|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 288 OF 2019
ANTHONY AVAUKAVA
Plaintiff
V
JIMMY TAPAT sitting as PRINCIPAL MAGISTRATE IN PORT MORESBY DISTRICT COURT
First Defendant
AND:
NATIONAL HOUSING CORPORATION
Second Defendant
AND:
RAYMOND ISAAC
Third Defendant
Waigani: Anis J
2022: 8th, 14th and 29th April
JUDICIAL REVIEW – Substantive hearing – preliminary objections and issues – want of form and pleaded relief in the Statement– whether plaintiff has standing, sufficient interest – whether complaint a judicial review matter – considerations – ruling on preliminary objections
Cases Cited:
Papua New Guinean Cases
Lawrence Sausau v. Joseph Kumgal (2006) N3253
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
East New Britain Provincial Government v. Public Service Commission (2017) N6706
Gregory Todiai and Ors v. Walter Shnaubelt and Ors (2017) SC1637
Ken Norae Mondiai v. Wawoi Guavi Timber Co. Ltd (2007) SC886
Raphael Huafolo v. Rex Tadabe (2021) N8956
Joyce Bernard v. Alex Aipa and Ors (2021) N9247
Ereman Ragi and 1 Or v. Joseph Maingu (1994) SC459
Overseas Cases Cited:
Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1KB 223
Counsel:
J. Bibilo, for Plaintiff
M. Tukuliya, for First Defendant
A. Luke, for Second Defendant
L Tangua, for Third Defendant
JUDGMENT
29th April, 2022
1. ANIS J: This is a substantive judicial review hearing. Leave to apply for judicial review was granted on 16 July 2019. On 8 April 2022, the plaintiff moved on his substantive notice of motion filed on 1 July 2019 (JRA/JR). Presentation of submissions followed on 14 April 2022.
2. The JR was contested. I heard and reserved my decision to a date to be advised.
3. This is my ruling.
BACKGROUND
4. The undisputed facts as follows. The plaintiff appears as a ‘former tenant’ to a property that had been owned by the second defendant. The property is at the centre of the dispute between the parties in this JR. It is described as State Lease, Volume 23, Folio 5749, Section 27, Allotment 1, Sabama, NCD (the property). The third defendant is its current registered proprietor. He purchased the property from the second defendant on 29 June 2017, and the property was formally transferred to and registered under his name on 16 October 2017.
5. Whilst the property was owned by the second defendant, it was leased to one Andrew Pao. This was sometime back in the 1970s or early 1980s. Mr Pao and the second defendant had a tenancy agreement. Mr Pao occupied the property for some time. Uncontested evidence of the parties shows that sometimes in early 1980s, Mr Pao left the property without notice to the second defendant. That was when the plaintiff moved into and lived in the property. The plaintiff claims that the property had been abandoned which was why he moved in there to live in. The plaintiff appeared to have lived there for about 32 years. In 2015, Mr Pao returned and wanted to move back to the property. A dispute started because the plaintiff refused to give leave. Mr Pao, the plaintiff and the second defendant later met and had a round table discussion on 5 May 2015. And agreement was reached between the parties as to the way forward in relation to the property. It was agreed that the plaintiff may continue to occupy the property but subject to the plaintiff meeting various terms and conditions, one of which was for him to immediately settle the accumulated rental arears of the property, which was K4,680.
6. The plaintiff did not fully settle the rental arears, and after about 2 years or so, the second defendant sold the property to the third defendant. The second defendant claims, amongst others, that given the non-payment of the outstanding rental arears as had been agreed to between the parties on 5 May 2015, there was no agreement or commitment in place between itself and the plaintiff and so it was at liberty to sell the property to the third defendant which it did. The second defendant claims that had the plaintiff fully met the conditions of the agreement, it could have paved way for the second defendant to enter into a new tenancy agreement with the plaintiff which would have cured his illegal occupancy status over the property, and property could have been leased or sold to him. And defendants, in summary, claim that consequently, the plaintiff had remained as an illegal tenant or squatter to the property and had lived there for decades without paying any rents to the second defendant, which was why the property was sold to the third defendant. After the property was sold, the plaintiff refused to give vacant possession to the third defendant. On 20 December 2018, the third defendant obtained eviction orders via summary ejectment proceeding in the District Court. The orders were made and granted by the first defendant. That led to the plaintiff being evicted from the property.
