SC2659

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 33 OF 2023

APPLICATION FOR LEAVE TO REVIEW PURSUANT
TO s. 155(2)(b) CONSTITUTION

BETWEEN:
FERGUSSON JACK NAIYEP
Applicant

AND:
RIARE LANYATA
First Respondent

AND:
TARCISSIUS MUGANAWA
Caretaker Managing Director, National Housing Corporation
Second Respondent

AND:
WARANGIO MOKAI
Provincial Manager, National Housing Corporation
Third Respondent

AND:
NATIONAL HOUSING CORPORATION
Fourth Respondent

AND:
JANE A. LANYATA
Fifth Respondent

Waigani: Hartshorn J,
2024: 15th August & 24th October
SUPREME COURT REVIEW – Practice and Procedure - Application for leave to Review Pursuant to s. 155(2)(b) Constitution

Cases Cited:
Avia Aihi v. The State (No. 2) [1982] PNGLR 44
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2015) SC1425 
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568
Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954

Counsel:
Mr. E. Nalea, for the Applicant
Mr. L. Tangua, for the First Respondent

24th October 2024

1. HARTSHORN J: This is a decision on an application for leave to review a decision of the National Court (Decision) pursuant to s. 155(2)(b) Constitution. 
2. The Decision was delivered on 18th August 2016. Leave is required as the right of appeal was not exercised in the time permitted by statute: Order 5(1) Supreme Court Rules and Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097; Benjamin Sengi v. The State (2015) SC1425 and Motor Vehicles Insurance Ltd v. Fura Opeta (2020) SC1954.
3. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (I refer to the cases cited above). These are:
a)	it is in the interests of justice to grant leave; and
b)	there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and
c)	there are clear legal grounds meriting a review of the decision.
4. In Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, Injia CJ (as he then was) said at [5]:

"The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC 1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered.  If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment.  It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment."

5. The Decision amongst others, entered judgment for Riare Lanyata, the first respondent and ordered specific performance, ordering the National Housing Corporation, the fourth respondent, to sell the subject property to the first respondent. The applicant submits that at the time of the Decision, he had purchased the subject property, held the state lease and had an indefeasible title to the subject property. Notwithstanding this, the applicant was not named a party to the National Court proceeding in which the Decision was delivered.
Consideration
6. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. The applicant deposes that he did not file an appeal within time as he was not named in the subject National Court proceeding and did not become aware of the Decision until he was served with an eviction order on 28th September 2022. This was over six years after the Decision was delivered.
7. It is the case that the applicant was not named a party in the subject National Court proceeding and there is no evidence rebutting that of the applicant that he was not made aware of the Decision until a number of years after the Decision was delivered. I am satisfied that a reasonable explanation has been given for not filing an appeal within time.
8. The next consideration is whether there has been a delay in filing the application for leave to review and if there is, has a reasonable explanation for this being given. The application for leave to review was filed on 8th December 2023. That is seven years, two months and ten days after the expiry of the 40 day period within which an appeal should have been filed. This is a significant period of delay, being over 65 times the 40 day statutory appeal period and requires a reasonable explanation for such delay to be given. The applicant submits that the Decision was served upon him on 28th September 2022. He had not been aware of the Decision until then he submits. 
9. From 28th September 2022 to the filing of the application for leave to review is over one year and two months. The applicant submits that he did not instruct lawyers to challenge the Decision until 26th October 2023 which is about 11 months after he states that he was served with the Decision. The applicant deposes that he initially consulted his son, a lawyer, about the problem. Presumably, the lawyer would have informed that an application for leave to review should be filed immediately. That it was not, is not explained. I am not satisfied that a reasonable explanation has been given for the delay.
10. I refer further to the evidence that the Acting Registrar of Titles wrote a letter of summons to the applicant to produce the owner's copy of the title to the subject property on 19th October 2020. That letter is addressed to the applicant at PO Box 917 Boroko NCD. That is the applicant's address given by him in his affidavit in support filed on 8th December 2023. The applicant deposes that he was totally unaware of this letter. That letter was issued pursuant to s. 160 (1) Land Registration Act and service is affected pursuant to s. 169 Land Registration Act to the postal address (of the applicant) last known to the Departmental Head. The address to which the letter was sent is the correct address for the applicant given his address in his affidavit.
11. On the basis that the said letter was sent to the applicant at his said address, the applicant would have been aware that there was an issue concerning his title to the subject property, from at least February 2021. That is about two years and ten months before the application for leave to review was filed for which there is no reasonable explanation given.
12. In addition, the evidence discloses that in December 2021 a statutory notice under s. 162 Land Registration Act disclosing an intention to issue a new title deed for the subject property was advertised in the National Gazette and the National and Post Courier newspapers by the Deputy Registrar of Titles. Consequently, the applicant would have been aware that there was an issue concerning the title to the subject property from at least about two years before the application for leave to review was filed for which no reasonable explanation has been given.
13. I am not satisfied for the above reasons, that a reasonable explanation has been given by the applicant for the delay in filing the application for leave to review.
14. Having found that although a reasonable explanation for not filing an appeal within time has been given, a reasonable explanation for the delay in filing the application for leave to review has not been given. In such circumstance, as occurred in Kalu's case (supra), this court may nevertheless consider whether there, "are exceptional circumstances showing a manifestation of substantial injustice that gives rise to serious issues of fact or law that warrants a full review of a judgment": Kalu's case (supra) at [5]; and further, whether it is in the interests of justice that a review of the Decision is warranted.
15. In considering the merits of the case sought to be argued by the applicant, from a quick perusal of the proposed grounds of the review, there appears to be merit in the argument that at the time of the National Court proceeding, the applicant was the person who had the title to the subject property. To my mind, this does not lead to the conclusion that there are exceptional circumstances showing a manifestation of substantial injustice, without more, particularly given the time that has passed and the time it took to file an application for leave to review. 
16. Further, to the extent that there may be any injustice and, in my view, this has not been demonstrated, the applicant may have a claim for professional negligence against the lawyers he formerly engaged to act on his behalf in this matter. 
17. Following a consideration of the documentation before the court and the submissions made, I am not satisfied in this instance that there are any exceptional circumstances, or the specific exceptional circumstances as described by Injia CJ (as he then was) in Kalu's case (supra). This is not a test case and no particular circumstances exist which require this court's determination on a new or novel point of law. 
18. I am also satisfied that it has not been shown to be and that it is not in the interests of justice that leave to review be granted. Consequently, for the above reasons, this application is dismissed.
Orders
19.  The Court orders that:
a)	This application for leave to review is dismissed;
b)	The applicant shall pay the costs of the first respondent of and incidental to this application for leave to review.
__________________________________________________________________
Paul Othas Lawyers: Lawyers for the Applicant                                        
Tangua Lawyers: Lawyers for the First Respondent