Sarohafa v Kupak [2024] PGNC 19; N10658 (16 February 2024)

N10658

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 807 OF 2011 (CC1)

BETWEEN:

KAPI SAROHAFA as Secretary for National Judicial Staff Services

Plaintiff

AND:

BO KUPAK & WILLIAM SENT KEKIM

First Defendant

AND:

JOSPEH KINTAU as Managing Director/Chief Executive Officer of National Airports Corporation

Second Defendant

AND:

NATIONAL HOUSING CORPORATION

Third Defendant

AND:

AIRPORT GUEST HOUSE LIMITED

Fourth Defendant

Waigani: Bre, AJ

2023: 12^th October

2024: 16^th February

CIVIL PRACTICE AND PROCEDURE – Notice of Motion – lack of form – jurisdictional basis – Order 4 Rule 49(8)NCR – concise reference to invoke Court’s jurisdiction.

COMPETENCY – requirement to brief out and be authorised by Attorney General pursuant to Section 7(i) AG Act and Section 4 CBASA – NJSS – creature of statute – legal personality absent in enabling Act - NJSS functions as part of judiciary not fully captured by the Constitution compared to the Parliamentary Services- NJSS a government body.

MODE OF PROCEEDINGS – Ordinary declaratory orders and injunctions sought or orders in the nature of prerogative writ – certiorari and prohibition- substance of relief – effect of declaration to quash decision and declare null and void title –laches in enforcing rights.

STANDING – Applicant has indefeasible title – Plaintiff has equitable interest– difficult to defeat indefeasible nature of title- proceedings not converted to pleadings and judicial review not sought earlier – interests in property a material consideration – untenable action- dismissal granted.

Cases Cited
Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845
Asiki v Zurenuoc, Provincial Administrator [2005] SC797
Benard v Alex Aipa (trading as Aipa Trading) (2021) N9247
Ekepa v Nalepe [2020] PGNC 349; N8564
John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637
Keko v Barrik (2015) N7569
Kimisopa v Kamen (2021); N9151
Madang Timbers v Wasa (2021) SC2154
Mudge v Secretary for Lands (1985) PNGLR 387
Muriso Pokia v Mendwan Yallon (2014) SC1336
National Airports Corporation Ltd v Airport Guest House Ltd (2019) SC1867
Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425
PNG Deep Sea Fishing Ltd v Critten (2010) SC1126
PNG Power v Augerea (2013) SC 1245
Public Curator v Kara (2014) SC1420
Reference by the Ombudsman Commission (2020) SC1944
Telikom PNG Ltd v ICCC (2008) SC906
Vivisio Seravo v Jack Bahofa (2001) N2078
Yauwe & Ors v Tonga & Anor [2023] N10559

References
The Constitution s209
Attorney General Act 1989, 7(i)
Claims by and Against the State Act 1996, s4.
Land Registration Act Chapter 191 ss33, 160
National Court Rules 12r40(1) (c ), O4 r36(1), O4r49(8)
National Judicial Staff Services Act 1987, s3
Public Money Management Regularisation Act 2017, s10.

Counsel
Mr Lasen Tangua, for the Applicant/Third and Fourth Defendant
Ms Rose Kelly, for the Respondent/First Defendant
Ms Belinda Poki, for the Respondent/Second Defendant
Mr Jerome Fogenmale, for the Respondent/Plaintiff

RULING

16^th February 2024

1. BRE AJ: INTRODUCTION: This is a contested application by the third and fourth defendants to dismiss the substantive proceedings. The application was made after the trial was vacated on 28 September 2023, to allow parties to address outstanding threshold issues.
   

BACKGROUND

2. The substantive proceeding concerns competing interests in property described in State Lease Volume 10 Folio 227 as Section 24 Allotments 11 and 12, Mt Hagen, Western Highlands Province ('the property'). The plaintiff commenced proceedings on 24 October 2011 to assert its rights over the property by seeking certain declaratory orders to be declared the legal owner. The fourth defendant/applicant also asserts its rights as having indefeasible title over the property, after it was granted the title in 2013 through a purchase from the third defendant on 28 March 2012.

3. The proceedings span twelve years, within this time the Registrar of Titles (ROT) in 2014, cancelled the fourth defendant/Applicant's title. The ROT's decision was contested in the National and Supreme Courts by the second defendant, and quashed, with the ROT ordered to re-hear the matter according to law. See National Airports Corporation Ltd v Airport Guest House Ltd [2019] PGSC 90; SC1867 (8 November 2019). This aspect remains outstanding.