7. The plaintiff was aggrieved and filed this judicial review proceeding, that is, for leave to apply for judicial review, and later this JR.
EVIDENCE
8. The parties had to tender their evidence by consent. This was because this Court had, at an earlier directions hearing, ordered dispensation of filing a review book.
9. The plaintiff tendered a total of 3 affidavits (all deposed by him) which were marked as exhibits P1 (Plaintiff’s affidavit filed on 30 April 2019), P2 (plaintiff’s affidavit filed on 9 August 2019), and P3 (plaintiff’s affidavit filed on 3 September 2019). The Defendants, except for the first defendant who did not tender any affidavits, tendered a total of 3 affidavits which were marked as exhibits D2(i) (affidavit of Gabina Bugave filed on 29 November 2019), D2(ii) (affidavit of Gabina Bugave filed on 15 October 2021), and D3(i) (affidavit of the third defendant filed on 30 August 2019). The parties also tendered other documents, namely, the JRA (Exhibit E), the order granting leave (Exhibit F), and the Statement filed under Order 16 Rule 3(2)(a) of the National Court Rules (Exhibit G).
PRELIMINARY ISSUES
10. The defendants raise 2 preliminary issues. In the first instance, the third defendant challenges the Statement filed under Order 16 Rule 3(2)(a) (the Statement) of the National Court Rules (NCR). He says the Statement does not have a supportive background to the JRA; he says that it is difficult to see what decision(s) the plaintiff is seeking to review; and thirdly, that some of the grounds of review are not judicial review grounds. As such, the third defendant submits that the Statement is incompetent and therefore the JRA should be dismissed.
11. The third defendant referred to case authorities such as Lawrence Sausau v. Joseph Kumgal (2006) N3253, Peter Makeng v. Timbers (PNG) Ltd (2008) N3317, and East New Britain Provincial Government v. Public Service Commission (2017) N6706. These cases compare or liken a Statement that is filed under Order 16 Rule 3(2)(a) of the NCR to a statement of claim.
12. The second preliminary issue was raised by all the defendants which is this. They say the plaintiff did not have standing or sufficient interest to file the judicial review proceeding in the first place. They claim that he was an illegal occupant of the property at the material time; that he did not work for the State nor was he an eligible or approved person withing the meaning of the provisions under the National Housing Corporation Act 1990 (NHC Act); and that he had not been paying any rent to the property at the material time or for the past 32 years that he had occupied the property.
13. Counsel for the plaintiff did not provide any detailed submissions in reply. But in response generally, counsel submitted that the issues were all considered and determined by the leave Court and therefore were not available to be re-argued at the trial proper. I take it that counsel is alleging that the issues are res judicata. I had queried counsel whether she was aware of case authorities which were settled on point that a respondent may raise jurisdictional or leave issues such as sufficient interest, delay, arguable case, and exhaustion of administrative remedies at the hearing proper of a judicial review application. Counsel was however unable to assist.
14. In Gregory Todiai and Ors v. Walter Shnaubelt and Ors (2017) SC1637, Injia CJ stated at para 10:
10. I am also satisfied that the issue of standing of all the representatives of all the plaintiffs to bring either the OS proceeding or file the Notice of Motion instituting the substantive review is a matter that is open to be resurrected before the trial judge in the substantive review. The question of standing will particularly become relevant at the time in the trial of the substantive claim when the precise forest area to be cleared that is affected by the forest clearance authority, the ownership of the land on which the forest resource issue is situated and the appropriateness of the relief to be granted to the appropriate plaintiffs who have suffered loss and damage are determined at the trial. That option is still open to the appellants. Judicial review proceedings are different from ordinary civil proceedings and they deal with causes of action which are of a special nature and time is of essence in dealing with those type of claims.
