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Unde v Samson [2016] PGNC 315; N6520 (8 November 2016)

N6520

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 108 OF 2015

BETWEEN


MARIA UNDE
Plaintiff


AND


BENJAMIN SAMSON in his capacity as the Registrar of Titles
First Defendant


AND
BENNY ALLEN in his capacity as the Minister for Lands & Physical Planning
Second Defendant


AND


CHAIRMAN OF THE LAND BOARD
Third Defendant


AND


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


AND
THOMAS MAXWELL NORRIS

Fifth Defendant


Waigani: Nablu, J
2016: 3rd November,
8th November


PRACTICE AND PROCEDURE – Judicial Review – Whether Court has jurisdiction to grant substantive relief to a party joined to the judicial review application – Order 16 Rules 3, 5(1) and 9(1) of the National Court Rules – Abuse of process – Application refused.


Cases cited:
Anderson Agiru v. The Electoral Commission (2002) SC 687
Innovest Limited v. Hon PatrickPruaitch(2014) N5949

Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Counsel:
R.Pokea, for the Plaintiff
J.Topo, for the Defendants
J.Simbala, for the Fifth Defendant


8th November, 2016


1. NABLU J: Thomas Norris, the fifth defendant was joined as a party to the proceedings on 8th September 2016. He filed a notice of motion filed on 18th October 2016 seeking directions from the Court in regard to certain consequential relief he seeks in the event the plaintiff’s application for judicial review is dismissed. The application was supported by the affidavit of Thomas Maxwell Norris filed on 18th October 2016.


2. The fifth defendant’s Notice of Motion seeks the following relief:

  1. Pursuant to Order 1 Rule 2 and Order 12 Rule 1 of the National Court Rules and Section 185 of the Constitution, to supplement the inadequacy of the National Court Rules under Order 16 as to the manner of dealing with the relief sought by the fifth defendant hereunder, appropriate directions be given to the effect that the application by Notice of Motion herein before the Court is sufficient for the intended purposes.
  2. Pursuant to Order 1 Rule 12 and Order 12 Rule 1 of the National Court Rules and Section 185 of the Constitution, the following directions be issued –
    1. Leave is granted to the fifth defendant to file and serve a Notice of Motion, which shall seek the following orders;
      1. A declaration that the State lease title issued to KoyapoUnde, dated 30th December 1992 in respect of property described as Section 341 Allotment 10, Hohola (Gerehu), National Capital District, was duly forfeited on the 18th July 2012, as per National Gazette No. G285, dated 2nd August 2012.
      2. A declaration that the subsequent transfer of titles from KoyapoUnde to the plaintiff by way of an entry No. S. 68102 on the 21st July 2014 in respect of the subject property, pursuant to the letter of administration dated 17th April 2013, is null and void and of no legal effect.
      3. A declaration that the State lease title (Volume 6 Folio 20), duly registered in favour of the fifth defendant in respect of the subject property on the 21st March 1983, is valid and effective for all intent and purposes.
      4. A declaration that the fifth defendant is the lawful registered proprietor of the property described as Section 341 Allotment 10, Hohola (Gerehu), National Capital District.
      5. An order in the nature of certiorari to bring into this Honourable Court and quash the title entry No. S. 68102 in the name of the plaintiff, dated 21st July 2014.
      6. An order in the nature of certiorari to bring into this Honourable Court and quash the Land Board recommendation, as per its Meeting No. 03 of 2013, by which the Land Board recommended that the State lease over the property described as Section 341 Allotment 10, Hohola (Gerehu), National Capital District be granted to Clark Piokole.
      7. An order in the nature of mandamus directing the first defendant or any person occupying the office of the Registrar of Titles to immediately rectify and update the records held at the Titles registry to reflect that the fifth defendant is the sole proprietor of the subject property.
      8. An order in the nature of mandamus directing the first defendant or any person occupying the office of the Registrar of Titles to forthwith restore or re-issue an original State lease title over the subject property to the fifth defendant, within 21 days from the date of these orders.
      9. Alternatively and in the exercise of the Court’s inherent power under Section 155(4) of the Constitution, declare that the purported forfeiture of the fifth defendant’s State lease title over property described as Section 341 Allotment 10, Hohola (Gerehu), National Capital District, was unlawful and void ab initio.
      10. And further in the exercise of the Court’s inherent power under Section 155(4) of the Constitution, order that the fifth defendant’s State lease title be restored to him with a new title deed forthwith, even though, he has not appealed against the said forfeiture under Section 142(1)(b) and (2) of the Land Act 1996.
    2. The fourth defendant shall pay the fifth defendant’s costs of this proceedings on a solicitor-client basis.
    1. Such further of other orders as the Court deems fit.