THE APPLICATION

4. The applicants/third and fourth defendant's Notices of Motion were filed on 20 November 2018 (Doc 112) and 09 May 2022 (Doc 159). The applications seek similar relief to summarily dismiss the proceeding for being incompetent, want of prosecution and the plaintiff lacking standing. A later Notice of Motion filed on 05 October 2023 sought to consolidate those two motions but was objected to by Counsel for the plaintiff and the second defendant. The objections were based on the requirement for leave and that Counsels came prepared to make submissions on the earlier motions. I accepted the objection and proceeded to hear submissions on the earlier motions. The motion of 05 October 2023 is disregarded.

EVIDENCE

5. The Applicant relies on the following Affidavits:

1) Affidavit of Thomas Kopal sworn on 04 September 2020, filed on 8 September 2020,
2) Affidavit of Snr Constable Jacob Ipiye sworn and filed on 30
September 2020,
3) Affidavit of Service of Lasen Tangua sworn and filed on 07 August 2017
4) Affidavit of Henry Joseph Mokono sworn on 29 April 2022, filed on 09 May 2022,
5) Affidavit of Lasen Tangua sworn on 04 October 2023 and filed on 05 October 2023.

SUBMISSIONS:

6. All Counsel filed written submissions and spoke to them during the hearing. Mr Tangua handed up an amended submission which he relies on to the exclusion of the filed submission.

Applicant/Third and Fourth Defendants Submission

7. The Applicants submit that the plaintiff is an agency of the State and has not sought approval from the Attorney General to brief out the case to private lawyers contrary to the Attorney General Act 1989 and the Claims by and Against the State Act 1996 and the proceeding is incompetent. For this proposition Mr Tangua, relies on Section 7(i) of the Attorney General Act 1989 (AGA), Section 4 of the Claims by and Against the State Act 1996 (CBASA), Section 3 of the National Judicial Staff Services Act 1987 and Section 10 of the Public Money Management Regularisation Act 2017 (PMMR) and caselaw.

8. In terms of the ground for improper mode of proceedings, the Applicant's submission is that the type of orders sought in the plaintiff's Amended Originating Summons in paragraphs two and three, are to quash the decision of the Minister for Lands granting the State lease over the property to the third defendant, and subsequently to the fourth defendant, and should be challenged by a judicial review application under Order 16 NCR as the orders sought are in the nature of prerogative orders.

9. On the ground of the plaintiff's standing, the Applicants claim the plaintiff did not have direct legal interest in the property as they were originally occupying the property at the invitation of the second defendant who purportedly had a Certificate Authorising Occupancy (CAO). Mr Tangua submitted that because of the title’s indefeasible nature, superseded all other interests in the property including the purported CAO.

First Defendant Submission

10. The first defendant agreed with the Applicant/third and fourth defendants submissions.

Respondent/Second Defendant Submission

11. The second defendant raised three legal issues to dismiss the Applicants motions. The first ground pointed out that a decision in this matter will not affect the status of the legal title to the property because the ROT has not complied with the earlier Orders of Foulds J of 24 July 2018, in OS(JR) 361 of 2017 to re-hear the matter according to law. Ms. Poki also flagged that restraining orders in place since 2011 to not deal with the property were breached when the title was issued to the Applicants. Ms. Poki further submits that the applications be dismissed for want of prosecution pursuant to Order 4 Rule 49NCR and Kimisopa v Kamen [2021] PGNC 284; N9151(2- September 2021), amongst others.

Plaintiff's Submission

12. The Respondent/plaintiff raised three legal issues to strike out the applications. The first issue relates to jurisdictional basis of the two motions, that they lacked form contrary to Order 4 Rule 49(8) NCR and fail to cite a specific provision to invoke the Court's power to hear the applications and that Sections 7 AGA and 4 CBASA were irrelevant.

13. The second ground relates to want of prosecution of the motions as the 2018 motion is over four years old, with no reasonable explanation for the delay, and that the motions are an attempt at delaying the proceedings. On this issue Mr Fongenmale relies on Order 4 Rule 49(17) NCR. In response to the issue of NJSS standing, Mr Fongenmale replied that NJSS is governed by its enabling Act which bestows on it powers to sue and be sued and is part of the judiciary services as described in Section 209 Constitution, and did not need the Attorney General's permission to engage counsel or commence proceedings. That the tests applied to consider whether a statutory authority comes within the ambit of the CBASA as stated in Public Curator of PNG v Kara [2014] SC1420 should be applied to hold that the NJSS is not restricted through its Secretary from suing on its own without involving the State or the Attorney General. The plaintiff adopted the background to this case as presented by Ms. Poki for the second defendant.

