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JV PNG Investment Constructions Ltd v Samson [2022] PGSC 30; SC2224 (14 March 2022)

SC2224

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NO. 24 OF 2020


BETWEEN
JV PNG INVESTMENT CONSTRUCTIONS LIMITED
Appellant


AND
BENJAMIN SAMSON, Registrar of Titles, Department of Lands & Physical Planning
First Respondent


AND
OSWALD TOLOPA, Secretary, Department of Lands & Physical Planning
Second Respondent


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent


AND
POLRAVEN NO. 48 LIMITED as to one half share and SANAMO CONSTRUCTION LIMITED as to one half share both trading as HOTEL PACIFIC INN LIMITED
Fourth Respondent


AND
POLRAVEN NO. 48 LIMITED
Fifth Respondent


AND
SANAMO CONSTRUCTION LIMITED
Sixth Respondent


AND
HOTEL PACIFIC INN LIMITED
Seventh Respondent


AND
BANK OF PAPUA NEW GUINEA
Eighth Respondent


Waigani: Makail, Kariko & Anis JJ
2021: 30th September
2022: 14th March


JUDICIAL REVIEW – Judicial review proceedings summarily dismissed for being incompetent and an abuse of process – Whether review included decisions for which leave was not granted – Whether there was no utility in the proceedings – Whether proper grounds of incompetency and abuse of process established


The appellant filed proceedings in the National Court in which leave was granted to apply for judicial review of decisions by the Registrar of Titles concerning land originally described as Allotment 3 Section 35, Boroko, National Capital District. The decisions included the cancellation of the original State Lease that was issued to the National Housing Estate Limited and transferred to the appellant, and the issue of a State Lease to the fourth respondent. After the grant of leave, the appellant obtained further information that confirmed the fourth respondent had its State Lease cancelled, had the land subdivided, and was issued new State Leases in respect of each of the new allotments, from which the sixth to eighth respondents each purchased one allotment. In the requisite notice of motion for the judicial review, the appellant pleaded for the decisions of the Registrar of Titles in relation to the subdivision and the issue of the new State Leases to be quashed. At the hearing of the application for judicial review, the fourth to eighth respondents moved to dismiss the proceedings for being incompetent and an abuse of process. The motions were mainly based on the contentions (1) that the appellant had added other decisions for judicial review for which leave had not been granted, and (2) that the original State Lease no longer existed as it had since been cancelled, and the land subdivided into seven separate allotments for which separate State Leases were issued. The primary Judge upheld the applications and dismissed the proceedings. The appellant appealed on several grounds essentially claiming the primary Judge erred in law in accepting the respondents’ submissions.


Held:


(1) (Per Makail J) As leave had been granted to review the original decisions by the Registrar of Titles to cancel the appellant’s State Lease and issue an original copy of the State Lease to the fourth respondent, the appellant had met the procedural requirement under Order 16, rule 3 of the National Court Rules and must be permitted to review the original decisions at trial.

(2) (Per Makail J) The grounds that the subject property does not exist, and events have overtaken the utility of the judicial review proceedings and further, that the National Housing Estate Limited’s State Lease had been cancelled, thus it had no good title to pass to the appellant do not fall within the grounds of incompetence and abuse of process.

(3) (Per Kariko J & Anis J) The disputed pleading in the notice of motion under Order 16 Rule 5(1) of the National Court Rules did not expand the decisions for which leave was granted under Order 16 Rule 3(2) of the National Court Rules but amounted to relief being sought.

(4) (Per Anis J) The ground on arguable case to answer or decisions sought to be reviewed were ambiguous or ‘not restrictive’ is one for trial and not for determination at an interlocutory hearing.

(5) (Per Anis J) The relief sought in the fourth to seventh respondents’ notice of motion that the subject property did not exist, and that the appellant did not have any proprietary right to it are substantive relief and should be considered at trial.

(6) (By the Court) No proper grounds were established that rendered the application for judicial review incompetent, or that it amounted to an abuse of process.

(7) (By the Court) The National Court erred in summarily dismissing the application for judicial review.

(8) (By the Court) The appeal was allowed, and the decision of the National Court was quashed.

Cases Cited:


Talibe Hegele v. Tony Kila (2011) SC1124
Peter Makeng v. Timbers (PNG) Limited (2008) N3317
Kalinoe v. Paul Paraka Lawyers (2014) SC1366
Innovest Limited v. Pruaitch (2014) N5949
Morobe Provincial Government v Tropical Charters Ltd (2010) N3977
Lovika v. Malpo (2019) SC1895
Government of Papua New Guinea v. Barker [1977] PNGLR 386
Lewis v. The State [1980] PNGLR 219
Bean v. Bean [1980] PNGLR 307
Danley Tindiwi v. The State (2015) SC1416
Mision Asiki v. Manasupe Zurenouc (2005) SC797
State v. Toka Enterprises Limited (2018) SC1746
Dale Christopher Smith v Minister for Lands (2009) SC973
Keimbun Keindip v. The Independent State of Papua New Guinea [1993] PNGLR 28
Decision 2000 Ltd v. Luther Sipison (2017) N6778
Ramu Nickel Ltd v. The Honourable Dr Puka Temu (2007) N3252
Raphael Huafolo v. Rex Tadabe and Ors (2021) N8956
ENB Provincial Government v. Public Service Commission Chairman (2018) N6706
Lawrence Sausau v. Joseph Kumgal (2006) N3253
Kitogara Holdings Ltd v. NCDIC [1988-89] PNGLR 346
Gregory Todiai v. Walter Schnaubelt (2017) SC1637


Counsel:


Mr. D. Mel, for the Appellant
No appearance, for the First, Second and Third Respondents
Mr. R. Diweni, for the Fourth, Fifth, Sixth and Seventh Respondents
Mr. R. Bradshaw, for the Eighth Respondent


JUDGMENT

14th March, 2022


1. MAKAIL J: This is an appeal against a decision of the National Court of 6th November 2020 which dismissed judicial review proceedings commenced by the appellant for being incompetent and an abuse of process.


Background of Case


2. The appellant alleged that it is the registered proprietor of a property described as Allotment 3, Section 35, Boroko, National Capital District. The property consisted of dilapidated government hostel and shanty structures occupied by various individuals.


3. It purchased the property from the National Housing Estate Limited (“NHEL”) under a contract of sale dated 28th May 2014 at a cost of K3.5 million. Settlement took place on or about 3rd June 2014.


4. The fourth respondent also claimed that it had a State Lease over the same property. On 25th February 2016, the first respondent cancelled the fourth respondent’s State Lease because it was issued second in time to the appellant’s and recognised the appellant’s State Lease as valid.


5. The cancellation of the fourth respondent’s State Lease put to rest the conflict for a while. Then by letter dated 10th August 2018, the first respondent summonsed the appellant to deliver up its copy of the State Lease for cancellation because of the fourth respondent’s State Lease over the same property.


6. The appellant did not deliver up its copy of the State Lease. However, its lawyers wrote to the first respondent by way of a letter dated 27th August 2018 and pointed out that the fourth respondent’s State Lease had been cancelled by him and he had recognised the appellant’s State Lease as the proper and valid one.
7. Despite this, the first respondent cancelled the NHEL’s State Lease and the appellant’s State Lease on 24th September 2018. Then, on 2nd October 2018, he issued an official copy of State Lease to the fourth respondent. The reason he gave was that the registered proprietor’s copy was lost or destroyed.


8. On 17th October 2018 the first respondent registered the transfer of State Lease from the fourth respondent to the sixth respondent.


9. There is some conflict as to when the sixth respondent surrendered copy of its State Lease to the first respondent for subdivision but on 18th December 2018 two State Leases were issued to the sixth respondent, they were:


(a) Allotment 57 Section 35, Boroko, NCD, State Lease Volume 91 Folio 239, and


(b) Allotment 58 Section 35, Boroko, NCD, State Lease Volume 91 Folio 240.
10. On the same date (18th December 2018), the sixth respondent sold allotments 57 and 58 to the eighth respondent for K7.5 million each for a total of K15 million.


