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Review Pursuant to Constitution Section 155(2)(b); Application by Michael Aike and Others [2004] PGSC 4; SC753 (2 July 2004)

SC753

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO: 11 OF 2004

REVIEW PURSUANT TO
SECTION 155(2) (b) OF THE CONSTITUTION

APPLICATION BY MICHAEL AIKE, IPA KANOGE,
BOGIA PUMPUME AND DASENKO YOMAGE
ON BEHALF OF THEMSELVES AND
ON BEHALF OF THE MEMBERS OF KAFE CLAN
OF KAINANTU, EASTERN HIGHLANDS PROVINCE

Waigani : Salika, Gavara-Nanu & Mogish JJ.

2004. : 26th May, 28th June, 02nd July
      

CONSTITUTIONAL LAW – Application for review – Section 155(2)(b) of the Constitution – Circumstances in which inherent powers of the Supreme Court under s. 155(2)(b) may be invoked.

Cases cited:
Avia Aihi -v- The State [1981] PNGLR 81
Avia Aihi -v- The State (2) [1982] PNGLR 45
Application by Ludwig Patrick Shulze SC572
Johnathan Kumba -v- Kuk Kuli & Electoral Commission of Papua New Guinea SC641
The State -v- Colbert [1988-89] PNGLR 138
TST Holdings Pty Ltd -v- Siew Tan & Ors. SC534

Counsel:
S. Kaule for the applicants
J. Murray for the first respondent
I. Shepherd for the second respondent.

BY THE COURT: This is an application by the applicants pursuant to s. 155 (2) (b) of the Constitution seeking leave of the Court to invoke its inherent discretionary powers to review the National Court decision made on 12th December, 2003, in the matter of OS No. 593 of 2003.

In their application, the applicants are seeking Orders that the Consent Orders made by the National Court on 12th December, 2003, to be quashed and the matter of OS No. 593 of 2003, be remitted back to the National court to be heard de novo.

Those Consent Orders are in these terms:-

1. The plaintiffs be included in the Memorandum of Agreement (MOA) with respect to the Kainantu Gold Mining Project under the definition of "Associated Landowners".
   
2. The duly appointed representative of the plaintiffs executes the MOA on behalf of the Kafe Clan as an associated landowner representative.
   
3. The injunctive Orders made on 3rd November, be discharged forthwith.
   
4. The time of entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
   

The applicants make this application because they are disputing the Consent Orders. They say, the Orders were obtained without their consent and further, the Orders only make them Associated Landowners. They say, this relegates them to minor landowners status which entitles them to claim only 10% of the mining royalties from the Kainantu Gold Mining. The applicants say, they are principal landowners and thus are entitled to 60% of the royalty monies, as provided under the Memorandum Of Agreement.

The respondents argued that the Consent Orders were granted by the National Court in accordance with the claims made by the plaintiffs in the Originating Summons in OS No. 593 of 2003.

It is to be noted that in relief No. 2 of the Originating Summons in OS No. 593 of 2003, the applicants who were the plaintiffs sought declaration that they were the principal landowners of the Kainantu Gold Project area on the basis that their status as the principal land owners was recognized by the Goroka Local Land Court in the decision made in 1992.

Ms Murray for the First Respondent however argued that the Goroka Local Land Court decision which the applicants rely on relates to a different land and not the land on which the Kainantu Gold Project sits. Ms Murray submitted that the Goroka Local Land Court decision which was given in 1992 relates to a land between Maniape and Aracompa land. But the land affecting the Kainantu Gold Project is called Irumafimpa.

The record of the proceedings of the Goroka Local Land Court made on 26th May, 1992, appears at page 280 of the Appeal Book and it shows clearly there that the name of the land for which the applicants were declared the principal landowners is indeed between Maniape and Aracompa land. This lends support to Ms Murray’s argument.

In this regard, there is also evidence that the official declaration made by the Eastern Highlands Provincial Administration Division of Lands and Surveys dated 24th August, 2001, shows that, after surveys and investigations were done on the Bilimoia land in which the EL 470 – Irumafimpa prospect sits, the applicants’ clan which is Kafe is not one of the principal impact area landowners.