ISSUES

14. After considering the submissions of Counsel, I consider the following issues arise for deliberation:

1. Whether the Motions should be dismissed for lack of form and want of prosecution,
   
2. Whether the substantive proceedings be dismissed for:
   1. Non-compliance with Section 7 of the AG Act and Section 4 of the CBASA
   2. Wrong mode of proceeding, or
   100. The plaintiff lacking standing.
        

LAW

15. The following law are relied on in the applications:

Order 12 Rule 40(1)(c) and Order 4 Rule 36(1) of the National Court Rules ( NCR), Section 7(i) AG Act and Section 4 CBASA.
Order 12 Rule 40(1)(c) NCR reads:-

"40. Frivolity, etc.

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings

(a) ...
(b)...
(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings."

Order 4 Rule 36(1) NCR reads:

"36. Want of prosecution.

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings."

Section 7(i) AGA

"The duties, functions and responsibilities of the Attorney-General are–

...

(i) to instruct lawyers within or outside the country to appear for the State in any matter..."

Section 4 CBASA on Suits by the State:

"Suits on behalf of the State, including relator proceedings, may be brought in the name of the State –

(a) by the Attorney-General; and

(b) in respect of a suit brought in a District Court, by –

(i) the Attorney-General; or

(ii) a person appointed for the purpose by the Minister."

ANALYSIS

16. The applicants raise several issues affecting the nature of the proceeding, the standing of the plaintiff and competency of this proceeding. In exercising my discretion to consider whether the proceedings should be summarily dismissed, I am guided by well established principles that state that I must exercise my discretion cautiously; only in very clear cases where the proceedings are an abuse or likely to not succeed at trial should the decision be taken to summarily dismiss proceedings. The plaintiff should not be driven from the judgment seat prematurely but I must equally be considerate in safeguarding the processes of court to ensure that they are not abused. See Kerry Lerro v Philip Stagg, Valentine Kambori & The State (2006) N3950; Philip Takori v Simon Yagari (2007) SC905 and George Solomon v David Raim (2020) N8428. I address each of the issues bearing these considerations and others as indicated in my deliberations of each issue.

Whether the applications should be dismissed for lack of form and want of prosecution

a) Jurisdictional Basis

17. The plaintiff and second defendant argue that the Applicants motions are defective for lack of form as they do not cite a precise provision to invoke the Court's jurisdiction. Additionally, they submit that the motions have been delayed unnecessarily and should be dismissed for want of prosecution.
This requires me to refer to the terms of the motions. Both the 2018 and 2022 motions are similar. Below are the key terms of the 2022 motion:

Notice Of Motion –Filed 19 May 2022

"1. The proceedings herein be determined summarily and dismissed in its entity for being incompetent and an abuse of the Court’s process, pursuant to Section 4 of the Claims By & Against the State Act, Section 7 (i) of the Attorney General’s Act and Order 12 Rule 40 (c ) of the National Court Rules.

2. Further or alternatively, the proceedings herein be determined summarily and dismissed for want of prosecution, pursuant to Order 4 Rule 36(1) of the National Court Rules and the inherent powers of the Court."

18. Applications to summarily dismiss proceedings require the Court to exercise its discretion judiciously.
The applications must cite a specific source of power in the Court to grant the orders sought.

19. Order 4 Rule 49(8) NCR provides that all motions must "contain a concise and precise reference to the Court's jurisdiction to grant the orders being sought", and is in the following terms:

"8. Form of Motions.
All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing.
If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form."

(Emphasis mine)

20. Order 4 rule 49(8) NCR grants authority initially to the Registrar to reject motions that lack form, however, when they are not detected by the Registrar, the Court has a discretionary power to strike out a defective motion.

21. The use of the word 'may’ in Order 4 rule 49(8)NCR implies the Court may decide to proceed to hear a motion on merits despite the defect. See Muriso Pokia v Mendwan Yallon (2014) SC1336

22. In Pokia v Yallon the Supreme Court clarified on Order 4 rule 49(8) NCR that a National Court Judge has discretion to decide whether to proceed to hear or reject a defective notice of motion that was undetected by the Registrar. I have considered the other cases relied on by Mr Fongenmale but do not find them helpful. The Supreme Court stated in Pokia v Yallon at [12] that:

"Order 4, Rule 49(8) vests a judge with a discretion to hear a motion that is non-compliant with this rule. Provided that the Judge is satisfied that the party responding to the motion ...has been put on notice as to the case to be met and that no unfairness to that party will arise from hearing such a non-compliant motion, it is proper to hear the motion.”