15. And in Ken Norae Mondiai v. Wawoi Guavi Timber Co. Ltd (2007) SC886, the Supreme Court stated:
45. We do not consider that this ground can succeed. It is well settled that, apart from the grant of leave itself, nothing is finally determined on the application for leave. All issues are open and only finally determined on the substantive hearing of the judicial review.
"On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirements of O16 rr2,3 and 5. The application, of course, is ex parte and the Court does not have any other material contesting the application. The Court is not required to address the matter specified in O16 r1(2). These are matters for consideration by the Court hearing the substantive application”. Ombudsman Commission v Donohue [1985] PNGLR 348 at 361 Amet J.
46. Even questions concerning standing to apply for judicial review, which must be decided in a preliminary way on the application for leave, are not finally decided until the substantive hearing. It is preferable to lean towards recognizing the standing of the applicant on the application for leave and to let the issue be finally determined on the substantive hearing, except in cases where it is very clear that the applicant does not have standing: R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1980] 2 All E.R. 378 at 642-644.
16. With this clarity, let me firstly address the third defendant’s claim that the Statement is ambiguous or defective. I refer to the Statement which is marked as Exhibit G and make these observations. It firstly states that the plaintiff was a tenant who had been residing on the property since 1983 or for a period of 36 years. Immediately after that, the plaintiff proceeds to discuss the grounds of review. But briefly, he states that he had been informed on 15 January 2019 of an eviction Court Order that was going to be served on him which had caused him to seek legal assistance from the office of the Public Solicitor. The 2 main grounds of review pleaded in the Statement were breach of natural justice and the Wednesbury principles of unreasonableness.
17. I observe that the factual background has not been properly or fully pleaded in the Statement. That part is obvious as evident in the Statement. The onus is primarily bestowed upon a plaintiff, that is, to plead the material facts that supports an intended judicial review application. Having said that, I take into account the present circumstance of this case. Given that the leave Court has granted leave to apply for judicial review and the matter is now at this hearing stage, and given the fact that evidence have been adduced, the best place to begin, in my view, would be to consider the evidence and submissions of the parties generally and then decide or determine whether the parties were well vested with the relevant facts and material issues prior to this hearing.
18. When I consider all that, I must say that I am satisfied that the parties were well aware of the material facts and issues. I notice that these were addressed in the evidence that were adduced by the parties and also in their closing submissions. And I also note that the third defendant is the only party that is claiming want of pleading of the relevant background and grounds of review and who is seeking to dismiss the JR. Although I find that the Statement appears ambiguous, I note that the parties had no difficulties in determining, (i), what the complaint(s) is or are, (ii), the 2 main grounds of review that are pleaded, and also (iii), the type of relief that the plaintiff is seeking. I also note that the defendants have rebutted them in their evidence and closing submissions. Therefore, I dismiss this part of the argument by the third defendant.
19. Let me address the next preliminary argument, want of standing/sufficient interest. In the pleading and evidence, the plaintiff claims that he was a ‘tenant’ of the property for about 32 to 36 years. The fact that the plaintiff had lived on the property for that long was not disputed by the defendants. But the plaintiff was silent in his evidence and through submissions, that is, of whether he was an employee of the State at the material time, and whether he had occupied the property illegally or as an illegal squatter. The defendants, on the other hand, adduced evidence [Exhibits D2(i), D2(ii) and D3(i)] to say that the plaintiff was an illegal squatter who had not been employed by the State and who had occupied the property for all these years without paying rent. Their evidence also show that the property had been occupied by Mr Pao who had a valid tenancy agreement with the second defendant at the material time before he vacated the property sometimes in the 1980s.
20. At the trial, it was confirmed by all the counsel that the plaintiff did not have, nor had he ever signed, a tenancy agreement with the second defendant at the material time. The second defendant also adduced evidence in that regard to confirm this fact [Exhibit D2(ii)]. This fact, to me, is crucial to the preliminary issue at hand.
21. In my view, there is therefore serious doubt in regard to the plaintiff’s standing or sufficient interest in the matter. Let me expound, and the first consideration I take into account is this. The previous legal owner of the property was the second defendant. On 16 October 2017, it sold the property to the third defendant. The third defendant is the present registered proprietor of the property.
