Evoa v Kangu [2017] PGSC 14; SC1589 (19 May 2017)

SC1589

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 51 of 2016

BETWEEN:
UVISA EVOA & ORS
Applicant

AND:
FRANK KANGU
First Respondent

AND:
NATIONAL HOUSING COPORATION
Second Respondent

Waigani: Injia CJ
2017: May 19^th

JUDICIAL REVIEW - Leave for review - from decision dismissing action to set aside registered State Lease title based on fraud - Fraud not pleaded- Insufficient evidence of fraud- Plaintiff not entitled to seek purchase of second property under Home Ownership Scheme run by NHC- No error manifesting substantial injustice shown - No exceptional circumstances shown- Application for leave for review refused

Cases Cited
Joseph Taleokon v Jeffrey Apakali & Fr.Paul Pakau (2013) SC1306.
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Luke Marano v Jack Nouari & The State (2013) SC1307
State v Toka Enterprises Ltd (2013) SC 1346,

Counsel:
G Garo, for the Applicants
R Manrai, for the First Respondent
No appearance for the Second Respondent

19 May, 2017

1. INJIA CJ: The applicant is the son of the late Evisa Evoa who had passed on after instituting these proceedings.
   
2. The applicant seeks leave of the court to bring an application for review under Constitution, s 155(2)(b) of a decision of the National Court sitting at Waigani. In that decision the National Court on 7^th June 2016 dismissed the applicant's action seeking orders to set aside the first respondent's registered State Lease title over the property situated on Allotment 11 Section 8 Hohola, National Capital District. The property over which the second respondent (NHC) held a registered State Lease, was sold to the first respondent. The applicant claimed that the NHC failed to sell the property to him under the government's Home Ownership Scheme (HOS) that was administered by the NHC even though he was the "sitting tenant" of the property for a period of over 30 years; and, that the sale was fraudulent. The trial judge after considering the pleadings and evidence placed before him dismissed the action after finding that the applicant was not eligible to purchase a second property from the NHC under the HOS and that there was no evidence of fraud in the sale. The applicant's former lawyer who attended the Court and received the judgement did not inform the applicant of the decision of the National Court. The applicant's former lawyers failed to file an appeal within time and allowed the appeal time to run and expire. They then filed the present application in November of 2016.
   
3. The criteria for the exercise of judicial discretion on grant of leave for judicial review under Constitution, s 155(2)(b) are those set out by the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011)SC1120 and expounded in subsequent cases including those of my own decisions in State v Toka Enterprises Ltd (2013) SC 1346, Luke Marano v Jack Nouari & The State (2013) SC1307 and Joseph Taleokon v Jeffrey Apakali & Fr.Paul Pakau (2013) SC1306. Of the several factors to be considered, the most important of those factors and one that I consider to be critical and determinative of the present application is this: that there must exist exceptional circumstances showing manifestation of substantial injustice and which give rise to serious questions concerning the trial judge’s findings and conclusions on the law or facts that warrant a full review of the decision. I deal with this factor first.
   
4. Having considered the material and arguments that the parties put to me during the hearing of the application, and having read the written judgment of the trial judge, I am able to distil the real issues at the trial and those issues apparently are the same before this Court though this time in the context of errors claimed to have been committed by the trial judge in his findings on those issues. There are three main issues. The first issue, is in my view, the primary issue and a threshold one that of itself could determine the application without the need to consider the remaining issues. The first issue is whether the applicant had proven that he had acquired an interest in the property that is capable of being recognized by law and that which entitled him to be given the opportunity to purchase the property under the government's HOS implemented by NHC. The second issue is whether the sale of the property by the NHC to the first respondent was fraudulent. The third is whether the first respondent properly acquired an indefeasible title to the property.
   
