SC1876

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV N0. 17 0F 2019

APPLICATION BY PASTOR HANUA GADIKI, as Chairman of Napanapa Landowners Association Inc. and as a member of Rokurokuna sub-tribe of Koita Tribe
Applicant

-v-

GAUDI LOGEA of Kuriu Clan
First Respondent

KURIU CLAN LAND GROUP INC.
Second Respondent

Waigani: Batari J, Kariko J & Koeget J
2019: 28th August

APPLICATION FOR LEAVE TO REVIEW – objection to competency– form for objection,O7 Div.5, O12 r28(a) Supreme Court Rules – whether proper grounds for objection - form for application for leave,O5 r1,O7 Div.2 Supreme Court Rules

Cases Cited:

Avia Aihi v The State (No.2) [1982] PNGLR 44
Madang Timbers Ltd v Valentine Kambori &Ors (2009) SC992 
Michael Kuman v Digicel (PNG) Ltd (2017) SC1638
Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and the Independent State of Papua New Guinea (2005) SC797

Legislation:

Claims By and Against the State Act 1996
Constitution
Supreme Court Rules

Counsel:

J Posi, for the Respondents/Objectors
J Poya, for the Applicant/Respondent

JUDGEMENT

28th August, 2019 

1.	BY THE COURT: This is an objection by the respondents to the competency of an application for leave to review a decision of the National Court pursuant to s.155(2)(b) Constitution.

2.	The applicant is aggrieved by the decision of Gavara-Nanu J given on 18th July   proceeding  OS(JR) No. 243 of 2011 – Gaudi Logae & Anor v William Noki & 3 Ors whereby his Honour found for the respondents, then plaintiffs. The applicant, as the Chairman of the Napanapa Landowners Association Inc. was fourth defendant in that proceeding.The decision quashed the finding of the Provincial Land Court regarding ownership of customary land. 

Objection to the respondents’ application

3.	The applicant has objected to the competency of the respondent’s objection to competency. He submits that as there is no specific provision in the Supreme Court Rules covering objection to competency of an application for leave to review, directions should have first been sought under O5 r9 Supreme Court Rules and s.185 Constitution. Reliance is placed on Madang Timbers Ltd v Valentine Kambori & Ors (2009) SC992 for this argument but that case was decided under the then Supreme Court Rules before their amendment in 2012. The Rules now provide for objections to competency in proceedings other than appeals.

4.	Procedure for objection to competency of an appeal or an application for leave to appeal is set out in O7 Div.5 (r15-19) Supreme Court Rules, while O12 r28(a) states that the procedure under that Division shall be applied, with modification, in proceedings other than appeals, which obviously includes applications for leave to review and applications to review. 

5.	The respondents have followed that course and we therefore dismiss the applicant’s objection to competency as misconceived. 

Grounds of respondents’ objection

6.	Six grounds of objection have been raised. Summarized, they are:

(1)	The National Court decision was previously appealed against to the Supreme Court and dismissed. 
(2)	The State ought to have been named as a party in the present proceeding, and accordingly a notice pursuant to s.5 Claims By and Against the State Act 1996should have been first served.
(3)	The application for leave does not conform to O5 r1 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.

Consideration

7.	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.

8.	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. However, as a party in that proceeding, it must be served the review application but that would follow the grant of leave; see O5 r5Supreme Court Rules.In any case, there is no requirement for a s. 5 notice as the Claims By and Against the State Act does not apply to reviews of Land Court decisions.The notice requirements of that Act apply only to actions that are founded on contract, tort or for enforcement of constitutional rights; see s. 2 Claims By and Against the State Act 1996;MisionAsiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and the Independent State of Papua New Guinea (2005) SC797.

9.	We do however consider that Ground 3 has merit. 

10.	The applicant seeks judicial review under s.155(2)(b) Constitution because he is aggrieved by the National Court decision, the time for appeal has lapsed, and his only recourse to vent his grievance in court is by way of a review application; Avia Aihi v The State (No.2) [1982] PNGLR 44.  Such an application lies with leave only, and pursuant to O5 r1Supreme Court Rules, the provisions of O7 Div.2 shall be followed, substituting the words “applicant” and “application” respectively for the words“appellant” and “appeal”.

11.	This application for leave should therefore follow Form 7 “Application for Leave to Appeal”but modified to read “Application for Leave to Review”. We note however that the applicant has filed his application adoptingForm 5 which is the appropriate Form to file once leave has been granted and the applicant proceeds to file his Application to Review.

12.	We agree with the statement that non-compliance with the mandatory requirements of Rules and Forms renders a proceeding incompetent and liable to dismissal; see Michael Kuman v Digicel (PNG) Ltd (2017) SC1638 per Kandakasi, J and the cases cited therein at [3(10)].

13.	The applicant has not filed the correct Form for his application for leave, and we accordingly find it incompetent.

Order

14.	The Court orders that:

(1)	The application for leave to review is dismissed as incompetent.
(2)	The plaintiff shall pay the respondents’ costs of and in relation to this application.
________________________________________________________________
Poya Legal Services: Lawyer for the Applicant/Respondent
Rageau Manua Kikira Lawyers: Lawyer for the Respondents/Objectors