SC1291

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 41 OF 2010

MIRING MUNZIONG ON HIS OWN BEHALF AND ON BEHALF OF THE KAWA TRIBE OF LAE, MOROBE PROVINCE
Applicant

V

SERI SENEKA, MAGISTRATE, PROVINCIAL LAND COURT
First Respondent

BUSOLON AGALTU, WAPIGUHU, APO, TIMATA, GWATU, LINU, AIEWAOEO, TIA-A, LU-U, UAPU, SO-OKO-O,
WAPI-I-MPON CLANS
Second Respondents

Waigani: Kandakasi J, Cannings J, Collier J

2013: 24 June, 12, 30, 31 July, 1, 24 August, 30 October,
4 November 

PRACTICE AND PROCEDURE – consent order declaring that decision of lower courts was quashed – subsequent order in same proceedings that declared that decision of lower court should be given effect – determination of question whether consent order had been set aside.

CONSTITUTIONAL LAW – review by the Supreme Court of decisions of the National Court – Constitution, Section 155(2)(b) – circumstances in which leave to seek review is required.

The applicant applied to the Supreme Court under Section 155(2)(b) of the Constitution for review of the decision of the National Court to refuse his application for judicial review of a decision of the Provincial Land Court. The application before the Supreme Court was based on one ground: that the National Court erred in law by disregarding an earlier order made in the same proceedings, with the consent of all parties, that declared that the decision of the Provincial Land Court was erroneous and that it was quashed, which order had not been set aside.

Held:

(1)	The application was not properly before the Supreme Court as the applicant had not been granted leave to make the application. He had a right of appeal against the decision of the National Court which he failed to exercise, so he could only apply for review of the decision of the National Court with leave. The absence of leave meant that the application was an abuse of process (and that the Supreme Court lacked jurisdiction) and for that reason alone was dismissed.

(2)	The application had no merit as in fact the consent order of the National Court, which quashed the Provincial Land Court decision, was set aside by the National Court. There was no error by the primary Judge. The only errors were clerical in nature in that it appears that the Registry failed to insert in the National Court file pertaining to the judicial review proceedings a copy of the orders that set aside the consent order.

(3)	The application was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305
David Toll v The State (1989) SC378
Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437
Miring Munziong & Ors v Seri Seneka & Ors, OS No 783 of 2003, 20.08.10
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
The State v Colbert [1988] PNGLR 138

APPLICATION

This was an application under Section 155(2)(b) of the Constitution to review a decision of the National Court which dismissed an application for judicial review of a decision of a Provincial Land Court.

Counsel

K Sino & J Kolkia, for the applicant

4th November, 2013

1. BY THE COURT: Miring Munziong, on behalf of Kawa Tribe of Lae, applies for review under Section 155(2)(b) of the Constitution of the decision of the National Court (constituted by Justice Gabi) to refuse his application for judicial review of a decision of the Morobe Provincial Land Court.

2. The Provincial Land Court had dismissed an appeal by Mr Munziong and Kawa Tribe against a decision of the Local Land Court concerning the question of customary ownership of the land on which the city of Lae is located. The Local Land Court had declared that the 14 clans of Butibum and Kamkumung – not the Kawa Tribe – were the customary landowners.

3. The application before us is based on a single ground of review (all other proposed grounds were abandoned at the hearing): that the National Court erred in law by disregarding an earlier order it had made in the same proceedings, with the consent of all parties, that declared that the decision of the Provincial Land Court was erroneous and quashed that decision, which order had not been set aside.

4. We have decided to refuse the application for two reasons. The first relates to the jurisdiction of this Court. The second is to do with the merits of the application.

