Talibe Hegele, Ken Tiliyaso, Tamu Angoea, Hibura Tandabe, Hame Andrew, Agori Tege, Mark Philip, For Themselves And On Behalf Of The Members of the Igibu Moligo, Igibu Agia, Dara Dabara, Igibu Mapia, Igibu Mamage, Dara Angoya, Dara Elabe, Igibu Wayeai, Igibu Budara Sub-Clans of Yumbi Clan of Moran v Tony kila for Himself and on behalf of the Members of the Nano Webo Clan and Andrew Elabe (2011) SC1143

• Jurisdiction: Papua New Guinea
• Judge: Cannings, Gabi &Yagi JJ
• Judgment Date: 06 December 2011
• Court: Supreme Court
• Citation: (2011) SC1143
• Docket Number: SCR NO 10 0F 2010
• Year: 2011
• Judgement Number: SC1143

Full Title: SCR NO 10 0F 2010; Talibe Hegele, Ken Tiliyaso, Tamu Angoea, Hibura Tandabe, Hame Andrew, Agori Tege, Mark Philip, For Themselves And On Behalf Of The Members of the Igibu Moligo, Igibu Agia, Dara Dabara, Igibu Mapia, Igibu Mamage, Dara Angoya, Dara Elabe, Igibu Wayeai, Igibu Budara Sub-Clans of Yumbi Clan of Moran v Tony kila for Himself and on behalf of the Members of the Nano Webo Clan and Andrew Elabe (2011) SC1143

Supreme Court: Cannings, Gabi &Yagi JJ

Judgment Delivered: 6 December 2011

SC1143

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 10 0F 2010

TALIBE HEGELE, KEN TILIYASO, TAMU ANGOEA, HIBURA TANDABE, HAME ANDREW, AGORI TEGE, MARK PHILIP, FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF THE IGIBU MOLIGO, IGIBU AGIA, DARA DABARA, IGIBU MAPIA, IGIBU MAMAGE, DARA ANGOYA, DARA ELABE, IGIBU WAYEAI, IGIBU BUDARA SUB-CLANS OF YUMBI CLAN OF MORAN

Applicants

V

TONY KILA FOR HIMSELF AND ON BEHALF OF

THE MEMBERS OF THE NANO WEBO CLAN

First Respondent

ANDREW ELABE

Second Respondent

Waigani: Cannings, Gabi &Yagi JJ

2011: 28 November, 6 December

APPEALS AND REVIEWS – decision of National Court to enter judgment by consent of parties – application by aggrieved persons who were not parties to National Court proceedings for leave to review National Court judgment under Constitution, Section 155(2)(b).

Judgment was entered by consent of two parties in National Court proceedings. Various persons with an interest in those proceedings were aggrieved by that judgment as they claimed that the defendant had falsely represented that he acted on their behalf. Two years and nine months later, and two years and five months after becoming aware of the judgment, the aggrieved persons (the applicants) applied to the Supreme Court for leave under Section 155(2)(b) of the Constitution for review of it. This is a ruling on the application for leave.

Held:

(1) The applicants had a right to appeal against the judgment of the National Court under Section 17 of the Supreme Court Act, notwithstanding that it was a consent judgment and that they were not a party to the National Court proceedings (Kitogara Holdings Ltd v NCDIC [1988-89] PNGLR 346 applied).

(2) Thus three criteria had to be satisfied for leave under Section 155(2)(b) to be granted:

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

(b) there are:

(i) cogent and convincing reasons and

(ii) 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 (Avia Aihi v The State [1981] PNGLR 81 applied).

(3) As to (b), the applicants had good reasons for not filing an appeal within time and the merits of the case sought to be argued are arguable. Thus there are cogent and convincing reasons warranting a review. Further, the case is of special gravity in view of the large amount of money apparently involved.

(4) As to (c), there are clear legal grounds meriting a review of the National Court’s decision.

(5) However, as to (a), the application for leave was made after an inordinate delay (two years and five months after the applicants became aware of the National Court order) and no good reason was provided for it. So it was not in the interests of justice to grant leave.

(6) One of the three criteria was not satisfied. Therefore leave was refused.

