Rawali v Kob [2023] PGSC 77; SC2423 (14 April 2023)

SC2423

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 68 OF 2021

BETWEEN:
JENNY RAWALI
Appellant

AND:
CEDRIC BASA KOB
Respondent

Waigani: Hartshorn J, Makail J, Anis J
2023: 29^th March & 14^th April

SUBSTANTIVE APPEAL – Appeal against exercise of judicial discretion by a judge of the National Court - interlocutory application – dismissal for want of prosecution

PRACTICE AND PROCEDURES – preliminaries - whether the grounds of appeal have merit – transcript of proceeding not provided – ambiguities in the grounds of appeal – want of evidence filed in the Court below to oppose application to dismiss – grounds of appeal vague, not substantiated

Cases Cited:

Kelo v Epere Ipu (2020) SC2003
Mudge and Mudge v. Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387
Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215

Counsel:

J Napu, for the Appellant
M Wenge, for the Respondent

14th April, 2023

1. BY THE COURT: The appellant appeals against the final decision of the

National Court made on 18 June 2021 in proceeding CIA No. 13 of 2019 (CIA No. 13/Court below), Jenny Rawali v. Cedric Basa Kob and National Housing Corporation. The National Court, sitting as an appellate Court in CIA No. 13, upon hearing an application to dismiss filed by the respondent, dismissed CIA No. 13 with costs for, amongst others, want of prosecution.

2. The appellant in CIA No. 13 was challenging a decision that was made by the Port Moresby District Court on 24 November 2020. The proceeding in the District Court was for summary ejectment. The District Court proceeding, DC No. 841 of 2017 (the District Court), was commenced by the respondent who, and we refer to the uncontested evidence that is before us, is the registered proprietor of a state lease described as Section 323, Allotment 15, Hohola, National Capital District (the Property/State Lease). The appellant had occupied the Property at the material time before she was evicted from it by the respondent following the summary ejectment orders from the District Court.
   
3. The appellant was aggrieved by the decision of the District Court thus filed the CIA appeal. The grounds of appeal against the decision of the District Court are stated at pp 36 of the Appeal Book (AB). In total, the appellant pleaded 9 grounds. The main ground or challenge was in regard to the State Lease or the title of the Property that was held by the respondent. The appellant alleged that the title to the Property was vested with the National Housing Commission, which is now known as the National Housing Corporation, and not with the appellant, thus, that the District Court Magistrate concerned erred in law when he issued orders to evict her from the Property.
   

GROUNDS OF APPEAL

4. In the present appeal, the grounds are located at pp 11 of the AB. The appellant states in total 4 grounds of appeal of mixed fact and law. We summarise them as follows:

(1) the Court erred in mixed fact and law by not taking into account the fact that it was the inaction or failure by the appellant’s former lawyers and not the appellant, that had caused the delays which led to the Court dismissing CIA No 13; that in so doing, His Honour misapprehended the relevant facts and law.

(2) the Court erred in mixed fact and law when His Honour affirmed the decision of the District Court and dismissed CIA No. 13 when CIA No. 13 was not determined after a proper trial thus it constitutes miscarriage of justice.

(3) The Court erred in mixed fact and law when it dismissed CIA No. 13 for want of prosecution when there was no case for want of prosecution made out by the respondent; that there was only about 6 months delay, and the evidence adduced showed activities in the Court file that the matter was progressing to trial when it was dismissed; that in so doing, His Honour misapprehended the relevant facts and law.

(4) The Court erred in mixed fact and law because His Honour failed to give sufficient weight and consideration to the court vacation period and the covid lock down period when he dismissed the proceeding for want of prosecution; that in so doing, His Honour misapprehended the relevant facts and law.

PRELIMINARY MATTERS

5. At the start of the hearing, several preliminary matters of facts came to our attention with others raised by the parties. Both counsel addressed them. As a result, and for this purpose, we have identified and hereby note the following undisputed facts:

• the appellant did not attach in the AB a certified copy of the transcript of the proceeding the subject of this appeal, that is, the hearing of 18 June 2021;
• the appellant did not file any evidence in the National Court to oppose the respondent’s application to dismiss CIA No. 13;
• there are no other pending claims commenced by the appellant that directly challenge the respondent’s title to the Property that are based on fraud;
• there is evidence of the owners copy of the State Lease or the title to the Property that is before us which was also before the National Court in CIA No. 13 and the District Court, that shows the respondent as the registered proprietor of the Property;
• the appellant was an occupant or tenant of the Property at the material time before she was evicted.
  

GROUNDS OF APPEAL – PRELIMINARY

6. In view of the preliminary factual matters identified above, we propose to begin by making observations and preliminary findings on each of the grounds of appeal.
   
7. We begin with ground 1. This ground, with respect, is frivolous and baseless for two reasons. The first reason is that the appellant did not file any affidavit evidence in CIA No. 13 to defend herself against the respondent’s application to dismiss. Without any opposing evidence of fact filed in the Court below, this ground is unsupported.
   
