) SC2298, and Mathew Sisimolu and 1 Or. v. Philip Kende and Ors (2022) SC2267.
13. With the above clarity, we ask ourselves whether we should, on our own volition, hear the objection to competency that is raised. We first observe that an application for leave to appeal involves a brief oral hearing where the Court will consider and rule on whether an applicant should be permitted or be granted the right to file an appeal. A party that opposes a leave application is also permitted to respond. In our view, that may also include competency issues. See case: Petrus Nane Thomas v. William Wai Bando and 1 Or (2024) SC2537.
14. This Court has an inherent jurisdiction to, on its own volition and at any stage of a proceeding, consider jurisdiction and competency issues. See cases: Patterson Lowa and Ors v Wapula Akipe and Ors [1992] PNGLR 399, Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, and Chief Inspector Robert Kalasim v Aina Mond and Ors (2006) SC828. And both the National and Supreme Courts have an obligation to protect or safeguard their judicial processes from abuse. See case: Arnold Amet v Peter Yama (2010) SC1064.
15. We will, on our own volition, consider the objection that is raised by the first respondent. We consider it as part of the issues or considerations that may be raised by or before this Court when the Court is hearing the Application.
16. With that, we make the following observations. First, we observe that the competency complaint refers to a discrepancy that was noted in the applicant’s letter of request, which had been made under Orde 11 Rule 27, to the Deputy Registrar. The complaint appears, in our view, to be a challenge that is made against the exercise of power or authority by the Deputy Registrar than an objection to competency of the jurisdiction of the Court per-se that should require our consideration. The decision to accept and list the Application before the Supreme Court (or full Court) had been made by the Deputy Registrar, and the Application is already before us now for hearing. We therefore find the complaint or objection misconceived for this reason alone and dismiss it. Even if we were proven wrong (which we say otherwise), we note that the complaint relates to a year that was inserted incorrectly in the letter of request by the applicant to the Deputy Registrar. The year was put down as 2022 instead of 2012 (as highlighted above) when the applicant referred to the SCR in its letter of request. This, our view, was merely a typographical error, and we note that when counsel for the first respondent was pressed with that at the hearing, counsel conceded that that was the case; that it was or could have been a typographical error.
17. For these reasons, we dismiss the jurisdiction or competency complaint of the first respondent.
TESTS FOR GRANTING LEAVE TO APPEAL
18. The next relevant consideration is the criteria for granting leave to appeal. The criteria are well summarized by Lay J in Oberia v Charlie [2005] SC801, as follows:
19. Sakora J in O’Neil v Eliakim (2016) SC1524 explains the reasons why leave is required to appeal against an interlocutory decision, where His Honour stated:
42. The requirement for leave to appeal against interlocutory orders is necessary, firstly, because such orders are the subject of exercise of discretion on the part of the court. This is based on the universally accepted care (to be taken by) and reluctance of appellate courts and tribunals to disturb the decisions of the primary courts reached through exercise of discretion, unless serious and meritorious grounds are demonstrated.
......
47. The judgment or decision of a judge at first instance invariably faces, or is subjected to, examination and scrutiny inherent in the appellate process. There are now factors recognized as necessarily exerting a corrective influence on judges. These are intended to, and ought, therefore, inhibit, the much-feared wayward judge who might be prone to aberrant or idiosyncratic decisions. To inhibit and keep in check a judge who might be disposed to ‘go off the rails’, as it were.
48. The appellate system also enables and ensures a supervisory and correcting role over decisions of lower courts that demonstrate errors that have been made in the legitimate exercise of jurisdiction, either in the finding of facts or application of pertinent laws, or both.
49. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under or by any outside influence, and/or taking into account irrelevant factors.
50. The requirement of leave is designed to filter out applications or intended substantive appeals which are groundless or hopeless at an early stage. This filtering process is allowed by law to be undertaken without having to embark upon a consideration of the substantive merits or otherwise of the case.
CONSIDERATION
20. We begin with term (i) of the Court Order of 3 April 2023, and we ask ourselves first whether there is an arguable or prima facie case that is established in the Application; whether there is (are) probable argument(s) or evidence put forward that shows that the motion Judge may have been wrong in his decision or in the exercise of his discretion.
21. The applicant’s first intended contention concerning the Court Order of 7 March where it seeks leave to appeal is this. It claims, amongst others, that the motion Judge erred in the exercise of his discretion because (i), there was evidence adduced at the hearing that showed that others, including the ninth respondent and itself, did not give their consent at the time when the Court granted the Court Order of 7 March, (ii), there was evidence adduced at the hearing that showed that most of the parties, including the ninth respondent and itself, were not aware of the return date of 7 March 2022 thus did not attend court and the purported consent orders were made in their absence, and (iii), the motion Judge did not address and apply the law on irregularity in his decision of 3 April 2023; that His Honour did not give any reasonable explanation for exercising his discretion which was against the findings or existence of irregularities.
22. We note the submissions and primary evidence presented by the parties on this intended ground of appeal.
23. We make these observations. First, we note that all the counsel have admitted at this hearing that not all the parties in the JR proceeding were notified when the Directions Hearing date was re-scheduled from 28 February 2022 to 7 March 2022. It is not an issue that the initial return date for the JR proceeding to return for Directions Hearing was at 9:30am on 28 February 2022. This schedule was set upon request by the first respondent. However, there was no court hearing on the said date as it was a public holiday, that is, as Remembrance Day for Grand Chief Sir Michael Thomas Somare. The matter was then rescheduled to return at 9:30am on 7 March 2022. The applicant filed evidence of these through the affidavit of Berly Kume on 15 March 2022. This evidence was before the motion Judge that heard the set-aside application.
24. A motion Judge of course has discretionary powers when he or she is considering whether to grant or refuse an interlocutory application or notice of motion. In this case, His Honour exercised that against granting the set-aside application, that is, despite adduced evidence that showed that not all the parties were notified of the directions hearing of 7 March 2022, and despite adduced evidence that showed that not all the parties had consented to the Court Order of 7 March. With respect, these suggest to us that there is an arguable case on the question of whether the Court Order of 7 March was irregularly entered, and if so, whether the motion Judge erred in the exercise of his discretion when he did not consider or implement these factors into his ruling on 3 April 2023. We come to this conclusion because in such a case (where there is evidence or undisputed fact that shows that a decision had been irregularly entered), a Court will be obligated to have the decision set aside ex debito justitiae. See cases: Hannet v. ANZ Banking Group (PNG) Ltd [1996] SC505, Anlaby v. Praetorius (188) [1888] UK Law Rp KQB 55; 20 QBD 764; 4 TLR 439 CA, Hughes v. Justin [1894] UK Law Rp KQB 33; [1894] 1 QB 667; 10 TLR 291, CA, Hamp-Adams v. Hall [1911] UK Law Rp KQB 129; [1911] 2 KB 942; 27 TLR, CA, and Makop v. Billy Parako (2004) N2593. It may also be argued whether the applicant had waived the irregularities; however, that is not something for us to hear and decide at this juncture. See case: Barlow Industries Pty Ltd v. Uvau Imani (1983) N414.
25. With these, we find that the applicant has passed requirements (i) and (iii) of the tests set out in Oberia v Charlie [supra].
26. Does the applicant have other recourse in the court below? We note the submissions of the parties on this issue. The main arguments we gather from the submissions on this issue, relate to terms 1 and 2 of the Court Order of 7 March, which read:
27. The parties at this hearing agree generally that terms 1 and 2 of the Order of 7 March may be regarded as substantive in nature. The 9 portions of land above were part of the contested matters or lands that were before the JR proceeding that were pending hearing, that is, to decide, amongst others, whether they would be considered as part and parcel of the Land or otherwise. Thus, the elimination of these 9 portions of land by an interlocutory order means that the applicant and the ninth respondent will not get to address these at the substantive hearing of the JR proceeding. And as a direct consequence of that, the decision by the motion Judge [i.e., in refusing to the set-aside the Court Order of 7 March, namely, terms 1) and 2)] will affect the primary rights and interests of the applicant and the ninth respondent at the substantive hearing of the JR proceeding.
