Kilyo v Kambum [2014] PGSC 20; SC1344 (1 May 2014)

SC1344

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev 45 of 2012

Between

NICK NAIP KILYO
Appellant

And

KANDATO KAMBUM
First Respondent

MR. TARCISSUS MUGANAUA,
Acting Managing Director of National Housing Commission
Second Respondent

MR. PEPI KIMAS,
Secretary of Department of Lands & Physical Planning
Third Respondent

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Gavara-Nanu, J; Davani, J; Collier, J
2014: 1st May

CONSTITUTIONAL LAW - Application to review National Court decision in civil jurisdiction – Constitution s 155(2)(b) – Court exercising its discretion to grant review warranted – appeal granted.

Counsel:

Mr. P Othas, for the Applicant
Mr. N Kiuk, for the Respondent

Reasons for Judgement

1. BY THE COURT: Before the Court is an application for leave to review filed on 15 November 2012 by Paul Othas Lawyers, on behalf of the applicant who was the first defendant in the Court below in proceedings OS 138 of 2009.

2. The application concerns orders made by a Judge of the National Court on 3 August 2010, where the Court endorsed draft consent orders, effectively terminating the applicant's claims in the Court below. These orders were as follows:

1. A declaration that the National Housing Corporation (NHC) is the proprietor of the State Lease containing the land within the property described as Section 363 Allotment 04 Hohola, National Capital District.
   
2. A declaration that on 16th of March 2009 the Plaintiff and the First Defendant, the latter acting for and on behalf of the National Housing Corporation (NHC) entered into a valid Contract of Sale agreement pertaining to the property described as Section 363 Allotment 04 Hohola, National Capital District, pursuant to a "Give Away Scheme" undertaken by the National Housing Corporation.
   
3. A declaration that by virtue of the Contract of Sale, the proprietorship interests in the State Lease containing the land within the property described as Section 363 Allotment 04 Hohola, National Capital District, was effectively transferred to the Plaintiff.
   
4. An order that the Registrar of Titles locate the file kept within his possession or custody or alternatively create a supplementary file within seven (7) days from the date of this order.
5. An order that upon the lapse of the seven (7) days period referred to at term 4 above, the Registrar of Titles be ordered to revoke, remove or delete any other entries (if any) made in the register.
   
6. An order that the Registrar of Titles to forthwith perfect the entries in the register of Titles to reflect the Plaintiff as the legal proprietor of the State Lease containing the land within the property described as Section 363 Allotment 04 Hohola, National Capital District.
   
7. The Defendants, their agents, servants or whosoever acting on its behalf be restrained from making any improvements, selling or be engaged in such other transactions pertaining to the subject property until by order of a competent court or otherwise.
   
8. The fourth Defendant is removed as a party to the proceedings.
   
9. Each party to party to pay their own costs.
   

3. The key question before the Supreme Court today is the jurisdiction of the Court to entertain an application for review of orders entered by consent, in circumstances where it is not in dispute that no consent was given by one of the parties.

4. It is not in dispute that, as is apparent from the transcripts of 2nd and 3rd August 2010, his Honour below mistakenly understood that draft orders were presented to the Court on 3 August 2010 as consent orders. As is further apparent from the transcript, his Honour was clearly misled as to the agreement of all parties to those draft orders.

5. The respondents in Court today concede that the applicant had not consented to those orders being made.

6. In our view, this concession effectively disposes of the matter before us. While there was some dispute in Court this morning as to whether leave ought be provided by this Court as sought by the applicant, we note that Mr Kiuk conceded that the Court has jurisdiction to both hear the application for leave and to grant leave. Clearly, the application is meritorious. The orders which were made on 3 August 2010 were not made by consent of all the parties despite being presented to the Court below as such. While Mr Kiuk sought to refer the Court to background facts including the order granting dispensation of service of the originating process on 18 September 2009 and his claim that the first defendant was "well and fully aware of the proceeding", none of these matters exculpates the respondents who sought consent orders on 3 August 2010 from informing all parties (including the applicant) of the application seeking consent orders on 3 August 2010, or indeed informing his Honour that not all parties had in fact consented.
Indeed, in our view the proceeding in the Court below smacks of an abuse of process by Counsel for the first respondent.

7. To the extent that leave is required, in our view it ought to be granted and is granted, with costs.

8. Further, as clearly an error of law was made by his Honour below in making consent orders without the consent of all parties, the orders made on 3 August 2010 should be set aside and quashed, and the matter remitted to the National Court for rehearing before a differently constituted Court.

THE COURT ORDERS THAT:

1. Leave to review be granted
   
2. The application filed 15 November 2012 be granted.
   
3. Orders made on 3 August 2010 in OS 138 of 2009 be set aside and quashed, and the matter be remitted to a differently constituted National Court.
   
4. The costs of the applicant of and incidental to this application be paid by the first respondent.

__________________________________________
Paul Othas Lawyers: Lawyers for the Appellants
Nikuma Lawyers: Lawyers for the Respondent