Ms Murrary told the Court that the issue of land ownership over the Irumafimpa land is now before the Land Titles Commission. Therefore the issue of ownership over Irumafimpa land is yet to be determined by the Land titles Commission. This is not denied by the applicants.

At the outset we should make it clear that the power to determine the ownership of Irumafimpa land does not lie with this Court. It comes under the jurisdiction of the Land Titles Commission and therefore we do not have the power to determine as to whether the applicants are the principal landowners of the subject land. That is a matter which will be decided by the Land Titles Commission.

But the issue before us is whether this Court can review the decision of the National Court given on 12th December, 2003, which granted the Consent Orders and to quash those Consent Orders. This requires a closer look at the evidence that is before the Court to see whether the Consent Orders were made with the consent of the applicants and upon their instructions. The applicants say that they did not instruct their lawyer to obtain the Consent Orders nor did they consent to them.

We note that in the Memorandum Of Agreement which was signed on 6th February, 2004, all interested parties in the gold mining project which included the State, the Eastern Highlands Provincial Government, the Kainantu Rural Local Level Government, Highlands Kainantu Ltd, Bilimoia Landowners Association and the Associated Landowners are signatories to it. We also note that in page 31 of the Agreement, a representative of the applicants’ clan also signed that Agreement. So the applicants’ clan is a signatory to that Agreement which entitles the applicants to claim 10 % of the royalty monies as provided under clause 3.1 of that Agreement.

As to the denial by the applicants that they gave instructions to their lawyers to obtain the Consent Orders, we have received an affidavit sworn by Mr Ben Lomai who was the lawyer acting for the applicants at the time when the Consent Orders were obtained. And in the affidavit, Mr Lomai deposes that he received instructions from the applicants over a period of time during which the applicants were desperate to be included in the Agreement. And as a result of those instructions, he obtained the Consent Orders on their behalf on 12th December, 2003. He also confirms in his affidavit that he on behalf of the applicants took out restraining Orders against the State from having the Agreement executed in the absence of the applicants as a party. Mr Lomai deposes in the affidavit that when the Consent Orders were obtained on 12th December, 2003, the restraining Orders were dissolved.

The affidavit evidence by Mr Lomai has not been challenged in any way by the applicants, it therefore stands unopposed. In that regard we asked the applicants’ lawyer during hearing as to whether he wanted the matter adjourned so that he could seek instructions from his clients on the matters deposed by Mr Lomai in his affidavit, in case the applicants needed to reply to Mr Lomai’s affidavit evidence. Indeed the Court was adjourned briefly for that, so that the applicants’ lawyer could seek instructions from his clients. After the adjournment we were told by the applicants’ lawyer that his clients were happy for the Court to receive Mr Lomai’s affidavit and that they were happy for the application to be heard. Mr Lomai’s affidavit was therefore received in evidence without objection.

The law relating to review of the National Court decisions under s. 155(2) (b) of the Constitution is now well settled. See Avia Aihi -v- The State [1981] PNGLR 81. The principles enunciated there have been followed in many subsequent cases. In the Application by Ludwig Patrick Shulze SC572, Kapi DCJ, (as he then was) at pages 3 - 4 of the judgment gave the genesis of s. 155 (2)(b) and the circumstances and the criteria in which the inherent powers of review given to the Supreme Court by that provision may be invoked:

"The genesis of s. 155 (2)(b) is to be found in Avia Aihi -v- The State [1981] PNGLR 81. In brief that was a case in which the applicant had a right of appeal within 40 days under s. 29 of the Supreme Court Act but allowed the period in which to appeal to expire thereby losing the right to appeal to the Supreme Court. The Supreme Court held that in order to invoke the inherent jurisdiction of the Court under s. 155 (2) (b), the applicant had to satisfy the Court why leave should be granted in view of the fact that she allowed the period of 40 days to expire. Leave was granted in a separate hearing and the case proceeded to the merits.

