Rimbunan Hijau (PNG) Limited v Ina Enei as Administrator of the Estate of Ibi Enei Deceased on his own behalf and on behalf of Moga Clan of Loupom Island, Abau District, Central Province (2019) SC1859

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ, Kandakasi DCJ & Toliken J
• Judgment Date: 29 October 2019
• Court: Supreme Court
• Citation: (2019) SC1859
• Docket Number: SCA No. 126 OF 2011
• Year: 2019
• Judgement Number: SC1859

Full Title: SCA No. 126 OF 2011; Rimbunan Hijau (PNG) Limited v Ina Enei as Administrator of the Estate of Ibi Enei Deceased on his own behalf and on behalf of Moga Clan of Loupom Island, Abau District, Central Province (2019) SC1859

Supreme Court: Salika CJ, Kandakasi DCJ & Toliken J

Judgment Delivered: 29 October 2019

SC1859

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 126 OF 2011

BETWEEN:

RIMBUNAN HIJAU (PNG) LIMITED

Applicant

AND:

INA ENEI AS ADMINISTRATOR OF THE ESTATE OF IBI ENEI DECEASED ON HIS OWN BEHALF AND ON BEHALF OF MOGA CLAN OF LOUPOM ISLAND, ABAU DISTRICT, CENTRAL PROVINCE

Respondent

Waigani: Salika CJ, Kandakasi DCJ & Toliken J.

2019: 27th June

29th October

PRACTICE & PROCEDURE –Slip Rule Application - Principles governing slip rule application - Basis for claiming slip - No slip by Court - Application for leave dismissed - O.11, 32(1) Supreme Court Rules.

COSTS – Slip Rule applications – Applications without any merit – Effect of – Waste of judicial time and imposition of costs unnecessarily – Court to impose costs on own solicitor and client or full indemnity bases.

Cases Cited:

Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063

Moses Manwau v. Andrew Trawen (2011) SC1159

Francis Kunai &n Ors v. Papua New Guinea Forest Authority & Ors (2018) N7570

Counsel:

Mr. I. Molloy and W. Frizzell, for the Applicant

Mr. L. Yandeken, for the Respondent

29th October, 2019

1. BY THE COURT: The Appellant, Rimbunan Hijau (PNG) Limited (RH) is claiming this Court made certain slips on 25th September 2017 when it came to its final decision on its appeal. The alleged slips are listed in the grounds for the slip rule application at paragraph 2 of the application. The Respondent, Ina Enei for and on behalf of the Moga Clan (the Moga Clan) in response says, the Court made no slips and RH’s application is an attempt at having its appeal rehashed.

Issue for determination

2. The issue for the Court to determine therefore is, whether the Court made the alleged slips in its judgment and they warrant a revisit and correction?

Background facts

3. This matter initially came to the Supreme Court by way of an appeal from the National Court which ordered judgment against RH in the sum of K6, 198,599.38 with costs and interests. That was for trespass and continued trespass and illegal use of Moga Clan’s customary land by RH. Having heard the parties fully on the appeal, this Court reserved and eventually on 25th September 2017, handed down a detailed written judgment dismissing the appeal. That should have been the end of the matter.

The Principles Governing on Slip Rule

4. However, recognising the fact that judges are humans and as humans they are susceptible to making mistakes, the law does allow for parties to return to the Court to seek correction of any errors under what has in time become known as the “slip rule”. The principles governing slip rule applications are well settled in our jurisdiction. In the five-member Supreme Court decision in Andrew Trawen and Anor v. Stephen Pirika Kama and Ors,

(2010) SC1063

11 the Court after a review of the various authorities on point, settled the following as the principles that govern all slip rule applications

(a) There is a substantial public interest in the finality of litigation.

(b) On the other hand, any injustice should be corrected.

(c) The Court must have proceeded on a misapprehension of fact or law.

(d) The misapprehension must not be of the applicant’s making.

(e) The purpose is not to allow rehashing of arguments already raised.

(f) The purpose is not to allow new arguments that could have been put to the Court below.

(g) The Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.

5. These principles have been consistently applied in many earlier and subsequent decisions of the Supreme Court, such as the decision in Moses Manwau v. Andrew Trawen

(2011) SC1159

22 with followings in the National Court as demonstrated by the decision in Francis Kunai & Ors v. Papua New Guinea Forest Authority & Ors.

