Ah-Wong v Ane [2021] PGNC 410; N9121 (9 September 2021)

N9121

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 81 OF 2020

BETWEEN:
JOHN DARREL AH-WONG
First Plaintiff

AND
JEREMIAH AH-WONG
Second Plaintiff

AND
THOMAS AH-WONG
Third Plaintiff

AND
MARY MARTIN
Fourth Plaintiff

AND
MARGARET DOMARA
Fifth Plaintiff

AND:
ALA ANE, Registrar of Titles
First Defendant

AND
THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Second Defendant

AND
JOHN THOMAS AH-WONG
Third Defendant

Waigani: Tamade AJ
2021: 02^nd September

JUDICIAL REVIEW – application to review decision of first defendant to refuse to register a conditional surrender of land - Acting Registrar of Titles refused to register the surrender of land as the matter dates back over 50 years citing reasons of time limitations – similar judicial review proceedings filed by plaintiffs but withdrawn earlier – plaintiffs now filling similar proceedings to review – whether proceedings are res judicata – proceedings are statute barred as the alleged actions which are subject of review occurred 50 years ago – a similar proceedings filed based on fraud had already decided on the issue – it is therefore res judicata – plaintiffs review application is dismissed

Cases Cited:

Telikom PNG Limited v Independent Consumer and Competition Commission [2008] PGSC 5
GR Logging v Dotaona [2018] PGSC34; SC1690
State v Toka Enterprise Ltd [2018] PGSC 89; SC1746
Steamships v Minister for Lands & Physical Planning [2000] PGNC 11; N1959
PNG v Konze Kara (2014) PGSC 58; SC1420
Julius Pololi v Bryan James Wyborn (2013) N5253

Counsel:

Marryanne Wal, for the Plaintiff
Pauline Yom, for the State

09^th September 2021

TAMADE, AJ:

1. This is an application for judicial review of the decision of the First Defendant refusing to register a conditional surrender of land described as Crown Lease 1826 which is now described as Portion 132, Granville, Moresby contained in Volume 8 Folio 1826.

2. The Plaintiff claims that the land the subject of these review was initially granted to and held by one Bessie Ah-Wong under Crown Lease CL1826. The Plaintiff says that Bessie Ah-Wong surrendered the title CL1826 to the Title’s Office in 1967 so as new subdivision titles of the land would be registered and given to Bessie Ah-Wong however the surrender was accepted but never registered.

3. The Third Defendant in these proceedings is currently the registered proprietor of Portion 132, a portion of land within CL 1826 and the Plaintiff claims that the other portion of CL1826 is Portion 738. The Third Defendant has made attempts to evict the Plaintiffs on Portion 132.

4. Of interest is that the matters complained of by the Plaintiffs as to the registration of the surrender of CL1826 are matters that occurred in 1967.

WS 1016 of 2019

5. In 2019, the Plaintiffs commenced proceedings in the National Court in matter WS 1016 of 2019-Jeremiah Ah-Wong and John Darrell Ah-Wong and others v John Thomas Ah-Wong regarding the subject land.

6. Justice Ere Kariko in that matter dismissed the proceedings for being statute barred that the claims alleging fraud over the property were out of time.

7. On 02^nd January 2020, the Plaintiffs through their lawyer, Wal & Associates wrote to the Acting Registrar of Titles and requested for the surrender of the Crown Lease CL 1826 to be registered.

8. On 16^th January 2020, the Acting Registrar of Titles refused to register the surrender of CL1826 as the matter dates back over 50 years citing reasons of time limitations.

OS (JR) 27 of 2020

9. The Plaintiff then filed a judicial review proceeding in matter described as OS(JR) 27 of 2020- John Darrrel Ah-Wong & Ors v Ale Ane, Acting Registrar of Titles & Ors.

