Sentwan v Isaiasah [2022] PGSC 19; SC2214 (3 March 2022)

SC2214

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 1 OF 2022 (IECMS)

BETWEEN:
APPLICATION BY MAXIE SENTWAN
Applicant

AND
JOHN ISAISAH
AND OTHERS
Respondents

Waigani: Logan J
2022: 3^rd March

PRACTICE & PROCEDURE – application for stay of orders of National Court – where applicant registered proprietor of state lease – where applicant subject to orders made by National Court to deliver up vacant possession of state lease – where orders made in National Court did not consider merits – where balance of convenience favours stay of National Court’s orders – application for stay granted

Facts:

The applicant is the registered proprietor of a State lease. The applicant commenced proceedings in the National Court (as plaintiff) challenging the cancellation of his registered proprietorship of his State lease.

On 16 April 2021, the National Court dismissed the applicant’s proceedings and made consequential orders that the applicant immediately deliver up vacant possession of the subject State lease to another person registered on the title.

The applicant applied to the Supreme Court for review of the orders made by the National Court. The applicant also applied for a stay of the National Court’s orders pending determination of the applicant’s application for review.

Held:

1. The balance of convenience favours the grant of a stay in circumstances where the National Court did not consider the applicant’s position as registered proprietor and the impaction of indefeasible title conferred by s 33(1) of the Land Registration Act 1981: Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PGLawRp 387; SC308 referred to.
   

Cases Cited:

Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PGLawRp 387; SC308

Legislation:

Land Registration Act 1981

Counsel:

Mr. A Kuria, for the Applicant
Mr. M Tukuliya, the Respondents

Oral decision delivered on
3^rd March 2022

1. LOGAN J: Mr Maxie Sentwan is the registered proprietor of a State leasehold being more particularly described as State Lease Volume 83, Folio 70, Section 317, Allotment 47, Hohola, Port Moresby, in the National Capital District.
   
2. On 16 April 2021, National Court proceedings which Mr. Sentwan had issued as plaintiff to challenge the cancellation of his registered proprietorship of the subject State leasehold were dismissed as being an abuse of process. More particularly, an order was made that he immediately deliver up vacant possession of the subject State leasehold to another person registered on the title, a Mr. John Isaisah, forthwith.
   
3. An application has been made today for a stay of the operation of that order. It seems that Mr. Sentwan was a purchaser in good faith and for valuable consideration of the State leasehold and became registered proprietor.
   
4. I am somewhat concerned that the application for a stay has not been served as well on Mr Isaisah, as he has an interest in the preservation of order 3. However, Mr Sentwan’s position as a registered proprietor engages all of the operation under the Land Registration Act 1981 of what is known as the Torrens System of Title by Registration. Section 33 of that Act confers indefeasible title on a registered proprietor subject to particular exceptions set out in s 33(1). The dismissal of the case in the way in which dismissal occurred entailed no consideration on the merits.
   
5. There is an arguable case as set out in the application for review as to why that dismissal was attended with errors of principle. It is not for me today to determine that application for leave to review. It does seem to me that there is a need at least to preserve a status quo. However, I am very conscious that I have not heard from Mr Isaisah. Whilst the balance of convenience may well favour the granting of a stay, I have not had the benefit of Mr Isaisah’s submission, if any, or at least affording him an opportunity to be heard on that subject. I therefore propose expressly to recognise that in the orders that I make so as to afford him an opportunity to apply for the setting aside of the stay by notice to the other parties.
   
6. I note as well that the various State parties have not opposed the granting of a stay. I assume in that regard also that the State parties would likewise consider that Mr Isaisah ought at least to have the ability to apply to set aside the stay.
   
7. I note that the State parties’ respondents do propose to resist the granting of leave to review.
   
8. For these reasons and particularly having regard to the Supreme Court’s judgment in Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PGLawRp 387; SC308, which is so instructive as the Torrens System of Title as applicable under the Land Registration Act, the orders that I make are as follows:
   
   1. Pending the hearing and determination of the application to review, or further earlier order, the order for delivery of possession made by the National Court in OS JR 953 of 2017 be stayed.
   2. Liberty to apply be granted to, particularly, the first respondent, John Isaisah for an order discharging or varying the stay upon two clear business days’ notice to the other parties to the proceeding.
   3. The applicant serve a copy of this order upon the first respondent, together with the application to review and all supporting documents forthwith.
   4. The application for leave for review be adjourned for hearing on a date to be fixed, that date not to be earlier than 2 business days following the date on which service on the first respondent has been effected in accordance with the orders made on this day.

5) Costs be reserved.
__________________________________________________________________
Kuria Lawyers: Lawyers for the Appellants
Office of the Solicitor General: Lawyers for the Respondents