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Kopmani v National Housing Corporation [2018] PGSC 28; SC1678 (23 April 2018)

SC1678

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 75 of 2010

BETWEEN:
LUCIA KOPMANI
First Appellant

AND:
In the Real Estate of Late
JOHN KOPMANI by his customary
executor, LUCIA KOPMANI
Second Appellant

AND:

SHEM WANGIHOMIE

Third Appellant

AND:
NATIONAL HOUSING CORPORATION
First Respondent

AND:
In the Estate of Late
LUCAS MASIT
Second Respondent

AND:
SUSAN, FRANCIS, JACKSON, PATRICK,
THOMPSON and ENOK MASIT
Third to Eighth Respondents

Waigani: Hartshorn J
2018: 20^th & 23^rd April

Application for Leave to Review a decision of the Registrar of the Supreme Court pursuant to s. 155(2) Constitution – Objection to Competency

Cases cited:

Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
Rex Paki v. Motor Vehicles Insurance Ltd (2010) SC1015

Counsel:

Mr. M. Maiteng, for the Third Appellant
Mr. G. Anis, for the Second to Eighth Respondents

23^rd April, 2018

1. HARTSHORN J: This is a decision on an objection to the competency of an application for leave to review a decision of the Registrar of the Supreme Court (application for leave). The decision of the Registrar sought to be reviewed was made on 7^th September 2017. It rejected the second to eighth respondents (respondents) application for taxation and bill of costs, for being filed out of time. The application for leave has been made in this Supreme Court appeal that was dismissed for want of prosecution. No issue was raised as to whether the application for leave was correctly filed.

2. The objection to competency of the third appellant, Shem Wongihomie, is that the application for leave is incompetent as s. 155(2) Constitution, the jurisdictional basis for the application for leave, does not provide jurisdiction to review a decision of the Registrar of the Supreme Court. No objection was taken by the respondents to the competency of the objection to competency.

3. The respondents submit that they also rely on s. 155(4) Constitution in addition to s. 155(2) Constitution for the jurisdictional basis of their application for leave. Further, the respondents submit that although the decision of the Registrar Supreme Court is not a judicial decision, it was made pursuant to Order 12 Rule 17 Supreme Court Rules and the Supreme Court is the only Court that they are able to access to raise their grievance.

Consideration

4. As to the purported reliance by the respondents upon s. 155(4) Constitution, that provision is not stated as being relied upon by them in their application for leave and no notice was given to the third appellant that there would be reliance upon that provision. Consequently, the respondents are not entitled to rely upon s. 155(4) Constitution as a jurisdictional basis for their application for leave.

5. If the respondents were entitled to rely upon s. 155(4) Constitution, I need to do no more than reproduce the following passage from Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, a decision of Injia DCJ (as he then was) in which in respect of s. 155 (4) Constitution, His Honour said that it:

“........is not the source of primary jurisdictional power. .........

Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.”

6. In this instance, the respondents have not shown that they have a primary right to review the decision of the Registrar of the Supreme Court that is conferred by law. Consequently, there is no primary right in respect of which facilitative orders in aid of enforcement of a primary right may be issued pursuant to s. 155(4) Constitution.

7. As to the respondents’ reliance upon s. 155(2) Constitution, that section relevantly provides that the Supreme Court:

“(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.”

8. The decision of the Registrar of the Supreme Court is not a judicial act of the National Court. Further, the respondents have not relied upon any other jurisdiction and powers that are conferred on the Supreme Court by the Constitution or by any other law, apart from s. 155(4) Constitution which I have already considered, for the relief that they seek.

9. In regard to the respondents’ submission that they made this application to the Supreme Court as there is no other way for the respondents to obtain the relief that they seek, this implies that there is an unfettered entitlement to appeal or review any decision with which they disagree. An entitlement or a primary right to appeal or review a decision must be conferred by a law. In this instance the respondents have not been able to point to such a law that assists them.

10. I am satisfied for the above reasons that the objection to competency of the third appellant should be upheld. As to the question of costs, the third appellant seeks his costs on a solicitor client basis. There is evidence that notice was given to the lawyers for the respondents that such costs would be sought, and the reasons why, if the respondents’ application for leave was unsuccessful. Notwithstanding this notice, the respondents did not discontinue or withdraw their application for leave.

11. I am satisfied that the necessary requirements for an order for solicitor client costs have been made out: Rex Paki v. Motor Vehicles Insurance Ltd (2010) SC1015. The application for leave of the respondents is without merit, yet the respondents persisted with it notwithstanding the notice from the lawyers for the third appellant to do otherwise.

Orders

12. It is ordered that:

a) The objection to competency of the third appellant is upheld;

b) The application for leave to review of the second to eighth respondents filed 8^th November 2017 is dismissed;

c) The second to eighth respondents shall pay the costs of the third appellant of and incidental to his objection to competency and the application for leave to review on a solicitor client basis.

Holingu Lawyers: Lawyers for the Third Appellant
Wauwa K. Ltd: Lawyers for the Second to Eighth Respondents