11. On 8th February 2019 five more individual State Leases were created and issued to the sixth respondent as follows:


(a) Allotment 52 Section 35, Boroko, NCD, State Lease Volume 92 Folio 08,


(b) Allotment 53 Section 35, Boroko, NCD, State Lease Volume 92 Folio 09,


(c) Allotment 54 Section 35, Boroko, NCD, State Lease Volume 92 Folio 10,


(d) Allotment 55 Section 35, Boroko, NCD, State Lease Volume 92 Folio 11, and


(e) Allotment 56 Section 35, Boroko, NCD, State Lease Volume 92 Folio 12.


12. On 8th July 2019 the appellant commenced judicial review proceedings and in the Originating Summons, sought leave to assert its claim to the property based on its State Lease and review these series of decisions of the first respondent to first, cancel the NHEL’s State Lease, secondly, its State Lease, thirdly, issue a State Lease to the fourth respondent and finally, transfer it to the fourth respondent. (“Original Decisions”).


13. In the Statement pursuant to Order 16, rule 3(2)(a) (“Order 16 Statement”) it is alleged in the grounds for review that the original decisions were either in breached Section 160 of the Land Registration Act and constituted an error of law or ultra vires, and further, unreasonable.


14. Notably the appellant did not include in the Originating Summons, the subsequent of decisions of the first respondent of 17th October 2018 to register the transfer of State Lease from the fourth respondent to the sixth respondent, 8th December 2018 to issue two State Leases to the sixth respondent for Allotment 57 Section 35, Boroko, NCD, State Lease Volume 91 Folio 239 and Allotment 58 Section 35, Boroko, NCD, State Lease Volume 91 Folio 240 and finally, 8th February 2019 to create five State Leases in:


(a) Allotment 52 Section 35, Boroko, NCD, State Lease Volume 92 Folio 08,
(b) Allotment 53 Section 35, Boroko, NCD, State Lease Volume 92 Folio 09,
(c) Allotment 54 Section 35, Boroko, NCD, State Lease Volume 92 Folio 10,
(d) Allotment 55 Section 35, Boroko, NCD, State Lease Volume 92 Folio 11, and
(e) Allotment 56 Section 35, Boroko, NCD, State Lease Volume 92 Folio 12 (“Subsequent Decisions”).

15. On 12th August 2019 it was granted leave to review only the original decisions of the first respondent. As required by Order 16, rule 5(1) of the NCR, on 15th August 2019 the appellant filed a Notice of Motion for judicial review. It was in paragraph 7 of the Notice of Motion where it pleaded:


“Pursuant to Order 16 Rule 1(1) of the National Court Rules, an order in the nature of Certiorari that the first defendant’s decisions of 24 September 2018 and 2 October 2018 and any subsequent decisions, including but not limited to the change of description of the property and the grant of subsequent interest over the whole or any part of the property comprising State Lease, including but not limited to the following described properties to any persons be brought up to this Honourable Court and quashed:


(1) Allotment 52 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 08;

(2) Allotment 53 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 09;

(3) Allotment 54 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 10;

(4) Allotment 55 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 11;

(5) Allotment 56 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 12;

(6) Allotment 57 Section 35 Boroko NCD contained in State Lease Volume 91 Folio 239; and

(7) Allotment 57 Section 35 Boroko NCD contained in State Lease Volume 91 Folio 240”.

16. The fourth, fifth, sixth and seventh respondents by motion and joined by the eighth respondent in a separate motion, applied to dismiss the judicial review proceedings for being incompetent and an abuse of process. The grounds on which the named respondents relied on to constitute incompetence and an abuse of process are set out in the judgment of the National Court as follows:


“(a) No leave was obtained by the plaintiff during hearing of leave application under Order 16 Rules 3 (4) and 6 (2) of the National Court Rules to amend the Statement and or the grounds set out in the Application for Review filed following grant of Leave; and


(b) The piece of land described in the leave application as “allotment 3 Section 35 Boroko NCD” does not exist; and


(c) The plaintiff had never held any proprietary rights to the land described as “Allotment 3, Section 35, Boroko, NCD” on the basis that the National Housing Estate Limited never acquired a valid proprietary interest in the said piece of land to be able to transfer that interest to the Plaintiff”.


17. Given the revelation of the subsequent decisions, the appellant also filed a motion and sought leave to amend the Order 16 Statement to plead fraud.


18. At the hearing on 15th September 2020, after preliminary arguments in relation to which motion was to be heard first, the National Court decided to hear the respondents’ motions to dismiss first. The appellant’s motion for leave to amend pleadings was adjourned. On 06th November 2020, the National Court upheld the two motions and dismissed the judicial review proceedings for being incompetent and an abuse of process.


Grounds of Appeal


19. There are seventeen grounds of appeal with multiple sub-grounds.


Requirement for Leave


20. The first ground which the National Court dismissed the judicial review proceedings was that the appellant failed to seek leave to review the subsequent decisions. The National Court stated:


“In view of this, I am not satisfied on the balance required that the plaintiff discharged that his pleadings are open ended because, “Any subsequent decisions including but not limited to the change of description of the property and the grant of subsequent interests over whole or part of the property” is not carrying forward the subject granted leave initially. Any subsequent decisions are looking into the future for which leave has not been granted.”


21. The appellant’s main ground of appeal is that the National Court erred when it held that it failed to seek and obtain leave to review the subsequent decisions of the first respondent.


22. In support of this ground, we heard from the appellant’s counsel that the appellant had ensured that any subsequent dealings with the property were captured at paragraph 24 of the Order 16 Statement in the following terms:


“Pursuant to Order 16 Rule 1 of the National Court Rules, an order in the nature of Certiorari that the first decisions, second decision, third decision and any subsequent decisions, including but not limited to the change of description of the property and the granting of subsequent interest over the whole of any part of the property comprising State Lease to any person(s) be brought up to this Honourable Court and quashed”.


23. Counsel submitted that based on this pleading, when the Court granted leave, the decision on grant of leave included the subsequent decisions. We further heard that the details of the subsequent decisions were brought to the Court’s notice at the hearing of the leave application and stay application on 12th August 2019. For clarity and convenience of parties, after leave was granted, the appellant decided to expand the pleadings by setting out the details of the subsequent decisions at paragraph 7 of the Notice of Motion for judicial review in these terms:


“Pursuant to Order 16 Rule 1(1) of the National Court Rules, an order in the nature of Certiorari that the first defendant’s decisions of 24 September 2018 and 2 October 2018 and any subsequent decisions, including but not limited to the change of description of the property and the grant of subsequent interest over the whole or any part of the property comprising State Lease, including but not limited to the following described properties to any persons be brought up to this Honourable Court and quashed:


(a) Allotment 52 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 08;

(b) Allotment 53 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 09;

(c) Allotment 54 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 10;

(d) Allotment 55 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 11;

(e) Allotment 56 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 12;

(f) Allotment 57 Section 35 Boroko NCD contained in State Lease Volume 91 Folio 239; and

(g) Allotment 58 Section 35 Boroko NCD contained in State Lease Volume 91 Folio 240”.

24. Counsel further submitted and stressed that even if it is necessary to obtain leave to review the subsequent decisions, their inclusion in the Notice of Motion formed part of the relief and it is not precluded to seek them at trial.


25. As to whether the respondents has been prejudiced by the inclusion of the subsequent decisions, counsel submitted that it should not be the case because they were brought to their notice at the hearing of an application for interim order for stay before Thompson J.


26. For these reasons, counsel submitted that the National Court erred when it held that the appellant failed to obtain leave to review the subsequent decisions of the first respondent.


27. The appellant’s effort in expressing the subsequent decisions in an elaborate way in the Notice of Motion is necessary to put all relevant information and issues in relation to the subject property before the Court for determination once and for all. As it submitted, these subsequent decisions came to light after it was granted leave and the respondents are well aware of them.


28. In expressing this view it must be also emphasized that regardless of the subsequent decisions, the fact remains that the appellant was granted leave to review the original decisions. As leave has been granted, the appellant has met the procedural requirement under Order 16, rule 3 of the NCR and must be permitted to review the original decisions at trial.


29. Without delving into the merits of the review and speculating on its outcome, at trial, the Court may decide not to take into account the subsequent decisions and confine its consideration to the original decisions or it may do so and that the subsequent decisions may have overtaken the original decisions and the appropriate remedy for the appellant is not in judicial review, but damages. Whichever the position the Court may take will occur if the plaintiff is permitted to progress the judicial review to trial based on the grant of leave of the original decisions.