28. For these reasons, we find that the applicant has passed or satisfied requirements (ii) and (iv) of the tests stipulated in Oberia v Charlie [supra].
29. Will substantial injustice be caused by allowing the decision to stand, and has cause been shown that the trial process should be interrupted by an appeal? Premised on our considerations and determinations above, we will answer pre-requisites (v) and (vi) in Oberia v Charlie [supra] in favour of the applicant.
30. Having addressed term (i) of the Court Order of 3 April 2023, we now move on to address term (ii) of the same order. The applicant also seeks leave to appeal against Miviri J’s decision where His Honour also dismissed the applicant’s second relief where it had sought (in the set-aside application) to dismiss the JR proceeding.
31. We note the submissions of the parties.
32. And in so doing, we refer to the proposed grounds of appeal on the subject matter in the Application. The applicant’s intended argument is 2-fold. First, it says the motion Judge erred in the exercise of his discretion when he considered that it was the duty of the applicant to prosecute the JR proceeding with due dispatch. It says the duty to prosecute the proceeding with due dispatch was onerous where it was bestowed upon the first respondent and not the applicant, thus, the motion Judge erred in that regard. Secondly, the applicant argues or intends to argue, that it had provided more than sufficient evidence for the motion Judge to consider and find the first respondent liable for undue delay or want of prosecution, yet His Honour erred when he did not consider or give due regard to these evidence but proceeded to dismiss the set-aside application.
33. We have perused His Honour’s written decision and evidence adduced, in relation to the relief that was sought, which was to dismiss the proceeding. Having done so, we decline to grant leave to appeal against His Honour’s decision in that regard. By perusing the history of the JR proceeding, we observe that a substantial part of the delay and frustration was caused by the actions of the applicant and the ninth respondent. This had led to various Supreme Court appeals which had caused delays in prosecuting the JR proceeding. We also observe nothing in the motion Judge’s decision where His Honour had exercised his discretion, where we would find, regard, or term as ‘significant errors’ that should warrant leave for further consideration by the full Court. Reference made therein by the motion Judge for the applicant to expedite the JR proceeding, which is an intended ground of appeal, was not the only factor considered by His Honour. The same can be said in relation to the applicant’s claim that the first respondent had failed to comply with term 1(b) of the Court Order of 8 November 2018. That, like others, may be relevant but other factors were also considered by the motion Judge to arrive at his decision. We also note that failure to comply with the said directional order did not mean therefore that the motion Judge was obliged to dismiss the JR proceeding. His Honour was entitled to consider all the factors before deciding whether or not he should grant the relief. In this case, His Honour decided against dismissing the JR proceeding. Finally, we also note that His Honour’s decision did not extinguish or prejudice the rights of the applicant in general in the JR proceeding.
34. With these, and when we apply the 6 tests stated in Oberia v Charlie [supra], we will answer them all in the negative against the applicant but in favour of the first respondent.
35. For these stated reasons, we refuse to grant leave to the applicant to appeal against term (ii) of the Court Order of 3 April 2023.
36. Terms (iii) and (iv) of the Court Order of 3 April 2023 are consequential orders thus leave will be granted to them together with term (i) where they will later be subject to the final orders of the full Court.
SUMMARY
37. We grant the Application in part.
COST
38. We are minded to and will order that cost of the Application shall be to the appeal proceeding.
ORDERS Of THE COURT:
39. We make the following orders:
________________________________________________________________
Jema Lawyers: Lawyers for the Applicant
Geroro Lawyers: Lawyers for the First Respondent
Wariniki Lawyers: Lawyers for the Ninth Respondent
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