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Ganglau Landowner Company Ltd v Medaing [2020] PGSC 50; SC1963 (29 May 2020)

SC1963

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 57 OF 2015

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b)
APPLICATION BY GANGLAU LANDOWNER COMPANY LIMITED

BETWEEN:
GANGLAU LANDOWNER COMPANY LIMITED
Appellant

AND:
LOUIS MEDAING ON BEHALF OF HIMSELF & MEMBERS OF TONG CLAN, SIBIAG 2 CLAN, & SIBIAG (GUHU) CLAN OF BASAMUK, RAICOAST, MADANG
Respondent

Waigani: Batari& Murray JJ
2016: 31^st August
2020: 29^thMay

SUPREME COURT – Appeal– Order 11 rr 25, 26 Supreme Court Rules & section 5 of the Supreme Court Act – appeal against orders of single Judge of Supreme Court refusing leave to apply for judicial review – powers of the Supreme Court – whether appeal competent under O 11 rr 25, 26 Supreme Court Rules & s. 5 Supreme Court Act.

SUPREME COURT – Appeal - Practice & Procedure – no right of appeal against decision of single Judge of Supreme Court– process – Supreme Court Rules Order 11 rr 25, 26 & s 5 of Supreme Court Act apply exclusively to directions and interim orders of a Judge of the Supreme Court in a pending appeal – Supreme Court not vested power to hear and determine appeals against grant of leave.

Aggrieved by the decision of the primary court in granting the respondents their application to review the decision of the Minister for Lands and Physical Planning, the Supreme Court (single Judge) upon application by the appellant for leave to appeal the judicial review decision, refused the application. This appeal is incompetent for lacking in procedural form and jurisdiction, as adjudged by the remaining members of the Bench.

HELD:

1. Where a third member of the Bench is unavailable by reason of death, resignation, retirement, or is not re-appointed, the appeal shall not be reheard unless the parties make that election before the two remaining members of the Bench pursuant to s. 3 of the Supreme Court Act. [5 - 8]
   
2. Section 5 of the Supreme Court Act when read together with O.11 rr. 25, 26 of the Supreme Court Rules, apply exclusively to incidental directions and interim orders in connection with a pending appeal, it is not intended to authorise and regulate an appeal against a decision of a single Judge of the Supreme Court. [31, 32, 34]
   
3. It is settled, there is no right of appeal against the decision of a single Judge of the Supreme Court. [33]
   
4. Where a single Judge of the Supreme Court exercising the power under s. 10 (1) of the Supreme Court refuses an application for leave to appeal, the appellant may apply afresh to the full Supreme Court. [37]
   
5. An originating process filed contra to legislative and procedural prerequisites is bound to be dismissed upon the Court’s own motion to protect its process. [38, 39]
   

Cases Cited:

Avia Aihi v The State (No. 1) [1981] PNGLR 81
Digicel (PNG) Ltd v Jim Miriagtoro (2019) SC1850
Felix Bakani & Oil Palm Industry Board v Rodney Daipo (2002) SC699
Hariki v. The State (2007) SC1320
Hon James Marape v Hon Peter O’Neill (2016) SC1492
Independent State of Papua New Guinea v John Tuap (2004) SC 765
John Nilkare v Ombudsman Commission [1976] PNGLR 413, SC500
Lae Bottling Industries Ltd v. Lae Rental Home Ltd (2011) SC1120
Luke Marano v. Jack Noari (2013) SC1307
Moses Manwau v Andrew Trawen (2011) SC1159
National Executive Council v Ila’ava (2014) SC1332
National Housing Estate Ltd & Anor v Decision 2000 Ltd & 3 Ors (2020) SC1931
Ramu Nickel Limited v. Temu&Ors(2007) N3114
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC 1568.
State v Dadi Toka Enterprises Ltd (2013) SC1346
The State v. Toka Enterprises Ltd (2013) SC 1266
ToRobert v ToRobert (2011) SC1130
William Powi & Ors v The State & Ors (2006) SC844

Counsel:

Mr. P.H Pato,for the Appellant
No appearance by the Respondent

29^thMay, 2020

1. BATARI, MURRAY JJ: This appeal is uncontested. It is against a decision of a single Judge of the Supreme Court (SC Judge) which dismissed the application by Ganglau Landowner Co Ltd (Ganglau/appellant) for leave to apply for judicial review of the National Court (primary court/judge) decision.
   

Section 3 Supreme Court Act Application.