30. The procedural requirement in law has been met. I am satisfied the National Court erred in law when it held that the appellant failed to obtain leave to review the subsequent decisions and dismissed the judicial review proceeding. The first ground of appeal is upheld.


Allotment 3 Section 35 Boroko, NCD


31. The second reason the National Court dismissed the judicial review proceedings were that the State Lease of the appellant was cancelled and Allotment 3 Section 35 Boroko, NCD was subdivided. As a result, Allotment 3, Section 35 Boroko, NCD does not exist. The National Court stated:


“In the way pleaded, the plaintiff has placed before the court matters which are not before the court because it is now clear that allotment 3, section 35, Boroko, does not exist because the title has been cancelled and it has been subdivided”.


32. The second main ground of appeal is that the National Court erred in holding that there was no utility in the judicial review proceedings because the appellant’s State Lease over the property was cancelled and property was subdivided. As a result, the property does not exist.


33. The appellant submitted that the National Court erred when it relied in this ground to dismiss the judicial review proceedings because at the leave stage, the National Court was satisfied that there was an arguable case and granted leave.


34. I uphold the appellant’s submissions. I am satisfied that the grant of leave demonstrated that the National Court was satisfied that there was an arguable case. A careful perusal of the grounds in the Order 16 Statement will reveal that the appellant had relied on breach of procedure under Section 160 of the Land Registration Act as constituting an error or law or ultra vires and further, unreasonable, as grounds, to obtain leave to review the original decisions of the first respondent.


35. At trial, the appellant will prove that the first respondent’s decisions to first, cancel the State Lease of NHEL and secondly, its State Lease and thirdly, grant a new State Lease to the fourth respondent over the same property and finally, register the State Lease to the fourth respondent were not only in breach of Section 160(2) of the Land Registration Act, but also unreasonable because he failed to uphold his earlier decision to cancelled the State Lease of the fourth respondent and recognised it’s State Lease.


36. One of the core issues for trial is whether the first respondent complied with the requirement under Section 160(2) of the Land Registration Act to apply to the National Court to have the appellant show cause why its copy of the State Lease should not be delivered up after it was summonsed and failed to deliver it to the first respondent.


37. The requirement to observe Section 160(2) brings up a further issue whether the appellant was denied the opportunity to be heard by the National Court on this issue under Section 59 of the Constitution.


38. The other issue is whether it is unreasonable for the first respondent not to uphold his earlier decision to cancel the State Lease of the fourth respondent and recognise the appellant’s State Lease. A determination of this issue is crucial in a case where there are two conflicting State Leases at the material time.


39. I point out that grounds for dismissal of proceedings for being incompetent and an abuse of process are separate and distinct from grounds for dismissal of proceedings for failure to disclose a reasonable cause of action or being frivolous and vexatious.


40. In the case of the former, the grounds are largely based on lack of jurisdiction, use of incorrect mode of proceedings or failure to comply with condition precedent, eg, failure to seek leave to apply for judicial review. Where one or more of these grounds exists, the Court may dismiss the proceedings either on an objection by the opposing party or on its own motion: Order 16, rule 13(2) of the NCR and Talibe Hegele v. Tony Kila (2011) SC1124.


41. In this case the ground that Allotment 3 Section 35, Boroko, NCD does not exist does not fall into any one of the above-mentioned grounds. With respect, the National Court erred when it upheld the motion and dismissed the judicial review proceedings on this ground. This ground of appeal is upheld.


NHEL’s State Lease


42. The last ground relied upon by the named respondents was that the NHEL did not have good title to pass to the appellant apparently because there was no evidence that the National Executive Council (“NEC”) decided to vest interest in the property to NHEL. The National Court did not specifically address this ground in its decision but considered it together with all the evidence and stated:


“In the totality, I am not satisfied that the action as it is presented in its form is within the law set out above. He has not swayed by the material he has placed to counter otherwise that what has been sought by the defendants is not the case. In law and with all the materials set out above motion of the defendants sustains the balance over and above the plaintiff”.


43. The last ground of appeal is that the “[respondents] could still raise the arguments in the dismissal application at the substantive hearing”. The appellant repeated its submissions that the National Court had granted leave because it was satisfied that it had an arguable case. For this reason, it argued that the issue of whether NHEL had a valid title is one that should be resolved at trial.


44. As I have pointed out at [39] and [40] above, the above ground relied upon by the National Court to dismiss the proceedings does not fall into one of the grounds on incompetence or abuse of process. In addition, what the National Court did was, it weighed up the evidence and preferred the evidence of the respondents. Consequently, it held that the NHEL had no good title to pass to the appellant.


45. It is necessary to point out that the weighing up of evidence is done at the conclusion of the trial when all evidence of the parties is in. In this case as the National Court was satisfied that there was an arguable case and granted leave, the appellant’s evidence that it has good title must be weighed against the respondents’ evidence that the NEC did not vest interest in the property in NHEL. For this reason, no good title passed to the appellant. The weighing up of the evidence will be done at the conclusion of trial.


46. With respect, the National Court erred when it proceeded to weigh up the evidence of the parties and decided to uphold the evidence of the respondents and dismissed the judicial review proceedings. This ground of appeal is upheld.


Conclusion


47. Grounds one, two and three have been upheld. There are other grounds of appeal which do not require consideration at this time. For the grounds that have been upheld, I am satisfied that they constitute identifiable errors in the exercise of discretion by the National Court.
48. Pursuant to Section 16 of the Supreme Court Act, it will be appropriate to order that the appeal be upheld, the decision of the National Court be quashed, the judicial review proceedings be reinstated, and remitted to the National Court for trial on a date and time to be fixed before a judge other than the presiding judge.


49. Finally, as the fourth, fifth, sixth, sixth, seventh and eighth respondents participated in opposing the appeal they shall pay the appellant’s costs of the appeal, to be taxed, if not agreed.


Order


50. The final orders of the Court are:


1. The appeal is upheld.


  1. The decision of the National Court of 06th November 2020 is quashed.
  2. The judicial review proceedings are reinstated and remitted to the National Court for trial on a date and time to be fixed before a judge other than the presiding judge.

  1. The fourth, fifth, sixth, seventh and eighth respondents shall pay the appellant’s costs of the appeal, to be taxed, if not agreed.
  2. Time for entry of these Orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

51. KARIKO, J: I have had the benefit of reading the draft judgments of my brothers Makail J and Anis J, and I respectfully agree with their Honours’ reasoning and conclusions therein.


52. I wish to add my remarks concerning what I consider to be the core issue in this appeal, as it was in the case before the primary judge, and that is whether the Notice of Motion for judicial review filed 15 August 2019 (JR Motion) included application for judicial review of decisions for which leave was not granted.


53. As stated by my brothers, the appeal is against the decision of the National Court to summarily dismiss, upon motions, an application for judicial review. The background facts giving rise to the proceedings in the National Court, the decision of the primary Judge and the grounds of appeal are adequately canvassed by my brothers in their judgements.


GROUNDS OF APPEAL


54. I accept the analysis by Mr Bradshaw of counsel for the eighth respondent that the seventeen grounds of appeal can be broadly grouped as follows:


(i) That the primary judge erred in law in the procedure adopted in the hearing and determination of the applications for dismissal (Grounds 1-3); and

(ii) That the primary judge erred in law in deciding the decisions for review were expanded rendering the proceedings incompetent (Grounds 4-17).


LEAVE FOR JUDICIAL REVIEW


55. Leave was granted by the National Court to the appellants to apply for judicial review of the following decisions of the Registrar of Titles concerning a property described as Section 35 Allotment 3 Boroko (the Property):


(1) To cancel on 24 September 2018 of the registration of the transfer of the Property from National Housing Corporation to the appellant; and
(2) To issue an official copy of State Lease of the Property on 2 October 2018; and
(3) To register the transfer of the Property to Polraven No.48 Limited and Sanamo Construction Limited in equal shares on 2 October 2018.