(2018) N7570

33

Present Case

6. With these principles in mind we turn to a consideration of each of the claims of slip.

(i) Ground (a)

7. The first of the claim reads:

“(a)

i. Slip – at page 9 (paragraph 10) of its reasons for judgement the Court found that the Parties agreed upon the issues for trial and the issues raised in appeal grounds, inter alia, 7, 8, 9, 10 and 18 were not the issues agreed upon and therefore, inter alia, the Appellant was raising those issues for the first time on appeal meaning those grounds must be dismissed according to law.

ii. Finding Contended For – the appeal ought to have been upheld in respect of grounds 7, 8, 9, 10 and 18. The statement of agreed and disputed facts and legal issues for trial was agreed and filed in the National Court proceedings on 08.05.2006 (“the statement”).

Grounds 7, 8 and 18 concerned the affidavit of Ibi Enei sworn 26 November 2007 and its annexures “A” and “B” (pages 286-298 appeal book) which were filed 18 months after the statement, relied upon at trial and to which objection was taken. Therefore, they could not be dismissed.

Grounds 9 and 10 concerned the affidavit of Ibi Enei sworn 28 June 2006 and its annexures “F” and “G” which was filed after the statement, relied upon at trial and to which objection were taken. Therefore, they could not be dismissed.”

8. As can be seen, RH claims that it did raise the issues raised in its appeal grounds 7 – 10 and 18 at the trial and as such they were entitled to raise them on appeal as of right. Hence, it argues this Court wrongly arrived at the view that it failed to raise the issues at the trial and was therefore precluded from raising them on appeal. That decision, it argues, prevented this Court from considering the issues raised by these grounds of its appeal.

9. As we noted at paragraph 2 of the main judgment, RH failed to present its appeal grounds in a way that was easier to understand and follow through. We therefore had them rearranged to enable better understanding and a proper dealing with each of the grounds of appeal. Then, relevantly we summed up the grounds of appeal as follows:

“(4) admitting into evidence, hearsay, newspaper cuttings and other documentary evidence and acting on inadmissible evidence (grounds 7, 8, 9, 10, 17);

(5) made certain findings of fact and made the award (grounds 13, 14) without the support of any evidence (grounds 11, 12, 15, 16, 29);

(6) basing the award of damages upon the total economic benefits it had obtained from log exports and not calculating the respondents loss by reference to deprivation of their use of and diminishing the value of the lands by the alleged trespass and illegal use resulting in deprivation of their use of the land and (grounds 1, 3, 18, 19, 20, 28)…”

10. Moga Clan, argued against appeal grounds, 7-10 and 18 on two main foundations. Firstly, these issues were not included in the parties agreed statement of facts and issues for trial. Secondly, RH did not take any serious issue against the National Court accepting into evidence and acting on the basis of the documentary and other evidence that were before the Court. The Court therefore, correctly proceeded to assess damages in the way it did. Given that, RH was at no liberty to raise the issues on appeal. At paragraph 10 of our main judgment here is how we came to our decision on the issue:

“10. In the present case, we note that the parties agreed upon the issues they were going to trial for. The issues raised in appeal grounds 7, 8, 9, 10, 18, 23, 33, 34, 35 and 36 were not on the list of issues agreed upon. Additionally, the record of the trial per the transcript of proceedings in the National Court bears no witness of RH raising any of these issues in the National Court. No doubt RH is raising these issues for the first time in this appeal without first raising them in the Court below. This, it cannot do for reasons outlined above. Additionally, for ground 23, RH offers no arguments or submission. Accordingly, we order grounds 7, 8, 9, 10, 18, 23, 33, 34, 35 and 36 be dismissed.”

11. In its slip rule application, RH claims its appeal grounds 7-10 and 18 were raised in issue 3.3 in the parties agreed statement of facts and issues. Given that, it argues this Court wrongly arrived at its decision that, these issues were not included in the issues at the trial.

12. Issue 3.3 in the statement of facts and issues reads:

“3.3 Whether the defendant should pay any damages to the plaintiff and if so, what should be the amount payable”

13. Clearly, this issue as stated does not raise the issue of admitting into evidence, hearsay, newspaper cuttings and other documentary evidence and the trial Court acting on inadmissible evidence, which are...