Michael Mineka Kunol v as Administrator of Late Kunol Kants and Others

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J.
• Judgment Date: 13 July 2023
• Neutral Citation: SC2471
• Citation: SC2471, 2023-07-13
• Counsel: Mr. Y. Otmar, for the Applicant,Mr. B. Boma, for the First Respondent
• Docket Number: SCREV 9 OF 2023
• Hearing Date: 13 June 2023,13 July 2023
• Court: Supreme Court

SC2471

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV 9 OF 2023

Application for Leave to Review Pursuant to Constitution Section 155(2)(b)

Between:

Michael Mineka Kunol

Applicant

v.

Rosita Kupul as Administrator of Late Kunol Kants

First Respondent

and

Ala Ane in his capacity as the Acting Registrar of Titles and Department of Lands and Physical Planning

Second Respondent

and

Benjamin Samson in his capacity as the Secretary of the Department of Lands and Physical Planning

Third Respondent

and

John Roso in his capacity as the Minister for Lands and Physical Planning

Fourth Respondent

and

The Independent State of Papua New Guinea

Fifth Respondent

Waigani: Hartshorn J.

2023: 13^th June, 13^th July

SUPREME COURT — REVIEW — Application for leave to review pursuant to s. 155 (2)(b) Constitution

Cases Cases:

Avia Aihi v. The State (No. 2) [1982] PNGLR 44

Application by Anderson Agiru (2002) SC686

Application by Herman Leahy (2006) SC855

Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 Alphonse Tay v. Newcombe Gerau (2011) SC1097

Benjamin Sengi v. The State (2015) SC1425

Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568

Ganglau Landowner Co Ltd v. Medaing (2020) SC1963

Elizabeth Kavi v. ANZ (2020) SC1951

Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954

Counsel:

Mr. Y. Otmar, for the Applicant

Mr. B. Boma, for the First Respondent

Don Wapu Lawyers: Lawyers for the Applicant

Boma Lawyers: Lawyers for the First Respondent

13^th July 2023

1. Hartshorn J: This is a decision on an application for leave to review a decision of the National Court, brought pursuant to s. 155(2)(b) Constitution.

Background

2. The applicant seeks to review a decision of the National Court made on 21^st December 2022 (Decision). The dispute the subject of the proceeding in the National Court concerns a certain property in Banz, Jiwaka Province (Property). The Decision amongst others, granted leave for the plaintiff now first respondent to proceed ex parte and for the fifth defendant now applicant to surrender or return the title to the Property to the first defendant now second respondent.

Law

3. Leave is required as the right of appeal was not exercised in the time permitted by statute: Order 5(1) Supreme Court Rules and Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097 and Benjamin Sengi v. The State (2015) SC1425; Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954.

4. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (I refer to the cases cited above). These are:

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

b) there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and

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

5. In Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, Injia CJ (as he then was) said at [5]:

“The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC 1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered. If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment.”

Consideration

6. In determining whether there are cogent and...