Cases cited

The following cases are cited in the judgment:

Application by John Maddison & Bank South Pacific Ltd (2009) SC984

Avia Aihi v The State [1981] PNGLR 81

Danny Sunu v The State [1984] PNGLR 305

David Toll v The State (1989) SC378

Hegele v Kila & Elabe (2011) SC1124

Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437

Jeffrey Turia v Gabriel Nelson (2008) SC949

Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886

Kitogara Holdings Ltd v NCDIC [1988-89] PNGLR 346

New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522

Review Pursuant to Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855

Tamali Angoya v Tugupa Association Inc (2009) SC978

Tay v Gerau (2011) SC1097

The State v Colbert [1988] PNGLR 138

APPLICATION

This was an application for leave to seek review under Constitution, Section 155(2)(b), of a judicial act of the National Court: an order made by consent of the parties to the National Court proceedings.

Counsel

M Nasil, for the applicants

S Soi, for the first respondent

6 December, 2011

1. BY THE COURT: This is a ruling on an application by Talibe Hegele and other representatives of the Yumbi Clan of Moran, Southern Highlands Province, for leave to seek review under Section 155(2)(b) of the Constitution of an order made by Justice Hartshorn in the National Court on 27 December 2007. Section 155(2)(b) of the Constitution states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

2. The order in OS No 687 of 2007 was made by consent of the parties to those proceedings:

· the plaintiff, Tony Kila on behalf of the Nano Webo Clan, who is the first respondent in the application now before the Supreme Court; and

· the defendant, Andrew Elabe on behalf of the Yumbi Clan, who, in his individual capacity, is the second respondent in the application now before the Supreme Court.

3. The order made legally binding a deed of release executed by Mr Kila and Mr Elabe on 1 October 2002 and provided for sharing of royalties and other benefits arising from a petroleum development licence regarding the Moran Oil Project.

4. Mr Hegele and other representatives of the Yumbi Clan – the applicants – were not parties to the National Court proceedings. They are aggrieved by the order of 27 December 2007. They say that Mr Elabe had no authority to represent the Yumbi Clan in those or any other proceedings, the National Court proceedings were conducted secretly by him and Mr Kila, the order of 27 December 2007 was the product of fraud and a conspiracy between the respondents and has had the effect of undermining a decision of the Provincial Land Court of 8 March 2006, which awarded ownership of the land that generates the royalties and other benefits to the Yumbi Clan, not the Nano Webo Clan. Mr Nasil, for the applicants, asserts that they did not become aware of the 27 December 2007 order until April 2008, that it was too late by then to appeal against it and that in any event an appeal was prohibited by Section 14(2) of the Supreme Court Act as the order was made by consent of the parties. Mr Nasil submits that in these circumstances leave should be granted as a matter of course, ie leave is not required to pursue their application for review. In the event that we find against the applicants on that point, Mr Nasil submits that leave should be granted as the applicants have been done an injustice and they should be granted the opportunity of having the 27 December 2007 order fully reviewed.

5. Mr Soi for the first respondent (the second respondent was not represented in the current proceedings) conceded that the applicants were not aware of the 27 December 2007 order until April 2008 but submitted that this Court should be fully aware of other proceedings commenced in the Supreme Court by the applicants, the effect of which is to give rise to an abuse of process by them. For this reason alone leave should be refused. In the alternative leave should be refused on the ground of inordinate delay in filing the application for leave.

ISSUES

6. The competing arguments give rise to the following issues:

1 What are the facts?

2 Is there an abuse of process?

3 Was an appeal against the order of 27 December 2007 prohibited?

4 Do the applicants require leave to apply for review?

5 Should leave be granted?

1 WHAT ARE THE FACTS?

7. The following chronology of events, beginning with the order sought to be reviewed, is relevant:

Ø 27 December 2007 – order made by the National Court (Hartshorn J) consent of the parties in OS No 687 of 2007.

Ø Early April 2008 – the applicants became aware of the 27 December 2007 order.

Ø 28 April 2008 – the applicants commenced fresh proceedings, WS No 459 of 2008, pleading fraud by the parties to the order of 27 December 2007 as a cause of action, and seeking an order setting aside the order of 27 December 2007.

Ø 13 October 2009 – the National Court (Salika DCJ) ordered in WS No 459 of 2008 that the parties are restrained from collecting any royalties or equity benefits until land ownership issues and the proceedings in WS No 459 of 2008 have been determined.

Ø 20 April 2010 – William Akuani Lawyers filed an application for leave under Constitution, Section 155(2)(b) to review the order of 27 December 2007: at the hearing of the present application, this application was abandoned.

Ø 12 May 2010 – the National Court (Kandakasi J) dismissed WS No 459 of 2008 entirely on the ground that the National Court lacked jurisdiction as the subject matter of the proceedings...