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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV NO. 63 OF 2019
REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION TO REVIEW DECISION OF THE NATIONAL COURT IN OS (JR) NO. 234 of 2011
BETWEEN:
APPLICATION BY PASTOR HANUA GADIKI
Applicant
V
GAUDI LOGAE OF KURIU CLAN
First Respondent
AND:
KURIU LAND GROUP INCORPORATION
Second Respondent
Waigani: Manuhu J, Anis J, Kassman J
2020: 14th December
2021: 14th May
OBJECTION TO COMPETENCY – Objection based on, amongst others, want of jurisdiction of the Supreme Court – section 155 of the Constitution considered – decision intended to be reviewed had been fully determined by the Supreme Court - power or want of power by the Supreme Court to hear a matter that had completed the National Judicial System or process as provided for under s. 155 of the Constitution
Cases Cited:
Napanapa Landowners Association and Kore Kore Gaudi v. Gaudi Logae and Kuriu Clan Land Group Inc (2016) SC 1533
Michael Newall Wilson v. Clement Kuburam (2016) SC 1489
Michael Kuman & Ors v. Digicel (PNG) Ltd (2013) SC1232
Talibe Hegele v Tony Kila (2011) SC 1124
Turia McKay v Nelson (2008) SC949
Waghi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
PNG Forest Authority v. Securamax Ltd (2003) SC717
Yakham & The National v. Merriam & Merriam (1997) SC533
Lucas Dekena v Nick Kuman (2018) SC1715
Special Reference by the Honourable Davis Steven (2020) SC2041
Yaip Avini v The State (1998) N1786
Application by Joseph Kintau (2011) SC1125
Haua Gadiki v. Gaudi Logea (2019) SC1876
Avia Aihi v The State [1981] PNGLR 81
Supreme Court Reference No.13 of 2002; Review pursuant to s. 155(2)(b) and s.155(4) of the Constitution
Application by Anderson Agiru (2002) SC686
Application by Herman Joseph Leahy (2006) SC855
Tom Amaiu v. Sir Albert Kipalan (2009) SC991
National Capital District v Central Provincial Government (2013) SC1289
Legislations Cited:
Land Disputes Settlement Act s 60
Constitution ss 155(2)(b), 155(3)(a) and 166
Supreme Court Act s 17
Supreme Court Rules Order 7 Rule 17
Counsel:
C Raurela, for the Appellant
J Posi, for the Respondents
14th May, 2021
1. MANUHU J & ANIS J: This was a hearing of an Objection to Competency (Objection) which was filed against the present pending Application for Leave to Review (leave application). The Objection was filed by the first and second respondents on 13 September 2019. We heard the Objection on 14 December 2020 and reserved our decision thereafter.
2. This is our ruling.
BRIEF BACKGROUND
3. For this purpose, the relevant background is this. Subject to the decision of this Court, the applicant intends to seek leave from the Supreme Court before a single judge, to review a final decision of the National Court that was made on 18 July 2012, in proceeding OS (JR) 243 of 2011 (judicial review proceeding). The trial judge Gavara-Nanu J (trial judge) granted the relief sought by the respondents, and in so doing, overturned a Provincial Land Court’s decision which had primarily declared the applicant of Koita Tribe, as the principal landowner of a customary land. The customary land in question is described as Napanapa DA-5 Land. It is said to be situated where or around the Napanapa Oil Refinery, in Central Province (customary land). In overturning the Provincial Land Court’s decision, the respondents, who were plaintiffs therein, were granted ownership over the customary land. The final decision of the trial judge is in 2 parts. It reads and I quote:
The orders of the court are therefore as follows: 1) The decision by the provincial land magistrate which is the first defendant made on 21 December 2010 is quashed. 2) That Gaudi Logae for and on behalf of Kuriu clan of Roku village is a principal landowner of Napa Napa land. 3) Costs will be to the plaintiffs.
4. The applicant was joined as a defendant in the judicial review proceeding. He had counsel representing him then who was Benny Takin of BT Gobu Lawyers. However, at the actual trial on 13 July 2012, and the events leading up to it, the applicant nor his lawyer had been attending Court. So, the trial on 13 July proceeded and as stated, the trial Court granted the relief that were sought by the respondents. The applicant did not appeal against the decision of the judicial review court. The other defendants lodged their appeal to the Supreme Court within the prescribed 40 days period of appeal, where they had filed proceeding SCM No. 11 of 2012, Napanapa Landowners Association and Kore Kore Gaudi v. Gaudi Logae and Kuriu Clan Land Group Inc (proceeding SCM No. 11 of 2012). The applicant and one Nou Gagoa, it seems were out of time to appeal. So, they applied to be joined as co-appellants before a single Supreme Court Judge in proceeding SCM No. 11 of 2012. On 12 May 2015, Honour Justice Kirriwom dismissed their application with cost. There is a written decision by His Honour which is located at page 203 of the Objection Book (OB).
5. Proceeding SCM No. 11 of 2012 was later heard by a full bench comprising of the then Chief Justice Sir Salamo Injia, Hartshorn J and Collier J. On 7 July 2016, this Court handed down its decision on the substantive review. It is reported as Napanapa Landowners Association and Kore Kore Gaudi v. Gaudi Logae and Kuriu Clan Land Group Inc (2016) SC 1533. In so doing, the Court found all the grounds of appeal to lack merit and dismissed the entire appeal with cost. The appellants therein, shortly after the ruling, filed an application for leave to make a slip rule application to challenge the decision of this Court. On 14 December 2017, Hartshorn J sitting as a single judge in proceeding SCM No. 11 of 2012, dismissed the slip rule application. Consequently, and to date, what this means is that the National Court’s decision of 18 July 2012 in the judicial review proceeding, remains binding. It is for this reason, that the applicant has filed this leave application.