8. The second reason concerns the consequences that exist given the absence of the transcript of the hearing of 18 June 2021 (the Transcript). A certified copy of the Transcript is not included in the AB. Without it, we are unable to verify that the claim under this ground (i.e., that the delay in prosecuting CIA No. 13 was caused by the appellant’s lawyers and not the appellant) was raised by the appellant in opposing the respondent’s application to dismiss in the Court below. When we raised the matter (i.e., want of transcript) with counsel for the appellant, counsel said it was an oversight on his part but said the hearing was already halfway through, and with that, counsel continued with his submissions. He did not seek an adjournment or vacation of the appeal hearing to include the missing Transcript.
   
9. The appellant did compile the transcripts of some of the earlier direction hearings of CIA No. 13 into the AB but did not include the pertinent Transcript. The appellant had the primary obligation to ensure that material documents such as the Transcript were included into the AB. This Court in Kelo v Epere Ipu (2020) SC2003 stated:
   
   8. The appellants, it seems, failed on their part to ensure that the said part of the transcript is provided before this Court for consideration. It is their appeal. They had the duty to ensure that the relevant transcripts of proceedings are contained in the AB ready for hearing. Justice Cannings, sitting as a single Supreme Court Judge, in refusing a slip rule application in the case, Poko Kandapaki v. Enga Provincial Government (2015) SC1463, stated:
      

13. Faced with such a vague and illusory statement of how the Court is alleged to have slipped, I can only conclude that the slip rule application does not have a strong chance of success. Mr Goava offered no written submissions and his oral submissions were unable to lend any more detail. Another point I must mention is that the appellants have not provided the Court with a transcript of the proceedings of 29 October 2013. So how can they expect to prove even an arguable case that the Court slipped? (Underlining ours).

9. Similarly, and in the present case, the missing part of the transcript of proceeding, makes it difficult or not possible for us to consider (i), the evidence that were adduced, (ii) the submissions that were presented by the parties, (iii), and the Court’s considerations or rulings if any, all of which could have occurred during that time. Without the information, we find grounds 3.4 and 3.5 unattainable, and so we dismiss them. We should end this with the remark that non-full disclosure of transcript of proceedings or delays in their provision or compilations, are valid grounds that may be relied upon by a party to summarily dispose an appeal.
   
10. We also comment that we have difficulty accepting the argument that the appellant’s former lawyers would blame themselves as the cause for the delay and use that as a valid defence or reason against the application to dismiss. Reiterating ground 1 of the appeal, the appellant is alleging or implying that her former lawyers had asked the Court to blame them (i.e., the lawyers) instead of their client (i.e., the appellant) for the delay, and that since the Court had refused that reason which the appellant claims was a valid reason, the National Court erred. We also note that this argument was not reflected or captured in the decision of the Court below (see pp 81 of the AB). We are of the view therefore that this submission has no basis and that it is also irrational.
    
11. As there is no evidence to oppose the application to dismiss and without the Transcript, what we have before us is merely the wording of the ground of appeal.
    
12. We find ground 1 unsubstantiated, frivolous and baseless and we dismiss it.
    
13. We now refer to ground 2 of the appeal. The challenge therein refers to the jurisdiction of the Court below, that is, whether the Court may dismiss the proceeding based on want of merit without a proper trial. We also, and with respect, observe that this ground is frivolous and baseless. We say this because the trial Judge’s power to dismiss CIA No. 13 is discretionary. Further, the relief for dismissal sought included the ground of want of reasonable cause of action. It was within His Honour’s purview in the exercise his judicial discretion to grant or refuse this relief sought. The application to dismiss was made under Order 4 Rule 36(1) and Order 12 Rule 40(1)(a) & (b) of the National Court Rules (NCR). The application was interlocutory in nature, but the relief sought was substantive. His Honour had the power to dismiss CIA No. 13, and as a matter of procedure in dismissing CIA No. 13, His Honour also had the power to make consequential orders including affirming the decision of the District Court which he did.
    
14. The assertion by the appellant that His Honour should have first heard all the evidence before affirming or overturning the decision of the District Court is misconceived, frivolous and baseless. We make the same finding in regard to the suggestion or claim that the Court below may not have had jurisdiction to dismiss CIA No. 13 premised on want of reasonable cause of action without a proper trial.
    
15. In regard to ground 3, we observe that it directly contradicts ground 1. The appellant, on the one hand claims that it was her former lawyers who had caused the delay which led to or caused the Court to dismiss CIA No. 13, whereas under this ground, the appellant is claiming that there was no delay on her part; that the matter had progressed in good time without delay.
    