22. The second consideration is this. The argument that the plaintiff was an illegal occupant of the property at the material time was not seriously challenged. Undisputed evidence [Exhibit D2(i)] also shows that on 5 May 2015, there was a round table discussion between the Mr Pao who was the legal tenant, the plaintiff, and representatives of the second defendant. During the meeting, it was agreed, amongst others, that the plaintiff would pay in full the outstanding rental arears to the property (K4,680) and that a new tenancy agreement would be signed between the plaintiff and the second defendant. Evidence adduced by the second and third defendants, namely, exhibits D2(i), D2(ii) and D3(i), show that the plaintiff had failed to make the payment of the rental arears after the said agreement. The plaintiff, however, as deposed to under Exhibit P1, claims that he had made some payments. He deposes that he made an initial deposit of K1,500, that is, in 3 instalments of K500, all of which were paid directly to one Nigel Kama who was an employee of the second defendant. He deposes that Mr Kama did not produce any receipts of these payments that he had made. He said Mr Kama later confessed to him that he had misused the monies. The plaintiff deposes that he was disappointed thus had refused to fully settle the balance of the outstanding rental arears to the property as agreed.
23. I have considered this evidence and the plaintiff’s evidence in general. I observe that exhibits P2 and P3 are not relevant as they do assist in with this preliminary issue. The plaintiff’s evidence, like all the rest, were not tested in Court through cross-examination. The only main evidence for the plaintiff therefore is Exhibit P1. I am therefore left with what is deposed and the annexures therein, to decide whom to believe. I must say that I find Exhibit P1 to be general and vague. The plaintiff did not state the dates and time when he made the 3 payments. The plaintiff also did not say where he made the deposits. He simply states that he gave the monies to Mr Kama and Mr Kama failed to give him receipts. The plaintiff did not state whether he followed up or made complaints to the second defendant regarding the purported actions of Mr Kama. I therefore find, as a matter of fact, the evidence vague, uncorroborated and as not true or believable. As such, I give no weight to it. In so doing, I uphold the evidence of the second and third defendants on this point. Their evidence are corroborated. They have attached receipts of payments including a copy of the Title to the property which is registered under the name of the third defendant. I also find their evidence to be consistent with the relevant background which they have also set out in their evidence [Exhibits D2(i), D2(ii) and D3(i)]. The plaintiff, on the other hand, has not done that in his evidence or in the Statement. Although the plaintiff did not state the material facts, he has actually corroborated the defendants’ evidence, that is, their claim of the round table meeting on 5 May 2015 and of the terms of the agreement or understanding. I say this because the plaintiff gave evidence where he attempts to show that he had tried to pay off the rental arears. He also deposed his purported excuse for not wanting to fully settle the rental arears. Although I have dismissed these claims, it does reveal that the plaintiff had knowledge of this earlier meeting and of what had been discussed and agreed to between the parties.
24. In summary, I find that the plaintiff did not make any payments to the second defendant to settle the outstanding arears of K4,680. I also find that the second defendant had been reasonable towards the plaintiff when it had the round table discussion with him. The plaintiff had been given the opportunity, despite being an illegal squatter who had lived on the property for 32 years without paying any rent, to repay the outstanding rental arears and to have the benefit of signing a new tenancy agreement with the second defendant. He had about 2 years to attend to that from 2015. He failed in that regard which was why the property was sold to a third party. Consequently, his status as an illegal squatter to the property remained intact at the time when the property was sold and during the time of his eviction. In my view, he was not ‘a tenant’ as he is claiming herein. Rather, he was an illegal squatter to the property.
