PNG Waterboard v Gabriel M Kama and Others (2005) SC821

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Mogish J, Lay J
• Judgment Date: 16 December 2005
• Court: Supreme Court
• Citation: (2005) SC821
• Docket Number: SCR 34 of 2004
• Year: 2005
• Judgement Number: SC821

Full Title: SCR 34 of 2004; PNG Waterboard v Gabriel M Kama and Others (2005) SC821

Supreme Court: Sevua J, Mogish J, Lay J

Judgment Delivered: 16 December 2005

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 34 of 2004

BETWEEN

PNG WATERBOARD

Applicant

AND

GABRIEL M. KAMA & ORS

Respondent

WAIGANI : SEVUA, MOGISH & LAY, JJ

2005 : 2 September

&

16 December

ADMINISTRATIVE LAW – Judicial review – Jurisdiction of Supreme Court – Can a Supreme Court review decision of another Supreme Court? – No power to review decision of differently constituted Court under Constitution s.155 (2)(a) and (4).

PRACTICE AND PROCEDURE – Supreme Court – Judicial review – Appeal dismissed by Supreme Court for want of prosecution – Application to review – Does the Supreme Court have power to review decision of a differently constituted Court – No jurisdiction and no judicial review under Constitution, s.155 (2) (b) and (4).

Cases cited:

TST Holdings Pty Ltd & Anor v. Tom Pelis & Anor. (1997), unreported,

SC 534, 27 November 1997.

Application of Wili Kili Goiya [1991] PNGLR 170

Isidore Kaseng v. Rabbie Namaliu & The State (No. 2) [1995] PNGLR 481

Menapo Tulia & Ors v. Eka Lama & Ors (1998) unreported and unnumbered, (WS 1112 of 1995), 24 July 1998.

J. Poro for Respondent

16 December 2005

BY THE COURT : The respondent has applied to this Court for an order to dismiss the Application for Review filed by the applicant on 26 May 2004 on the ground that the review procedure provided for under the National Land Registration Act 1977 has already been utilized and the review by the National Court had already been determined on 8 February 2002.

The applicant in this review was not represented by counsel when the respondent’s application was moved on 2 September 2005. However, that is of no consequence to the Court. We will make some remarks on this issue later as failure by lawyers to appear in the highest Court of the land is becoming prevalent and is of concern to the Court.

This review relates to certain decisions by the National Court and the National Land Commission (hereinafter the Commission), constituted by National Land Commissioner, Nathanias Marum over the Rebiamul Land, Portions 1044, 1054 and 1055 in Mt. Hagen, Western Highlands Province, where the applicant, PNG Waterboard, operates a reservoir, water treatment plant and pipelines supplying water to consumers in Mt Hagen.

The facts are these. On 13 September 1999, the Commission made a decision in respect of payment of compensation to the claimants whom we assume to be the traditional landowners of the land, the subject of this review. The decision is actually an order for settlement payment in respect of the said land which had been declared National Land in Gazette No. 51 on 15 April 1999.

The order is in the following terms:-

“That the State to pay claimants of REBIAMUL – PORTIONS 1044,
1054, 1055 MT HAGEN WATER SUPPLY TREATMENT PLAN
AND PIPELAND IN WESTERN HIGHLANDS PROVINCE THE
SUM OF FIVE HUNDGRED KINA (K500,000.00) only for Land
Compensation claim under National Land Registration Act.

The Commission further orders that PNG Waterboard pays 75% and
the State to pay 25% of the total amount awarded.

The payment shall be made in this manner as (sic) subject to Section
44(2) of the National Land Registration Act.

The payment shall be made to spokesman Mr. Gabriel M. Kama who
shall cause the sum (sic) distributed according to the Customary
Land Tenure System practised locally.

Dated at PORT MORESBY this 13TH day of SEPTEMBER
1999.”

The order was signed by N. Marum CBE, Commissioner, under the common seal of the National Land Commission.

On 2 December 1999, an application for judicial review of that decision was filed by PNG Waterboard. On 16 December 1999, the National Court granted leave to review that decision. On 21 November 2001, the substantive judicial review was heard by Los, J. On 8 February 2002 the National Court dismissed the application for review.

The PNG Waterboard then, being aggrieved by the National Court decision, filed an appeal to the Supreme Court on 13 March 2002. An application by the respondent to dismiss the appeal was refused, but the Supreme Court allowed the applicant to amend its grounds of appeal. On 20 March 2003, the applicant filed an application to amend its grounds of appeal filed on 13 March 2002. On 25 September 2003, the applicant, by way of a motion, applied to the Court to withdraw its motion filed on 20 March 2003. On 9 December 2003, a formal order for the withdrawal was entered.

The appeal by way of Notice of Motion was then left to be prosecuted. However on 3 March 2005; the Supreme Court ordered that the appeal be dismissed for want of prosecution, and further ordered the appellant to pay the sum of K375, 000.00 to the respondent with 8% interest from the date of the National Court decision on 8 February 2002.

The applicant, PNG Waterboard, then filed the present Application for Review on 26 May 2004. Since then, the substantive application has not been prosecuted by the applicant hence, this application to dismiss, by the respondent.

The respondent’s application is supported by the affidavit of counsel, John Poro sworn on 2 May 2005, and the affidavit of Gabriel Mage Kama, sworn on 12 May 2005; and both filed herein on 16 May 2005. There is also a further affidavit of service by Gabriel Kama which relates to service of the respondent’s application and the affidavits in support on Messrs Young & Williams Lawyers for the applicant.

As we alluded to earlier, the applicant was not represented at the hearing and no courtesy has been extended to the Court by Young and Williams as to why no lawyer from that firm appeared at the hearing. In fact, Mr. Poro informed the Court at the hearing of the respondent’s application that he and Ms. Eliakim of Young & Williams had attended before the Deputy Registrar at a Call-Over, and had agreed that this matter would proceed on 2 September 2005. It is rude and discourteous for Ms. Eliakim not to appear before the Supreme Court in this matter, let alone writing to explain why she would not appear. Be that as it may, the Supreme Court is not going to wait for Ms. Eliakim or Young & Williams Lawyers. The failure to appear by counsel in the highest Court of the land is becoming a culture entrenched in the legal fraternity, and perhaps the time has come to punish law firms and their lawyers for showing disrespect to the Supreme Court. In this case, we refer Ms. Eliakim to the Statutory Committee of the Law Society for disciplinary action.

The respondent’s counsel has filed a written submission in support of his client’s application to dismiss the review application. It is not necessary to refer to all the submissions made orally and in writing. Suffice it to say that, since the review application was field on 26 May 2004, to the date of hearing the respondent’s application on 2 September 2005, a period of a little over 1 year and 4 months, no attempt to prosecute the review application has been made by the applicant, PNG Waterboard. He can only assume this to be a contumelious delay.

Mr. Poro has referred us to two Supreme Court decisions – TST Holdings Pty Ltd & Tan Siew Tan v. Tom Pelis and Pelton (1997) unreported and unnumbered, 27 November 1997 and the Application by Wili Kili Goiya [1991] PNGLR 170. Counsel also referred to Isidore Kaseng v. Rabbie Namaliu & The State (No. 2) [1995] PNGLR 481; and an unreported decision by Sawong, J in Menapo Tulia & Ors v. Eka Lama & Ors (1998) unreported and unnumbered (WS 1112 of 1995) on the issue of res judicata. Again, it is unnecessary to address these authorities.

It is our view that the issue here is a minor one which can be disposed off without much discussion of the law. Whilst we consider that the other issues are relevant, we are of...