N9344
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 504 OF 2019 

UHADI IAROGAHA INCORPORATED LAND GROUP No 617
Plaintiff

V
BENJAMIN SAMSON REGISTRAR OF TITLES
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND: 
THE ESTATE OF JIMMY VARIKA
Third Defendant

AND:
NIEL MARCUS DANIEL
Fourth Defendant

Waigani: Miviri J
2021: 02nd & 3rd December 

PRACTICE & PROCEDURE – Judicial Review & Appeals – Leave for Judicial Review – Order 16 Rule 2, & 3 NCR –  Application Ex parte & Notice Secretary Justice – Notice Of Motion Order 12 Rule 8 (2) (b) & (4) and Order 16 Rule 8 (1) NCR – Setting Aside Leave for Appearance Third & Fourth Defendants  – Section 8 Claims By & Against the State Act Leave for Judicial Review – Section 59 Constitution – Audi Alteram Partem – Directly Effected Decision – Land Titles Commission Grant Subject Land to Third Defendant Deceased Estate– Fourth Defendant Administrator of Deceased Estate – Balance Not Discharged –Motion Denied – Cost Follow the Event.

PRACTICE & PROCEDURE – Judicial Review & Appeals – Leave for Judicial Review – Order 16 Rule 2 NCR – Application Outstanding 1 year 2 months – No Real Interest & Prosecution Applicant – Insistence Third & Fourth Defendants Prosecution – Delay – Locus Standi – Arguable Case – Exhaustion of Court Processes – Materials relied insufficient –Balance not Discharged – Leave Refused –Motion Denied – Cost Follow the Event.

Cases Cited:

Kuluah v University of Papua New Guinea [1993] PNGLR 494
Raka v Tohichem [2000] PNGLR 328
Aihi v The State (No 1) [1981] PNGLR 81 
Estate of the Late Jimmy Varika v Paonga v Paonga [2021] PGNC 331; N8994 
Ilg No. 617 v Estate of the Late Jimmy Varika [2020] PGSC 131; SC2044
Smith v Ruma Constructions Ltd [2002] PGSC 13; SC695 
Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73 
State and Davis v Barker [1977] PNGLR 386 
Dupnai v Weke [2016] PGSC 43; SC1525
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 
Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47
Counsel:

K. Kil, for Plaintiff
D. Bidar, for Third & Fourth Defendants
					
RULING
3rd December, 2021
1.	MIVIRI, J: This is the Ruling of the application for Leave for Judicial Review of the plaintiff pursuant to Order 16 Rule 3 of the National Court Rules.

2.	He has challenged by a Notice of Motion filed of the 29th November 2021 the appearance of the third and fourth defendants in the proceeding despite leave granted ex parte ordered 7th September 2021 entered 08th September 2021 by this Court for their appearance. In so doing he relies on Order 12 Rule 8 (2) (b) & (4) and Order 16 Rule 8 (1) of the National Court Rules.

3.	Order 12 Rule 8 (2) (b) & (4) relates to setting aside or varying Judgment or Order. He is allowed to motion as he has done here. And that the Court may on terms vary or set aside its judgment even in the absence of a party. And he applies for the Court to read that allowance with Order 16 Rule 8 (1) which relates to application for discovery interrogatories, cross examination etc. Rule (1) allows for interlocutory application in the proceedings as is the case here before the leave application. Which is this challenge to the appearance of the third and fourth defendants as interlocutory to the main leave application.

4.	By this he seeks that the third and the fourth defendants who were granted leave ex parte by this Court on the 07th September 2021 entered the 08th September 2021 be varied so that both defendants named in the proceedings are by Order 16 Rule 3 (2) excluded because an application for leave must be made by an originating summons ex parte to the Court except on vacation when it may be made to a Judge in Chambers supported by the material it calls to originate the process there. The term ex parte is a Latin term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". In other words, given the urgency of the matter it is immediate to prompt the court to prevent. Because it is elementary that parties are entitled to Notice and the opportunity to be heard in their defence in any matter brought before the Court, and judicial review is no exception to that fact. This is the norm but there are exceptions which are of an emergency in nature that require immediate prompting before the Court without the appearance of the other side. For example, temporary order preventing a child from being taken outside of the custody of a parent, or the preventing of or destroying of property, or removal of assets in a divorce situation, or a requirement to keep the peace, restrain to keep the status quo because of a volatile fragile situation, or from removal from an institutional house and termination in an employment situation: Kuluah v University of Papua New Guinea [1993] PNGLR 494, or implementation of an employment condition not implemented but which if allowed will cause substantial miscarriage of justice to the applicants: Raka v Tohichem [2000] PNGLR 328.

