SC2532

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 67 OF 2021

BETWEEN:
HON. TABOI AWI YOTO, MP,
in his capacity as the Chairman of the Fly
River Provincial Executive Council
First Appellant

AND:
PROVINCIAL EXECUTIVE COUNCIL OF THE
FLY RIVER PROVINCIAL GOVERNMENT
Second Appellant

AND:
FLY RIVER PROVINCIAL GOVERNMENT
Third Appellant

AND:
ROBERT ALPHONSE KAIYUN
Fourth Appellant

AND:
AQUILA SAMPSON
First Respondent

AND:
NATIONAL EXECUTIVE COUNCIL
Second Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: Gavara Nanu J, David J, Hartshorn J, Yagi J and Kariko J.
2023: 29th November,
2024: 18th January

SUPREME COURT – practice and procedure - Application to dismiss the appeal for being an abuse of process

Cases Cited: 

Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
Lupari v. Somare (2010) SC1071
Telikom PNG Ltd v. Kopalye (2021) SC2141
Counsel:

Mr. M. Tamutai and Ms. E. Ngomba, for the Appellants
Mr. G. Kult, for the First Respondent
Mr. L. Kandi, for the Second and Third Respondents

18th January 2024

1. BY THE COURT: This is a decision on a contested application to dismiss this appeal. The application is made by the first respondent. The dismissal of the appeal is sought on the ground that it is an abuse of process given the decision (SCM 2) of another full Supreme Court. In the SCM 2 decision, the Court found that the Fly River Provincial Government (FRPG) does not exist as a legal entity. The first respondent claims that this appeal is an abuse of process as one of the appellants in this appeal is the FRPG and what the appellants are seeking in the substantive appeal is tantamount to reviewing another decision of a full Supreme Court.

Background

2. The National Court upheld the first respondent’s application for judicial review (JR734) on 9th December 2021 and ordered amongst others, that the first respondent is declared the duly appointed Provincial Administrator for Western Province pursuant to a certain decision of the second respondent, the National Executive Council (NEC). In JR 734, the third appellant, the FRPG was the fourth defendant. 

3. This appeal (SCM 67) was commenced on 15th December 2021 and appeals the whole of the decision of the primary judge in JR 734.

4. The FRPG and Mr. Robert Kaiyun, the within fourth appellant, together with the second and third respondents herein, the NEC and the State, commenced an appeal (SCM 2) on 28th January 2022 after leave had been granted, against the interlocutory decision of the primary judge in JR 734 which had declined the appellants motion for referral to the Supreme Court of certain questions under s. 18(2) Constitution.

5. The full Supreme Court, after hearing an objection to the competency of SCM 2 ordered amongst others, that SCM 2 was dismissed as an abuse of process of the Supreme Court. In its written reasons for judgment, the Court stated amongst others, that it was correctly submitted that the FRPG is not a legal entity with capacity to commence or maintain an action (see [16] NEC v. A. Sampson (2022) Unreported SCM 2 of 2022 delivered 1st July 2022).

Consideration

6. The first respondent claims in its application that this appeal be dismissed as an abuse of process given the decision in SCM 2. Two of the grounds relied upon are that the Court in SCM 2 dismissed SCM 2 as an abuse of process because it found that the FRPG did not exist as a legal entity and the herein appeal is also commenced by the non-existent FRPG.

7. In his submissions the first respondent submits that what the appellants are seeking is tantamount to reviewing another decision of the Supreme Court.

8. First, from a reading only of the decision in SCM2 as distinct from a review of the decision in SCM 2, notwithstanding that the Court found that SCM 2 was an abuse of process, the Court did not specify which set of facts constituted the abuse of process which resulted in the decision of the Court. There are three instances where the Court stated that there was an abuse of process referred to in SCM 2 which did not include a reference to the status of the FRPG. These instances are the incorrect signing of the Notice of Motion which commenced SCM 2, the non-authorisation of the appeal by a party and a breach of s. 17 Supreme Court Act.

9. As a result, the claim that SCM 2 was dismissed as an abuse of process because the Court found that FRPG did not exist as a legal entity is not correct. Consequently, this ground relied upon by the first respondent for his claim that this appeal is an abuse of process has not been established.

10. Secondly, this appeal was commenced on 15th December 2021. SCM 2 was commenced over one year later, on 28th January 2022. To contend that this appeal is in effect seeking to review a judgment which was delivered in an appeal which was filed and argued in the future, is with respect, not rational.

11. Thirdly, this is an appeal of the whole of the judgment delivered in JR 734 which was a final judgment in an application for judicial review. A perusal of the grounds of this appeal does not reveal any ground which raises any issue concerning, or which names the FRPG. Moreover, in JR734, the first respondent named the FRPG as a party, the first respondent alleged errors by the FRPG and its officers and led evidence against the FRPG.

12. Further, as the issue of the status of the FRPG was not raised in JR734 it is not now able to be raised before this Court in this appeal (see Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705, Lupari v. Somare (2010) SC1071 and Telikom PNG Ltd v. Kopalye (2021) SC2141)

13. It is not the case therefore, that the issue of the status of the FRPG is likely to be raised or entertained in the substantive hearing of this appeal and so the Court hearing this appeal will not be, or in effect, reviewing the decision in SCM2 as claimed.

14. Given the above, we are not satisfied that it has been established that this appeal is tantamount to or is in effect a review of the decision in SCM2 and so it is not an abuse of this Court’s process as claimed by the first respondent.

15. Further, as an aside, from a reading only of the decision in SCM2 as distinct from a review of the decision in SCM2, in the Court’s consideration of the status of the FRPG in [16] and [17], reference was made to National Gazette [No. G11 of 1977]. There is no reference to any legislative enactment, statute or Organic Law in the Court’s consideration of this issue. With respect, it might be that the Court’s decision on this issue was reached per incuriam.

16. Given the above, it is not necessary to consider the other submissions of counsel.

Orders

a)	The Application filed 20th July 2022 of the first respondent is dismissed.

b)	The first respondent shall pay the costs of the appellants and the second and third respondents on a party party basis to be taxed if not agreed otherwise.
 _____________________________________________________________
Tamutai Lawyers: Lawyers for the Appellants                                     
Young & Williams: Lawyers for the First Respondent                          
M.S. Wagambie Lawyers: Lawyers for the Second and Third Respondents