SC978

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCM 8 OF 2007

BETWEEN:

TAMALI ANGOYA
for himself and on behalf of members of his Tabu Clan
First Appellant

AND:

JAMI CONTRACTORS LIMITED
Second Appellant

AND:

HIMUNI HOMOKO
for himself and on behalf of Members of his Nguane Clan
Third Appellant

AND:

TUGUPA ASSOCIATION INC.
First Respondent

AND:

VALENTINE KAMBORI as Chairman of 
EXPENDITURE IMPLEMENTATION COMMITTEE AND 
SECRETARY FOR NATIONAL PLANNING AND RURAL DEVELOPMENT
Second Respondent

AND:

RENDLE RUMA, 
Secretary Department of Petroleum & Energy
Third Respondent

AND:

WILLIAM DUMA
as Acting Minister for Petroleum and Energy
Fourth Respondent

AND:

TEUP GOLEDU, REGISTRAR OF COMPANIES 
as Representative of Defunct Company, 
PETROLEUM EXPLORATION JOINT VENTURE LIMITED
Fifth Respondent

AND:

ENERGY RESOURCES HIDES LTD
Sixth Respondent

AND:

MULLER RANGE PROPERTY LTD
Seventh Respondent

AND:

HIDES ENERGY AND PETROLEUM RESOURCES LIMITED
Eight Respondent

Waigani: Sakora, Manuhu & Hartshorn JJ.
2008: 3rd July,
2009: 12th March

Application to Dismiss for Abuse of Process - Inherent Jurisdiction –Section 17 Supreme Court Act - Appellant to be a "person" whose interests are affected by or who is aggrieved by the Court Order being appealed 

Facts:

This is an appeal against a National Court Consent Order that discontinued proceedings seeking Judicial Review. The appellants were not parties in the National Court proceedings. Supported by the second to eight respondents, Energy Resources Hides Ltd applies to dismiss the appeal pursuant to the inherent jurisdiction of the Supreme Court as it is an abuse of process and for want of prosecution. 

Held:

1. There is nothing in the consent order that is capable of affecting the substantive interests of any of the appellants

2. The appellants are not able to show that their interests are affected or that they are legitimately aggrieved or that they have a real and direct interest in the subject matter of the consent order;

3. The appellants are not entitled to bring this appeal as they are not affected or aggrieved by the decision appealed

4. Due to the above and pursuant to this Court’s inherent jurisdiction it is ordered that the appeal is dismissed.

Cases cited: 

Kitogara Holdings Ltd & Others v. NCDIC [1988-89] PNGLR 346 
Don Polye v. Jimson Papaki & Ors (2000) SC637 
Porgera Joint Venture & Anor v. Joshua Siapu Yako (2008) SC916 

Counsel:

Mr. J. Haiara, for the Appellants
Mr. M. Paya, for the Second Respondent
Mr. P. Peraki, for the Third and Fourth Respondents
Mr. D. Kamen, for the Fifth Respondent
Mr. A. Baniyamai, for the Sixth Respondent
Mr. D. Kop, for the Seventh and Eighth Respondents

12 March, 2009

1. BY THE COURT: This is an appeal against a National Court consent order that discontinued proceedings seeking judicial review. The appellants were not parties to the National Court proceedings.

2. Energy Resources Hides Ltd, the sixth respondent (Energy Resources) applies to dismiss this appeal pursuant to the inherent jurisdiction of this Court, as it is an abuse of process and for want of prosecution. The application is supported by the second to eighth respondents. There was no appearance on behalf of the first respondent.

3. The appellants oppose the application on the basis that:

a)	as this is an appeal filed pursuant to Order 10 Supreme Court Rules, the usual Supreme Court rules concerning abuse of process and want of prosecution do not apply (appellants’ first argument).

b)	the prosecution of this appeal is awaiting a hearing of an objection to competency and an outstanding decision of this Court as to whether interim relief should be extended (appellants’ second argument).

4. As to the appellants’ first argument, as Energy Resources is relying on the inherent jurisdiction of this Court the issue of whether the usual Supreme Court rules apply to an Order 10 appeal does not arise. 

5. As to the appellants’ second argument, the fact that a single judge of this Court has not delivered a decision concerning whether interim relief already granted should be extended, is not a reason to delay the prosecution of the substantive appeal. That decision would only perhaps, have some bearing on the appellants’ preparation of the substantive appeal if the interim relief were not extended. The appellants, in such a circumstance would no doubt wish to prosecute the appeal most urgently.