6. The applicant, we note, gives a summary of the background of the events, however, most of which, in our view, are a distraction or are irrelevant for this purpose, so we will not repeat them here. But on point and of relevance is the intended purpose of the leave application, which is pleaded at page 10 of the OB. At paragraph 2.32 at line 30, the applicant pleads his intention as to why he would be asking the Supreme Court for leave to review, and we quote,
The Applicant had lost his right of appeal and as such is invoking Section 155(4) (2)(b) of the Constitution to review the decision of 18th July 2012 in the National Court proceeding OS (JR) No. 243 of 2011. [Bold lettering mine]
GROUNDS OF OBJECTION
7. The respondents pleaded 5 grounds of objection. At the hearing, counsel for the respondents informed the Court that they wished to withdraw ground 5. We granted leave to do so, before proceeding.
8. The remaining 4 grounds are, and we set them out herein:
ISSUE
9. The main issue, in our view, is this; whether any of the grounds raised relates to jurisdiction, and if so, whether a case has been made out where the Supreme Court lacks jurisdiction, or if not, whether the objection should be dismissed and the matter should proceed to hearing of the leave application.
THE LAW - OBJECTION
10. The law on objection to competency or challenges raised against competency of an appeal, whether it be for example from a substantive appeal filed as of right or from an application for leave to review like in this case, has many precedents in this jurisdiction.
11. To begin, we adopt the explanation on this issue that was given by Logan J in Michael Newall Wilson v. Clement Kuburam (2016) SC 1489. At pages 62 and 63, His Honour stated as follows,
62. It is the merits of that objection to competency which fall to us to determine. In this regard, it is necessary to emphasise that an objection to competency goes to the jurisdiction of a court to entertain at all a particular proceeding which has been initiated in that court: see, for example, Porgera Joint Venture & Placer (PNG) Ltd v Joshua Siapu Yako & Ors (2008) SC 916 at paragraph 21 and Cocoa Cola Amatil (PNG) Ltd v Yanda SC1221 at paragraphs 6 to10. In the present context, that means that, if the Supreme Court has no jurisdiction to entertain Mr Wilson’s judicial review application, the objection will be upheld. [Bold lettering mine].
63. It is important to distinguish the position which obtains in respect of an objection to competency from the question as to whether, if there is jurisdiction, leave to apply for judicial review ought to be granted. The question of whether or not leave ought to be granted entails the exercise of a judicial discretion in relation to which, apart from whether an arguable case of error is raised, considerations such as delay on the part of the applicant and any resultant prejudice to a respondent or other person affected by the decision or judgment sought to be challenged can be relevant. Such discretionary considerations are not relevant to a determination of whether there is jurisdiction. There is a fundamental difference between the existence of a judicial power and whether or not, as a matter of discretion, a case is one which calls for the exercise of that power. [Bold lettering is mine].
12. Other case authorities include Michael Kuman & Ors v. Digicel (PNG) Ltd (2013) SC1232, Talibe Hegele v Tony Kila (2011) SC 1124, Turia McKay v Nelson (2008) SC949, Waghi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, PNG Forest Authority v. Securamax Ltd (2003) SC717 and Yakham & The National v. Merriam & Merriam (1997) SC533.
13. And this Court in Lucas Dekena v Nick Kuman (2018) SC1715, stated at paragraph 11 the dissenting judgment of Kandakasi J (as he was then) in Michael Kuman & Ors v Digicel (PNG) Ltd (supra) the following:
“11. Before dealing with the issues before us, we consider it important that we should remind ourselves and allow ourselves to be guided by the relevant principles of law on objections to competency of proceedings before this Court. In the dissenting judgment in the matter of Michael Kuman & Ors v. Digicel (PNG) Ltd,91 Kandakasi J., discussed and summed up the relevant principles of law in the following terms:
“3. Objections to competency of appeals, applications for leave to appealand references and or other applications or process brought to the Supreme Court is a well-trodden road in Papua New Guinea. The principles governing such objections are well settled. I note as did the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 (per Cannings, David and Sawong JJ), the “law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v. Nelson (2008) SC949, per Kirriwom, Cannings, Yagi JJ. These have been elaborated and complimented upon by other decisions. According to these decisions, an objection to competency would properly be in Court if it raises issues that:
(1) draws the Court’s attention to a question of jurisdiction: See Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v. Gabriel Nelson (supra) and Talibe Hegele v. Tony Kila (supra);
(2) there are serious threshold issues concerning legality or viability of the appeal: See PNG Forest Authority v. Securamax Ltd (2003) SC717;
(3) leave has not being sought and obtained separately in cases where some of the grounds of appeal require leave and some do not: See Yakham & The National v. Merriam & Merriam (1997) SC533, per Amet CJ, Kapi DCJ and Los J;
(4) an application for leave or notice of appeal’s ground is false, misleading or is vague or not adequately stating the nature of the case, the questions involved and the reasons why leave should be given: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456, per Batari, David and Makail, JJ; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, per Amet CJ, Kapi DCJ and Sevua J; To validly plead the grounds they must briefly state but:
(a) specifically make grammatical and legal sense and be intelligible;
(b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that; and
(c) if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: See Jimmy Lama v. NDB Investments Ltd (2015) SC1423, per Cannings, Collier and Geita JJ;
(5) an application for leave or notice of appeal has being filed outside the 40 days period allowed by s. 17 of the Supreme Court Act without leave of the Supreme Court: See The State v. John Tuap (2004) SC765, per Sawong, Mogish and Cannings JJ;