23. In terms of the conditions of the Respondents being put on notice about the case to be met and any unfairness they may face, those conditions were not addressed in submissions. I have taken that to mean that Counsel have no issues with the conditions and the exercise of my discretion to hear the motion.

24. I also adopt and apply with respect, the reasoning and caselaw cited by his Honour David J, who ably addressed the issue of jurisdiction in Order 4 rule 49(8) NCR in Yauwe & Ors v Tonga & Anor (2023) N10559.

25. I have considered the Respondents submissions on Section 7(i) AGA and Section 4 CBASA on jurisdiction but, consider them as lending legal support to the Applicants motions to dismiss the substantive proceedings, not necessarily to derive the jurisdictional power of the Court to dismiss proceedings.

26. I am satisfied that the motions sufficiently invoke the jurisdiction of the Court under Order 12 rule 40(1)(c) NCR. I accept that there is a typo with the missing reference to sub-rule (1) in the jurisdictional reference to Order 12 rule 40 NCR of the 2022 motion but, I do not consider that it is of such a serious nature as to reject the motions for being defective and no objection was raised on this point. Regardless, the 2018 motion cites the correct reference. The plaintiff and second defendant had ample time to apply to dismiss the motions before proceeding to trial. I refuse the objections to the motions for lack of form and proceed to deliberate on the applications.

b) Want of Prosecution of the two Motions and the substantive proceedings.
27. The Court's power to dismiss proceedings for want of prosecution is discretionary. See Kimisopa v Kamen (2021); N9151. Many cases have discussed the law on want of prosecution, from which several well-established principles emerge. These principles are succinctly summarised by his Honour, Justice Kandakasi ( as he then was) in the case of Vivisio Seravo v Jack Bahofa (2001) N2078, there, his Honour said:

"It is now clear law especially in the context of O.10 r.5 of the NCRs that an application for a dismissal of proceedings for want of prosecution may be granted if:

1. The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

2. There is no reasonable explanation given by the plaintiff for the delay ; and

3. That the delay has caused injustice or prejudice to the defendant."

Other factors include:
4) that the court should also look at the conduct of the parties and their lawyers: John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637; and

5) consider the duty of the court to give paramount consideration to the dispensation of justice under s 158 (2) of the Constitution: Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845.

28. I have considered the Respondents arguments that the motions have not been prosecuted within one month or where it is adjourned twice, as required by Order 4 rule 49(17)NCR but reject the argument because both the second defendant and plaintiff had ample time to raise these arguments on want of prosecution since they were filed in 2018 and 2022.

29. Importantly, Counsels did not address the principles guiding the exercise of discretion to dismiss proceedings for want of prosecution. I note from the Court File that there may be a good explanation of why the 2018 motion was not progressed. It took about two years for the fourth defendant to join the proceedings on 08 February 2022. See Court Order of 08 February (Doc 153). Also the related judicial review proceedings factored in a 10-month adjournment order granted on 20 November 2018 (Doc 120) and a general adjournment order granted on 19 September 2019 ( Doc 125).

30. Want of prosecution is also a relief sought by the Applicants for dismissal of the substantive proceedings. Unfortunately, Counsels did not address any of the factors guiding the exercise of judicial discretion to dismiss either the motions nor the substantive proceeding for want of prosecution. I am not convinced that the motions should be dismissed for want of prosecution.

3. Whether the substantive proceedings should be dismissed for:
   
   1. Non-compliance with Section 7 of the AG Act and Section 4 of the CBASA
   2. Mode of proceeding, or
   100. The plaintiff's standing.
        

Non-compliance with section 7(i) of the AG Act and section 4 of the CBASA

31. This argument is premised on the proposition that the NJSS as a creature of statute and comes within the ambit of the 'State’ as provided for in the CBASA and therefore the Secretary NJSS should have obtained approval to brief out this case to private lawyers as required by Section 7(1) AG Act and Section 10 PMMR.

32. At the outset, the PMMR is no longer valid law nor not operational. It has been ruled invalid by the Supreme Court. Arguments by Counsel on the PMMR are disregarded. See Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 [2020] PGSC 43; SC1944 (27 May 2020).

33. This leaves us with Section 7(i) AG Act and Section 4 CBASA. Prima facie; both laws require the Attorney General to commence proceedings or authorise lawyers to bring actions on behalf of the State. These laws will apply to the NJSS if it comes within the definition of 'the State' in the CBASA.