(the Decisions)


NOTICE OF MOTION FOR JUDICIAL REVIEW


56. It is useful to reproduce the terms contained in the JR Motion to appreciate what the appellant was claiming. The notice of motion pleads:


  1. Pursuant to Order 16 Rule 5(1) of the National Court Rules, for Judicial Review of the first defendant’s decision of 24th September 2018, made under s.161 of Land Registration Act Chapter 191 to:

(a) cancel entry no. s.57402, which entry is registered 21 April 2021 on the State Lease comprising land formally described as Section 35, Allotment 3, Boroko, National Capital District Volume 45 Folio 224 (hereafter referred to as the State Lease), being entry of decision to vest the State Lease in National Housing Estate Limited;

(b) cancel entry no. s.73305, which entry is registered 25 February 2016 on the State Lease, being entry of transfer of State Lease from National Housing Estate Limited to JV PNG Investment Constructions Limited.


  1. Pursuant to Order 16 Rule 5(1) of the National Court Rules, for Judicial Review of the first defendant’s decision of 2 October 2018, to issue an Official Copy of State Lease pursuant to s.162 of the Land Registration Act Chapter 191.
  2. Pursuant to Order 16 Rule 5(1) of the National Court Rules, for Judicial Review of First Defendant’s decision of 2 October 2018, to transfer State Lease to “Polraven No. 48 Limited as to one half share and Sanamo Construction Limited as to one half share both trading as Hotel Pacific Inn Limited”.
  3. Pursuant to Order 16 Rule 5(1) of the National Court Rules, a declaration that the first defendant’s decision of 24 September 2018, made under s.161 of Land Registration Act Chapter 191 to:

(a) cancel entry no. 57402, which entry is registered 21 April 2011 on the State Lease, being entry of decision to vest the State Lease in National Housing Estate Limited;

(b) cancel entry no. s.73305, which entry is registered 25 February 2016 on the State Lease, being entry of transfer of State Lease from National Housing Estate Limited to JV PNG Investment Constructions Limited;


are in error of law and ultra vires s.161 of the Land Registration Act Chapter 191, unreasonable in the Wednesday sense, in breach of s.41 of the Constitution for being harsh, oppressive, unreasonable and disproportionate to requirements of the case and not reasonably justifiable in a democratic society having proper regard for rights and dignity of mankind, and in breach of s.59 of the Constitution as the first defendant failed in its duty to act fairly and be seen as acting fairly, tainted with bias, and is therefore illegal and void ab initio.


  1. Pursuant to Order 16 Rule 1(2) of the National Court Rules, a declaration that the first defendant’s decision, as registered on State Lease on 2 October 2018, to issue an Official Copy of State Lease pursuant to s.162 of the Land Registration Act Chapter 191 is in error of law and ultra vires s.162 of the Land Registration Act Chapter 191, unreasonable in the Wednesday sense, in breach of s.41 of the Constitution for being harsh, oppressive, unreasonable and disproportionate to requirements of the case and not reasonably justifiable in a democratic society having proper regard for rights and dignity of mankind, and in breach of s.59 of the Constitution as the first defendant failed in its duty of act fairly and be seen as acting fairly, tainted with bias, and is therefore illegal and void ab initio.
  2. Pursuant to Order 16 Rule 1(2) of the National Court Rules, a declaration that the first defendant’s decision, as registered on State Lease on 2 October 2018, to transfer State Lease to “Polraven No. 48 Limited as to one half share and Sanamo Construction Limited as to one half share both trading as Hotel Pacific Inn Limited” is in error of law and ultra vires Land Registration Act Chapter 191, including s.160, 161 and 162, unreasonable in the Wednesday sense, in breach of s.41 of the Constitution for being harsh, oppressive, unreasonable and disproportionate to requirements of the case and not reasonably justifiable in a democratic society having proper regard for rights and dignity of mankind, and in breach of s.59 of the Constitution, as the first defendant failed in its duty to act fairly and be seen as acting fairly, tainted with bias, and is therefore illegal and void ab initio.
  3. Pursuant to Order 16 Rule 1(1) of the National Court Rules, an order in the nature of Certiorari that the first defendant’s decisions of 24 September 2018 and 2 October 2018 and any subsequent decisions, including but not limited to the change of description of the property and the granting of subsequent interests over the whole or any part of the property comprising State Lease, including but not limited to the following described properties to any person(s) be brought up to this Honourable Court and quashed:

(a) Allotment 52 Section 35 Boroko NCD contained in State Lease Volume 92, Folio 08;

(b) Allotment 53 Section 35 Boroko NCD contained in State Lease Volume 92, Folio 09;

(c) Allotment 54 Section 35 Boroko NCD contained in State Lease Volume 92, Folio 10;

(d) Allotment 55 Section 35 Boroko NCD contained in State Lease Volume 92, Folio 11;

(e) Allotment 56 Section 35 Boroko NCD contained in State Lease Volume 92, Folio 12;

(f) Allotment 57 Section 35 Boroko NCD contained in State Lease Volume 91, Folio 239; and

(g) Allotment 58 Section 35 Boroko NCD contained in State Lease Volume 91, Folio 240.


  1. Pursuant to Order 16 Rule 1(1) of the National Court Rules, an order in the nature of mandamus that the fourth defendants and/or whosoever else is to forthwith deliver up to the registrar of titles its official copy of the property and any subsequent document including State Lease granted in consequence of the decisions the subject of this proceedings, and upon receipt of such documents, the Registrar of Titles shall forthwith and by no later than 14 days from receipt of the State’s Lease documents, cause such documents to be cancelled.
  2. Pursuant to Order 16 Rule 1(2) and/or s.155(4) of the Constitution, a declaration that the owners copy of State Lease over the property held by the plaintiff is the correct and lawful document evidencing plaintiff’s ownership as registered proprietor of the property and the Registrar of Titles is to forthwith take all required actions to ensure the records of Department of Lands are consistent with the owners copy of State Lease in plaintiff’s possession and reflective of the plaintiff’s status as registered proprietor.
  3. Costs of the proceedings be paid by the defendants.
  4. Such further orders the Court deems appropriate.
  5. Time for entry of Orders be abridged to date of settlement by the Registrar which shall take place forthwith.

(Emphasis added)


THE APPEALED DECISION


57. The primary judge accepted the fourth, fifth, sixth, seventh and eighth respondents’ submissions that the JR Motion included decisions for review for which leave had not been granted. His Honour therefore dismissed the proceedings as incompetent and an abuse of process, reasoning that:


  1. Because amending will introduce new grounds and this court has shown reluctance to accept in Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977 (22 March 2010) the reasoning is quite simple, “There are two things wrong with the proposed changes that now shift the blame for what originally happened; Firstly, the party blamed is not the party to this proceeding and it raises a separate action. The second point, which flows out from the first is that because it raises a separate matter, the plaintiff must go back and seek leave under Order 16 Rule 3 to apply for Judicial Review based on that ground. Leave earlier granted was based on different grounds that are now sought to be amended” The court dismissed the application to amend. This is the position in law and has seen out Lovika v Malpo [2019] PGSC 114; SC1895 (17 December 2019) objection was raised in similar inclusion of some grounds for which review was not granted, the application on competency was upheld because the decision to grant leave is not open ended and cannot be read as a licence to plead grounds of review at the pleasure of the applicant. It is specific and confined to the decision the subject of the leave granted no more no less.
  2. In view of all this, I am not satisfied on the balance required that the plaintiff has discharged that his pleadings are open ended because “Any subsequent decisions, including but not limited to the change of description of the property and the grant of subsequent interests over whole or any part of the property...”is not carrying forward the subject granted leave initially. Any subsequent decisions are looking into the future for which leave has not been granted.

(Emphasis added)


CONSIDERATION


58. The process of judicial review was well explained by Injia DCJ in Peter Makeng v. Timbers (PNG) Limited (2008) N3317. His Honour’s interpretation of the application of the relevant provisions under Order 16 of the National Court Rules was approved by the Supreme Court in Kalinoe v. Paul Paraka Lawyers (2014) SC1366. The process includes these steps:


(1) An Originating Summons is filed seeking only one relief, leave for judicial reviewof the subject decision which must be particularized -Rule 3(2)
(2) The Originating Summons is filed together with a Statement and an affidavit verifying the facts relied on – Rule 3(2)(a) and (b).
(3) If leave is granted:

59. In relation to the statement under Order 16 Rule 3(2)(a), Gavara-Nanu J observed in Innovest Limited v. Pruaitch (2014) N5949 that:


42. The Statement in Support is a vital part of a judicial review application wherein the matters required under Order 16 r 3 (2) (a) should be strictly and clearly pleaded. These include particulars of the applicant, including the position which the applicant held at the time of the decision, the nature of the decision to be reviewed, the particulars of the decision maker and the date of the decision. The relief sought and the grounds for review should also be clearly pleaded: Paul Asakusa v. Andrew Kumbakor (supra).