(6) an application for leave includes questions of law or fact not raised in the National Court: See Chief Inspector Robert Kalasim v. Tangane Koglwa (2006) SC828, Kapi CJ, Injia DCJ and Hinchliffe J;
(7) an applicant for leave does not have sufficient interest in the subject matter of the National Court’s decision that it wishes to appeal against: See Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691, per Kapi CJ, Kirriwom and Lay JJ;
(8) the notice of appeal raises factual questions for which leave had not been first sought and obtained separately: Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431, per Gavara-Nanu, David and Murray JJ;
(9) an application for leave has been filed unnecessarily, that is, where the objecting party points out that leave to appeal was not actually required and leave is being sought. Earlier decisions of the Court held this could not be a valid ground to object: See Boyepe Pere v. Emmanuel Ningi (2003) SC711, per Los, Kandakasi and Mogish JJ; Oio Aba v. MVIL (2005) SC779, per Injia DCJ, Sawong and Lay JJ; The State v. John Talu Tekwie (2006) SC843, per Salika, Lay and Gabi JJ. This later changed to make it a valid ground for objection to competency: See Paul Bari v. John Raim (2004) SC768, per Salika, Mogish & Cannings, JJ; Timothy Neville v. IPBC (2012) SC1193, per Salika, DCJ and Batari J. and Rea Joseph v. Manau Sereva (2011) SC1152, five-member bench comprising of Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ;
(10) the appeal, leave or review or an application or a process before the Court fails to strictly comply with the mandatory procedures and requirements of the Supreme Court Rules: See National Capital Ltd v. Loi Bakani (2014) SC1392, per Injia CJ, Gavara-Nanu and Kawi JJ; Dr Arnold Kukari v. Don Polye & Ors (2008) SC 907, per Kapi CJ, Gavara-Nanu and Cannings JJ.; Ipili Porgera Investments Ltd v. Bank South Pacific Ltd (2007) SC1322; Felix Bakani v Rodney Daipo SC659; Haiveta v. Wingti (No.2) [1994] PNGLR 189 and Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112). Any such defect cannot be fixed by any amendments as the originating process is not properly before the Court. This is not an exercise in the court nitpicking, but is something that goes into the validity of the process: See In the Matter of Section 19 of The Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006) (2007) SC917; Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249 and Special Reference by Morobe Provincial Executive (2010) SC1089.
4. It is also clear that, the above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court raising questions of the Court’s jurisdiction to deal with a matter brought before it. At the same time, it is clear that, following grounds of objection are not proper grounds for taking an objection as to the competency of a matter before the Court:
(1) That an application for leave to appeal was not served on the respondent: See Gigmai Awal v. Salamo Elema (supra), where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties;
(2) That the proposed grounds of appeal referred to in an application for leave to appeal, lack merit. This is to say, where an objection raises an argument around the grounds of appeal having any merit or are not likely to succeed is not a proper ground to object because such arguments can only be raised at the hearing of the substantive matter. See The State v. John Talu Tekwie (2006) SC843; and PNG Forest Authority v. Securimax Ltd (2003) SC717.”
14. The above considerations are not exhaustive. For this purpose, they do serve to give us a broader view of situations where this Court may uphold or otherwise dispose objection to competency applications.
JURISDICTION
15. The main want of jurisdiction argument by the respondents may be found under ground 2 of the 4 grounds of objection. The respondents argue that the intended review application by the applicant is in relation to the substantive decision of the Judicial Review Court made on 18 July 2012. The respondents submit that the decision had been appealed against by the other defendants in the judicial review proceeding, in proceeding SCM No. 11 of 2012; they submit that the applicant had attempted to join as a party in proceeding SCM No. 11 of 2012; they submit that the Supreme Court in proceeding SCM No. 11 of 2012, before a single judge Kirriwom J, refused to permit the applicant to be joined as an appellant in proceeding SCM No. 11 of 2012; they submit that the full Supreme Court has reviewed the decision of the trial judge of 18 July 2012, and has reached a final decision where it dismissed proceeding SCM No. 11 of 2012; they submit that the matter has therefore concluded and as such, no other Supreme Court may review the same National Court decision of 18 July 2012; they submit that the issue or matter intended by the applicant is functus officio or that the principle res judicata applies; they submit that the Supreme Court, if the review application is allowed, will be asked to review the National Court’s decision of 18 July 2012 a second time, something which it does not have jurisdiction to do. The applicant on the other hand denies these claims and submits, amongst others, that the arguments should be left for the leave Court to determine; that it was pre-mature to raise them now.
16. We note the submissions of the parties on the matter.
17. What stood out to us are these undisputed facts. The applicant expressly pleads in his leave application, that he intends to seek leave to review the trial judge’s decision of 18 July 2012, that is, the decision which had already been reviewed by the Supreme Court in proceeding SCM No. 11 of 2012. It is not disputed, and it is a fact, that the full bench of the Supreme Court had, in proceeding SCM No. 11 of 2012 and on 7 July 2016, determined the National Court’s decision of 18 July 2012. The applicant’s real reason for seeking a review, appears to be or it would seem, is based on the sole reason that he had missed out as a party in the appeal process that had commenced and had concluded where his interest has been affected.
18. The foremost question then is this. Does the Supreme Court have jurisdiction to hear such request? Or can section 155(2)(b) of the Constitution be invoked in this manner, that is, can the Supreme Court be asked to review a National Court decision which had completed the appeal or review process?