34. The term ‘the State’ as used in the CBASA is of wide application and refers to all entities, instruments, departments etc., of the State and could arguably include the NJSS. The term 'the State’ in the context of the CBASA has been interpreted in several cases by the Court. The cases of PNG Power v Augerea (2013) SC 1245 and Public Curator v Kara (2014) SC1420 established the test to determine whether an entity is considered 'the State’ for purposes of the CBASA.

35. Before proceeding further, a point must be made about the purpose of the CBASA. One of its principal purpose is to improve case management by providing a scheme of service, approval and to mitigate costs incurred by the State from litigation from wrongs committed by its agencies or servants. See Asiki v Zurenuoc, Provincial Administrator [2005] SC797. Thus, the Attorney General and the Solicitor General are mandated by the CBASA to manage all 'State'' litigation.

36. In terms of commencing actions, entities created by statute derive their existence and source of powers from their enabling Act, including powers to manage operations, funds, staff and litigate. In such instances, the process in Section 7 AG Act and Section 4 CBASA need not be followed where specific legislative authority is granted to commence legal actions.

37. The plaintiff relies on Section 209 of the Constitution to argue that it is part of the judiciary services, being the third arm of Government and the AG Act and the CBASA do not apply to it. Section 209 Constitution provides for parliamentary control over public finances and supervision over the National Government functions and activities to impose taxes, raise loans to generate revenue to fund the operations of government and to allocate funding to its agencies through the budget appropriation process each fiscal year.

38. Section 209 Constitution provides funding guarantee to the second and third arm of government being the Parliamentary and the Judiciary Services to ensure they are adequately funded to carry out their independent constitutional mandates. See Section 209(2A)Constitution, Appropriation (Judiciary Services 2023) Act 2022 and Reference by the Ombudsman Commission (2020) SC1944.

39. With respect to counsel's submissions, Section 209 of the Constitution is not the source of legal personality for the NJSS as it pertains to the right to sue and be sued but one of financial security for the National Judiciary. Contrast with the Parliamentary Services an arm of the legislature, which is specifically catered for in s132 Constitution.
40. With these considerations in mind, I turn to the leading cases of PNG Power v Augerea (2013) SC 1245 and Public Curator v Kara (2014) SC1420 to consider if the NJSS should have sought approval from the Attorney General to brief out and to also commence these proceedings in the name of the State.

41. The Supreme Court in PNG Power v Augerea clarified the wider term of '' government body" to mean an entity that carries out an important public function. The NJSS carries out an important public function to provide sufficient staff to enable the Courts to function adequately.

Section 3 NJSS Act reads:

3. Functions of the Service.

The functions of the Service are to provide–

(a) legal, secretarial and clerical staff to enable the Courts to operate efficiently; and
(b) research, legal and other services for the Courts; and
(c) an efficient Court reporting service; and
(d) adequate library services for the Courts; and
(e) attendants, interpreters and other staff to ensure the efficient functioning of the Courts.

42. I find that the NJSS Act tries to separate the NJSS from the Executive arm of Government by vesting the appointment of the Secretary NJSS in the Judicial Legal Services Commission through a recommendation by the Judicial Council as opposed to the appointment by the National Executive Council through the regulatory agency head appointment process under per Sections 193 or 208B Constitution. The NJSS Act also separates the NJSS staff grievance process from the normal public service grievance process through the Public Service Commission.

43. However, the NJSS Act falls short of a full separation from the 'State’ as the NJSS Act does not confer separate legal status to the Secretary or the NJSS. See NJSS Act, Sections 4,10,17.18,19, and the Constitution as it concerns separation of powers (s99), State Service (s188), National Justice System (s154) and Parliament Services(s132).
44. The only reference to the NJSS unlike the Parliamentary Services is in Section 209 Constitution. I adopt and apply the wider definition of 'government body' in PNG Power v Augerea and conclude that the NJSS is a government body carrying out a vital public function to administratively support the Supreme, National and District Courts.

45. The balance of the tests in Public Curator v Kara and PNG Power v Augerea do not apply as it concerns a sub-level of government, whether provincial or local governments.

46. The NJSS Act is the plaintiff’s enabling Act.
Section 2 NJSS Act does not provide legal personality and is in the following terms:-

"2. Establishment of the National Judicial Staff Service.

(1) A National Judicial Staff Service is hereby established.

(2) The Service shall consist of–

(a) the Secretary; and

(b) the Registrar and Deputy Registrar appointed under the National Court Act 1975; and

(c) the other officers and employees of the Service.