6. As to the hearing of the objections to competency, as mentioned at the hearing by Sakora J., they could be heard at the hearing of the appeal. There is no need or requirement that they be heard before this application.

Abuse of process

7. Energy Resources submits that this appeal has not been brought in good faith and this gives rise to an abuse of the Court’s process. Before considering this particular issue, it is necessary to give consideration to how this appeal was commenced and by whom.

8. As referred to, the appellants were not parties to the National Court proceedings in which the order appealed was made. The appeal is brought pursuant to s. 17 Supreme Court Act which relevantly provides:

"Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal……within 40 days after the date of the judgment in question……"

9. In Kitogara Holdings Ltd & Others v. NCDIC [1988-89] PNGLR 346, this Court in a majority decision, held amongst others that s. 17 Supreme Court Act operates so as to provide a right of appeal to any ‘person’ whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings. It is apparently on the basis of this decision that this appeal has been brought.

10. The National Court order appealed in Kitogara (supra) was an order made by consent in judicial review proceedings. This consent order provided for a declaration that previous alienation of land was null and void, a restraint on dealing until land was gazetted and zoned under certain enactments and a referral back to the Land Board for further consideration of all applications.

11. Clearly the subject of this consent order was of a substantive nature and was likely to affect substantive rights. It was more than a mere discontinuance of proceedings for judicial review. 

12. The fact that a person can only appeal to the Supreme Court if he is directly affected by the order being appealed, was acknowledged in Porgera Joint Venture & Anor v. Joshua Siapu Yako (2008) SC916; a recent decision of this Court. In that case, the Court, after referring to what was held in Kitogara (supra) as to s. 17 Supreme Court Act stated:

"Nothing in the Supreme Court Act defines who may appeal. No phrase such as "person aggrieved" is adopted by the Act. The Act does not limit the right of appeal to persons who were parties in the court below. But it would be plainly unworkable that any person, any ‘busy body’ as the administrative law cases say, could appeal a decision of the National Court: See Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1981] 2 WLR 730 per Lord Diplock; cited in Re Somare [1981] PNGLR 265.

…… So that in order to be "aggrieved" by the decision of a court in a manner which grounds a right of appeal there must be a real and direct interest in the subject matter of the decision from which the appeal is taken. The decision appealed from must directly affect the rights of the appellant."

13. In this instance, from a perusal of the consent order appealed, it is apparent that in essence, it is a discontinuance of judicial review proceedings only. The consent order refers to other court orders in the proceedings being discharged or set aside and that monies restrained be released forthwith, but on a discontinuance all interlocutory orders would cease in any event. There is also a reference to certain submissions being given due consideration. 

14. In our view, there is nothing in the consent order that is capable of affecting the substantive interests of any of the appellants or about which any of the appellants can legitimately contend that they are aggrieved, as apart from certain submissions being given consideration, the effect of the consent order is to return the parties to the position they were in before the proceedings commenced.

15. This case then, can be distinguished from the scenario envisaged in Kitogara (supra), as in that case, the appellant was a person whose interests were affected and who was legitimately aggrieved. In our view, that is not the case here. We are satisfied that the appellants are not able to show that their interests are affected or that they are legitimately aggrieved or that they have a real and direct interest in the subject matter of the consent order as essentially, there is nothing in the consent order apart from a discontinuance.

16. As this Court said in Don Polye v. Jimson Papaki & Ors (2000) SC637:

"This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process."

17. The exercise of this Court’s authority can be by its own motion. Although Energy Resources seeks to dismiss the appeal for abuse of process, this particular ground, that the appellants are not entitled to bring this appeal as they are not affected or aggrieved by the decision appealed, was not specifically argued. We are satisfied however, that there is an abuse of process on that ground and accordingly pursuant to this Court’s inherent jurisdiction it is ordered that the appeal is dismissed.

18. Given this decision it is not necessary to consider the other arguments of counsel. Costs of and incidental to the appeal are to be paid by the appellants to the respondents.

__________________________________
Steeles Lawyers: Lawyers for the Appellants
Manu & Associates Lawyers: Lawyers for the Second Respondent 
Greg Manda Lawyers: Lawyers for the Third and Fourth Respondent 
Posman Kua Aisi Lawyers: Lawyers for the Fifth Respondent 
Baniyamai Lawyers: Lawyers for the Sixth respondent 
Daniel Kop Lawyers: Lawyers for the Seventh and Eighth Respondents