2. A third member of the Bench having not been renewed his appointment, we have the authority of the parties under s. 3 of the Supreme Court Act(the Act) to continue the hearing of the appeal and give this judgment. Section 3 gives effect to the Constitution dictates in sections 161 and 162, that the Supreme Court be consisted of at least 3 Judges and in other situations by a single Judge or by a number of Judges sitting together.
   
3. Constitution s. 161 (2) reads:
   

(2) Subject to Section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three Judges.

4. Constitution s. 162 (2) reads:
   

(2) In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

5. Section 3 of the Actenvisages two scenarios where an ongoing appeal before a Supreme Court is left with two or one Judge because of the unavailability due todeath, resignation, retirement, or non-reappointment of one or two members of the bench.
   
6. The first situation is where the two remaining Judges can continue the appeal and give judgement with consent of the parties. Consent of the parties is a mandatory requirement under s. 3 (2) of the Act.
   
7. By necessary implication, the two remaining members of the Court are still seized of the matter so, the appeal must come before them or one of them with the consent of the other Judge, for the parties to make the election. If any of the parties objects to the remaining judges continuing the appeal, then the appeal will be reheard. See, National Housing Estate Ltd & Anor v Decision 2000 Ltd & 3 Ors (2020) SC1931.
   
8. The second scenario is where only one Judge is remaining. In that case, the appeal will be reheard: Moses Manwau v Andrew Trawen (2011) SC1159; John Nilkare v Ombudsman Commission [1976] PNGLR 413, SC500; Hariki v. The State (2007) SC 1320.
   

Background

9. The subject of the dispute between the partiesis a State Lease registered as Portions 109 and 110 Milinch Ammem, Fourmil, Madang.The land situated at Basamuk, Rai Coast, Madang Province is 85.17 hectares in area. It currently hosts the Ramu Nickel Mining processing plant and the wharf.
   
10. Onor about 18 June 2004 the Minister for Lands & Physical Planning granted a State Lease (Agricultural Lease) over Potions 109 and 110 to Ganglau Landowner Co Ltd (Ganglau). The respondent, Louis Medaing (Medaing) representing Tong and Ogeg clans with four other clans, successfully sought a judicial review of the decision of the Minister in the National Court at Madang.
    
11. On 19 February 2010, Cannings, J ordered inter alia, the decision of the Minister for Lands & Physical Planning to grant a State Lease over Portions 109 and 110 to Ganglau was null and void and quashed. Consequently, the State Lease grant was null and void and quashed. The primary judge further ordered, that the Registrar of Titles records be amended accordingly.
    
12. On 9 June 2010, after the appeal period had lapsed,Ganglau filed an application for leave toreview the primary court decision. The application was left in abeyance for over 12 months so, it was listed for summary determination.On 26 October 2011the Supreme Court granted the Appellant’s new lawyers reprieve to continue the appeal with directive orders to complete the final steps towards prosecution of the leave application. By mid-2015, the Supreme Court directions had not been complied with. The leave application wasagain listed for summary determination. Ganglau had in the meantime instructed its present lawyers, Parker Legal to take up its case.
    
13. Parker Legal withdrew the pending applicationand filed a fresh application for leave for review on 16 October 2015.
    
14. On 2 December 2015 his Honour Makail, J sitting as single Judge of the Supreme Court, dismissed theapplication. The appellant then filed this appeal.
    

Grounds for leave for review of primary court decision

15. The grounds for review of the primary judge decision were in a nutshell;
    
    1. The respondents being aggrieved by the issuance of the State Lease in question to Ganglau,failed to fully exhaust all administrative avenues under the Land Act to appeal the ministerial decision.
       
    2. Portions 109 and 110 being State Leases isnot subject to the jurisdiction of the Special Land Titles Commission hearing.
       
16. In seeking leave before the SC Judge to appeal the primary court refusal of leave, the appellant articulated the two principal grounds as following;
    
    1. whether the proceedings in the primary court was an abuse of the process where the respondent failed to exhaust all administrative avenues under the Land Act 1996before coming to court?
       
    2. Whether the Land Titles Commission has jurisdiction to hear disputes over State Lease under the Land Disputes Settlement Act?
       
    100. Whether the decision of the Minister for Lands & Physical Planning to grant State Lease in question was null and void as the land was subject of a Special Land Tittles Commission hearing?
         
    4. Whether the primary judge failed to consider the issue of delay subjectively to the other criteria for leave for review?
       