19. The answer to that is obvious, and it is this, “no, the Supreme Court has no jurisdiction to review the same decision which has completed the appeal or review processes that are provided under National Judicial System as prescribed under s. 155 of the Constitution”. Recently, the Supreme Court, comprised of a 5-men bench in Special Reference by the Honourable Davis Steven (2020) SC2041, held, and we quote from Hartshorn J where His Honour stated at paragraphs 10 to 13:
9. The first issue that arises is whether Order 3 Rule 2(b) Supreme Court Rules is able to provide a Supreme Court with the jurisdiction to be able to stay the final judgment and orders of another Supreme Court.
10. A Rule of Court is not able to provide a jurisdiction to the Supreme Court which the Constitution does not.
11. Pursuant to s. 155 (2) Constitution:
(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.
12. There are no Constitutional or any other laws that have conferred other jurisdiction or power on the Supreme Court which affect or are superior to those conferred by s. 155 (2)(a) and (b). Section 19, for instance, pursuant to which this Special Reference is brought, confers jurisdiction to the Supreme Court to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, but it does not confer a superior jurisdiction to that provided in s.155 (2)(a) and (b). Section 19 does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders.
13. The Supreme Court does not have the jurisdiction to hear an appeal from another Supreme Court and does not have the inherent power to review all or any judicial acts of the Supreme Court. As the Supreme Court does not have this jurisdiction or power it does not have the jurisdiction or power to be able to make interim or interlocutory orders in respect of a final Supreme Court’s judgment or orders
20. Prior to the above decision, Logan J, as part of the full Court in Michael Newall Wilson v. Clement Kuburam (supra), stated on point, and we quote at paragraph 68 of the judgment:
64. It was common ground between the parties in their submissions, and correctly so, that, if the Supreme Court had already made a final determination in respect of the National Court’s judgment of 10 June 2014, there was no jurisdiction to grant leave to review that National Court judgment under s 155(2)(b) of the Constitution. That is because the Supreme Court is, by s 155(2)(a) of the Constitution, the final court of appeal. Once the Supreme Court has given its decision on an appeal, “That is where the matter ends as far as the judicial system or process is concerned.” – Application by Joseph Kintau SC1125, paragraph 36. If, on the other hand, the Supreme Court has made no such final determination in respect of a National Court judgment, an application for the judicial review of that judgment can entail no impeaching or questioning of an earlier determination of the Supreme Court. In that circumstance, such is the breadth of the specification in s 155(2)(b) of the Constitution that the Supreme Court “has an inherent power to review all judicial acts of the National Court”, that the Supreme Court will have jurisdiction to entertain an application for the review of a National Court judgment. That review can be undertaken via the making of an order in the nature of a prerogative writ pursuant to the power conferred by s 155(4) of the Constitution. [Bold lettering mine].
21. Justice Woods in Yaip Avini v The State (1998) N1786, also and in a much earlier decision, stated:
I cannot find that the Constitution and the Organic Laws or the Laws made by Parliament, and in particular the National Court and Supreme Court Acts give a single Judge of the National Court the power to review or override the decisions of another Judge or a decision of the Supreme Court. The National Judicial System is established by Section 155 of the Constitution and pursuant to that section only the Supreme Court has the inherent power to review the judicial acts of the National Court. And in the case before me now it has done that. Neither Section 57 nor Section 155 gives a person a second chance to review the decisions of the National or the Supreme Court once the normal rights of appeal have been exercised. (Bold lettering is mine).
22. And finally, in Application by Joseph Kintau (2011) SC1125, this Court stated in part at paragraph 36:
There is no further right under the Act to have the decision of the Supreme Court reviewed by any other court or tribunal. Section 155 (2) (a) which asserts that jurisdiction, in the terms, “The Supreme Court ... (a) is the final court of appeal;” puts the matter beyond doubt. That is where the matter ends as far as the judicial system or process is concerned.
23. We affirm and adopt these views. This Court, pursuant to s. 155(2)(a) of the Constitution, is the final Court of appeal. So, once it gives its decision on an appealed or review matter, that is where the matter ends under our National Judicial System or process. Section 155(2)(b) of the Constitution does not give the Supreme Court inherent power to (i) review its own decision, or (ii) to review for the second time a decision of the National Court which had been appealed against and which had been determined on its merit.
24. The pending review application intends to review, for the second time, the decision of Gavara-Nanu J of 18 July 2012. The decision had been appealed by way of a review and has already been determined on its merit by the Supreme Court in proceeding SCM No. 11 of 2012, on 7 July 2016. This Court therefore does not have jurisdiction to review what is being proposed by the applicant in his review application, that is, his intention to review the same National Court decision. The said National Court decision has completed the Judicial System or process prescribed under s. 155 of the Constitution. The intention of the applicant, if permitted, would be regarded as a second review hearing of the same matter, something which is not prescribed by law or under section 155 of the Constitution.
25. The Objection is therefore upheld for these reasons. The leave application must fail and should be dismissed with cost.
26. There is a further reason to uphold the Objection and dismiss the leave application. This is a case where, with respect, amounts to attempt by the applicant to abuse the National Judicial System and the hierarchy of powers of its courts that are prescribed under s. 155 of the Constitution. The applicant herein has deliberately and after knowing fully well of this Court’s decision in proceeding SCM No. 11 of 2012, taken other steps including filing this review application. We note that the applicant had attempted to join as a party in proceeding SCM No. 11 of 2012. He failed in that regard. He then also filed a separate Supreme Court review. That review is described as SCR 17 of 2019. The parties therein were identical to the parties named in the present review application. The full Supreme Court dismissed the applicant’s application for leave to review, on 28 August 2019. The judgment is published as Haua Gadiki v. Gaudi Logea (2019) SC1876. The reason why the said review was dismissed was due to want of form of the application for leave to review. But, again, we must stress that the applicant had counsel acting for him then and now. Given the vast case authorities on point on the matter, it is, in our view, a blatant and gross abuse or attempted abuse of process, for the applicant to continue to pursue the matter in the manner as he had and as he continues to do so by filing the present review application.
