Nimukiri Gorogaha Land Group Inc v Poken [2018] PGSC 69; SC1736 (30 October 2018)

SC1736

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 166 OF 2018

BETWEEN:
NIMUKIRI GOROGAHA LAND GROUP INC
First Appellant

AND:
MATAIO GEITA
Second Appellant

AND:
SOARE KUNIA
Third Appellant

AND:
CHARLES AYOK
Fourth Appellant

AND:
RELLICE PIWEN POKEN
First Respondent

AND:
ILLIGA LIMITED
Second Respondent

Waigani: Batari, J
2018: 30 October

SUPREME COURT – Interlocutory application – Stay – Application to stay decision of primary court in consolidated hearing of three separate causes each claiming Land Title over same property – Onus to slow reasonable cause for stay – Failure of applicant to show cause – application refused.

Cases Cited:

McHardy v Prosec Security and Communications Ltd (2000) SC646
Ombudsman Commission v. Gabriel Yer & Ors (2009) SC1041

Counsel:

Mr. L. Aigilo, for the Appellant
Mr. D. Kipa, for the Respondent

30 October, 2018

1. BATARI J: This is an application for stay of the final decision of the National Court pursuant to s.19 of the Supreme Court Act 1975, the appellant (applicant) having filed an appeal against the orders of the Court.
2. The application for stay is bound to fail from the start, as apparent from exchanges between Bar and Bench over absence of relevant and critical materials, required to enable proper consideration of the application and to guide the exercise of judicial discretion. The omission of transcript of the primary court proceedings, relevant materials in the form of origination process with supporting affidavits and copy of the Special Agriculture and Business Lease (SABL) title deed is vital against the proper determination of the stay application.
3. The disposition of the transcript of the proceedings will disclose the nature and weight of the evidence before the primary judge, pertinent issues and contentions raised by parties in the evidence and exchanges (if any) between Bar and Bench on contentious and agreed issues. The SABL document if available, will verify the date of issue, registered transfers of the SABL (if any) and if it was still current or had been cancelled, as of the date (25 April, 2017), the Land Titles Commission granted the estate in fee simple to the second appellant.
4. Besides, Mr Aigilo attempted to rely on the affidavit of the third appellant, Soare Kunia. The affidavit was not part of the proceedings in the court below. It postdates the primary Court decision of 2 October, 2018. Counsel has not sought leave to adduce fresh evidence or shown reason for its use in support of the stay application. The affidavit of Mataio Geita also suffers the same fate where it raises issues that were not before the primary court. The affidavit also postdates the Court decision of 2 October, 2018. The same averseness extends to the affidavit of Charles Aiyok where the matters raised are not part of the proceedings in the Court below.
   

What was this application for Stay about?

5. In brief, the primary judge had to deal with three separate proceedings in a consolidated hearing. The common dispute was over the property in State Lease, Volume 35, Folio 97 described as Portion 2631C Milinch Fourmil, Port Moresby, National Capital District (the property). That lease, until verified, I think was issued to Nimukiri Gorogaha Land Group Inc., the first appellant in this applicant under the relevant provisions of the Land Act 1996 relating to issuance of SABLs. The following is the summary of each proceeding in the primary Court:
   1. WS o. 766 of 2014 : A Dr Seth Fose commenced this action against, Soare Kunia (now third appellant) & 4 Ors, alleging breach of contract and fraud on the title of the fifth defendant (now first respondent). He also sought a declaration that the transfer of the title to the first respondent was null and void. Dr. Fose sought further orders that the defendants transfer the title to him and pay damages.
   2. In OS No. 96 of 2018, filed by Illiya Limited (second respondent) and Joe Dai against Charles Aiyok, the plaintiffs sought declarative orders to assert their entitlement to the property pursuant to a Certificate of Title dated 9^th April 2015.
   100. In OS No. 149 of 2018, Mataio Geita (second appellant) sued Illiya Limited (second respondent) seeking declarative orders to assert his entitlement to the property pursuant to an estate in fee simple granted to him on 25^th April 2017.
6. The law is clear, there can only be one legal title deed granted over a property. The background to this case shows, firstly that the same land was sold more than once to different purchasers; second, two (2) different titles were issued over the same property; the first being an SABL and the latest, a registered estate in fee simply.
7. It is apparent from the face of the records; the issue of fraud was relevant at the hearing in the Court below. It also appears the appellants are not coming to Court with clean hands. The primary judge found in relation to each case, that the orders sought for transfer of title to Dr. Fose in WS No. 766 of 2014, has no legal basis. He is only entitled to judgment for refund of his K41,000.00 and the Court made that order.
8. In OS No. 96 of 2018, the Court affirmed the second respondent as possessing the indefeasible title to the land. Permanent restraining orders were also issued against the respondent, Charles Aiyok (fourth appellant).
9. In OS No. 149 of 2018, the court affirmed the second respondent, Illiya Limited as having the legal title over the property and voided Mataio Geita as title holder under an estate in fee simple.

Grounds of Appeal

10. The grounds of appeal are that;
    1. The trial judge committed errors of law and fact when he voided the second appellant as title holder in fee simple of the property in question when the second appellant had complied with all the legal requirement to acquire a valid title in fee simple over the property under the Land Tenure Conversion Act.
    2. The trial judge committed errors of law and fact when he affirmed the second respondent as the title holder of the subject property when the first respondent had acquired the title by fraud and passed on a bad title to the second respondent.