43. The nature of the particular relief sought should also be clearly pleaded, that is, whether it is an order in the nature of mandamus, prohibition, certiorari or declaration.

(Emphasis added)


60. As to the notice of motion, his Honour stated at [45] that it:


... should plead the decision to be reviewed and the jurisdictional basis of the Court to hear the application. The motion should also plead the relief sought as in an ordinary notice of motion. But the relief sought should include or cover all the relief sought in the Statement in Support.

(Emphasis added)


61. I adopt and follow the cited principles and propositions.


62. The respondents maintained the same arguments in this appeal as they did in the court below, that is, paragraph 7 of the JR Motion pleaded additional decisions for review. This Court was accordingly urged to find that the primary judge did not err as asserted.


63. It is obvious from reading the JR Motion that:


64. The relief claimed in paragraph 7 was for an order in the nature of certiorari for the Decisions and any of the described subsequent decisions to be brought up and quashed. It is clearly a pleading for relief. So too are paragraphs 8 and 9 which respectively sought an order in the nature of mandamus and a declaratory order.


65. It is understandable why the appellant asked for the relief under paragraph 7. It undoubtedly viewed that if the grounds for review of the Decisions were duly established and upheld, any subsequent decision concerning the title or any other interest in the Property are consequently vitiated.


66. I respectfully consider it a misconceived submission to argue that by paragraph 7, the appellant expanded or added further decisions to be reviewed. The appellants did not ask for a review of the subsequent decisions. Paragraph 7 pleaded relief.


67. The cases of Morobe Provincial Government v. Tropical Charters Ltd (2010) N3977 and Lovika v. Malpo (2019) SC1895 were wrongly applied. In Morobe Provincial Government v. Tropical Charters Ltd, the applicant sought to add a new party and have that party’s decision reviewed, when leave was granted to review the decision of another party. Lovika v. Malpo concerned a review under s.155(2)(b) of the Constitution. After the grant of leave to apply for review, the applicants added further grounds for review in their application. In the present case, the appellant sought relief in its notice of motion that has been misinterpreted and misunderstood to be further decisions for review. This relief was also pleaded in the Statement under Order 16 Rule 3(2)(a).


68. In my view, the controversial paragraph 7 of the JR Motion is consistent with paragraph 24 of the Statement under Order 16 Rule 3(2)(a) which was filed when leave to apply for review was sought. Paragraph 24 is found under the sub-heading “The Substantive Relief sought after grant of leave to be sought by Notice of Motion)” and states:


Pursuant to Order 16 Rule 1 of the National Court Rules, an order in the nature of Certiorari that the first decision, second decision, third decision and any subsequent decisions, including but not limited to the change of description of the property and the granting of subsequent interests over the whole or any part of the property comprising (sic) State Lease to any person(s) be brought up to this Honourable Court and quashed.

(Emphasis added)


69. The variance between the two pleadings is that in paragraph 7 of the JR Motion the new State Leases that were subsequently granted are listed. Otherwise, the essence of the relief sought remains the same in the two pleadings.


70. It is also my opinion that the relief sought in respect of the “subsequent decisions” would still have been open for the Court to consider pursuant to the pleading “Such further orders the Court deems appropriate” in paragraph 11 of the JR Motion, and in the exercise of its inherent powers to do justice pursuant to Section 155(4) of the Constitution.I add however that pleading a relief does not mean that it will necessarily be granted if a review is successful. Under Order 16 Rule 4(1) a pleaded relief, including an order for certiorari, may be refused if the Court considers that because of undue delay in making the review application, the grant of the relief would be likely to cause substantial hardship, substantially prejudice the rights of any person, or be detrimental to good administration.


71. The primary judge dismissed the proceedings in the exercise of his discretion after hearing the motions for dismissal. As to the approach to be taken by this Court in deciding the appeal, it is settled law that the appellate Court will not interfere in a discretionary judgment of the National Court, unless it is shown that the discretion was exercised upon a wrong principle, or that extraneous or irrelevant matters were allowed to guide or affect the judgement, or that the facts were mistaken or that some relevant consideration were not taken into account, or that the decision is unreasonable or plainly unjust: Government of Papua New Guinea v. Barker [1977] PNGLR 386; Lewis v. The State [1980] PNGLR 219; Bean v. Bean [1980] PNGLR 307.


72. The exercise of discretion by the primary judge was clearly wrong. With respect, his Honour committed an identifiable error in finding that the pleading for relief in paragraph 7 of the JR Motion is a pleading for review of decisions further to the decisions for which leave to apply for review was granted.


CONCLUSION


73. For the foregoing reasons, I too consider it appropriate under Section 16 of the Supreme Court Act to allow the appeal, quash the primary judge’s decision, and have the case reinstated and remitted to the National Court for hearing before another judge. Costs should follow the event and against the respondents who appeared and argued against this appeal.


74. ANIS J: This is the substantive hearing of a judicial review notice of motion (appeal) filed under Order 10, Rule 1 of the Supreme Court Rules (SCR). We heard the appeal on 30 September 2021 and reserved our ruling thereafter.


BACKGROUND

75. The appealed decision is from an interlocutory but substantive ruling of a judicial review Court (Court below/Court) made on 6 November 2020 in proceeding OS(JR) 456 of 2019 (JR proceeding). By the said decision, the Court below summarily dismissed the JR proceeding. The JR proceeding was filed under the provisions of Order 16 of the National Court Rules (NCR). Leave to apply for judicial review was granted by the Court on 12 August 2019, and the substantive Judicial Review Application (JRA) was pending hearing at the time when it was summarily dismissed, that is, based on 2 notices of motion filed by the 4th, 5th, 6th and 7th respondents and the 8th respondent [pages 1238 and 1246 of the Appeal Book (AB)].

76. Both motions had invoked the Court’s jurisdiction under Order 16, Rule 13(13)(2) of the NCR. The said rule reads in part, An application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency ground. The 4th, 5th, 6th, and 7th respondents’ main relief sought were and I quote:


  1. Pursuant to Order 16 Rule 13(2) of the National Court Rules, this proceeding be dismissed for it being incompetent on the grounds that –

(b) The piece of land described in the leave application as “Allotment 3 Section 35 Boroko, NCD” does not exist; and


(c) The plaintiff had never held any proprietary rights to the land it described as “Allotment 3 Section 35, Boroko, NCD” on the basis that National Housing Estate Limited never acquired a valid proprietary interest in the said piece of land to be able to transfer that interest to the plaintiff.


77. The 8th respondent’s notice of motion had sought this main relief:


  1. Pursuant to Order 16 Rule 13(13)(2)(a) and (b) of the National Court Rules and this Honourable Court’s inherent jurisdiction to control proceedings before it, the proceedings herein be dismissed for abuse of process and for incompetence.

78. The National Court Judge (motion Judge) granted the 2 motions and dismissed the JR proceeding on 6 November 2020. The appeal stems from that decision.