(3) The provisions of Sections 5, 6, 7 and 8 relating to the Secretary shall apply mutatis mutandis to the Registrar and the Deputy Registrar."

Similarly, Section 4 NJSS Act does not confer legal status on the Secretary: -

"4. The Secretary.

(1) The Office of the Secretary of the National Judicial Staff Service is established.

(2) The Secretary is the Head of the Service and is responsible to the Council for the general working and the efficient conduct of the business of the Service.

(3) He shall be appointed by the Judicial and Legal Services Commission for a term not exceeding three years and is eligible for re-appointment.

(4) The salary and other conditions of employment of the Secretary shall be determined by the Commission after consultation with the Departmental Head of the Department responsible for personnel management matters.
(5) Where the Secretary is absent from his office or is unable to perform the duties of his office, or when there is a vacancy in the office of Secretary, the Commission may appoint another officer to act in the place of the Secretary during his absence or inability, or may appoint an officer to fill the vacancy temporarily. "

47. After a careful perusal of the NJSS Act I find that it does not provide legal personality nor a direct grant of power to the Secretary to sue or be sued in his own capacity and style nor that of the NJSS as an organisation. For example, see Section 5 Internal Revenue Commission Act 2014 and Section 5 Investment Promotion Authority Act 1992. The NJSS Act provides for staffing to assist the Courts.

48. Ultimately, I find there is merit in the arguments of the Applicants, but I am hesitant to dismiss the proceedings on this ground because of the length of time it has taken to make the application since formal joinder in 2022. I consider it would be an abuse of process to accept this ground now especially after proceedings have been on foot since 2011.

Mode of Proceeding

49. It is trite law that a plaintiff has a choice on the mode of proceedings. However, where the nature of the relief is being challenged, the Court must look to the substance of the relief being sought to determine if the nature of the relief are prerogative writs. Where a plaintiff seeks to challenge the decision of a public authority, the appropriate mode of proceeding is under Order 16 – judicial review process. See Order 16 rule 1 NCR and Telikom PNG Ltd v ICCC (2008) SC906 , Madang Timbers v Wasa (2021) SC2154 and Keko v Barrik ( 2015) N7569.

50. The plaintiff amended its Originating Summons on 04 May 2015 seeking declaratory and injunctive orders to declare amongst other matters, that the "grant of title to the third defendant on the 20^th February 2012 as well as the subsequent sale of the property to Airport Guest House Limited is in breach of the NEC Decision No. 30/88 and unlawful, null and void ab initio." The Amended Originating Summons is reproduced below:

“The Plaintiff claims;

1. A declaration that all states houses occupied by the Judiciary Services are reserved properties for the use of the Judiciary pursuant to an NEC Decision No. 30/88 in NEC Meeting No.6/88 which exempted from sale and reserved all state houses occupied by the officers of the National Court.
   

2. Consequently a further declaration that; the grant of title to the property described as Allotments 11 and 13 Section 24 Mt Hage, WHP to the third defendant is contrary to the NEC Decision No. 30/88 and therefore without effect and null and void as the property was a reserved property reserved for the use of the Courts and therefore was not available for sale and lease to any other person or persons including the third Defendant.

3. A further declaration that the grant of title to the third defendant on the 20^th February 2012 as well as the subsequent sale of the property to Airport Guest House Limited Is in breach of the NEC decision and unlawful, null and void ab initio.

4. A further order permanently restraining the defendants and their servants and agents including any other persons from dealing with the property including selling, leasing or sub-leasing to any persons all or any part of the property Allotments 11 and 12 Section 24, Mt Hagen, Western Highlands Province.

5. An order restraining the first defendant, its servants and agents including its principal, shareholders and directors and their relatives as well as any other persons from harassing, threatening, intimidating and or harming the plaintiff and the rest of the defendants and their servants and or agents in any way including interfering with the plaintiff and or servants and agents quiet and peaceful enjoyment of the property.

6. A further order that the first defendant, its servants and agents including any other persons who may be in occupation of the property vacate the property and given vacant possessions of the property to the plaintiff within 14 days of this Court Order, failing the Police in Mt Hagen including Police Mobile Squad based in anywhere in the Highlands Region be ordered and authorised to move in and enforce this Court Order using reasonable force necessary to give vacant possession of the property to the Plaintiff.

7. Any other or further order the Court deems appropriate.

8. The defendants, more particularly the second and fifth defendants meet the costs of and incidental to this proceeding.