27. This Court has a duty to protect its process from abuse. Again, we refer to the case of Michael Newall Wilson v. Clement Kuburam (supra). Gavara-Nanu J, stated at paragraph 33, and I quote:
33. It is an established principle of law that the Court has a duty to protect its processes from being abused. Where there is such abuse, the Court has the inherent power to deal with it. The Court can exercise this power even without an application being made by a party. This is necessary for the fair and proper administration of justice by the Court. In Anderson Agiru v. The Electoral Commission (supra), the Supreme Court in reiterating this principle said:
“The basic principles that are to be applied when the court is considering whether or not there has been an abuse of its processes have been succinctly put before us by Mr. Cannings in his submissions. Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process. (see, generally, Ronney Wabia v BP Exploration Operating Co. Ltd & Ors, Unreported National Court Judgment N1697dated 28 March 1998).
In The State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that:
“mere motive, however reprehensible, will not be sufficient” (to constitute abuse of process) “it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable”.
The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding. This has been clearly set out by the Supreme Court in National Executive Council v Public Employees Association [1993] PNGLR 264 where it was held:
“An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1 (1), a party can also obtain a declaration or injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis.”
(See also Ipatas v Enga Interim Provincial Government & Anor, unreported National Court Judgment N1491 dated 24 October 1996; Aro Investments Pty Ltd v Fly River Provincial Government, Unreported judgment N1519, dated 6 February 1997; Pukari& Oro Cable Television v Seeto Unreported judgment N1490 dated 6 September, 1996.).” (my underlining).
34. In NAE Limited (1-21320) v. Curtain Bros &Ors (OS 225 of 2014) (12th March, 2015) Hartshorn J, in discussing the Court’s inherent power to deal with abuse of process, said:
“Notwithstanding that the first defendant makes application pursuant to Order 12 Rule 40 National Court Rules (sic.), to dismiss the proceeding on the ground among others, that it is an abuse of process, the following classic statement of Lord Diplock in the House of Lord’s decision of Hunter v. Chief Constable of the West Midlands Police and Others [1981] UKHL 13; [1982] AC 529, as to the inherent jurisdiction of a court to deal with an abuse of its process is worthy of reproduction:”
“This is a case about abuse of process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which an abuse of process can arise are very varied; It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kind of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.” (my underlining).
28. So, with these, it goes without saying, of the duty that is bestowed upon this Court, which is to protect its process from abuse. In our view, this is a case where it is appropriate to exercise our inherent power in that regard. We therefore do so and accordingly dismiss the leave application for this second reason, that is, abuse of process.
SUMMARY
29. In summary, we uphold the Objection to Competency against the Application for Leave to Review the decision of the Judicial Review Court made on 18 July 2012 in proceeding OS(JR) No. 243 of 2011. The intended review application shall be dismissed as incompetent and for abuse of process.
30. The applicant shall pay the respondents’ costs of the review proceeding on a party/party basis to be taxed if not agreed.
31. We propose to make the following orders:
32. KASSMAN J: This proceeding was commenced by an Application for Leave to Review filed by the Applicant (“Gadiki”) on 29 August 2019 (“the Application”). The Respondents (together “Logae”) then filed on 13 September 2019 Notice of Objection to the Competency of the Application for Leave to Review (“the Objection”). The Objection was heard on 14 December 2020.
33. I have had the benefit of reading the draft of the joint decision of my brothers Manuhu J and Anis J. Whilst I agree with the outcome and much of the discussion, I have addressed the issues in a different manner and, with respect, present my views in this my decision on the Objection. At the hearing, on the request of Logae and with the consent of Gadiki, we granted Logae leave to withdraw Ground 5 of the Objection. Logae pursued Grounds 1, 2, 3 and 4 of the Objection.
INTRODUCTION
34. The principal parties to the dispute over ownership of the land in issue have been before the Local Land Court, Provincial Land Court, National Court and Supreme Court on multiple occasions from about 2001 to the current proceeding commenced in 2019. Apart from the substantive claim to ownership of a certain piece of land, the courts have dealt with various interlocutory applications including applications seeking the joinder and removal of parties named in the various proceedings which arose from challenges to leadership of land groups claiming ownership in custom of the land or representation of such customary landowner groups. There have also been a multiple appeals or reviews in the National Court and Supreme Court followed by competency arguments and a slip rule application. Multiple changes of lawyers for the various parties have also been a feature. Substantial judicial time has been consumed over many years.
DISPUTES OVER CUSTOMARY LAND – PROCESS
35. The Land Disputes Settlement Act is an Act that provides for the settlement of disputes in relation to interests in customary land, and for related purposes. My understanding of the process under this law is that the process starts with mediation by a Land Mediator. Where mediation results in an agreement between the parties or where the dispute remains unresolved, the matter may be referred to the Local Land Court for approval of the agreement or determination of the dispute. A person aggrieved by a decision of a Local Land Court may appeal to the Provincial Land Court within three months of the decision of the Local Land Court. In determining an appeal, the Provincial Land Court may affirm the order or quash the order of the Local Land Court and make such other order to dispose of the dispute or remit the dispute to the Local Land Court with directions considered proper. By Section 60, a decision of a Provincial Land Court is final and not subject to appeal.