JR CHALLENGE

79. The background of the dismissed JR proceeding is contained in the appellant’s Statement Pursuant to Order 16, Rule 3(2)(a) filed on 8 July 2019 (Statement) [pages 25 and 26 of the AB]. I restate the pleaded background herein, in part,


  1. Plaintiff is the registered proprietor of property formally described as Allotment 3, Section 35, Boroko, National Capital District being all that land contained in State Lease Volume 45 Folio 224 (the property).
  2. The property consisted of dilapidated government hostel and shanty structures occupied by various individuals.
  3. The plaintiff first gave notice to occupants of the property on 2 June 2017 to vacate the property within 21 days. The occupants failed to vacate and this has given rise to various court proceedings in both the District Court Port Moresby and National Court Waigani.
  4. By letter of 10 August 2018, the first defendant summonsed plaintiff to deliver its copy of State Lease for cancellation for the reason that there existed a prior State Lease over the same property registered to the fourth defendant.
    1. By letter of 27 August 2018, the plaintiff’s lawyers responded to the letter disputing the claim and further advising that Mr Samson himself had cancelled the fourth defendant’s State Lease on 25 February 2016. The plaintiff further proposed a meeting to discuss and clarify the issues.
    2. No response was received to plaintiff’s letter of 27 August 2018.
  5. On 14 May 2019, Magistrate Mekeo Gauli in proceeding DC 499 of 2018 – JV PNG Investment Constructions Limited v Akelty Charlie & Ors granted the plaintiff orders for eviction and further issued a Warrant to the police to enter the property and give vacant possession of it to the plaintiff.
  6. On 27 May 2019, the Police Dog Unit-NCD attended to the property and gave effect to the Warrant of 14 May 2019.
  7. All illegal occupants residing on the property were removed and all structures demolished on 27 May 2019.
  8. By amended Notice of Motion filed 30 May 2019 in DC No. 499 of 2018 Sanamo Construction Limited applied to join the District Court proceedings. The supporting Affidavit of Joseph Kobol annexed an Owner’s Copy of plaintiff’s State Lease which appeared to show the transfer of property to the plaintiff had been cancelled, an official copy of the State Lease issued and the subsequent transfer to an entity shown as “POLRAVEN NO. 48 LIMITED as to one half share and SANAMO CONSTRUCTION LIMITED as to one half share both trading as Hotel Pacific Inn Limited”.
  9. In his affidavit, Mr Kobol also claims that the State Lease has since been surrendered and subdivided into five further individual allotments and annexed copies of 2 of the 5 purported State Leases.
  10. This was the first-time plaintiff had come to know of the purported cancellation of plaintiff’s State Lease and the subsequent decisions.
  11. At no time did the plaintiff:
    1. deliver its Owner’s Copy of State Lease up to the Registrar of Titles to be cancelled;
    2. see the notice published in any one of the daily newspapers of the first defendant’s intention to issue Official Copy of the State Lease.

GROUNDS OF APPEAL
80. The appellant pleads a total of 17 grounds of appeal [pages 5 to 14 in the AB]. They are lengthy and relate to alleged errors committed by the motion Judge in the exercise of his judicial discretion. The appellant summarized them in its submission as follows:


  1. The trial judge erred in failing to consider at all appellant’s submissions made in the power Court.
  2. the trial judge erred in failing to consider the dismissal applications separately.
  3. the trial judge erred in dismissing the entire proceedings in the lower Court based on a challenge to a relief sought at para 7 of the Notice of Motion for Judicial Review filed 15 August 2019 (purported expansion of the relief) and not the Statement Pursuant to Order 16 Rule 3(2)(a) of the National Court Rules filed 8 July 2019.
  4. the trial Judge erred by considered the issues of amendment to para 7 of the reliefs sought in the Notice of Motion for Judicial Review when no application for amendment was before the lower Court.
  5. the trial Judge erred by misinterpreting and applying the case laws of Morobe Provincial Government v. Tropical Charters Ltd (2010) N3977 and Lovika v. Malpo (2019) SC1895.
  6. the trial Judge erred in finding that leave was not granted for subsequent decisions.
  7. the trial Judge erred in finding that the appellant placed before the lower Court matters not before the lower Court.
  8. the trial Judge erred in considering the issue of competency which was not properly before the lower Court.
  9. the trial Judge erred by failing to provide his reasons for his ruling in dismissing the entire proceedings for being incompetent and an abuse of Court process.
  10. the trial Judge erred by not properly exercise its (sic) discretion in dismissing the proceedings in the lower Court.

ISSUE

81. The main issue is whether the motion Judge committed identifiable error(s) in the exercise of his discretion to an extent that this Court should intervene and, in so doing, uphold the appeal and reinstate the JR proceeding.


LAW


82. This is a substantive appeal hearing thus constitutes a rehearing. We have this power under s. 6 of the Supreme Court Act Chapter No. 37 (SC Act) which states:

6. Appeal to be by way of rehearing.


(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court—


(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and

(b) to draw inferences of fact.


(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.


83. I also note that this Court is the final Court of appeal, and its hierarchy in the National Judicial System and its powers, are prescribed under s. 155(1), (2) & (4) of the Constitution, which states:


(1) The National Judicial System consists of—

(a) the Supreme Court; and

(b) the National Court; and

(c) such other courts as are established under Section 172 (establishment of other courts).

(2) The Supreme Court—

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

......

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case


84. It is also settled law in this jurisdiction that the Supreme Court, in a case such as this, will not interfere with a decision of a National Court judge unless there is or are clear identifiable error(s) committed by a judge in the exercise of his or her judicial discretion.


85. Kapi J, as he then was, in Bean vs. Bean [1980] PNGLR 307, stated:


On matters of judicial discretion the High Court of Australia in House v. The King[dxxi]20 said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.


These principles have been recently approved in the case of Gronow v. Gronow[dxxii]21. The recent decision of the High Court of Australia is also referred to in the judgment of Mr. Justice Miles in Brian John Lewis v. The Independent State of Papua New Guinea[dxxiii]22. All these principles have been adopted in numerous cases in this jurisdiction after Independence and they can be properly regarded as part of the underlying law of Papua New Guinea.

86. And recently in Danley Tindiwi v. The State (2015) SC1416, this Court stated at para. 11:


11. It is now settled law that, an appellate court will be slow to overturn a decision of a lower court that was a result of that court’s exercise of its discretionary power unless an identifiable error, such as:

(i) acting on wrong principles or

(ii) giving weight to extraneous or irrelevant matter or

(iii) failed to give or take into account relevant considerations or

(iv) making mistakes with facts.


UNDERLYING ARGUMENTS


87. The 4th, 5th, 6th and 7th respondents argued before the Court below that the JR proceeding was incompetent because, (i), the appellant did not obtain leave to vary or amend relief 7 of the JRA, (ii), State Lease, Allotment 3 Section 35, Boroko, NCD (Allotment 3 Section 35/the property) did not exist at the material time, and (iii), the appellant never held any proprietary rights or interest in Allotment 3 Section 35 because the previous owner National Housing Estate Ltd never acquired a valid proprietary interest over Allotment 3 Section 35 where it could have passed on to the appellant.


88. The 8th respondent raised 2 grounds in its notice of motion in the Court below. It submitted that the JR proceeding was (i), an abuse of process and (ii), incompetent. In regard to the former, it submitted that leave had been granted to the appellant to review the decisions of the 1st respondent made on 24 September 2018 and 2 October 2018, yet and by its decision to vary, amend, or include additional pleadings to relief 7 in the JRA, the appellant was effectively asking the Court to consider other decisions that had been made by the 1st respondent where leave had not been sought and granted for judicial review. That, therefore, it submitted, amounted to abuse of court process. In regard to the latter ground, incompetence, the 8th respondent submitted to the Court below that the JRA contained matters or relief that were not pleaded in the Statement. It submitted further that leave had not obtained by the appellant before it made the purported variation or amendments to relief 7 in the JRA. As such, it submitted before the Court below that the JRA was incompetent.
89. I also note 2 other submissions made by the respondents before the Court below. Firstly, the respondents questioned the merit of the JR proceeding and made submissions on whether there was an arguable case in the first place. They submitted that Allotment 3 Section 35 did not exist at the time when the leave Court granted leave to the appellant to apply for judicial review. Secondly, they also impliedly questioned the interest of the appellant. They claimed the appellant could not have held sufficient interest over the property because the former owner, National Housing Estate Limited, did not exist then where it could have acquired Allotment 3 Section 35 in the first place to pass on a valid title to the appellant.