5. On the first issue, the following facts are not disputed. NHC held individual registered State Leases over two separate land situated on Allotments 10 and 11, Section 8 Hohola. The leases were registered in 1966. The applicant occupied Allotment 10 and 11. By National Gazette notice published in 2006, The State recognized the applicant as the "sitting tenant" over Allotment 10 and went on to sell the property to him under the HOS. He purchased the property and the title was transferred to him and registered title on 10 August 2010. On 17 August 2010, he sold the property to another person. Then he remained on Allotment 11 and paid some rent. No statutory notice was issued by the government recognizing him as "the sitting tenant" of Allotment 11. No tenancy agreement was entered into between NHC and him over Allotment 11. It appears the applicant or some other persons on his behalf paid some rent and service fees at different times. After he sold his own property he made approaches to NHC to offer the property to him for purchase. NHC chose not to offer the property to him and sold the property to the first respondent. The reason for this was that the applicant had already benefited from the HOS and he was not eligible to buy a second property from NHC.
   
6. The trial judge considered the question as to the nature of any legal or equitable interest at law that the applicant may have acquired in those circumstances and he found none. I agree with the trial judge that to accept "the plaintiff's assertion that he is entitled to own both properties, it would be contrary to the second defendant's policy where reasonable housing in the country is scarce and the policy is intended to ensure equitable distribution of property amongst citizens". A Court of justice and equity would not allow a citizen to unduly enrich himself or herself or "double-dip" on a limited pool of government houses whose distribution is based on a policy of equitable distribution on a one-person-one property basis. I am satisfied that there are no serious questions concerning the trial judge's finding on this point.
   
7. On the second issue, the proceedings before the Court below on the cause of action was badly conducted by or on behalf of the applicant. Proceedings for vitiating registered State Lease title are required by the rules of court to be properly, clearly and sufficiently pleaded and particularized. An action based on fraud is specifically required to be pleaded and sufficiently particularised in that manner. A Writ of Summons that accommodates this manner of pleadings and particulars is the required mode of commencement of proceedings. Alternatively, if proceedings have been mistakenly commenced by Originating Summons, Order 4 rule 35 of the National Court Rules may be invoked by the plaintiff to run the case on pleadings. The plaintiff carries the onus to ensure that the appropriate mode of commencement of proceedings is adopted and the proceedings conducted in accordance with those pleadings.
   
8. In the present case, a WS 135 of 2013 case file reference was assigned by the National Court registry, but there is no record of such Writ actually being filed by the plaintiff's former lawyers. Subsequently, an Originating Summons (OS 144 or 2013) was filed, but O 4 r 35 was not invoked by the plaintiff. Discovery processes also could not be run properly on such lack of the pleadings. As a result, the evidence presented by the plaintiff on fraud as much as it was generalized and vague was scattered and distorted. The trial judge found, and correctly so in my view, there were no proper pleading of fraud and found no real evidence of fraud in any event.
   
9. In these proceedings, the applicant tried to improve on this deficiency in the evidence by producing some evidence from officers from the NHC suggesting fraudulent activities conducted by NHC officers from within that handled the transaction. The applicant also relied on what he said were irregularities and untrue statements contained in the Contract of Sale executed between the first respondent and NHC, as suggestive or indicative of fraud. However these are fresh evidentiary material which were not placed before the trial judge and I would caution myself against relying on those matters. In any event, they lack sufficient particularity and weight. For these reasons, I am not satisfied that serious questions arise for determination by the full court to establish whether the trial judge erred in making the findings on this point.
   
10. On the third issue, I accept the first respondent's argument that the title in the property was duly transferred to him by NHC, that it has been registered and that he holds an indefeasible title. It appears he gave valuable and adequate consideration for the purchase of the property. NHC being the registered State Leaseholder of the property was free to sell the property to any eligible citizen that met the conditions of the HOS. It was not suggested by the applicant in the Court below and before this Court that the property was sold for inadequate consideration or that the first respondent is a second home buyer and therefore not eligible to purchase this property from NHC.
    
11. Having reached this conclusion it is unnecessary to consider the remaining factors for grant of leave for judicial review.
    
12. For the foregoing reasons, I find that the applicant has failed to establish a case for grant of leave for review.
    
13. The orders of the Court are:
    
    • (1) The application for leave for review is refused.
    • (2) The applicants shall pay the first respondent's costs of the proceedings.
    • (3) The second respondent shall meet its own costs of the proceedings.

_______________________________________________________________

G.K.Garo Lawyers: Lawyer for the Applicant

Manrai Lawyers: Lawyers for the First Respondent