36. The process then continues as provided by the Constitution and the National Court Rules. A person aggrieved by a decision of the Provincial Land Court may seek review of the decision of the Provincial Land Court by the filing of an Application for Leave for Judicial Review in the National Court which has jurisdiction pursuant to section 155(3)(a) and section 166 of the Constitution. A person aggrieved by a decision of the National Court may then appeal within forty days of the decision of the National Court by filing a Notice of Appeal or Application for Leave to Appeal in the Supreme Court as provided by section 17 of the Supreme Court Act.
37. The process continues as provided by the Constitution and Supreme Court Act and Rules. Where a person aggrieved by a decision of the National Court fails to file an appeal within forty days, which is where Gadiki is now, such person may ask the Supreme Court to exercise jurisdiction by filing an Application for Leave to Review pursuant to section 155(2)(b) of the Constitution. That is what Gadiki has done in this instance and in response Logae filed objection to competency which is now before us for determination.
ESSENTIAL FACTS AND CHRONOLOGY
38. For my benefit and for clarity on the facts and issues for the purpose of this judgment, I define essential matters and a chronology of pertinent facts and proceedings in the courts. I have also had the benefit of reading the thorough analysis of the background in the published judgment of the Supreme Court in SC1533 in SCM11 of 2012 Napanapa Landowners Association & Kore Kore Gaudi -v- Gaudi Logae & Kuriu Clan Land Group Inc by Injia CJ, Hartshorn and Collier JJ of 7 July 2016.
39. The land in dispute is formally described as “Napanapa Land DA5” (“the land”). On the land is the Napanapa Oil Refinery located in the harbour of Port Moresby across from Tatana Island. The parties to the disputes and various proceedings included Pastor Hanua Gadiki, Gaudi Logae, Korekore Gaudi, Napanapa Landowners Association Inc and the Kuriu Clan Land Group. A chronology of essential events is attempted here.
40. On 29 May 2001, the Local Land Court proceeding 02/2001 endorsed a Consent Order that Ata Ageva of Mavara Clan of Roku Village was declared the traditional landowner of the land. Parties who endorsed the consent order were Pastor Hanua Gadiki, Korekore Gaudi, Hegoi Igo and Maduka Iduhu.
41. The decision of the Local Land Court was then challenged on appeal to the Provincial Land Court. On 21 December 2010, the Provincial Land Court presided over by Magistrate Noki declared Pastor Hanua Gadiki the traditional landowner of the land.
42. On 20 January 2011, the decision of the Provincial Land Court of 21 December 2010 was challenged in proceedings OS 15 of 2011 on the filing of an Originating Summons by Logae which sought review of the decision of the Provincial Land Court. On 5 May 2011, Pastor Hanua Gadiki joined the proceeding as a Defendant. The proceeding was then dismissed by the Deputy Chief Justice Sir Gibbs Salika, as he then was, and His Honour made further orders including orders that the Provincial Land Court order of 21 December 2010 is of full effect and three named parties (apparently Logae and two others) were to receive the royalty payments for and on behalf of the Napanapa Landowners Association Inc and its members.
43. On 10 May 2011, a further originating summons in OS 243 of 2011 was filed seeking again, leave for judicial review of the decision of the Provincial Land Court of 21 December 2010. On 8 July 2011, Hanua Gadiki was joined as a Fourth Defendant. The matter was heard by Gavara-Nanu J who in a decision of 18 July 2012, declared Logae for and on behalf of the Kuriu Clan of Roku Village is the principal landowner of the land. That is the decision that is challenged by Gadiki in the Application filed 29 August 2019 which will be heard should we dismiss the Objection of Logae now before us for determination.
44. On 24 August 2012, appeal proceeding SCM 11 of 2012 was filed by Napanapa Landowners Association and Korekore Gaudi from the decision of the National Court in OS 243 of 2011 of Gavara-nanu J. In the decision of the Supreme Court, the court considered the issues raised by the appeal which the court reduced to four questions, namely: 1. Did the decision in OS 15 of 2011 mean that the proceedings in OS 243 were res judicata? (grounds 2.2, 2.5, 2.7 (c)); 2. Did the primary judge err in refusing to hear the application for joinder by the appellants, and in failing to join the appellants to the proceedings? (grounds 2.1, 2.3, 2.4); 3. Did the primary Judge err in quashing the decision of the Provincial Land Court, based only on the limited evidence before the Court in OS 243 of 2011? (grounds 2.6, 2.7(a) and (b)); and 4. Did the primary judge err in granting the declaratory order that the first appellant for and on behalf of the Kuriu clan of Roku village is a principal landowner of the Napa Napa land? In a detailed considered judgment published SC1533, the Supreme Court found (a) OS 243 was not res judicata of proceedings OS 15 of 2011; (b) there was no error in the primary judge refusing the joinder of the appellants: (c) there was no error in the primary judge quashing the decision of the Provincial Land Court: and (c) there was no error in the primary judge declaring Logae as the principal landowner of the land. The appeal was dismissed.
45. Napanapa Landowners Association and Korekore Gaudi then applied for leave to file a slip rule application but both applications were dismissed by Hartshorn J sitting as a single judge of the Supreme Court on 14 December 2017 in a published decision SC1677.