9. Time be abridged to the date of settlement by the Registrar.”

51. Relief 2 and 3 seeks orders to declare null and void the grant of title to the Applicants. This will require the Court to review or examine the decisions of the Lands Minister or delegate and the ROT to grant and register the state lease to the third and fourth defendants and form a view that the grant is unlawful, and therefore null and void ab initio.

52. The substance of the relief sought are in my view intended to quash the decisions which should rightly be commenced by judicial review under Order 16 NCR. Relief granted by judicial review is not automatic, leave must be obtained first. To proceed by ordinary originating summons would be avoiding the leave process under judicial review and considered an abuse of process. See Telikom PNG Limited v ICCC (2008) SC906, Madang Timbers v Wasa (2021) SC2154 and Keko v Barrik (2015) N7569.

53. In Madang Timbers v Wasa declaratory orders sought to cancel certificates of land title were held to be in the nature of certiorari as it sought to review and quash the decision of the ROT and the originating summons dismissed.

54. I am of the view that the primary declaratory relief sought in relief 2 and 3 are in the nature of certiorari as it would require the decisions of the Minister of Lands or delegate and the ROT's decisions in granting and registering the title to the third and fourth defendants to be brought into court, reviewed and quashed to grant the orders sought.
55. The injunctions sought in relief 5 and 6 are consequential to the declaratory relief and follows that they ought to be sought by judicial review as they seek to prohibit alleged illegal action from occurring.

56. Further considerable time has passed since 2012, the year the title was granted and 04 May 2015, when the originating summons was amended, and the filing of the first summary dismissal motion in 2018. It appears the plaintiff did not take any action to legally challenge the Minister of Lands or delegate and the ROT's decisions. Equity follows the law. When seeking equitable relief a plaintiff must do all it can to protect its right. Delay or inaction results in laches which goes against the plaintiff.

57. I am satisfied that the current mode of proceeding is not proper to continue to trial, I consider that it is too late to cure any defeat given the passage of more than 10 years or several years at the various times I have indicated above. The Plaintiff's laches in enforcing their rights earlier, is a major factor against them. The application on this issue succeeds.

The Plaintiff's Standing or legal interest in the property

58. I consider the plaintiff’s standing of locus standi is a threshold issue as it concerns the merits of the plaintiff’s claim and the likehood of success or otherwise of the substantive proceeding. The applicants challenge, the legal basis of the plaintiff's interest on the basis of the indefeasible nature of their title as granted by section 33LRA.

59. I rely on National and Supreme Court decisions in National Airports Corporation Ltd v Airport Guest House Ltd (2019) SC1867 for the background facts and considerations in that case and the submissions and evidence presented in this application, to deliberate on this threshold issue.

60. Relief 2 and 3 requires the setting aside of an indefeasible title issued to the third and fourth defendants which the plaintiff has not challenged earlier. The evidence indicates that the plaintiff was aware of a change in circumstance to its original claim, when the title was issued to the third defendant and subsequently to the fourth defendant. The plaintiff has the burden of proving at trial that it has a lawful claim to the property that supersedes the formal statutory legal grant of the title to the third and fourth defendants.
61. The plaintiff did not take any steps, apart from filing the amended originating summons on 04^th May 2015 to allege constructive fraud in the grant of the titles to the defendants nor proceed to seek judicial review regarding the statutory exercise of the grant of the State lease and title.

62. The plaintiff appears to rely solely on NEC Decision No. 30/88 to support the relief it seeks. Unless that decision refers to the property in question or directs the Lands Minister to grant the plaintiff title, I do not see any prospect of a successful challenge to the registered proprietor’s title.

63. Revocation of a title deed is difficult unless the plaintiff can prove fraud in the grant of the title. Fraud has not been raised by the plaintiff nor second defendant in their submissions. It is a relevant consideration in determining whether the plaintiff has a proper legal interest after the change of events in 2012.

64. Section 33 LRA protects the registered proprietor unless the exceptions in Section 33(1)(a) to (i) are proven and the title cancelled. Section 33(2) LRA grants precedence of the legal title deed to property over any equitable interest. In the landmark case of Mudge v Secretary for Lands (1985) PNGLR 387, the Supreme Court held that registration of leases under the provisions of the Land Registration Act is effective to vest an indefeasible title in the registered proprietor subject only to the exceptions enumerated in s.33 of the Land Registration Act. This is relevant in considering whether the proceedings disclose a reasonable cause of action.