Grounds before this Court seeking a review of the SC Judge decision

17. The appellant alleges the SC Judge erred in his decision as follows:
    
    1. Failed to consider the grounds for Application for Leave to Review unders.155 (2) (b) of the Constitution.

2. Failed to consider the issue of delay subjectively to other criteria applicable to an application for leave to review.
   

100. Reliedon matters that are irrelevant and inapplicable to the principles governing application for leave to review.
     

4. Failed to hold that the Appellant’s application for leave to review constituted a case of special gravity.

Parties’ Positions on this Appeal

18. The only position taken at the hearing was that of the appellant. The respondents were not present. We are satisfied, the respondents have been served, they have not responded. If Ganglau succeeds and the SC Judge decision is reversed, Medaing and others with interests in this case would be duly served the substantive application for judicial review. At this stage, the application may proceed ex parte with leave. We grant the applicant that leave.
    
19. The appellant’s submissions articulated various failures and errors by Makail J in refusing leave to review the decision of Cannings J, as follows;
    
    1. The SC Judge failed to consider the proposed grounds for review based on procedural error in that the respondents failed to exhaust administrative avenues to challenge the issue of land title by the Minister for Lands & Physical Planning. Alternatively, the Judge erred when he concluded without a due considered assessment, the proposed grounds for review were not arguable.
       
    2. The SC Judge failedto consider the issue of delay subjectively to other factors applicable for grant of leave under s. 155 (2) (b) of the Constitution. That, the delay of two months was not critical compared with the exceptional circumstances involving procedural errors in the decision-making process and the resultant manifestation of substantial injustice thus, clear arguable issues warranting leave to review the primary court decision.
       
    100. The SC Judge failed to hold, the application for leave constituted a case of special gravity where the mining company, Ramu Nickel Ltdcontravened theMining Actby continuing its operations in the absence of a compensation agreement with the landowners.
         
    4. The SC Judge committed grave errors of law when he considered the leave application outsidesettled principles governing judicial review applications by taking into accountirrelevant matters.
       

Principles on leave applications under Constitution s 155 (2)(b)

20. The criteria for grant of leave under s. 155 (2) (b) of the Constitution is settled. The Supreme Court inLae Bottling Industries Ltd v. Lae Rental Home Ltd (2011) SC1120in affirming the principles governing leave for review that has developedover the years from the seminal authority in Avia Aihi v The State (No. 1) [1981] PNGLR 81,summed up the following guide:
    
    1. Whether there was a delay in make the application, if so whether there are exceptional circumstances showing manifestation ofsubstantial miscarriage of justice or whether the case is of such special gravity warranting the grant of leave.
       
    2. The grant of leave is in the interest of justice.
       
    3. There are clear arguable issues warranting leave to review the decision of the primary court.
       
21. The Supreme Court in,The State v. Toka Enterprises Ltd (2013) SC1266added two further considerations;
    
    1. Locus standi or the applicants’ standing
    2. On delay, the applicant must also offer a satisfactory explanation for failing to appeal the decision.
       
22. See also, Luke Marano v. Jack Noari & The State (2013) SC1307, Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568.
    
23. It is also settled, the merits of the issues raised are not to be considered at the leave stage: That task rests with the Supreme Court that is vested the power to determine the substantive application for judicial review following grant of leave: State v Dadi Toka Enterprises Ltd (2013) SC1346.
    

Considerations

24. The contention, that the issues raised important points of law warranting deliberation and determination by the Supreme Court, was the principal reason advanced for the grant of leave by the appellant.
    
25. The decision we have reached on the court’s own motion, is based on a fundamental procedural flawwhich will determine the future of this appeal. So, our response to the merits of the appellant’s contentions is brief.
    
26. It is apparent, the delay has been contumelious with no reasonable explanation. The delay was confounded by lawyers’tardiness and negligence together with the withdrawal and refiling of the application for leave after some five years. It is trite, lawyer incompetenceand carelessnessare not an excuse.
    
27. Furthermore, the issues raised do not constitute important points of law though may be arguable. The first point of contention over exhaustion of administrative avenues was not raised in the primary court and the appellant has not sought leave to raise the issue before this Court. On the issue of Special Lands Titles Commission hearings, it is a misconception to suggest the Commission lacked jurisdiction under the Land Tittles Commission Act over state leases. Section 15 (a) of the Act clearly gives the Commission jurisdiction over government land.
    