46. In 2019, Gadiki filed Application for Leave to Review in proceedings SC Rev. 17 of 2019. Gadiki asked the Supreme Court to exercise power pursuant to section 155(2)(b) of the Constitution to review the decision of the National Court by Gavara-Nanu J delivered on 18 July 2012. Logae then filed objection to the competency of Gadiki’s application. The Supreme Court comprising Batari, Kariko and Koeget JJ, in their honours decision published SC1876, summarised the six grounds of objection as “(1) The National Court decision was previously appealed against to the Supreme Court and dismissed. (2) The State ought to have been named in the present proceeding, and accordingly a notice to pursuant to s. 5 Claims By and Against the State Act 1996 should have been first served. (3) The Application for Leave does not conform to O 5 r 1 and Form 5 of the Supreme Court Rules. (4) there has been long delay in filing the application for leave. (5) there is no proper explanation why the applicant did not appeal the National Court decision. (6) The issues raised for the review were raised in the earlier appeal to the Supreme Court and, are therefore res judicata. In considering the grounds of objection, the Supreme Court said “grounds 1, 4, 5 and 6 are properly points for argument if and when the question of whether or not leave ought to be granted for a review, is considered. ...Ground 2 is misconceived. It is not necessary for the State to be a party in this proceeding simply for the reason that it was a party in the National Court proceeding. ...We do however consider that ground 3 has merit.” The Supreme Court then went on to find Gadiki did not file the correct Form for his application for leave and found it incompetent. Instead of filing Form 7, Gadiki filed Form 5 which is filed once leave is granted to an applicant to file an Application to Review. Gadiki’s application for leave to review was found to be incompetent and those proceedings were dismissed.
CONSTITUTION SECTION 155(2)(b)
47. In the Application filed pursuant to section 155(2)(b) of the Constitution in the proceeding before us, Gadiki, once again, asks the Supreme Court to review the decision of the National Court by Gavara-Nanu J delivered on 18 July 2012. By section 17 of the Supreme Court Act, the right of appeal to the Supreme Court must be exercised within forty days after the date of the decision of the National Court. Gadiki is late by over seven years.
48. Section 155(2)(b) of the Constitution provides the Supreme Court “has an inherent power to review all judicial acts of the National Court”. In Avia Aihi v The State [1981] PNGLR 81 the Supreme Court said “... section 155(2)(b) invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal or an application for leave to appeal from the National Court, although the applicant has lost his right to appeal or to apply for leave to appeal. The discretion should be exercised only in exceptional cases where some substantial injustice is manifest, or the case is of special gravity, the onus being on the applicant.” Since then, the Supreme Court has in various judgments discussed and settled the principles to be considered when asked to exercise that inherent jurisdiction by requiring the applicant to establish (a) cogent and convincing reasons; (b) satisfactory explanation for the delay; (c) arguable case on the merits.
49. The Supreme Court has also identified occasions for the exercise of jurisdiction under section 155(2)(b) and those are: (a) where the parties have allowed a statutory right of appeal to expire; (b) where a right of appeal is prohibited by or under statute; (c) where there is no other way of bringing a case before the Supreme Court. See Supreme Court Reference No.13 of 2002; Review pursuant to s. 155(2)(b) and s.155(4) of the Constitution; Application by Anderson Agiru (2002) SC686 and Review pursuant to s. 155(2)(b) Application by Herman Joseph Leahy (2006) SC855.
50. The Applicant Gadiki will proceed to a hearing of the Application if we dismiss Logae’s objection.
LAW ON OBJECTION TO COMPETENCY
51. I support my brothers in adopting the statement of Logan J in Michael Newel Wilson v. Clement Kuburam (2016) SC1489 on the law on the determination of an objection to competency where, His Honour said “... an objection to competency goes to the jurisdiction of a court to entertain at all a particular proceeding which has been initiated in that court.” So, using Logan J’s words, what that means in this case is if the Supreme Court has no jurisdiction to entertain Gadiki’s Application for Leave for Judicial Review filed 29 August 2019, then we will uphold Logae’s Objection filed 13 September 2019. I also adopt what Logan J went on to say:
“It is important to distinguish the position which obtains in respect of an objection to competency from the question as to whether, if there is jurisdiction, leave to apply for judicial review ought to be granted. The question of whether or not leave ought to be granted entails the exercise of a judicial discretion in relation to which, apart from whether an arguable case of error is raised, considerations such as delay on the part of the applicant and any resultant prejudice to a respondent or other person affected by the decision or judgement sought to be challenged can be relevant. Such discretionary considerations are not relevant to a determination of whether there is jurisdiction. There is a fundamental difference between the existence of a judicial power and whether or not, as a matter of discretion, a case is one which calls for the exercise of that power.”
52. Logan J then goes on to discuss the matter before that court and I repeat that because the background circumstances in the matter as discussed by Logan J appear similar in this matter.
“It was common ground between the parties in their submissions, and correctly so, that if the Supreme Court has already made a final determination in respect of the National Court’s judgement of 10 June 2014, there was no jurisdiction to grant leave to review that National Court judgment under section 155(2)(b) of the Constitution. That is because the Supreme Court has given its decision on an appeal, “That is where the matter ends as far as the judicial system or process is concerned” Application by Joseph Kintau SC1125 at paragraph 36. If, on the other hand, the Supreme Court has made no such final determination in respect of a National Court judgement, an application for judicial review of that judgement can entail no impeaching or questioning of an earlier determination of the Supreme Court. In that circumstance, such is the breadth of the specification in section 155(2)(b) of the Constitution that the Supreme Court “has an inherent power to review all judicial acts of the National Court”, that the Supreme Court will have jurisdiction to entertain an application for the review of a National Court Judgement. That review can be undertaken via the making of an order in the nature of a prerogative writ pursuant to the power conferred by section 155(4) of the Constitution.”
LOGAE’S OBJECTION TO COMPETENCY
53. There are four grounds raised in Logae’s Notice of Objection which are set out in full in the joint judgment of my brothers. In Ground 1 of the Objection, Logae argues the Application for Leave to Review is incompetent as being res judicata. Logae argues an earlier Application for Leave to Review filed by Gadiki on 5 March 2019 in SC Review No. 17 of 2019 was heard and dismissed by the Supreme Court on 28 August 2019 for being incompetent. That court comprised Batari, Kariko and Koeget JJ and the decision is published as SC 1876.