25. Therefore, I find that the plaintiff does not have standing or sufficient interest in the matter. The plaintiff was an illegal occupant of the property at the material time. He had no valid tenancy agreement with the second defendant at the material time. The plaintiff had been living on the property illegally for the past 32 years without paying any rent to the second defendant. I note that belated attempts was made by his counsel during closing submissions, that is, to re-open the trial to adduce evidence to prove payment of rents. The defendants opposed the oral application. I considered the submissions of the parties but in the end, I declined the application. I would refer to the transcript of the proceeding for my reasonings. But I noted that the plaintiff had had all the opportunities beforehand to adduce his evidence before the trial. He did nothing and it was only towards the very end of his submission, that he tried to unfairly reopen the hearing.
26. As an illegal occupant of the property who had not paid any rents at the material time, the plaintiff did have any legitimate or sufficient interest, whether legal or otherwise, in this JR. I refer to the case, Raphael Huafolo v. Rex Tadabe (2021) N8956, where I stated in part at para. 15:
For what the plaintiff or the RPNGC knows, the first defendant is a squatter who had been illegally residing on the premises for many years. It appears that there was no reasonable propriety interest or right that had existed that would have caused the second defendant to bend back-words and have regard to his claim in his decision. The first defendant was not a government employee at the material time; he had no legal or propriety interest over the Property, but rather, was a person who was illegally residing there on what was and still is, which is an old colonial run-down residential house. Those were essentially the relevant facts that were before the second defendant at the material time before he made the decision to cancel the CAO. Compare that to the interest of the RPNGC at the material time which was real and secured under the CAO together with the history of the Property, I find the decision of the second defendant as not only unreasonable but baseless.
27. Also, and in Joyce Bernard v. Alex Aipa and Ors (2021) N9247, I stated at paras 23 and 24:
23. The plaintiffs firstly have not come to this Court with clean hands. They have been occupying the portion of the state or reserved land as it was known then, illegally or as squatters for many years. Then disputes over the land arose, and in 2014, NCDC, who did not own the Property at the time, purportedly gave permission to them to continue to use or occupy the Property against the wishes of its registered proprietor the third defendant. Under the said misconceived belief or understanding, the plaintiffs commenced this proceeding and named the 3 defendants herein in pursuit of its claim for fraud. Their actions in occupying the Property were not authorized and illegal from the start to the present.
24. The plaintiffs therefore do not have both legal and equitable interests over the Property that would have given them sufficient interest, right or standing, to pursue the matter in the manner as they have done herein. Consequently, it is also safe to say or find that they lack any legal or equitable rights that is recognized in law which they may seek to enforce, protect, or ascertain by their proceeding against the defendants over the Property.
OTHER REASON – PUBLIC LAW OR PRIVATE LAW
28. There is a further and far more fundamental reason to dismiss this proceeding. The plaintiff’s alleged interest in the matter as pleaded and as adduced in both his evidence and the evidence of the defendants, is contractual or private in nature, that is, what he may have agreed with the second defendant for the second defendant to lease or sell him the property. He may also have a claim for breach of statutory provisions under the NHC Act. These were the basis for his claims as alleged in his submissions and evidence before this Court. However, such claims are civil in nature as opposed to judicial review. In my view, this JR is not the appropriate mode of proceeding as adopted by the plaintiff. I find that to be the case herein.
29. The plaintiff has also not clearly stated which decision(s) of a public authority he seeks to review. However, in evidence and through submissions, it was clarified by counsel that the plaintiff seeks to review 2 decisions. The first was the decision by the second defendant made on 9 May 2017 to sell the property to the third defendant, and the second was in regard to the decision of the first defendant in issuing eviction orders against him which His Worship made on 20 December 2018. In regard to the latter, counsel conceded, after objection was raised by the third defendant that no relief was sought in that regard in the JRA, that the plaintiff would abandon that review.
30. So, as it is, the judicial review challenge in regard to the decision of the first defendant made on 20 December 2018 has been abandoned. What I have before me is challenge in regard to the decision of the second defendant in selling the property to the third defendant purportedly made on 9 May 2017. However, I cannot find this decision anywhere in the plaintiff’s evidence. The closest I could get to, is in reference to a contract for sale document which was executed between the second and third defendants. The contract itself is undated but at the bottom of each page, it is dated as 9 May 2017. The contract of sale is marked as annexure G to Exhibit D3(i). I will for this purpose, assume that that is the decision which the plaintiff is seeking to review, that this, the contract of sale that was presumably executed by the second and third defendants on 9 May 2017. So, when the second defendant sold the property to the third defendant, was it exercising an administrative or quasi-judicial authority whereby its action may be subjected to public law rights? Or was its action a commercial or private one which may be subjected to private law rights? The application of private or public law rights, was well explained by the Supreme Court in Ereman Ragi and 1 Or v. Joseph Maingu (1994) SC459. The Supreme Court said:
Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.