28. This case is however incompetently before this Court on a critical procedural issue against the appellant’s case.
    

Competency of proceeding:

29. Aggrieved by the decision of a SC Judge in refusing its application for leave for review, Ganglau lodged this appeal pursuant to O. 11 rr. 25, 26 of the Supreme Court Rulesand s.5 of the Supreme Court Act.
    

Order 11 rr. 25, 26 of the Supreme Court Rules read as follows:

“25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appear just”.

“26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply”.

30. Section 5 of the Supreme Court Act 5 reads:
    

“5. Incidental directions and interim orders.

(1) Where an appeal is pending before the Supreme Court—

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court”.

31. The provisions of s. 5 and O 11. rr 25, 26 read together for proper meaning and effect, apply exclusively to incidental directions and interim orders in connection with a pending appeal before the Supreme Court. These provisions read together, are not meant to authorise and regulate an appeal against a decision of a single Judge of the Supreme Court. That is abundantly clear from the phrase, “Where an appeal is pending before the Supreme Court,” in s. 5 (1) of the Act.This view is fortified by the decision in, Hon James Marape v Hon Peter O’Neill (2016) SC1492 where Sawong J stated:
    

“Section 5 of the Act, grants jurisdiction to a single Judge of the Supreme Court, to make interim orders or incidental directions where an appeal is pending before the Supreme Court. The jurisdiction of a single judge is limited in scope to those matters set out in S.5 (1) (a) to 5(e). For instance, a Judge has jurisdiction under s.5 (1) (a) to make “a direction not involving the decision on the appeal”. Similarly, a single Judge of the Supreme Court has jurisdiction to make “an order admitting an appellant to bail” s.5 (1) (e).”

32. It is clear, the power of the Supreme Court under s. 5 (3) of the Actto discharge or vary a direction or order made under s. 5 (1) can only be invoked by way of application to the full Supreme Court. When O 11 r 26 is read consistently with s. 5 of the Act, it provides for an “application”in the same appeal where a single Judge of the Supreme Court has made an incidental direction or interim order: National Executive Council v Ila’ava(2014)SC1332.
    
33. It is also settled, there is no right of appeal against the decision of a single Judge of the Supreme Court to the full Court: ToRobert v ToRobert (2011) SC1130 and further, there is no provision for review of a direction or order of a single Judge by the full Supreme Court: William Powi & Ors v The State & Ors (2006) SC 844; National Executive Council v Ila’ava (2014) SC1332.
    
34. Section 5 of the Supreme Court Actand O. 11 rr. 25, 26 of theSupreme Court Rulesprovisions do not give this Court jurisdiction to appeal against a decision of a SC Judge refusing leave to apply for review.
    
35. The course then open to Ganglau is under s. 10 of the Supreme Court Act and O. 11 r. 27 of the Supreme Court Rules. Section 10 provides:
    

“10. Powers that may be exercised by Judge.

(1) Any power of the Supreme Court under this or any other Act—
(a) to give leave to appeal; or
(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or
(c) to admit an appellant to bail,
may be exercised by a Judge in the same manner as it may be exercised by the Court.
(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.”

36. Order 11 r. 27 provides;
    

“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.”

37. When s. 10(2) is read together with O.11 r.27, the intention is clearly that,where a SC Judge exercising the power under s. 10 (1) of the Supreme Court Act, refuses an application for leave to appeal or extend time to appeal or refuses bail, the applicant may apply afresh to the full Supreme Court.
    
38. Ganglau instead came to this Court by way of an appeal. That is a wrong process. In the recent case of Digicel (PNG) Ltd v Jim Miringtoro(2019) SC1850, the appellant appealed a judicial review decision by way of a Notice of Appeal. The Supreme Court held the appeal was incompetently before the Court as the appellant should have come by way of Notice of Motion under O.10 of the Supreme Court Rules. The Court dismissed the appeal on its own motion. See also Felix Bakani & Oil Palm Industry Board v Rodney Daipo (2002) SC699; Independent State of Papua New Guinea v John Tuap (2004) SC765.
    
39. The appeal by Ganglau is not properly before this Court. The Court has no jurisdiction under s. 5 of the Supreme Court Act and O. 11 rr. 25, 26 of the Supreme Court Rulesto consider and determine an appeal against a decision of a single Judge.The process adopted ismisconceived. The appeal is dismissed on the Court’s own motion to protect the court’s own process.
    

Orders

1. Appeal is dismissed.
2. The appellant will bear its own costs.
   

________________________________________________________________

Parker Legal: Lawyers for the Appellant

Louis Medaing: NoAppearance by the Respondents