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National Capital District Commission v Sixth Estate Ltd [2022] PGSC 143; SC2346 (26 July 2022)

SC2346

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 37 OF 2022

BETWEEN:
NATIONAL CAPITAL DISTRICT COMMISSION
Appellant

AND:

SIXTH ESTATE LIMITED

First Respondent

AND
ALA ANE, ACTING REGISTRAR OF
TITLES, LANDS DEPARTMENT
Second Respondent

AND:
BENJAMIN SAMSON, SECRETARY
FOR LANDS & PHYSICAL PLANNING
Third Respondent

Waigani: Hartshorn J
2022: 22^nd & 26^th July

SUPREME COURT – practice and procedure - Application for stay – appellant seeks stay of order given by primary court pending determination of an appeal – whether appellant has an arguable case and that there are serious questions to be tried in the substantive appeal – whether damages are not an adequate remedy - whether the balance of convenience and interests of justice favour a stay – respondents argues that the stay sought and/or the restraining order sought if granted will have the effect of staying or restraining a final order of the Supreme Court - Supreme Court does not have the power or jurisdiction to make interim or interlocutory orders in respect of a final Supreme Court’s judgment or orders – application for stay dismissed

Cases Cited:

Otto Philip and Ors v. Sixth Estate Limited (2020) 26^th February 2020
Special Reference by Hon. Davis Steven (2020) SC2041

Counsel:

Mr. M. Saka, for the Appellant
Mr. T. Tape, for the First Respondent

Oral decision delivered on

26th July 2022

1. HARTSHORN J: This is a decision on a contested application for a stay of certain orders of the National Court and the further conduct of the National Court proceedings pending determination of an appeal.
   
2. In the application seeking a stay, restraining orders are also sought. In the course of the hearing of the application counsel for the applicant informed the Court that those orders are sought in the alternative. “They are only sought if the stay order is not granted,” counsel for the applicant informed the Court.
   

Background

3. The Applicant, National Capital District Commission (NCDC) commenced a proceeding in the National Court seeking declaratory relief and orders in respect of land described as Portion 2733 Volume 43, Folio 53 Milinch Granville, Fourmil Moresby NCD together with certain 42 industrial state leases. NCDC seeks orders to the effect that these titles in the name of the first respondent, Sixth Estate Limited (Sixth Estate), are null and void ab initio as they are tainted with fraud,

and/or illegality. NCDC pleads that “10,000 plus settlers” occupy this land.

4. Sixth Estate successfully obtained orders by way of a notice of motion for the National Court proceeding to be dismissed. The dismissal order is the subject of the substantive appeal by NCDC.
   
5. NCDC now applies for a stay of the dismissal order and the National Court proceeding pursuant to s.19 and s.5(1)(b) Supreme Court Act.
   

Stay Application

6. NCDC submits that a stay should be granted as:
   
   1. it has an arguable case and that there are serious questions to be tried in the substantive appeal. It submits that the primary judge fell into error in dismissing the proceeding at an interlocutory stage and also dismissing the proceeding on the basis that it was statute barred, when fraud and illegality are pleaded.
      
   2. NCDC has no other avenue to prevent Sixth Estate from entering the subject land and evicting the settlers thereon.
      
   100. there has not been any delay in filing the stay application, leave to appeal is not required, damages are not an adequate remedy and the balance of convenience and interests of justice favour a stay.
        
   4. Sixth Estate will suffer less prejudice than NCDC if the stay is granted.
      
7. Sixth Estate submits that a stay should not be granted as amongst others:
   
   1. NCDC does not have the requisite standing or locus standi to bring the National Court proceeding and this appeal.
      
   2. NCDC does not have an arguable case or serious question to be tried as it does not have standing and the primary judge did not fall into error in determining that the National Court proceeding is statute barred.
      