REASONS FOR DECISION


90. The motion Judge’s findings and conclusions (line 40, page 1335 and lines 10 to 20, page 1336 of the AB) are quoted as follows:


  1. In view of this, I am not satisfied on the balance required that the plaintiff has discharged that his pleadings are open ended because, “Any subsequent decisions including but not limited to the change of description of the property and the grant of subsequent interests over whole or any part of the property is and the grant of subsequent interests over whole or any part of the property is not carrying forward the subject granted leave initially. Any subsequent decisions are looking into the future for which leave has not been granted. Such will be heard de novo and including but not limited to the change of the description of the properties again looking into the future, because whether or not there will be a change to the description of the property is a matter into the future unknown not before the court. The decision is not before the court granting leave and cannot be the subject of the proceedings until so granted.
  2. In my view, what is underlying and fundamental is that the plaintiff was granted leave to review all decisions which are specifically in his originating summons and should be forwarded in his judicial review notice of motion but is not inclusive of any change in the description of the property. In the way pleaded, the plaintiff has placed before the court matters which are not before the court because it is now clear that allotment 3, section 35, Boroko, does not exist because the title has been cancelled and it has been subdivided. Affidavit sworn by Joseph Kobol of 18 September 2019 brings this out particularly annexures T and U.
  3. In the totality, I am not satisfied that the action as it is presented in its form is within the law set out above. He has not swayed by the material he has placed to counter otherwise that what has been sought by the defendants is not the case. In law and with all the materials set out above, motion of the defendants sustains the balance over and above the plaintiff.

CONSIDERATION

91. I have considered the submissions of the parties.

92. I will begin by making these observations. The underlying fact, which was not disputed which triggered the main argument by the respondents before the Court below, concerned relief 7, that is, when the appellant decided to purportedly ‘vary’, ‘amend’ or ‘expound’ on paragraph 24 of the Statement in its pleadings at paragraph 7 in the JRA. The respondents alleged before the Court below that relief 24 in the Statement was not pleaded exactly or as it should have been, at paragraph 7 of the JRA when the latter was filed on 15 August 2019 [para. 24 and para. 7 are contained above line 40 at page 27, and line 10 at page 208 of the AB]. For clarity, I re-state the 2 paragraphs herein beginning with paragraph 24 of the Statement:

24. Pursuant to Order 16 Rule 1 of the National Court Rules, an order in the nature of Certiorari that the first decisions, second decision, third decision and any subsequent decisions, including but not limited to the change of description of the property and the granting of subsequent interest over the whole of any part of the property comprising State Lease to any person(s) be brought up to this Honourable Court and quashed”.

......


7. Pursuant to Order 16 Rule 1(1) of the National Court Rules, an order in the nature of Certiorari that the first defendant’s decisions of 24 September 2018 and 2 October 2018 and any subsequent decisions, including but not limited to the change of description of the property and the grant of subsequent interest over the whole or any part of the property comprising State Lease, including but not limited to the following described properties to any persons be brought up to this Honourable Court and quashed:

(a) Allotment 52 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 08;

(b) Allotment 53 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 09;

(c) Allotment 54 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 10;

(d) Allotment 55 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 11;

(e) Allotment 56 Section 35 Boroko NCD contained in State Lease Volume 92 Folio 12;

(f) Allotment 57 Section 35 Boroko NCD contained in State Lease Volume 91 Folio 239; and

(g) Allotment 58 Section 35 Boroko NCD contained in State Lease Volume 91 Folio 240”.

[Underlining is mine]

93. The underlined parts in paragraph 7 of the JRA contained the purported variations which were not part of the original pleadings in paragraph 24 of the Statement.

94. The appellant did not deny these before the Court below and gave its reasons. I have considered the submissions that had and have been made by the parties to the Court below and in this appeal. The respondents’ main argument was that the additional inclusions to paragraph 7 of the JRA meant that additional purported decisions of the 1st respondent were also added in for review, something which the leave Court did not grant.

95. I find this argument, with respect, to be irrelevant, misconceived, and premature. I say this for this simple reason. The concerned pleading at paragraph 7 of the JRA was a relief which the appellant had intended to seek if it was successful. A substantive hearing in a judicial review, as it is now settled, involves 2 phases or steps. The first is that an applicant would be required to establish his or her ground(s) of review. When the Court is satisfied that the applicant has succeeded, the next step or process is for the Court to consider and determine what appropriate relief, if at all, it should grant to the applicant. See cases: Mision Asiki v. Manasupe Zurenouc (2005) SC 797, State v. Toka Enterprises Limited (2018) SC1746, and Dale Christopher Smith v Minister for Lands (2009) SC973). So, the purported variation or amendments, however it may be perceived, made to relief 7, did not change the fact that the appellant was only going to review the decisions of the 1st respondent of 24 September 2018 and 2 October 2018 in the JRA. The status quo, based upon which leave was granted on 12 August 2019, did not change but remained intact. This fact and the fact that relief 7 was a relief, in my view, were misconstrued by the respondents which in turn was erroneously accepted or regarded by the motion Judge. As such, all of the respondents’ submissions that the purported variations or amendment made to relief 7 had somehow affected the substantive proceeding or the purpose of why leave had been granted, were and are misconceived and baseless.

96. The pleadings were clear which were that if the judicial review Court was to uphold the grounds of judicial review, the appellant’s consequential relief was to, amongst others, request the judicial review Court to cancel subsequent titles that were issued over the land which was originally known as Allotment 3 Section 35. In other words, if the appellant’s title over Allotment 3 Section 35 is to be restored by the judicial review Court, any titles issued over the same land or part of it may have to be cancelled. Such a relief is permitted as shown in the case law over the years. (see cases: Keimbun Keindip v. The Independent State of Papua New Guinea [1993] PNGLR 28, Decision 2000 Ltd v. Luther Sipison (2017) N6778), Ramu Nickel Ltd v. The Honourable Dr Puka Temu (2007) N3252. That was how the pleadings in the JR proceeding were premised. And that should have been a matter for the review Court to decide and make a final determination on.

97. It is arguable whether the purported variation or amendments that had been made to relief 7 were actually new pleaded relief or whether they simply consisted of an expanded or particularized version to the original relief as pleaded under paragraph 24 in the Statement. But that, in my view, was a matter that should have been left to the substantive judicial review Court to determine. The respondents would be at liberty to raise that as a preliminary matter at such a hearing [see case: Raphael Huafolo v. Rex Tadabe and Ors (2021) N8956]. It was prematurely raised by the respondents and considered by the motion Judge. Secondly, the competency of just one of the relief as pleaded under paragraph 24 of the Statement or under relief 7 in the JRA, in my view, is and cannot be a reason at all or basis to dismiss the entire JR proceeding. Further, the appellant had sought 9 other relief in the JRA. If at all, the issue could have been dealt with as a preliminary matter at the actual hearing of the JRA as stated above. Thirdly, the purported variation or amendments made to relief 7 in the JRA do not give rise to questions of jurisdiction nor do they form any fundamental basis for the Court below to, upon being satisfied, dismiss the entire JR proceeding. The grounds of review, based upon which leave was granted, were intact and contained in the Statement. The Statement was not challenged in any substantive manner by the respondents. The Statement had or would have also been subjected to the leave Court’s consideration before the grant of leave to apply for judicial review. A Statement that is filed under Order 16 Rule (3)(2)(a) of the NCR is the source or the founding pleading for a judicial review application. At the commencement of a judicial review proceeding (leave stage), an Order 16 Rule (3)(2)(a) Statement is a mandatory pre-requisite document that must be filed with other supporting court documents together with an originating summons (see case: ENB Provincial Government v. Public Service Commission Chairman (2018) N6706). The Order 16 Rule (3)(2)(a) Statement shall plead or contain the necessary information that would assist a judicial review leave Court ascertain whether leave should be granted for judicial review. If leave to apply for judicial review is granted, an Order 16 Rule (3)(2)(a) Statement shall continue to remain valid as the foundation or source document for a substantive notice of motion for judicial review that is filed under Order 16 Rule 5(1) of the NCR. An Order 16 Rule (3)(2)(a) Statement in a judicial review proceeding may be likened to a statement of claim that is filed under Order 4 Rule 16 and 19 of the NCR. [See cases: Lawrence Sausau v. Joseph Kumgal (2006) N3253, ENB Provincial Government v. Public Service Commission Chairman (supra)].
98. For these reasons, the motion Judge, in my view, committed identifiable errors when he summarily dismissed the JR proceeding. The purported variation and amendments made to relief 7 of the JRA were not crucial to the pleadings in the JR proceeding. The motion Judge committed identifiable errors when he discarded the fact that the actual pleadings in the Statement had remained intact and unaffected by the purported variation or amendments that may have been made to relief 7 of the JRA. The motion Judge committed identifiable errors when he also discarded the fact that the purported variation or amendments made to relief 7 did not or never at any time, changed the scope of challenge by the appellant which was always to review the 2 decisions of the 1st respondent made on 25 September 2018 and 2 October 2018 respectively over Allotment 3 Section 35. The motion Judge also committed identifiable errors when he pre-maturely dealt with the purported variation or amendments made to relief 7 without leaving them for the judicial review Court to determine at the substantive hearing.