Public Law prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be where as stated above, the public authority is acting under a statute or subordinate legislation.
31. The plaintiff asserts that he had qualified under the give-away scheme and that the provisions under the NHC Act applied to him; that when the property was sold to the third defendant, it meant that the second defendant had purportedly failed to take into account his interest or give him the right to be heard; that the second defendant’s denial to him of his right to be heard was unreasonable contrary to the Wednesbury principles of unreasonableness. The said principles were developed in the case, Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1KB 223. The plaintiff claims in summary that he was an approved or an eligible person within the definitions of the provisions under the NHC Act.
32. Briefly, the definitions of an ‘approved person’ and an ‘eligible person’ are provided under ss.1 and 3 of the NHC Act as follows:
1. Interpretation.
In this Act, unless the contrary intention appears—
......
"eligible person" means a person declared under Section 3 to be eligible for assistance under Part IV;
......
3. Declaration of eligible persons.
The Corporation may declare a person to be a person eligible for assistance under Part IV. by reason of—
(a) his limited means; or
(b) his present unsuitable housing; or
(c) any other circumstances considered relevant by the Corporation.
33. The contract of sale of 9 May 2017 was an arms-length private contractual matter between a vendor and a purchase, which were the second and third defendants respectively, and it concerned the sale and purchase of the property. It was not something that would have required administrative or a quasi-judicial decision that may or could have attracted public law rights thus make judicial review as the appropriate mode of proceeding. The intended review therefore and in my view, is baseless as the sale and transfer of the property was effected as a commercial transaction that involved private law rights. Furthermore, I note that the factual context of the argument for the intended review is incorrect because:
(i) attempts to rectify the plaintiff’s illegal occupancy status had been abandoned when the plaintiff failed to pay the rental arears and meet other stated terms and conditions as agreed between the parties on 5 May 2015; and
(ii) therefore, and at the material time, the plaintiff was never a ‘tenant’ nor an approved or an eligible person within the definitions as provided for under the provisions of the NHC Act; and
(iii) so, his status at the material time had remained as an illegal squatter who had been illegally living on the property without paying any rents to the second defendant; and
(iv) he was never a long time dedicated public servant who had been occupying the property which would have qualified him to the Government’s give-away housing scheme policy as he claims; he has provided no scintilla of evidence in that regard; and
(v) due to the illegal squatter status of the plaintiff over the property at the material time, there was no obligation prescribed under the provisions of the NHC Act for the second defendant to give the plaintiff the right to be heard before selling the property to the third defendant.
SUMMRY
34. In summary, I uphold the second preliminary objection by the defendants. This proceeding shall be dismissed. I find that the plaintiff has no sufficient interest or standing in the complaints that he has sought leave of, for this judicial review Court to hear.
35. I also find the JRA to be baseless and without merit. I find the plaintiff’s complaints and grievances applicable to private law or interests rather than public law or interests. Consequently, what this simply means is that the plaintiff has adopted a wrong mode of proceeding to air his grievances. Judicial review is not available and cannot be sought in the manner as adopted by the plaintiff in his JRA.
COST
36. Awarding cost herein is discretionary. I see no reason why I should not award cost to follow the event. Cost of the proceeding will therefore be awarded to the defendants on a party/party basis to be taxed if not agreed.
ORDERS OF THE COURT:
37. I make the following orders:
The Court Orders Accordingly.
__________________________________________________________________
Public Solicitor’s Office: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First Defendant
Legal Service Section -NHC: Lawyers for the Second Defendant
Tangua Lawyers: Lawyers for the Third Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2022/134.html