5.	In the leave stage in judicial review, it is ex parte, primarily because it is in the mean, and not final, but ultimately will lead eventually to inter party hearing. It is a discretionary matter upon the Court which must be exercised without avoiding situation where denial of justice is evident and immediate if the other side is not given an opportunity to be heard. The strict requirements of the rule must not deny justice that is due apparent and demanding: Aihi v The State (No 1) [1981] PNGLR 81. Rules are a means to an end not a barrier to justice. The appeal period may have expired but heed to it would have denied justice to the appellant who was sentenced to life imprisonment for wilful murder. The Court had an inherent power under section 155 (4) to do justice in a given situation. And observing the case set out in Estate of the Late Jimmy Varika v Paonga v Paonga [2021] PGNC 331; N8994, it was clear an interparty hearing was evident at the outset because of the injustice that would have dug in even at that early stage.

6.	And the materials relied justify that the third and fourth defendants appear as earlier granted. That situation has not changed such that there be excluded as contended by the plaintiff. Because the affidavit of the fourth defendant sworn 07th October 2021 file of the 08th October 2021 in two volumes. Volume 1 contains the main body of the affidavit with annexures “A” to “D”. And volume 2 contains annexures “E” to “J3” depicts that this is not an urgent situation where the plaintiff must be heard without the third and fourth defendants let alone the other parties named. Here despite service State has not appeared leading up to today’s hearing even though section 8 of the Claims by and Against the State Act detains the State’s appearance.

7.	The Court is a court of law set by the Constitution which promulgates justice to be done and seen to be done by Section 59 of the Constitution. Here of particular relevance set out by the cases that this matter has gone through, Estate of the Late Jimmy Varika (supra) and in the Supreme Court Ilg No. 617 v Estate of the Late Jimmy Varika [2020] PGSC 131; SC2044, it is primary and significant that the third and fourth defendant remain and continue to assist the Court in its deliberation of the matter. Because Probate was granted in WPA No 70 of 2015 the fourth defendant as Executor and Trustee of the Estate of the third defendant. Who is the registered proprietor of portion 2369C Ikuru Maku Milinch Granville, Fourmil Port Moresby and Portion 2370C Dere Kone Milinch Granville, Fourmil Port Moresby. He is directly affected and ought to be heard in his defence of that fact.

8.	The canvas of both proceedings Estate of the Late Jimmy Varika (supra) and Ilg No. 617 (supra) determined that the title of Jimmy Varika was recognized and granted by the Land Titles Commission hearing. That its revocation by former registrar Henry Wasa did not stand because it was realigned by Benjamin Samson holding his title intact and setting aside that decision to dismantle which reaffirms that the title to the subject land was in Jimmy Varika administered by the Executor of his Estate the fourth defendant. Both were important parties to the cause of action that the plaintiff instituted but took no pain since the 26th July 2019 to list the matter for trial and the like emanating. It is now two (2) years and two (2) months since the originating process was filed by the plaintiff. 

9.	On the 07th September 2021 when the matter was called in the Court there was no appearance by the Plaintiff, and this was when the matter was set for the hearing of the leave application. The third and fourth defendants were in attendance. The decision by the first defendant was made 08th March 2018. It was filed for leave on the 26th July 2019 a year and four months after that decision initially made against. This is coupled with the fact that there is no evidence, or affidavit material before me to determine as to what the plaintiff has done since the filing of this proceedings on 26th July 2019. At the bare minimum proof that it had requested a hearing upon the Registry but to no avail, no fault in the way the matter has been out in the cold. There is no evidence to point to as to the steps that the Plaintiff has taken to evidence his interest in the prosecution of the matter. It is on court record that when the application was called on the 07th September 2021 there was no appearance by the plaintiff, only the third and fourth defendants who have consistently appeared hence the leave granted by the Court for their appearance and continued assistance in the matter for the due determination of the Court. The same cannot be said of the plaintiff the instigator of this proceedings, or for the same the State.

10.	Two months and three weeks after the grant of leave to the third and fourth defendants to appear in the matter, the present application was filed on the 29th November 2021. And on the 13th September 2021 the minute of the order taken out for the appearance of the third and fourth defendants was served on the plaintiff evidenced by the affidavit of Morea Raka filed of the 21st September 2021. Plaintiff has sat out for three months and filed this present application at the eleventh hour to hear the leave application. He has again not laid out explanation as to his failure to act with due diligence in the prosecution of the matter. It is evident from the record of the matter maintained by the Court is that the matter has got to where it is all credit to the third and fourth defendants. Otherwise, it would have lingered and stagnated in the foyer of the Court Registry gathering the dust and dirt there. 