In considering the merits, the Court concluded that in order to succeed in invoking this special jurisdiction of the Supreme Court, the applicant has to show "exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity" (see Avia Aihi -v- the State [1981] PNGLR 81; Avia Aihi -v- The State (No 2) [1982] PNGLR 44). This is a discretionary power.

The nature of a review is different from the right of appeal that may be invoked under the provisions of the Supreme Court Act. The grounds upon which the right of appeal may be exercised is much wider in that a person may appeal on virtually any ground including appeal against findings of fact only. On the other hand, the grounds upon which a judicial review may be brought are limited by the criteria set out in Avia Aihi -v- The State (supra). A very good analysis of the true nature of judicial review can be found in the judgment of Kearney DCJ.

These principles have been followed in many subsequent Supreme Court cases. The relevant cases are conveniently set out in PNG -v- Colbert [1988-89] PNGLR 138 where the Court concluded that the discretionary power of the Court should be exercised only where:

(a) it is in the interest of justice;

(b) there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity;

(c) there are clear and legal grounds meriting a review of the decision".

And in page 9 of the judgment Injia J. (as he then was) summarised the law in this way:

"Review of such decision of the National Court under s. 155 (2)(b) should only be granted in the most exceptional of case on an important point of law which clearly has merit or on parts of evidence where there is a gross error clearly manifested on the face of the record"

His Honour was making reference to the review of election petition decisions by the National Court, but the principle is relevant and applicable to other reviews under s. 155 (2)(b) of the Constitution.

See also, Johnathan Kumba and Kuk Kuli & Ors - SC641.

The power of review by the Supreme Court of a National Court decision under s. 155 (2)(b) is discretionary. In that regard the Supreme Court has the inherent discretionary power to hear and determine the applications. The discretion is unfettered.

However, it is trite law that when exercising its discretion, this Court must do so judicially and according to law. The discretionary powers will not be exercise as matter of course. See TST Holdings Pty Ltd -v- Siew Tan & Ors. SC534 and Avia Aihi -v- The State (No. 2) [1982] PNGLR 44 at pages 57 to 58.

The applicants in this case carry the onus to show to the Court that this Court should exercise its power under s. 155 (2)(b) to review the decision of the National court and to quash the Consent Orders and remit the case back to the National Court. For this, the applicants have to show that there are exceptional circumstances where some substantial injustice is manifest or the case is of special gravity : See Avia Aihi -v- The State [1981] PNGLR 81; Avia Aihi -v- The State (No. 2) (supra); The State -v- Colbert [1988] PNGLR 138.

Applying these principles we consider that the applicants have not discharged the onus necessary for this Court to exercise its discretion in their favour. In other words, the applicants have not shown any exceptional circumstances where substantial injustice is manifest or that the seriousness or the gravity of the matter requires review. We hold this view on the basis of Mr Lomai’s unchallenged affidavit evidence, which clearly shows that the applicants instructed him to apply to the National Court for them to be joined as a party to the Memorandum of Agreement and to obtain the Consent Orders. These are also clearly born out by the transcripts of what transpired at the trial as shown in pages 303 – 313 of the Appeal Book. The transcripts clearly show that the Consent Orders were granted only after the trial judge was satisfied that Mr Lomai had full instructions from the applicants.

Having said that, we do not consider the applicants remaining as a party to the Memorandum of Agreement to be doing any harm to them because they are still entitled to receive their 10 % of the royalties. And furthermore, the monies paid as royalties will be held in a trust account and if the Lands Title Commission in the end determines that they are principal landowners of Irumafimpa land then, their percentage in royalties will simply increase from current 10 % to 60 %. They can then claim the balance of what has not been paid by reason of them receiving only 10% of the royalties. So either way, they will not loose anything. But of course, if the Land Titles Commission decides that they are not the principal landowners of Irumpafimpa, then, they will continue to receive the 10 % royalties.

For these reasons we refuse the application.

The applicants will pay the first and the second respondents’ costs.
_______________________________________________________________________

Lawyers for the applicants: Kaule Lawyers

Lawyers for the first respondent: Henaos
Lawyers for the second respondent : Blake Dawson Waldron Lawyers