10. These proceedings were dismissed by Justice Miviri on 15^th September 2020.

11. The Court found in OS (JR) 27 of 2020 that those proceedings were res judicata because of the Court’s determination in WS 1016 of 2019. Justice Miviri stated that the judicial review proceedings against the First Defendant, The Registrar of Titles ‘is because of the refusal to pursue registration of the subject land which occurred more than 50 years ago’.

Supreme Court Appeals

12. The Plaintiffs aggrieved by the decision of Justice Miviri in (OS) (JR) 27 of 2020 then appealed to the National Court by filing a Notice of Appeal titled SCA 114 of 2020. On 16^th November 2020, SCA 114 of 2020 was withdrawn by the Plaintiffs.

13. The Plaintiffs then filed a second supreme court matter by way of an Application for Leave to Review in SCR 22 of 2020. Justice Derek Hartshorn sitting in the Supreme Court dismissed the Plaintiff’s Supreme Court Review and found that the review was an abuse of process of the Supreme Court as the Plaintiff’s had filed an appeal and withdrew the appeal.

Current Proceedings

14. The Plaintiffs are basically coming back to the National Court for leave to proceed with judicial review proceedings, an identical claim as in OS (JR)27 of 2021.

15. The Plaintiffs state that these proceedings are not res-judicata of OS (JR) 27 of 2021 as the findings of Justice Miviri tied those proceedings to WS 1016 of 2019 however this review is based on the decision of the First Defendant in a letter of 16^th January 2020 in refusing to register the conditional surrender of CL 1826.

Are these proceedings res-judicata?

16. I start by agreeing with the observations by Justice Hartshorn in the review matter before the Supreme Court. The Plaintiffs are yet again having a second bite at the cherry so to speak by coming before the National Court in the same mode as they did previously in OS (JR) 27 of 2021 and have mounted an identical claim for judicial review.

17. The question in dispute in which the Plaintiff seeks the court’s intervention in is the land described as CL1826.

18. The Writ of Summons before Justice Kariko alleged fraud in the transfer of this land to the Third Defendant and the Court clearly ruled that those proceedings are time barred pursuant to the Statute of Frauds & Limitations Act.

19. At paragraph 15 of the decision of Justice Kariko in WS 1016 of 2019, the Court stated that:

“it is clear that the Plaintiff’s are seeking judicial review of the process by which the replacement title deed was issued, and the various transfers of title since the death of the deceased were registered.”

20. Justice Miviri in (OS) (JR) 27 of 2020 acknowledged the Third Defendant’s right to a title free of any encumbrance or proven fraud and decided that matters over the title deed now held by the Third Defendant and or over this very same land are matters that are out of time and therefore the judicial review proceedings are res judicata.

21. I am of the view that the Plaintiff has attempted to create a fresh course of action beginning in January of 2020 by requesting the Third Defendant to take action on an action that should have been taken 50 years ago. The attempt by way of a letter from Wal & Associate Lawyers dated 02^nd January 2020 to the Registrar of Titles office and the response from the Registrar of Title Office in a letter dated 16^th January 2020 refusing to register the surrender of CL 1826 cannot trigger a new cause of action. The subject matter is the purported surrender and registration of CL1826 which either happened or should have happened in 1967.

22. The subject matter complained of is clearly statute barred and Justice Kariko correctly dismissed those proceedings. Looking entirely on the subject matter, I am of the view that Justice Miviri took the same view, the subject matter complained of was decided by Justice Kariko and the matter is res-judicata.

23. Any application for leave to judicially review the decision of the Registrar of Titles basically refusing to act on a matter that is past 50 years cannot be said to be a new course of action or a new subject matter, it concerns the same land. It is if I can say a sneaky way to challenge the title now held by the Third Defendant when they are out of time to do so, and the Courts have ruled accordingly.