JURISDICTION

5. Though we heard the application on its merits on 24 June 2013 it occurred to us later that Mr Sino, for Mr Munziong, had not drawn our attention to when, how or by whom Mr Munziong had been granted leave to make the application. What has been argued before us is an application under Section 155(2)(b) of the Constitution, the provision that allows the Supreme Court to review decisions of the National Court when there is no right of appeal or where the right of appeal has been lost. It states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

6. If a person aggrieved by a National Court decision has a right of appeal but fails to exercise it he can apply to the Supreme Court under Section 155(2)(b) of the Constitution for review of the decision provided that he obtains the leave of the Supreme Court to do so. Three criteria have to be satisfied before leave can be granted:

•	it is in the interests of justice to grant leave; and

•	there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity (in deciding whether there are cogent and convincing reasons, two matters are particularly relevant: the reasons for not filing an appeal within time and the merits of the case sought to be argued; and

•	there are clear legal grounds meriting a review of the decision.

7. The above principles are based on the landmark decision of the Supreme Court in Avia Aihi v The State [1981] PNGLR 81. They have subsequently been developed and applied in many cases, eg Danny Sunu v The State [1984] PNGLR 305, The State v Colbert [1988] PNGLR 138, David Toll v The State (1989) SC378, New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522, Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437 and Application by Herman Joseph Leahy (2006) SC855. They apply to both civil and criminal cases.

8. The critical thing to note for the purposes of the present case is that Mr Munziong required the leave of the Supreme Court to make the application that was argued before us. That is why, amongst other reasons, we decided to recall the matter on 12, 30 and 31 July and 1 and 28 August 2013, for mention before Justice Cannings, so that Mr Sino would have the opportunity to satisfy us that leave was in fact granted and the terms on which it was granted. Mr Sino has been unable to do that, and we have found nothing on the Supreme Court file to show that leave was granted. It follows that the application is an abuse of process and that the Supreme Court has no jurisdiction to determine it. For that reason alone the application must be dismissed.

MERITS

9. To appreciate the merits of Mr Munziong's ground of review it is useful to set out a chronology of events derived from the documents compiled for the purposes of the proceedings before the Supreme Court:

30 September 2002		Local Land Court decision that 14 clans of Butibum and Kamkumung – not the Kawa Tribe – are the customary landowners of Lae City land.	
13 August 2003		Provincial Land Court decision: appeal against decision of Local Land Court dismissed.	
31 December 2003		Mr Munziong commenced proceedings in the National Court, OS No 783 of 2003, seeking leave to apply for judicial review of the decision of the Provincial Land Court.	
12 March 2004		National Court granted leave for judicial review in OS No 783 of 2003.	
6 December 2006		Gabi J made the order in OS No 783 of 2003 (and the same order was made in related proceedings, OS No 524 of 2003 and OS No 215 of 2006) in the following terms:
	
BY CONSENT THE COURT ORDERS THAT:

1	The Parties having conferred noted that the decision of the National Lands Commission to refer the matter to the Local Land Court to be dealt with under the Land Disputes Settlement Act was done erroneously and the subsequent Local Land Court and the Provincial Land Court decisions are equally erroneous.

2	The referral by the National Lands Commissioner to the Local Land Court was erroneous as the referral was not made pursuant to s 9, s 39 or s 43 of the Land Registration Act.

3	By Consent therefore the Parties have accordingly agreed that:

3.1	The Orders of the Provincial Land Court made on the 13th of August 2003 and the Local Land Court made on the 30th of September 2002 are quashed.

3.2	The matter be referred to the Land Titles Commission to be dealt with by a Special Commissioner for determination on the following issues:

(a)	Whether the Lae City Land is State Land or Customary Land;
(b)	If the Land is Customary Land, the Commission determines as to who the customary owners are;
(c)	If the Land is State Land, any aggrieved Party can pursue the matter as they see fit.

4	All Parties are to meet their own costs of the proceeding except for the State who shall pay the cost previously ordered by the Court.

5	Orders be abridged to the date of settlement of the matter.
	
10 December 2009	:	Hearing of the application for judicial review in OS No 783 of 2003 before Gabi J.	
20 August 2010	:	Gabi J delivered judgment in OS No 783 of 2003. His Honour upheld none of Mr Munziong's grounds of review, in particular finding that the Provincial Land Court properly found that Mr Munziong was not a party in the Local Land Court hearing. The proceedings were dismissed.	