OTHER ARGUMENTS


99. I note the submissions of the parties in the lower Court concerning whether there was an arguable case to answer or whether the decisions sought to be reviewed were ambiguous or ‘not restrictive’. I note that this was not pleaded as a ground for argument in the 2 notices of motion before the trial Court by the respondents. However, they were raised in between the grounds abuse of process and incompetence by the respondents.

100. The arguments concerned part of the pleading in paragraph 24 and relief 7 of the Statement and the JRA respectively. The relevant pleading under relief 24 reads Pursuant to Order 16 Rule 1 of the National Court Rules, an order in the nature of Certiorari that the first decisions, second decision, third decision and any subsequent decisions, including but not limited to the change of description of the property and the granting of subsequent interest...[Underlining is mine].

101. The argument by the respondents, in my view, was ‘not directly relevant’ and should not have been considered as a relevant factor by the trial Judge. The leave Court had by that time established that there was merit or arguable case in the JR proceeding and, based upon which and amongst other reasons, granted leave to the appellant to apply for judicial review. The only party who had a right of reply or could have contested the application for leave to apply for judicial review was the State. This requirement is provided for under statute, that is, s. 8 of the Claims By and Against the State Act 1996, which states that Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard.

102. If the State or interested parties like the respondents had issues with the exercise of discretion by the leave Court, and one of their grievance concerned whether there was an arguable or meritorious claim contrary to the findings of the leave Court, the process that was available after the grant of leave was to appeal to the Supreme Court, that is, apart from their rights to raise them at the hearing proper of the JRA. See cases: Kitogara Holdings Ltd v. NCDIC [1988-89] PNGLR 346, Gregory Todiai v. Walter Schnaubelt (2017) SC1637. The leave Court’s decision was not challenged, and the way forward therefore should have been to address these issues at the hearing of the JRA. It should not have been addressed through an interlocutory process as was done by the respondents in the Court below. And on the same token, it should not have been regarded or considered by the motion Judge.

103. I therefore find that the motion Judge committed an identifiable error when His Honour addressed these matters instead of dismissing them and leaving them for the trial Court to consider and determine at the judicial review hearing.
104. But not only that, His Honour, with respect, went one step further when he stated (in line 10, page 1336 of the AB):


In the way pleaded, the plaintiff has placed before the court matters which are not before the court because it is now clear that allotment 3, section 35, Boroko, does not exist because the title has been cancelled and it has been subdivided. Affidavit sworn by Joseph Kobol of 18 September 2019 brings this out particularly annexures T and U. [Bold lettering mine]

105. The said finding by the motion Judge was substantive and determinative of the judicial review, something which could only be done in a trial proper. The appellant had alleged in the originating summons filed in the leave application (which had been determined), in the Statement, and in the JRA, that it still held a valid title over Allotment 3 Section 35 which had not been recalled or cancelled by the 1st respondent. And as such, the appellant was seeking judicial review to sustain or confirm its said title over Allotment 3 Section 35. And leave had been granted for the hearing in relation to the claim by the appellant. The substantive issue was a matter for the trial Court to determine. It was not open to the motion Judge, sitting in an interlocutory hearing, to resolve or make a substantive finding over the matter.

106. In my view, this was another significant identifiable error committed by the motion Judge in the exercise of his discretion to dismiss the JR proceeding.

107. I also refer to relief 2 and 3 in the notice of motion by the 4th, 5th, 6th, and 7th respondents. It sought orders,


(b) The piece of land described in the leave application as “Allotment 3 Section 35 Boroko, NCD” does not exist; and


(c) The plaintiff had never held any proprietary rights to the land it described as “Allotment 3 Section 35, Boroko, NCD” on the basis that National Housing Estate Limited never acquired a valid proprietary interest in the said piece of land to be able to transfer that interest to the plaintiff.

108. These grounds or relief, in my view, were substantive in nature. They questioned the merit and sufficient interest of the appellant, in the JR proceeding. However, the leave Court had granted leave for the judicial review Court to decide on these matters, that is, whether the appellant’s title to Allotment 3 Section 35 was validly cancelled, which may require the Court to also look at perhaps how the appellant had acquired its interest over Allotment 3 Section 35 in the first place. And the leave Court had also considered and determined the appellant’s interest in the matter. So, these were matters for trial. They should not have been raised and dealt with in an interlocutory manner like in this case by the respondents and the Court below.

109. The grounds were, in my view, inappropriately raised at an interlocutory hearing to frustrate, if not abuse, the judicial review process of the matter. And the motion Judge, with respect, erred and committed an identifiable error when he did not dismiss them but rather proceeded to hear and dismiss the JR proceeding.

110. A final argument by the 8th respondent which was made based on law was this. Counsel submitted that the judicial review challenge by the appellant should have been made against the most recent decisions of the 1st respondent in granting titles to the current registered proprietors of the land or blocks of land where previously used to be known as Allotment 3 Section 35. The decisions of the 1st respondent of 25 September 2018 and 2 October 2018, it submitted, were earlier decisions which were no longer relevant. As such, the respondents submitted to the Court below and before this Court that there was no utility in the JRA of the appellant that required a hearing. They raised incompetence and frivolity, amongst others, as the basis to say why the Court should dismiss the JR proceeding.

111. I find the argument substantive in nature. In my view, it was not something that should have been raised at an interlocutory hearing but rather reserved and argued in the JRA. The second reason is that it challenged or raised questions on whether there was an arguable cause when the issue had been determined by the leave Court. The way forward, as I have stated above, was to appeal the decision or otherwise argue that at the substantive hearing. I therefore find that the argument was not relevant for consideration at an interlocutory hearing or settings; that it was inappropriately raised before the motion Judge and as a result, His Honour considered that together with the other reasons before he exercised his discretion to dismiss the JR proceeding. As such, I find that in so doing, the motion Judge committed an identifiable error.

SUMMARY

112. I therefore find that the motion Judge, in exercise of his discretion, erred by acting on wrong principles, giving weight to extraneous or irrelevant matters, failed to give or take into account relevant considerations and that he committed various mistakes with facts.

113. For these reasons, I find that the motion Judge erred in the exercise of his judicial discretion when he summarily dismissed the JR proceeding. I will uphold the appeal and, in so doing, order the JR proceeding to be reinstated. I will make further orders for the matter to be referred before a new judge to deal with.

114. I will order cost to follow the event, that is, the 4th, 5th, 6th, 7th and 8th respondents shall pay the appellant’s cost of the appeal on a party/party basis which shall be taxed if not agreed.

ORDER

  1. The appeal is upheld.
  2. Judicial Review proceeding OS(JR) 456 of 2019 is reinstated and shall progress to hearing before a new judge.
  3. The 4th, 5th, 6th, 7th and 8th respondents shall pay the appellant’s cost of the appeal on a party/party basis which may be taxed if not agreed.

ORDER BY THE COURT
115. The final orders of the Court are:


1. The appeal is upheld.


  1. The decision of the National Court of 06th November 2020 in proceedings OS (JR) No 456 of 2019 is quashed.
  2. The judicial review proceedings OS (JR) No 456 of 2019 are reinstated and remitted to the National Court for trial on a date and time to be fixed before a judge other than the appealed judge.

  1. The fourth, fifth, sixth, seventh and eighth respondents shall pay the appellant’s costs of the appeal, to be taxed, if not agreed.
  2. Time for entry of these Orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

________________________________________________________________
Mel & Hennry Lawyers: Lawyers for Appellant
Diveni Lawyers: Lawyers for Fourth, Fifth, Sixth & Seventh Respondents
Bradshaw Lawyers: Lawyers for Eighth Respondent

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