3. The background facts are that there is, an ongoing dispute as to the ownership of a property Section 341 Allotment 10, Hohola (Gerehu), National Capital District contained in State Lease Volume 6 Folio 20. The plaintiff was granted leave to challenge the decision of the first, second and third defendants to forfeit the State Lease and then grant the State Lease to another person. The plaintiff argued that her late husband Koyapo Unde was the registered proprietor since 1992. Following his death in 2013, she was bequeathed the property through letters of administration. The primary relief the plaintiff seeks is to quash the decision to forfeit the title on 18th July 2012, restore her late husbands’ title and accordingly transfer the title to her name as the beneficiary of the deceased estate.


4. In this affidavit, the fifth defendant stated that he was the registered proprietor of the property since 21st March 1983. He stated that he did not voluntarily surrender his State Lease. He stated that he was harassed and intimidated and as a result he vacated the property. He then permitted some people to live on his property. Sometimes in 1993, he brought his original title to the Department of Lands and Physical Planning in order for them to convert their records from a manual system to a computerised system. Since then, he has followed up and unsuccessfully tried to retrieve his title.Unbeknown to him, the Department of Lands had issued a new title to KoyapoUnde for the same piece of land.


5. Mr Simbala submitted that the fifth defendant is the registered proprietor and therefore, he also had an interest in the property. Counsel further submitted that if the Court dismissed the plaintiff’s application for review, the Court had the discretion to order consequential orders to the fifth defendant. The fifth defendant’s application is basically for the Court to issue directions in order to enable him to seek the consequential orders if the plaintiff’s application for judicial review is dismissed. Counsel argued further that the fifth defendant is also aggrieved by the decision of the Secretary for Lands to forfeit the land subject of review.


6. Mr Pokea of counsel for the plaintiff opposed the application and argued that this matter should be progressed to a hearing and the applicant had no basis to ask for such relief since it was not his application for judicial review. Ms Topo of counsel for the State also argued that the application was misconceived and therefore it should be dismissed for similar reasons as the plaintiff’s counsel had alluded to early.


7. I have considered parties oral submissions and read the written submissions of Counsel and now give my ruling.


8. At the outset, I reject the fifth defendant’s submissions, it is clearly misconceived and frivolous.


9. Firstly, this is an application for judicial review. The plaintiff was granted leave to seek judicial review. The fifth defendant is in a nutshell, asking this Court to exercise its discretion to grant consequential orders that have the effect of restoring the title to the fifth defendant in the event that the judicial review application is dismissed. This submission is mischievous and made without merit.


10. The law is clear, cases appropriate for an application for judicial review are applications where an order for mandamus, prohibition, certiorarior quo warranto shall be made by way of an application for judicial review in accordance with Order 16 of the National Court Rules. The Court has a wide discretion to grant declarations or injunctions claimed if it considers that it would be just and convenient to do so (Order 16 Rule 1(2) of the National Court Rules).


