Review pursuant to Constitution Section 155 (2) (b) Application by Ganglau Landowner Company Ltd; Ganglau Landowner Company Ltd v Louis Medaing on behalf of himself & members of Tong Clan, Sibiag 2 Clan, and Sibiag (Guhu) Clan of Basamuk, Raicoast, Madang (2020) SC1963

• Jurisdiction: Papua New Guinea
• Judge: Batari & Murray JJ
• Judgment Date: 29 May 2020
• Court: Supreme Court
• Citation: (2020) SC1963
• Docket Number: SCREV No 57 of 2015
• Year: 2020
• Judgement Number: SC1963

Full Title: SCREV No 57 of 2015; Review pursuant to Constitution Section 155 (2) (b) Application by Ganglau Landowner Company Ltd; Ganglau Landowner Company Ltd v Louis Medaing on behalf of himself & members of Tong Clan, Sibiag 2 Clan, and Sibiag (Guhu) Clan of Basamuk, Raicoast, Madang (2020) SC1963

Supreme Court: Batari & Murray JJ

Judgment Delivered: 29 May 2020

SC1963

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 57 OF 2015

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b)

APPLICATION BY GANGLAU LANDOWNER COMPANY LIMITED

BETWEEN:

GANGLAU LANDOWNER COMPANY LIMITED

Appellant

AND:

LOUIS MEDAING ON BEHALF OF HIMSELF & MEMBERS OF TONG CLAN, SIBIAG 2 CLAN, & SIBIAG (GUHU) CLAN OF BASAMUK, RAICOAST, MADANG

Respondent

Waigani: Batari& Murray JJ

2016: 31st August

2020: 29thMay

SUPREME COURT – Appeal– Order 11 rr 25, 26 Supreme Court Rules & section 5 of the Supreme Court Act – appeal against orders of single Judge of Supreme Court refusing leave to apply for judicial review – powers of the Supreme Court – whether appeal competent under O 11 rr 25, 26 Supreme Court Rules & s. 5 Supreme Court Act.

SUPREME COURT – Appeal - Practice & Procedure – no right of appeal against decision of single Judge of Supreme Court– process – Supreme Court Rules Order 11 rr 25, 26 & s 5 of Supreme Court Act apply exclusively to directions and interim orders of a Judge of the Supreme Court in a pending appeal – Supreme Court not vested power to hear and determine appeals against grant of leave.

Aggrieved by the decision of the primary court in granting the respondents their application to review the decision of the Minister for Lands and Physical Planning, the Supreme Court (single Judge) upon application by the appellant for leave to appeal the judicial review decision, refused the application. This appeal is incompetent for lacking in procedural form and jurisdiction, as adjudged by the remaining members of the Bench.

HELD:

1. Where a third member of the Bench is unavailable by reason of death, resignation, retirement, or is not re-appointed, the appeal shall not be reheard unless the parties make that election before the two remaining members of the Bench pursuant to s. 3 of the Supreme Court Act. [5 - 8]

2. Section 5 of the Supreme Court Act when read together with O.11 rr. 25, 26 of the Supreme Court Rules, apply exclusively to incidental directions and interim orders in connection with a pending appeal, it is not intended to authorise and regulate an appeal against a decision of a single Judge of the Supreme Court. [31, 32, 34]

3. It is settled, there is no right of appeal against the decision of a single Judge of the Supreme Court. [33]

4. Where a single Judge of the Supreme Court exercising the power under s. 10 (1) of the Supreme Court refuses an application for leave to appeal, the appellant may apply afresh to the full Supreme Court. [37]

5. An originating process filed contra to legislative and procedural prerequisites is bound to be dismissed upon the Court’s own motion to protect its process. [38, 39]

Cases Cited:

Avia Aihi v The State (No. 1) [1981] PNGLR 81

Digicel (PNG) Ltd v Jim Miriagtoro (2019) SC1850

Felix Bakani & Oil Palm Industry Board v Rodney Daipo (2002) SC699

Hariki v. The State (2007) SC1320

Hon James Marape v Hon Peter O’Neill (2016) SC1492

Independent State of Papua New Guinea v John Tuap (2004) SC 765

John Nilkare v Ombudsman Commission [1976] PNGLR 413, SC500

Lae Bottling Industries Ltd v. Lae Rental Home Ltd (2011) SC1120

Luke Marano v. Jack Noari (2013) SC1307

Moses Manwau v Andrew Trawen (2011) SC1159

National Executive Council v Ila’ava (2014) SC1332

National Housing Estate Ltd & Anor v Decision 2000 Ltd & 3 Ors (2020) SC1931

Ramu Nickel Limited v. Temu&Ors(2007) N3114

Southern Highlands Provincial Government v. Ronald Kalu (2016) SC 1568.