65. Cancellation of land title follows either the Sections 160 and 161 LRA process by the ROT or when fraud is proven in the grant of the title by way of proper pleadings. The ROT appears reluctant or incapable of proceeding further under Section 160LRA after the Court’s decision in National Airports Corporation Ltd v Airport Guest House Ltd to do so.

66. Fraud or any of the exceptions listed under Section 33 of the Land Registration Act when proven can defeat the indefeasible nature of the title. See PNG Deep Sea Fishing Ltd v Critten (2010); SC1126. Allegations of fraud must be proven by evidence and obviously require proper pleadings.

67. What is clear is that, the third defendant was granted a State Lease over the property, at a time (2012) when purportedly the second defendant still held a Certificate Authorising Occupancy and an interim injunction issued from this proceedings, was in place.

68. I gather that was when the second defendant informed the ROT about its interest and the interim injunction which caused the ROT to cancel the title. However, counsel has not addressed whether enforcement action was taken about the breach of the injunction, it appears no action was taken by the plaintiff or second defendant to enforce the breach.

69. After the judicial review proceedings in National Airports Corporation Ltd v Airport Guest House Ltd, the ROT did not take any further steps to challenge the title. Both the second defendant and the plaintiff did not take any steps either to confirm their interest before or immediately after the grant of the State lease and title.

70. Any rights under the judicial review process to challenge the decision of the Minister for Lands and or the administrative grant of the title to the third and fourth defendants in 2012, has long lapsed.

71. The fourth defendant is protected by Section 33 LRA with indefeasible title. In Benard v Alex Aipa (trading as Aipa Trading)(2021); N9247 the Court held that long term occupiers of land occupying the land with permission from a third party did not have title over the land as it created no legal or equitable interest in the land to the occupiers after the State title was issued.

72 . The plaintiff may have had an equitable interest in the property when it commenced this proceedings but took no steps to protect its interest when the facts of the case changed substantively with the issue of the State lease to the third defendant and subsequently the registered title to the fourth defendant.

73. I find that the plaintiff has not demonstrated sufficient legal or equitable interest in the property to counter the Applicants claim of protection of indefeasible title under s33 LRA to the fourth defendant’s title. The plaintiff therefore has not sufficiently proven standing in the property to proceed to hearing of the declarations and injunctions it seeks.

74. In Ekepa v Nalepe (2020); N8564 his Honour Shepard J held that "declaratory relief pronounces on existence of legal rights but is non-coercive and the Court should decline to grant declaratory relief if judicial declarations sought do not resolve core issues in dispute between the parties."

75. Further, there must exist a real controversy in pursuing declarations. See Ok Tedi Mining Ltd v Niugini Insurance Corporation (1989); [1988-89] PNGLR 425. The second defendant submits that the issue between the parties will remain unresolved. I find that argument concerns the ROT's inaction after the judicial review proceeding. However the title is still registered to the fourth defendant, and has not been cancelled by the ROT or the Court. The plaintiff has not taken any action to compel the ROT to comply with the Court order of Foulds, J. I am not persuaded by the Submission.

76. Declaratory relief is granted upon the existence of legal rights and must concern a real controversy. I find there is no real controversy as the plaintiff has no legal title to the property.

77. The amended Originating Summons does not disclose a reasonable cause of action in the face of an indefeasible title and laches. The proceedings are untenable, to continue to trial would amount to abuse of process and must be dismissed.

CONCLUSION

78. For the foregoing reasons, I rule that there is no merit in proceeding further to trial, the proceedings are untenable for competency on mode of proceeding and merits of the case as it concerns the plaintiff's standing and interest in the property. I exercise my discretion to grant the application to summarily dismiss the proceeding for being an abuse of process pursuant to Order 12rule 40(1)(c) NCR.

COSTS

79. An order for costs is discretionary. Given the length of time, the joinder by the fourth defendant in the later years and this decision, I award costs for this application only, in favour of the third and fourth defendant to be met by the plaintiff on a party/party basis to be taxed if not agreed.

ORDER

80. The formal Orders of the Court are:

1) The proceedings are dismissed generally pursuant to Order 12 Rule 40 (1) (c) NCR.

2) Costs of this application are awarded to the third and fourth defendants to be met by the plaintiff on a party/party basis to be taxed, if not agreed.

3) Time is abridged for the entry of these Orders to the time of settlement by the Registrar which shall take place, forthwith.

Ruling Accordingly.

Tangua Lawyers: Lawyers for the Third and Fourth Defendants
Chesterfield Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Second Defendant
Wang Dee Lawyers: Lawyers for the First Defendant.