SC2523

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCM 32 OF 2022

BETWEEN:
GLOBAL CUSTOMS & FORWARDING
LIMITED
Appellant

AND:
BENJAMIN SAMSON
as the Secretary of the Department
of Lands and Physical Planning
First Respondent

AND:
THE DEPARTMENT OF LANDS
& PHYSICAL PLANNING
Second Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

AND:
EAST BOROKO CHRISTIAN
FELLOWSHIP INC.
Fourth Respondent

Waigani: Hartshorn J.
2023: 18th November, 15th December

SUPREME COURT – practice and procedure - Application for leave to file a slip rule application     
 Cases Cited: 

Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412

Counsel:

Ms. E. Ngomba, for the Appellant
Mr. E. Sasingian, for the First Respondent
Mr. K. Kipongi, for the Second and Third Respondents
Mr. G. Kaore, for the Fourth Respondent

15th December 2023

1. HARTSHORN J: This is a decision on a contested application for leave to make a slip rule application. It is made by the appellant and is opposed by all of the respondents.

Background

2. The appellant appealed against a decision of the National Court which dismissed an application for mandamus. The appellant had sought to compel the Secretary for the Department of Lands and Physical Planning “to gazette and publish in the National Gazette its name as the successful applicant over State Lease Section 378 Allotment 13 Hohola, NCD (State Lease) and to accordingly effect processes for the grant of [the] State Lease as stipulated under relevant provisions of the Land Act 1996”.

3. In the appeal, the appellant sought to have all orders by the National Court quashed and an order for mandamus compelling the first respondent to publish its name as the successful applicant for the State Lease in the National Gazette.

4. After the hearing of the appeal, the Court in its published judgment dated 28th July 2023 stated at [57]:

“Having found that the trial judge fell into error in granting the orders referred to in paragraphs 4(1) – (7) hereof, we have nevertheless proceeded to determine the application for mandamus that was before the trial judge pursuant to sections 6 and 16, Supreme Court Act. In so doing we have found that the proceedings before the trial judge were an abuse of process for the reasons that we have already given.

ORDERS

(1) This appeal and the proceedings OS(JR) 1 of 2021 Global Customs &  Forwarding Ltd v Benjamin Samson and Others and SCM 32 of 2021 Global Customs & Forwarding Ltd v Benjamin Samson and Others are both dismissed as they are an abuse of the processes of the Courts.

(2) The costs of the appeal and the said National Court proceeding shall be paid by Global Customs & Forwarding Ltd to all of the respondents.”

Application for leave to bring a slip rule application

5. The appellant in its application amongst others, seeks leave to make a slip rule application pursuant to Order 11 Rule 32(1), (2) and (3) Supreme Court Rules. The appellant contends that the Court misapprehended the facts and law and fell into error of law or slipped on two grounds.  Further, the appellant contends that the Court should have made the following findings:

“a) A further order be added to the orders of dismissal to read that Pursuant to s.155(4) of the Constitution, the fourth respondent shall not deal with the Title in respect of Section 378, Allotment 1, (Hohola), Gerehu, Port Moresby, National Capital District (“the land”) until the Minister and the Department of Lands resolves the issue of the coexistence of the Title and the rezoning in the subdivision of the said land.

b) In respect of grounds 2.2, 2.3. 2.5, 2.7. 2.9 of the Appeal, the arguments raised were upheld to some extent and, since the appeal was not a futile exercise and it has merits to some extent, the Court in exercising its discretion, orders each party to bear their own costs of the appeal.”

Law

6. The principles governing slip rule applications have been considered by this court on numerous occasions. In Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063, this Court consisting of five judges, after a review of the authorities, agreed that the following principles are those that govern all slip rule applications to this court for it to reopen one of its decisions:

(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.

7. As to an application for leave to make a slip rule application, in Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412, the Court stated at [11] that there are two preconditions to the grant of leave. First, the applicant must, in accordance with Rule 32(1), seek leave within 21 days after the order disposing of the proceedings. Secondly, the applicant must satisfy the Court that the slip rule application would have a strong chance of success.