11. Mr Sino submitted that OS No 783 of 2003 was determined by consent of the parties on 6 December 2006 and that there is no record of an application, or an order setting aside the consent order of 6 December 2006. Although the National Court heard the matter and handed down its decision on 20 August 2010, the decision related to a matter which had already been determined. The National Court therefore acted in excess of its jurisdiction.

12. Those would be compelling arguments if in fact the order of 6 December 2006 was not set aside. But the opposite is the case. Subsequent to the Supreme Court hearing of 24 June 2013 we caused a search to be made of the National Court file for OS No 783 of 2003 and the files for a number of related matters. We found sealed copies of two orders, by Gabi J, made on 8 September 2009 and 7 October 2009 respectively.

13. The order of 8 September 2009 was expressed to apply to the proceedings OS No 494 of 2002, OS No 76 of 2003, OS No 524 of 2003, OS No 783 of 2003, OS No 87 of 2004, OS No 215 of 2006 and OS No 707 of 2008. It relevantly stated:

1	The order of the Court made on 6th December 2006 by consent in proceedings

OS No 783 of 2003
OS No 524 of 2003
OS No 215 of 2006

particularly paragraphs 1, 2 and 3.2(a), (b) & (c) of the said orders are hereby set aside.

2	The balance of the orders made in the proceedings referred to in order 1 above, particularly order 3.1 and 4 remain for further deliberations and directions.

14. The order of 9 October 2009 was expressed to apply to the proceedings OS No 76 of 2003, OS No 524 of 2003, OS No 783 of 2003 and OS No 215 of 2006. It relevantly stated:

1	The balance of the orders made on 6th December 2006 in proceedings OS No 783 of 2003, OS No 524 of 2003 OS No 215 of 2006 and in particular orders 3.1 and 4 are hereby set aside.

15. Sealed copies of the above orders were found in some but not all of the files for the various proceedings and in particular not in OS No 783 of 2003. The fact that sealed copies of the orders were not found in the critical file does not defeat the conclusion that in fact and in law the consent order of 6 December 2006 was set aside in its entirety. The obstacle that that order provided to the proper exercise of jurisdiction by the National Court was removed by the orders of 8 September 2009 and 7 October 2009. The existence of those orders was brought to the attention of Mr Sino when the matter was mentioned before Justice Cannings on 12, 30 and 31 July and 1 and 28 August 2013. Mr Sino was invited to consider advising his client to withdraw the proceedings under Section 155(2)(b) of the Constitution but Mr Munziong's position has remained unchanged.

16. We conclude that the single ground of review put in support of Mr Munziong's application has no merit. The order of 6 December 2006 was set aside by the National Court. There was no error by the primary Judge. The only errors were clerical in nature. It appears that the Registry failed to insert in the National Court file pertaining to the judicial review proceedings a copy of the orders that set aside the consent order. A proper search of the file in OS No 783 of 2003 and the files in all related proceedings would have quickly revealed the existence of the orders of 8 September 2009 and 7 October 2009. It is regrettable those clerical errors were made and that no proper search was ever undertaken of the relevant files. We will order that immediate steps be taken to rectify those clerical errors.

17. It follows that if we had not dismissed this application for being improperly before us, we would have dismissed it anyway as being without merit.

ORDER

(1)	The application for review of the decision of the National Court of 20 August 2010 in OS No 783 of 2003 is dismissed.

(2)	The Assistant Registrar of the National Court Registry at Lae shall by 22 November 2013 place sealed copies of the orders of 8 September 2009 and 7 October 2009 referred to in this judgment on each of the files OS No 494 of 2002, OS No 76 of 2003, OS No 524 of 2003, OS No 783 of 2003, OS No 87 of 2004, OS No 215 of 2006 and OS No 707 of 2008 and shall by 25 November 2013 notify the Deputy Registrar of the Supreme Court that that has been done; and the Deputy Registrar shall by 28 November 2013 notify the president of the Supreme Court in these proceedings accordingly.

(3)	The parties bear their own costs.

Judgment accordingly.
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Sino Lawyers: Lawyers for the Applicant