State v Dadi Toka Enterprises Ltd (2013) SC1346

The State v. Toka Enterprises Ltd (2013) SC 1266

ToRobert v ToRobert (2011) SC1130

William Powi & Ors v The State & Ors (2006) SC844

Counsel:

Mr. P.H Pato,for the Appellant

No appearance by the Respondent

29thMay, 2020

1. BATARI, MURRAY JJ: This appeal is uncontested. It is against a decision of a single Judge of the Supreme Court (SC Judge) which dismissed the application by Ganglau Landowner Co Ltd (Ganglau/appellant) for leave to apply for judicial review of the National Court (primary court/judge) decision.

Section 3 Supreme Court Act Application.

2. A third member of the Bench having not been renewed his appointment, we have the authority of the parties under s. 3 of the Supreme Court Act(the Act) to continue the hearing of the appeal and give this judgment. Section 3 gives effect to the Constitution dictates in sections 161 and 162, that the Supreme Court be consisted of at least 3 Judges and in other situations by a single Judge or by a number of Judges sitting together.

3. Constitution s. 161 (2) reads:

(2) Subject to Section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three Judges.

4. Constitution s. 162 (2) reads:

(2) In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

5. Section 3 of the Actenvisages two scenarios where an ongoing appeal before a Supreme Court is left with two or one Judge because of the unavailability due todeath, resignation, retirement, or non-reappointment of one or two members of the bench.

6. The first situation is where the two remaining Judges can continue the appeal and give judgement with consent of the parties. Consent of the parties is a mandatory requirement under s. 3 (2) of the Act.

7. By necessary implication, the two remaining members of the Court are still seized of the matter so, the appeal must come before them or one of them with the consent of the other Judge, for the parties to make the election. If any of the parties objects to the remaining judges continuing the appeal, then the appeal will be reheard. See, National Housing Estate Ltd & Anor v Decision 2000 Ltd & 3 Ors (2020) SC1931.

8. The second scenario is where only one Judge is remaining. In that case, the appeal will be reheard: Moses Manwau v Andrew Trawen (2011) SC1159; John Nilkare v Ombudsman Commission [1976] PNGLR 413, SC500; Hariki v. The State (2007) SC 1320.

Background

9. The subject of the dispute between the partiesis a State Lease registered as Portions 109 and 110 Milinch Ammem, Fourmil, Madang.The land situated at Basamuk, Rai Coast, Madang Province is 85.17 hectares in area. It currently hosts the Ramu Nickel Mining processing plant and the wharf.

10. Onor about 18 June 2004 the Minister for Lands & Physical Planning granted a State Lease (Agricultural Lease) over Potions 109 and 110 to Ganglau Landowner Co Ltd (Ganglau). The respondent, Louis Medaing (Medaing) representing Tong and Ogeg clans with four other clans, successfully sought a judicial review of the decision of the Minister in the National Court at Madang.

11. On 19 February 2010, Cannings, J ordered inter alia, the decision of the Minister for Lands & Physical Planning to grant a State Lease over Portions 109 and 110 to Ganglau was null and void and quashed. Consequently, the State Lease grant was null and void and quashed. The primary judge further ordered, that the Registrar of Titles records be amended accordingly.

12. On 9 June 2010, after the appeal period had lapsed,Ganglau filed an application for leave toreview the primary court decision. The application was left in abeyance for over 12 months so, it was listed for summary determination.On 26 October 2011the Supreme Court granted the Appellant’s new lawyers reprieve to continue the appeal with directive orders to complete the final steps towards prosecution of the leave application. By mid-2015, the Supreme Court directions had not been complied with. The leave application wasagain listed for summary determination. Ganglau had in the meantime instructed its present lawyers, Parker Legal to take up its case.

13. Parker Legal withdrew the pending applicationand filed a fresh application for leave for review on 16 October 2015.

14. On 2 December 2015 his Honour Makail, J sitting as single Judge of the Supreme Court, dismissed theapplication. The appellant then filed this appeal.

Grounds for leave for review of primary court decision

15. The grounds for review of the primary judge decision were in a nutshell;

a) The respondents being aggrieved by the issuance of the State Lease in question to Ganglau,failed to fully exhaust all administrative avenues under the Land Act to appeal the ministerial decision.

b) Portions 109 and 110 being State Leases isnot subject to the jurisdiction of the Special Land Titles Commission hearing.

16. In seeking leave before the SC Judge to appeal the primary court refusal of leave, the appellant articulated the two...