Consideration

8. The first ground of the application is that the Court misapprehended the facts and law and fell into error of law or slipped in not invoking its inherent power under s. 155(4) Constitution to make a further order as necessary to do justice in the circumstances of the case. The further order that the appellant claims the Court should make is to the effect that the fourth respondent not deal with the State Lease for the land until the Minister and Department of Lands resolve the issue of the coexistence of title and the rezoning and subdivision of the said land. 

9. The appellant claims that it is not proper for the Court to grant to the fourth respondent the liberty to use the land the subject of the State Lease until the decision of the PNG Land Board and Minister is dealt with administratively and that there is in existence an administrative “curtailment” or “caveat” in respect of the subject property. 

10. In the application and in submissions, it is not articulated by the appellant specifically how it claims that the Court misapprehended, fell into error or slipped and how the misapprehension of fact or law was not the appellant’s own making.

11. In submissions, counsel for the appellant submitted that notwithstanding that the Court granted the fourth respondent power to use the land described in the State Lease, there still existed a Land Board and Ministerial decision recognising the subdivision of the said land. This is the reason for the application for a slip rule being made by the applicant in the interests of justice and as a way forward to progress the matter given the scenario now existing, counsel submitted. It was also conceded by counsel for the appellant that the further order which allegedly should be made pursuant to s.155(4) Constitution by the Court, was not sought from the Court at the hearing of the appeal.

12. These submissions indicate that the reasons for making this application for leave to make a slip rule application are for reasons other than that the Court slipped or that the Court misapprehended facts or law. That a party is not satisfied with the fact scenario that it claims exists after a Court judgment does not bestow a right upon the party to make a slip rule application or is any indication that a Court may have misapprehended facts or law such that a slip has occurred.

13. As the appellant has failed to identify or particularise how the Court misapprehended facts and law and what the facts and law are which were allegedly misapprehended, it has not been made out that the appellants slip rule application has a strong chance of success.

14. Further, by referring to the claimed administrative “curtailment” or “caveat”, the appellant is raising an issue that was not argued before the Court in the appeal. An applicant in a slip rule application is precluded from raising an issue on a matter which was not argued on appeal before the Court. Moreover, the argument concerning the decision of the Land Board and Minister were considered by the Court. The attempt by the appellant to raise this argument once more and to raise an issue not raised before the Court on appeal is indicative of the appellant seeking to rehash arguments already made before the Court at the appeal.

15. For the above reasons, there is no merit in the first ground.

16. The second ground of the appellant is that the Court fell into an error of law or slipped in awarding costs of the appeal against the appellant as the Court on three occasions found that the primary judge in the National Court had fallen into error. The appellant submits that the order made by the Court should have made each party bear their own costs.

17. An award of costs is at the discretion of the Court and in the normal course such an award follows the event. In this instance the event is the dismissal of the appeal and not the finding that the primary judge fell into error on three occasions. Costs were awarded to be paid by the appellant. This is an award of costs which follows the event. The appellant has not articulated how the court has misapprehended, fallen into error or slipped in its consideration of the award of costs. It has not been made out in my view, that the applicant has a strong chance of success on this ground. 

18. Consequently, for the above reasons this application should be dismissed. Given this, it is not necessary to consider the other submissions of counsel apart from as to the costs of this application. The second and third respondents seek their costs on an indemnity basis. I am not satisfied that it has been properly made out that such an award should be made.

Orders

a)	The application for leave to make a slip rule application filed 18th August 2023 of the appellant is dismissed.

b)	The appellant shall pay the costs of all of the respondents of and incidental to the said application on a party party basis to be taxed if not agreed otherwise.
_____________________________________________________________
Tamutai Lawyers: Lawyers for the Appellant                                          
Sasingian Lawyers: Lawyers for the First Respondents                             
Solicitor General: Lawyers for the Second and Third Respondents        
Kaore Lawyers: Lawyers for the Fourth Respondent