11.	The Instigator of an action at law be it judicial review or any other action known to the law in the records of the Court must take the lead to ensure it is determined in good time and not inordinately and inexcusably left without lifting a finger in its finality and deliverance. The face of the plaintiff and the evidence he relies do not tailor with the observation in Smith v Ruma Constructions Ltd [2002] PGSC 13; SC695 or Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73. Let alone State and Davis v Barker [1977] PNGLR 386, there is no affidavit material or the like so that the decision granting leave of the 07th September 2021 entered the 08th September 2021 be varied as applied. This is an application bare without any merit to sustain as contended by the Notice of motion filed of the 29th November 2021. It fails in all its entirety with costs to the third and fourth defendants on an indemnity basis.

12.	It demonstrates that delay in the judicial review as a basis in judicial review is inordinate and not explained by affidavit material filed and relied upon. Order 16 rule 4 (2) the minimum of four months has since lapsed. It is now 3rd of December 2021. The decision leading to the filing for leave here was made on the 08th March 2018. The application for leave was filed on the 26th July 2019 a year and four months after that decision initially made against. On the 07th September 2021 when the matter was called there was no appearance by the plaintiff to move his leave application. The third and fourth defendants appeared. It is clear this ground is not satisfied on the balance of preponderance: Dupnai v Weke [2016] PGSC 43; SC1525.

13.	What is also evident is that this matter has gone through in different forms before this Court in the decisions set out above of Estate of the Late Jimmy Varika (supra) and Ilg No. 617 (supra) and judicial time has been allocated with determination that have come out on the subject here. In the facts, circumstances and the parties and the subject land in question here is the same. Of relevance is that this is yet again an attempt to look at the same piece of land covered in both decisions that are set out above. That is Portion 2369C Ikuri Maku and Portion 2370 Dere Kone both Milinch Granville Fourmil Port Moresby. The decision in Estate of the Late Jimmy Varika (supra) extensively covers all matters that are now the subject of this application for leave. 

14.	That decision covered that the grant of title to the subject land was to Jimmy Varika on the 02nd November 1996 after a Land Titles Commission hearing. And there was no appeal nor review which meant title was confirmed by the decision to Jimmy Varika. It also recognized the revocation by the Registrar of Titles Benjamin Samson of the cancellation by former Registrar Henry Wasa. And the result is that any action to challenge the title that was held by Jimmy Varika would be inordinate and late. And further the will of Jimmy Varika is his last will and testament administered by his appointed executor in law the fourth defendant here. His will is administered including the subject land by the fourth defendant. And the appeal was upheld because there was no error apparent or identifiable against the decision of the Commissioner Clement Malaisa. Which means for all intent and purposes in law the subject land has its titles vested with Jimmy Varika now managed by his executor the fourth defendant.

15.	In the scope of judicial review, it has come before this court and would be coming the third time now by this application. In that sense there is no jurisdiction to see the same matter again. It is judicial review but the facts and circumstances have seen out a judicial determination in the judgments that are set out above. These defeat that it is not a new and will not be favourable in the cause of the plaintiff. This is more than the exhaustion of internal process and procedure. There are two judgements on the same matter. It does not qualify the cause of the plaintiff for leave.

16.	And for the reasons which are set out above there is no arguable basis to open the door for judicial review for the plaintiff: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949. What is clear is that this is a land that was the subject of a decision by this Court which has had a comprehensive decision written and set out above Estate of the Late Jimmy Varika (supra). The plaintiff was not in or was affected by the decision of 1996 by the Land Titles Commission then. He has not made out a case with basis either in law or fact to bring this application for leave for judicial review: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909. The totality is that leave for judicial review has not been made out. The originating summons is dismissed with costs to the defendants on a Solicitor client basis on the basis of forewarning set in the affidavit of Niel Daniel annexure “I” letter dated 24th September 2021.

17.	It is important to gauge that, this is a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. Because there is blameworthiness and therefore indemnity follows in costs. Because the plaintiff did nothing after filing and despite warning to withdraw persisted when the position in law was already canvased. He will bear the cost for that on a solicitor client basis to be taxed if not agreed.

18.	The formal orders of the Court are:

(i)	Application to vary orders to disallow appearance of third and fourth defendants is refused.

(ii)	Leave is refused for Judicial Review

(iii)	The cost is on Solicitor Client basis to follow the event if not agreed to be taxed.
Orders Accordingly.
__________________________________________________________________
Nicholas Tame Lawyers: Lawyer for the Plaintiff.
Goodwin Bidar Nutley Lawyers: Lawyer for the Third & Fourth Defendants