Stay Application: Principles Applied & Parties Positions

11. Under the principles enunciated in McHardy v Prosec Security and Communications Ltd (2000) SC646, a stay may be granted on all or some of the principles that may be relevant to the application before the court. The decision to grant or refuse a stay is discretionary. Orders for stay may be justified on a number of considerations, the cumulative effect of which may in the particular circumstances of a case, warrant the stay. For instance, it may be compellable to grant a stay only on the consideration of the likely success of the appeal grounds, the overall interest of justice and the balance of convenience. The onus is on the applicant to show why the exercise of discretion should favour him or her for a stay.
12. I note that in Ombudsman Commission v. Gabriel Yer & Ors (2009) SC1041, Injia CJ averted to the principles on grant of stay set out in, McHardy v Prosec Security and Communication Ltd (supra), and stated;

“In my view, it is not intended that the discretion should be exercised on all or selected consideration(s). The circumstances of a particular case may warrant greater or less or even no weight at all to be given to a particular consideration(s). It is open to the Supreme Court to expound on those considerations or introduce new considerations as necessitated by the circumstances of the case before it. In a case where a number of considerations are relevant, the Court must take into account the totality of those considerations in order to dispense substantive justice in the circumstances of the case before it. The onus is on the applicant to persuade the Court to exercise its discretion in his or her favour.”

13. McHardy’s case sets out 11 considerations to guide the court when deciding the question of stay. Having regard to that guide, I consider the following principles are relevant to the circumstances of this case;
    • (a) possible hardship, inconvenience or prejudice to either party;
    • (b) whether there is an arguable case upon a preliminary assessment;
    • (c) whether on the face of the record, there may be indicated apparent error of law or procedure;
    • (d) the overall interests of justice;
    • (e) the balance of convenience;
14. The applicants’ contentions on these pertinent issues are that:
    1. The proposed grounds of appeal raise arguable legal issues that are meritorious and such that the decision of the Court below is likely to be reversed.
    2. The Court Orders are causing the appellants hardship, inconvenience and prejudice as they are unable to pursue opportunities for economic earnings utilising their customary land and as beneficiaries to the estate in fee simple.
    100. The overall interest of justice and the balance of convenience favour the appellants as they hold the title in estate in fee simple over their customary land.
15. The second respondent’s contention is brief. The applicants have not established any of those essential matters that would favour a stay under the principles in McHardy v Prosec Security principles.

Reasoning & Ruling

16. The applicants have not shown any tangible assertion of hardship, inconvenience or prejudice that the absence of stay orders will affect their appeal. The essence of their contention is that they have land title in their favour, and if they are granted the stay, they would be able to pursue their business interests over the current vacant land.
17. If that happens its more likely that the second respondent will be highly prejudiced in defending the appeal because the orders of the primary Court are in its favour as the legal title holder of the property in question. In my view, a grant of stay would also have the effect of pre-emptying the appeal result by affirming the applicants’ claim of possessing a valid title over the property, contrary to the primary court ruling. So, the prejudicial effect of a stay against the second respondent is very high.
18. The next issue of preliminary assessment of arguable case and errors of law or procedure on the face of the records is conveniently dealt with together. They both relate to the primary issue of whether the appeal ground has reasonable likelihood of success. It is therefore imperative for the Court to consider all relevant evidence, facts and materials from the court below and the reasoning by the trial judge to ascertain the prospect of the appeal succeeding on the basis of the ground being arguable or there being apparent errors of law or procedure on the face of the records.
19. In this case, the appellants will basically argue that;
    • The trial judge erred in confirming the title in the second respondent when the second appellant had complied with all the necessary prerequisites to acquire a valid title in fee simple over the property under the Land Tenure Conversion Act.
    • The first respondent had acquired the title by fraud and passed on a bad title to the second respondent over the property in question.
20. The applicants’ contentions in respect of those grounds can be better appreciated and assessed from the evidence and materials available to the court at first instance. As I have stated earlier and to the applicants’ detriment, the only document worthy of perusal is the written decision of the primary judge. The affidavits and other relevant documents tendered in the Court below are not before this court except those attached to the affidavit of Mataio Geita. The judgment showed, evidence was called in the course of the trial. So, the absence of the transcript of the proceedings in the Court below which would reveal the nature of the evidence called, the exchanges between Bar and Bench and documents tendered (if any), formed the most profound omissions.
21. Because of that, this Court is profoundly devoid of pertinent and necessary court record resources to make an informed assessment of whether the grounds of appeal are arguable. This void has also denied this Court, opportunity to ascertain if on the face of the records, apparent errors of law and procedure were committed. That is the outcome of a shoddily prepared and incompetent presentation of an application for stay.
22. Even if the Court were to make an assessment on the face of the records as it stands, the appellants have not shown where the trial judge erred in the misapprehension or misapplication of the law and the facts. They have not shown an arguable case on the bare minimum materials before this Court.
23. A grant of stay is therefore not supported under these considerations. The applicants have also failed to show the balance of convenience and overall interests of justice favour them. I will refuse the application for stay.
24. I make the following Orders:
    1. The application for stay is refused.
    2. The appellant/applicants will meet the costs of and incidental to the Stay application incurred by the Second Respondent to be taxed if not agreed.
    3. The appeal is adjourned to the Deputy Register of the Supreme Court (Appeals) to be listed for Directions Hearing.

___________________________________________________________
Lakakit & Associates Lawyers: Lawyers for the Appellants
No appearance for the First Respondent
Twivey Lawyers: Lawyers for the Second Respondent