   100. NCDC will not suffer any prejudice or hardship if the stay is not granted. The submission that the settlers upon the land will suffer prejudice, hardship and inconvenience is not relevant as they are not parties to the National Court proceeding or this appeal. Conversely, Sixth Estate suffers prejudice, hardship and inconvenience as it cannot enjoy its land and has to continually pay the regulatory and statutory fees associated with land ownership.
        
   4. Further, Sixth Estate has been deprived of enjoying the fruits of two Supreme Court judgments and one National Court judgment in its favour in request of the subject land. In SCA 19 of 2018 Otto Philip & Ors v. Sixth Estate Limited, there are eviction orders affirmed by the full bench of the Supreme Court. It is submitted that if stay and restraining orders are granted, they will conflict with the orders of the full Supreme Court, which will be an abuse of process of this Court.
      
   5. Damages would be an adequate remedy for NCDC. The balance of convenience and interests of justice do not favour the stay sought being granted.
      

Consideration

8. From a perusal of the documentation filed in this application and from a consideration of the submissions, if has come to this Court’s attention that the full Supreme Court in SCA 19 of 2018 Otto Philip and Ors v. Sixth Estate Limited (Logan, Berrigan, Miviri JJ) on 26^th February 2020 ordered amongst others that the appeal was dismissed and that:
   

“Until 26^th March 2020, or such earlier date as may be appointed by the

Court on application, proceedings under the ejectment order made in the District Court on 23^rd November 2016 be stayed.”

9. The effect of this order is that after 26^th March 2020, the appellants in that

Supreme Court Appeal or any other persons, illegally residing on portion 2733, Volume 43, Folio 53, Morata are to be evicted within 7 days pursuant to s.6(1)(2) Summary Ejectment Act.

10. The order of the Supreme Court of 26^th February 2020 is a final order of the full Supreme Court.
    
11. In Special Reference by Hon. Davis Steven (2020) SC2041, the five-member Supreme Court, of which I was a member considered amongst other, the ability of the Supreme Court to be able to order a stay of two final Supreme Court judgments. At [13] - [14] of my judgment, with which the other four members of the bench agreed, I said:
    

“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.”

“14. Order 3 Rule 2(b) Supreme Court Rules, to the extent to which it purports to do, is not able to confirm a jurisdiction upon the Supreme Court which conflicts with the jurisdiction conferred upon the Supreme Court by the Constitution and is not able to provide this Court with the jurisdiction to be able to grant a stay of the orders of SCM 12 and SCM 13. Consequently, the application for stay should be dismissed.”

12. Then at [16] I said:
    

“16. Further, I concur with counsel for the intervener that apart form there not being any legislative basis to permit a Supreme Court to be able to stay a final judgment or order of another Supreme Court. There is also no jurisprudential basis for such relief to be granted. A final decision of the highest Court in a common law jurisdiction such as Papua New Guinea, is final. This is in the interests of the finality of litigation and in the interests of justice.”

13. In this instance, notwithstanding that NCDC was not a party to SCA 19 of 2018 Otto Philip v Sixth Estate, if the stay sought and/or the restraining order sought is granted, it will have the effect of staying or restraining a final order of the Supreme Court. (If a stay of only the National Court proceeding is granted, because an interim restraining order was ordered in the National Court proceeding that order would purportedly be in force.) This is so as it would affect an eviction of persons already ordered by the full Supreme Court from the subject land by anyone illegally residing on that land.
    
14. This Court, indeed the full Supreme Court, does not have the power or jurisdiction to make interim or interlocutory orders in respect of a final Supreme Court’s judgment or orders.
    
15. Consequently, the relief sought by NCDC cannot be granted. Given this, it is not necessary to consider the other submissions of counsel.
    

Orders

16. The Court orders that:

1. The Application of the Appellant filed 5^th May 2022 is dismissed.
   
2. The Appellant shall pay the First Respondent’s costs of and incidental to the said application.
   

__________________________________________________________________
M Saka Lawyers: Lawyers for the Appellant
Kandawali Lawyers: Lawyers for the Respondent