54. In SC1876, the Supreme Court dismissed Gadiki’s Application for Leave to Appeal for the reason the wrong form of application was filed in that proceeding and was found to be incompetent. Apart from a further ground that was found to be misconceived, the Supreme Court found that four other grounds were properly points for argument if and when leave for review was to be considered. I will return to this below as the grounds are also raised in the Objection now before us.
55. In Ground 3 of the Objection, Logae argues the Application for Leave to Review is an abuse of court process as there has been inordinate and unexplained delay and the Applicant failed to avail himself of his right of appeal within time.
56. In Ground 4 of the Objection, Logae argues Gadiki and his lawyers failed to appear and defend the judicial review proceedings in OS (JR) No. 243 of 2011 and are therefore barred from raising the grounds relied on in this Application for Leave to Review.
57. The issues raised by Logae in Grounds 3 (abuse of process and unexplained delay) and 4 (failure to appear and defend the National Court proceedings) were addressed by the Supreme Court in SC1876 which were raised there as objection grounds 1, 4 and 5 and were found to be points for argument if and when the question of whether or not leave ought to be granted for a review is considered. With respect, I adopt the same position and say Logae’s Objection Grounds 3 and 4 are matters for argument if and when the Application for Leave to Review is being considered.
58. Returning to the Second Ground, Logae argues the Supreme Court has determined an Appeal by Gadiki in SCM No. 11 of 2012 which was an appeal from the decision of the National Court in OS (JR) No. 242 of 2011 and that is the same decision Gadiki is now seeking leave to review in this proceeding. Logae argues the Supreme Court comprising Chief Justice Sir Salamo Injia, as he then was, Hartshorn and Collier, JJ in a decision published as SC1533, heard and determined that appeal which effectively disposed of the issues raised by Gadiki in this proceeding. Logae argues Gadiki’s application is “res judicata, functus officio and should be dismissed in its entirety.” Although the result will be the same, I consider this argument to have merit, not on the basis that the issues raised here by Gadiki were heard and determined in SC1533 and are therefore res judicata, but strictly on the question of jurisdiction.
59. The question for this court is whether we have the power to hear and determine this proceeding by Gadiki when the Supreme Court in SC1533 (Injia CJ, Hartshorn, Collier JJ) and SC1677 (Hartshorn J decision slip rule application) has finally determined the appeal process that was then available to Gadiki but ended with the decision in SC1533 and SC1677. As referred to above, the Supreme Court is, by section 155(2)(a) of the Constitution, the final court of appeal and once the Supreme Court has given its decision on an appeal, that is where it ends for all: Application of Joseph Kintau SC1125 followed in Wilson v Kuburam SC 1489.
60. In examining Gadiki’s Application filed in this proceeding found at page 8 to 11 of the Objection Book, I note the grounds allege the learned trial judge erred in the finding that Logae was a direct descendant of an ancestor who signed the Colonial Purchase Agreement in 1892 and was the principal landowner when Gadiki was also a descendant of the same ancestor. Further, Gadiki alleges the learned trial judge erred in failing to consider the ownership rights and interests of Gadiki and five clan members. Gadiki also alleged he was not given the opportunity to a fair hearing. Further, Gadiki also argues the National Court lacked jurisdiction to make a declaration of ownership of customary land.
61. I have discussed above my understanding of the decision the Supreme Court in SC1533 (Injia CJ, Hartshorn, Collier JJ). I described that decision as providing a thorough consideration and determination of the issues raised which the court summarised as raising four issues. I repeat my brief description of the outcome on all four issues before that court which were (a) OS 243 was not res judicata of proceedings OS 15 of 2011; (b) there was no error in the primary judge refusing the joinder of the appellants: (c) there was no error in the primary judge quashing the decision of the Provincial Land Court: and (c) there was no error in the primary judge declaring Logae as the principal landowner of the land.
62. I am satisfied the decision in SC1533 considered and decided the issues raised by Gadiki in the Application filed 29 August 2019. As stated above, the Supreme Court is, by section 155(2)(a) of the Constitution, the final court of appeal and once the Supreme Court has given its decision on an appeal, that is where it ends for all. Gadiki is bound by the decision of the Supreme Court in SC1533.
63. I uphold the Objection filed by Logae on 13 September 2019 and find this court has no jurisdiction to exercise the power of review pursuant to Section 155(2)(b) of the Constitution. I order the dismissal of the Application for Leave to Review filed by Gadiki on 29 August 2019.
64. Costs shall follow the event so I also order that Gadiki shall pay Logae’s costs of the proceedings to be taxed if not agreed.
COMMENT – SINGLE JUDGE / FULL COURT – OBJECTION TO COMPETENCY
65. I also comment on the listing of the objection before the full court. With respect, a single judge of the Supreme Court had the authority to hear and determine the objection. Although, Order 7 Rule 17 of the Supreme Court Rules states specifically “the Court” hearing and determining an objection to competency, it has been held that where the objection relates to an application for leave, a single judge may hear and determine the objection and the objection and application for leave may also be heard and determined by the same judge sitting as the Supreme Court. This was decided in Tom Amaiu v. Sir Albert Kipalan (2009) SC991 which I followed in National Capital District v Central Provincial Government (2013) SC1289. I express this view noting the submission of counsel for Logae. I also acknowledge that does not prevent the full court, as we are now constituted, from hearing and determining the objection.
ORDERS OF THE COURT:
66. The final orders of the Court are as follows:
________________________________________________________________
Raurela Lawyers: Lawyers for the Applicant
Rageau Manua & Kikira: Lawyers for the Respondents
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