11. The Rules are clear, “an application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule” (Order 16 Rule 3(1) of the National Court Rules). An application for leave is made by originating summons ex parte to the Court and is supported by a Statement, which sets out the name and description of the applicant, the relief sought and the grounds on which the relief is sought and an affidavit verifying the facts (O.16 r.3(2)(a) & (b) of the National Court Rules). The applicant is obliged to given notice of the application for leave to the State. See the cases of Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122, Peter Makeng v. Timbers(PNG) Limited (2008) N3317 and Innovest Limited v. Hon Patrick Pruaitch(2014) N5949 for the procedure on applications for leave for judicial review.


12. Order 16 Rule 5(1) of the National Court Rules is also very clear. Its states that;

“Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.”(Emphasis mine)


13. In the present case, it is clear from the form of the pleadings that the relief sought are substantive in nature. I reject the fourth defendant’s submissions that they are consequential orders. The fifth defendant has sought orders in the nature of certiorari and mandamus, such applications are properly brought to the Court by way of an application for judicial review. They are not consequential orders. A judicial review application proceeds upon the grant of leave. An application for leave is made pursuant to Order 16 Rule 3(2) of the National Court Rules. In this case, leave was not granted to the fifth defendant to make an application for judicial review. Leave of the Court was only sought and granted to the fifth defendant to be joined as a party to the proceedings. The test the Court applied when determining whether to grant leave to be joined as a party was whether the applicant had an interest in the proceedings. In my view, the Court did not determine the issue of whether the applicant had sufficient interest pursuant to the test in Order 16 Rule 3(5) of the National Court Rules. Therefore, the fifth defendant’s argument that he had an interest akin to the ‘sufficient interest’ considered by the Court when leave is granted is a fallacy and without merit.


14. The fifth defendant through counsel argued that the Court should interpret the phrase “...shall be heard...” in Order 16 Rule 9(1) of the National Court Rules liberally. He argued that the right to be heard should include the right to seek and be granted consequential orders. I also reject that argument.


15. I concede that the Court has the discretion to grant the relief. However, such relief and or consequential orders are granted to the successful applicant for judicial review. In all the cases, which Counsel referred the Court to, the Court had granted the application for judicial review and then granted consequential orders. During my brief research on the case authorities, I was not able to find a case on point where the Court when dismissing an application for judicial review ordered additional consequential orders to the defendants other than costs.


16. The manner in which the fifth defendant seeks these orders can be viewed as an “abuse of the Courts’ process”. The Court has a duty to guard against abuse of its processes. In the Supreme Court case of Anderson Agiru v. The Electoral Commission (2002) SC 687, the basic principles that are applied when the Court is considering whether or not there has been an abuse of its processes is that;

  1. The courts inherent power is its authority to do all things that are necessary for the proper administration of justice;
  2. Such power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity;
  3. Essential to those inherent powers is the court’s duty to protect itself by ensuring that vexatious litigations do not abuse the Court’s process by instituting frivolous and vexatious suits.
  4. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in court purporting to enforce their rights.

17. In my view, the fifth defendant’s primary complaint appears to be that his title was re-issued to Koyapo Unde. This should be the basis of his application for leave for judicial review. But the purported administrative decision complained of was decided over 20 years ago. Which raises the pertinent question of why has the fifth defendant delayed in bringing his action and has opted to wait until now to raise these issues. The only explanation I find is that the inordinate delay is most probably the factor which is the reason behind him deciding to make this application. This prompted his lawyers to embark on this legal manoeuvring to get the Court to grant leave for him to seek those orders. I find such legal manoeuvring is clearly mischievous and undoubtedly an abuse of process.


18. For the foregoing reasons, and in the exercise of my discretion, I dismiss the fifth defendant’s notice of motion filed on 18th October 2016. The fifth defendant is to pay the plaintiff and the first, second, third & fourth defendant’s costs of this application to be agreed if not taxed. The Registrar is directed to list this matter for the next directions hearing date forthwith.


Pokea Lawyers: Lawyer for the Plaintiff
Office of the Solicitor General: Lawyer for the First, Second, Third and Fourth
Defendants
Harvey Nii Lawyers: Lawyer for the Fifth Defendant

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