24. I have considered the cases of Telikom PNG Limited v Independent Consumer and Competition Commission [2008] PGSC 5 and the case of GR Logging v Dotaona [2018] PGSC34; SC1690 and I am of the view that the decision complained of by the Plaintiffs have been considered by Justice Kariko and Justice Miviri was correct in affirming that the subject matter over the subject land was time barred. The Registrar of Title’s decision refusing to register the surrender is also on the same reasons, 50 years have passed, timing is the issue, and it has been decided through two civil suits in the National Court.

Principles for the Grant of Leave for Judicial Review

25. This takes me to the next issue in consideration of the principles for the grant of leave for judicial review.

Undue delay

26. Amongst the principles for consideration for the grant of leave for judicial review is the consideration of ‘undue delay’.

27. Ms Wal relies on the case of State v Toka Enterprise Ltd [2018] PGSC 89; SC1746 (20 September 2018) to say that there is no time prescription for an application for judicial review where an order for mandamus is sought as long as the applicant can bring the application within reasonable time. Ms Wal again insist that the cause of action complained of is the letter by the Registrar of Titles refusing to register the surrender of CL 1826. This argument throws a blind eye on the dilemma faced by the Registrar of Titles that over 50 years have passed, and the Registrar of Titles clearly will be prejudiced to reconcile records kept by the Titles Office to the claims by the Plaintiffs. Given that the Registrar of Titles will be prejudiced in this regard if leave is granted, delay starts in 1967, the year where the issue of the surrender of CL 1826 occurred.

28. I have considered the case of Steamships v Minister for Lands & Physical Planning [2000] PGNC 11; N1959. Though the Plaintiffs have pursued legal remedies before the National and Supreme Court, the Plaintiffs have done so very late thereby the Defendants will be greatly prejudiced.

Locus Standi

29. It appears that the Plaintiffs are relatives of the Third Defendant currently encroaching on the subject land. The Third Defendant currently holds a clear title to the subject land and has taken steps to have the Plaintiffs give up vacant possession thereby causing the Plaintiff’s to challenge his title and pursue the registration of the surrender of CL 1826.

30. All previous proceedings in the National Court and again in the Supreme Court including this leave application are all attempts to challenge the title held by the Third Defendant.

31. Ms Yom has referred me to the case of Public Curator of PNG v Konze Kara (2014) PGSC 58; SC1420, and the case of Julius Pololi v Bryan James Wyborn (2013) N5253 that the estate of a deceased person vests with the Public Curator and therefore the proper persons to institute proceedings on behalf of a deceased estate is the Public Curator in the absence of Letters of Administration given to other persons. I accept the submissions made by Ms Yom.

32. I do not have to consider the other considerations for the grant of leave as the principles of locus standi and delay which amounts to prejudice to the Defendants are major hinderances in this case to the grant of leave and the Plaintiffs fail to satisfy these.

Conclusion

33. I find that the subject matter or cause of action the Plaintiff complains about in this case is the purported registration or failure to register the said conditional surrender of CL1826 which happened in 1967. Subsequently, there exists a State Lease over the subject land registered to the Third Defendant. Any attempt to challenge this title is statute barred as it is out of time.

34. The letter by the Registrar of Titles dated 16^th January 2020 cannot be the subject of a judicial review as the conduct complained of was in 1967, the Registrar is prejudiced and simply decided not to deal with the matter given the time period involved. All other Defendants in this matter including the Third Defendant will also be prejudiced if this matter is allowed to proceed.

35. I also agree that the matters as to time limitations have already been decided by Justice Kariko and they extend to this judicial review proceeding in the prejudice that the Defendants will be faced with in defending the matter.

36. I therefore make the following orders:

(1) Leave for judicial review is refused and these proceedings are dismissed.
(2) The Plaintiffs shall pay the Defendants costs on a solicitor client basis.
(3) Such costs shall be paid prior to the institution of any new proceeding concerning the same subject land.

Orders accordingly.

Wal & Associate: Lawyer for the Plaintiffs.
Solicitor General’s Office: Lawyer for the Defendants.