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Okire v Kokoha [2020] PGNC 501; N9831 (13 August 2020)

N9831

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 641 OF 2015

PHILIP OKIRE
Plaintiff

V
LINA KOKOHA
First Defendant

AND
JEFFERY OLI KOKOHA
Second Defendant

AND
BENJAMIN SAMSON REGISTRAR TITLES
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 03^rd & 13^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Notice of Motion – Statement pursuant to Order 16 Rule 3 (2) (a) NCR –Affidavit Verifying Facts – Affidavit in Support Plaintiff Applicant – Locus Standi – Arguable Case – Undue Delay – Inordinate & Inexcusable – Exhaustion of Internal Process – Leave Refused for Judicial Review – cost follow event.

Cases Cited:

Temai v Marape [2021] PGNC 83; N8825

Dekenai Construction Ltd v Tati Keke Resources Ltd [2019] PGSC 28; SC1800

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892

Counsel:
P. Rajiv, for Plaintiff
N. Yano, for State

RULING

13^th August, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons of the 07^th February 2021 pleading pursuant to Order 16 Rule 3 (1) of the National Court Rules, “the Rules” to apply for leave for judicial review. He seeks to review the decision of the third defendant dated the 06^th January 2015 to transfer, and or register title to the property described as allotment 49 Section 240, Hohola, NCD from the first defendant as sole tenant, and thereafter, on the same date, transfer and or register title to the property from the first defendant to the second defendant.
   
2. The following documents have been filed in support of the originating summons:
   
   • (a) Amended Originating summons dated the 07^th February 2021;
   • (b) Amended statement in support dated the 10^th February 2021;
   • (c) Affidavit verifying Statement sworn and filed of the 07^th September 2020;
   • (d) Affidavit in support of Philip Okire sworn of the 27^th August 2015 filed the 08^th August 2015;
   • (e) Affidavit of Philip Okire sworn and filed 07^th September 2020.
     
3. These evidence establish that the plaintiff was an employee of Post & Telecommunication (later Telecom). That in or around 1996 home ownership scheme was introduced there for staff within to purchase their own homes. And this was application to Telecom to fund a house and land on a State lease. The plaintiff entered into a contract of Sale on the 03^rd March 1995, with Oli Kokoha and Lina Kokoha as vendors and joint tenants to purchase their property Allotment 49 Section 240, Hohola. On the 25^th May 1995 the conveyance was settled between them a cheque of K 13, 252. 38 by Telecom was paid to them. And the remaining balance of K 9, 256.34 was to be paid later. It was concluded on that day and the purchaser the plaintiff took possession on that day. Two years later from that date Oli Kokoha died and Lina could not be found and the plaintiff still had the remaining sum to be settled to have title transferred to him.
   
4. On 06^th January 2015 the title to the property was registered and or transferred to the First and Second Defendant simultaneously by the Registrar of Titles without knowledge or consent of the Plaintiff. He conducted a file search on or about the 20^th July 2015, at the Lands Department. He found that the title was registered and or transferred by the registrar of titles to Lina Kokoha as sole tenant and thereafter on the same day was transferred to Jeffery Oli Kokoha.
   
5. These evidence must meet that the plaintiff has locus standi. He is affected by the actions of the defendants. Here it is clear he has paid over K13, 252. 38 by Telecom on his behalf to secure the subject property for him. Yet he is without the title because there is outstanding of K 9, 256.34 still to be paid owing to the First and Second defendants that he must settle before title is eventually handed over to him. As it is consideration has not sealed the conveyancing so that he is seen and not the defendants. So, in a way his standing is not as if he was indeed the title holder because the process to secure in law has not been completed no fault of the current registration on the title register depicting out the first and second defendants as holding in law.
   
6. So, for our purposes here this ground on locus standi is not discharged to the required balance:Temai v Marape [2021] PGNC 83; N8825 (20 May 2021).
   
7. He really has an uphill climb to settle delay in bringing this cause of action. This matter was between the parties, he entered into a contract of Sale on the 03^rd March 1995, with Oli Kokoha and Lina Kokoha as vendors and joint tenants to purchase their property Allotment 49 Section 240, Hohola. The law of contract is clear that it is a matter where privity overrides: Dekenai Construction Ltd v Tati Keke Resources Ltd [2019] PGSC 28; SC1800(3 May 2019). It is not a matter that is against the whole world it is between the plaintiff and the first and second defendants and not the other defendants. They are not a privy to the contract of Sale of the subject property. What is on the register is not affected by the contract entered into between them because consideration is yet to be completed before title will in law change hands by the registration in the register of titles. As it is that has not happened. It would be a different position in law if indeed consideration had exchanged hands and completed but there was no transfer recorded to move title from defendants to plaintiff. What flows here is that delay is not made out in favour of grant of leave.
   
8. And in itself is not an arguable basis for this proceedings to advance to the proper hearing to settle the issue. Because it does not fit into Judicial review, which is primarily about procedure: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) and here it has not been shown that procedure has been violated at the instigation of the first, second or the third defendant. From what is set out above, the third defendant does not come into the picture until the relationship between the plaintiff, first, and second defendants, are settled with the payment of the outstanding of K 9, 256.34 can it be the case that Plaintiff now has locus standi, he has an arguable basis to pursue for judicial review. As it is he is a busy body intent on coming between the first and second defendants that the third defendant has no say over. What has happened is by what it is on the record of the register. That is not an error in the procedure arguable prima facie: NTN Pty Ltd v The Board of the PTC, PTC and Media [1987] PNGLR 70, so that leave is in view for the plaintiff. As it is he does not show arguable basis to advance that leave be accorded his plea for judicial review. This ground has no merit and does not advance that leave be accorded to the plaintiff for judicial review.
   
9. There is no internal process and procedures that have been exhausted. Because the contract is between the plaintiff, first and Second defendants, not the third defendant he would not be there because of the reasons set out above. This ground is not in favour of the plaintiff. It fails if viewed with all set out above. There is no internal process to see out a contract at law between the plaintiff and the first second defendants. Judicial review is about public body’s administrative decisions and not private and personal matters which are based on contract. Which is the case here for the plaintiff against the first and second defendants. He has not paid in full in the contract to sell that subject property. They have not given him the title because there is still valuable consideration owing to be settled in the sum of K9, 256.34. That is the reason why they have gone to register the title in their name and not of the plaintiff. He does not have a cause of action in judicial review. He can institute proceedings for breach of contract but even then, it would be him in breach because of the consideration owing.
   
10. As it is Judicial review abides with internal process relating to decisions by public bodies administrative in nature: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The evidence circumstances depicted here do not fall in that lane. The plaintiff is a busy body who has brought this matter such that judicial review lies: Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892 (6 December 2012). He does not qualify that leave be accorded here. Accordingly, his action for leave is refused forthwith. Cost will follow the event forthwith.
    
11. The formal orders of the court are;
    
    • (1) The application of the Plaintiff for leave for Judicial review is refused.
    • (2) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Baniyamai Lawyers : Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants