National Airport Corporation Ltd v Airports Guest House Ltd [2019] PGSC 34; SC1807 (10 May 2019)

SC1807

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION

SCREV NO. 96 OF 2018

BETWEEN
NATIONAL AIRPORT CORPORATION LIMITED
Applicant

AND
AIRPORTS GUEST HOUSE LIMITED
First Respondent

AND
ROMLY KILA PAT – Secretary for Department of Lands
Second Respondent

AND
BENJAMIN SAMSON – Acting Registrar of Titles
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND
NATIONAL HOUSING CORPORATION
Fifth Respondent

Waigani: Dingake J
2019: 10 May

SUPREME COURT – practice and procedure – application for leave to review – applicant not included as party in the primary proceedings – applicant has sufficient interest being the holder of a Certificate of Authorised Occupancy (CAO) –applicant has locus standi to bring this application - criteria to be satisfied in making leave applications – consideration of – leave for review granted to applicant

Cases Cited

Dynasty Estates Limited v Nambawan Super Limited (2015) SC 1427
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120

Counsel

Mr. Philip Ame, for the Appellants
Mr. Justin Haiara, for the Respondents

10 May, 2019

1. DINGAKE J: This is an application for leave to review the whole of the Judgment and Orders of the National Court given on the 24^th of July, 2018, in OS(JR) No. 361 of 2017.
2. The applicant was not a party to the proceedings referred to above, although at all material times hereto it was a holder of a Certificate of Authorized Occupancy (CAO) over the property, the subject of the proceedings in OS(JR) No. 361 of 2017, namely, Section 24 Allotments 11 & 12, Mt. Hagen, Western Highlands Province (WHP).
3. The applicant by virtue of being a holder of the “CAO” obviously has an interest in the above proceedings.
4. Order 16, Rule 5(2) of the National Court Rules requires that the Notice of Motion for judicial review be served on all persons directly affected.
5. It has been held in the case of Dynasty Estates Limited v Nambawan Super Limited (2015) SC1427 that Order 16, Rule 5(2) referred to the above is mandatory.
6. It is common cause that the applicant was not served with Court process in OS (JR) No. 361 of 2017.
7. The leave application is being filed due to the fact that the forty (40) days allowed to file an appeal against the decision of the National Court has lapsed.
8. On or about the 24^th of October, 2011, proceedings, concerning the subject land, namely Section 24, Allotments 11 and 12, Mt Hagen, WHP were commenced in proceedings OS No. 807 of 2011 to forestall possible sale or disposal of the property.
9. In the aforesaid proceedings the Court, on 24^th of October, 2011 ordered as follows:
   1. Pursuant to Order 4 Rule 38(2) (a) and/or Order 4 Rule 38(2) (d) and/or Oder 4 Rule 42 of the National Court Rules that the requirements for prior service is dispensed with.
   2. The defendants whether by his representatives, officers, members or agents or howsoever are restrained from occupying and interfering with the Plaintiff’s occupation of and access to the property at Section 24, Allotments 11 & 12, Mt Hagen, Western Highlands Province pending the inter-parties hearing.
   3. The defendants whether by their representatives, officers, members or agents or howsoever are restrained from dealing with or disposing of the property at Section 24, Allotments 11 & 12, Mt Hagen, Western Highlands Province pending the determination of the proceedings herein. (Emphasis mine).
   4. The plaintiff is to serve all the documents on the defendants as soon as practicable.
   5. The costs are in the cause.
10. It is common cause that the proceedings referred to in paragraph 9(3) above remain pending.
11. It would appear that prior to the aforesaid proceeding in OS No. 807 of 2011, the subject property was registered under the former Department of Civil Aviation (DCA), thereafter Civil Aviation Authority (CAA). At the time, the DCA, CAA (now the National Airports Corporation Limited (NAC) held a Certificate Authorizing Occupancy (CAO) over the property).
12. In March, 2012, the Registrar of Title registered a State Lease over the Land in favour of the National Housing Corporation (NHC) and on the 28^th of March, 2012, NHC transferred the property to the first respondent herein.
13. On the 19^th of June, 2014, the Registrar of Title cancelled the Title of the State Lease transferred to the first respondent herein.
14. The first respondent being unhappy with the decision of the Registrar of Title, on the 21^st of April, 2017, obtained leave to review the decision of the Registrar of Titles of the 19^th of June, 2014.
15. On the 24^th of July, 2018 the Court reviewed and quashed the decision of the Registrar of Title and issued an order in the following terms:
    1. That pursuant to Order 16 Rule (1) of the National Court Rules, I quash the decision of the second defendant made on or about 19 June, 2014 to cancel the plaintiff’s title to the property and remit the matter to the second defendant to re-hear it according to Law.
    2. That the defendants pay the plaintiff’s costs of and incidental to the application.
16. The applicant became aware of the above decision in September, 2018 and on the 21^st of November, 2018 filed the application for leave to review.
17. The applicant/appellant had up to 3^rd of September, 2018 to appeal.
18. The criteria governing applications for leave to review are as follows:
    1. The applicant must have standing to bring the application.
    2. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time.
    3. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given.
    4. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered.
    5. If the Court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the Court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment.

(Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120).

19. Applying the above criteria to this application, I am satisfied that the applicant has the locus standi to bring this application, by virtue of being a holder of “CAO” at all material times hereto.
20. The applicant has given a reasonable explanation why the appeal was not filed in time. The applicant knew of the 24^th July, 2018 decision in September, 2018, well after the forty (40) days period had lapsed and moved with reasonable speed to file this proceedings in November, 2018; and thereafter prosecuted the matter diligently.
21. I have also taken into account that at the time when the Registrar of Title cancelled State Lease transferred to the first respondent and developments that took place thereafter, there was a Court Order restricting the Registrar of Title from dealing in any manner whatsoever with the subject property.
22. Indeed, having regard to term three (3) of the Order of the 24^th of October, 2011, no person or authority could deal with the subject property in any manner whatsoever.
23. Term three (3) of the Order of the 24^th of October, 2011 reads:

“3. The defendants whether by their representatives, officers, members or agents or howsoever are restrained from dealing with or disposing of the property at Section 24, Allotments 11 & 12, Mt Hagen, Western Highlands Province pending the determination of the proceedings herein.”

24. It is in the interest of justice that Court Orders be respected.
25. In the result, in exercise of the inherent powers of this Court under Section 155(2) (b) of the Constitution, this Court issues the following orders:
    1. Leave is granted to the applicant to review the judgment and or orders of the National Court, (per Foulds J) of 24^th of July, 2017, in the National Court Proceedings OS(JR) No. 361 of 2017.
    2. The first respondent shall pay the costs of this application.
       

___________________________________________________________
Ame Lawyers: Lawyers for the Appellants
Haiara’s Legal Practice: Lawyers for the Respondents