16. We find the ground contradictory and dismiss it for this reason.
    
17. Even if we are wrong with our first reasoning (which we say we are not), we would still dismiss this ground as the appellant did not tender any evidence to rebut the evidence of the respondent in the Court below. Given that, and where it is alleged by the appellant in ground 3 that the evidence showed activity in the Court file in CIA No. 13, that with respect, is not correct. Furthermore, and without the Transcript, we are unable to follow or verify the claims made in the submissions of the appellant in regard to this ground.
    
18. Finally, in regard to ground 4, we make this observation and finding. We have perused the decision of the trial Court that dismissed CIA No. 13, that is, at pp 81 to 85 in the AB. We observe that there was no mention by His Honour of any submissions made by the appellant on the impact of covid or the shutdown period as alleged in ground 4. We are unable to refer to the Transcript for verification. It may be that no such submissions were made by the appellant before the trial Court on 18 June 2021 and that this point is only raised in this appeal. This ground of appeal is therefore vague and not substantiated.
    
19. We dismiss ground 4 of the appeal.
    

SUMMARY

20. Based on the above, none of the grounds of appeal are valid and or may be sustained. We dismiss this appeal for the above stated reasons in our preliminary findings.
    
21. Even if we are wrong (which we say we are not), we would still uphold the findings of the Court below that there was no merit in the appeal. We come to this conclusion because there is evidence in the AB, which was also before the Court in CIA No. 13, which shows that the title to the Property remains vested with the respondent at all material times. That is, from prior to commencement of the District Court proceeding up to the date of hearing the present appeal before us. We note that we spent considerable amount of time hearing submissions of counsel for the appellant on this subject matter.
    
22. Counsel submits that the owner's copy of the State Lease that is adduced into evidence by the respondent does not show proof of ownership of the Property by the respondent. He submits that although the attached journal to the State Lease shows the State Lease as being entered in the name of the respondent, the said lease instrument or title to the Property still has the name National Housing Corporation shown in the first page of the lease instrument. Therefore, he submits, the National Housing Corporation was and is still the registered proprietor of the Property and not the respondent. Counsel submits that the only way that the respondent could claim ownership of the Property is to have a new state lease or instrument issued over the Property or land in question in the name of the respondent replacing National Housing Corporation.
    
23. We reject this submission and interpretation in regard to the State Lease or title to the Property. It is evident and must be clarified that the title to the Property is in fact a reference to the State Lease which is a lease instrument. Lease instruments are registered or issued under the Land Registration Act Chapter No. 191. Section 32 in particular states:
    

32. Description of certain persons as proprietor.

Where an instrument of title—

(a) describes a person as the proprietor of an estate or interest; or
(b) indicates, by any other form of words, that a named person is seised of, or entitled to, or has taken, an estate or interest,

that person is the registered proprietor of the estate or interest.

24. In the present matter, the State Lease is located at pp 51 of the AB. The State Lease was originally issued to the National Housing Corporation (earlier known as the National Housing Commission) which is why its name is evident in the front cover of the State Lease or the title to the Property. The lease was then transferred, which is expressly shown in its journal, to the respondent. It is misconceived to argue that every time a state lease is transferred to a new lessee, that a new state lease instrument has to be issued to reflect that change of ownership or transfer. The transfer of title in a property from one leaseholder to another leaseholder is captured or reflected in the journal or ledger in the lease instrument concerned and its registration is exclusively effected by the Registrar of Titles. This is then recorded and kept in the register (by the Registrar of Titles).
    
25. Based on the attached State Lease, the respondent is the present registered proprietor of the Property. He holds an indefeasible title over it. See cases: Mudge and Mudge v. Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387 and Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215.
    
26. The title or the State Lease may be set aside or cancelled through successful claims of fraud. An action for fraud may be commenced in the National Court and is an option available to the appellant to take up. In the present case, however, we note that there is no pending cause of action for fraud that is filed by the appellant that challenges the title of the Property. That said, evidence in the AB indicates an earlier but unsuccessful attempt by the appellant to challenge the State Lease, that is, by way of judicial review. The proceeding is described as OS(JR) No. 26 of 2018, Jenny Rawali v. Cedric Basa Kob, National Housing Corporation, Benjamin Sampson and the State. Leave to apply for judicial review was denied by Thompson J (at pp 66 of the AB) on 28 November 2019.
    

27. His Honour in CIA No. 13 was therefore entitled to make his observations based on the evidence and in particular, on the owners copy of the title that was before him. His Honour, with this evidence, and apart from his consideration and findings on want of prosecution, also found that there was no merit or a reasonable cause of action that would or could have seriously challenged the summary ejectment orders of the District Court.

COSTS

28. We order that costs shall follow the event.
    

ORDERS OF THE COURT

29. We make the following orders:
    
    1. The appeal is dismissed in its entirety.
       
    2. The appellant shall pay the respondent’s costs of the appeal on a party/party basis to be taxed if not agreed.
       

________________________________________________________________
Napu & Company Lawyers: Lawyers for the Appellant
Luther Lawyers: Lawyers for the First Respondent