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Jimberi Jr v Yetuin [2025] PGSC 17; SC2707 (10 March 2025)

SC2707


PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SC REVIEW NO 11 OF 2022 (IECMS]


REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2)(b)


APPLICATION BY JOHN JIMBERI JR


BETWEEN:
JOHN JIMBERI JR
Applicant


V


THOMAS YETUIN
Respondent


WAIGANI: FRANK J, ANIS J, ELIAKIM J
28 OCTOBER 2024; 10 MARCH 2025


SUBSTANTIVE REVIEW – S.155(2)(b), CONSTITUTION – review of decision of primary Judge in granting, amongst others, land described as Allotment 54, Section 240, Gerehu, NCD in favour of the respondent – consideration – whether the primary judge committed errors in his decision making process that should warrant this Court to overturn his decision – consideration of the various requirements required of a review Court to overturn a National Court decision - ruling


Cases cited


Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007
Yama v. PNGBC Ltd (2008) SC922
Asivo v Cocoa Board of Papua New Guinea (2016) N6230
Leo Hannett & Anor v. Australia and New Zealand Banking Group (PNG) Ltd (1996) SC505
Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157
Anisi v. Aimo (2013) SC1237
Waranaka v. Dusava (2009) SC980
Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935
Application by Ben Semri (2003) SC723)
Gengewe Neritha Ganzik v. Hon, Koni Iguan and 1 Or (2025) SC2668


Counsel:


G D Wayne for the Applicant
T Yetuin, the respondent, in person


1. FRANK J: By this review, the applicant seeks, amongst other relief, an order to quash the ex parte judgment of the National Court in proceedings, WS 19 of 2020 Thomas Yetuin v. John Jimberi Jr (“case under review”) given on 12 October 2020 on the ground, amongst others, that it was an abuse of process.


2. I agree that this review be upheld for the reasons given by Anis J and Eliakim J in their joint reasons that the case under review is an abuse of process as the National Court constituted by Thompson J in proceedings WS 757 of 2010 Dominion Information Systems Limited v. Thomas Yetuin and Junior John Jimberi (“2010 case”) had already determined the cause of action pleaded in the case under review. I only wish to add the following remarks concerning that ground.


3. Those proceedings concerned a dispute which arose because of competing claims to the legal right to be registered as the proprietor of that piece of leasehold land described as section 240 allotment 54 contained in state lease Volume 14 Folio 33 (“Property”). This right was the cause of action, a cause of action being “...a legal right or form of action known to law ...”: Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007 (Gavara-Nanu J, Davani J, Yagi J) para.29.


4. When the 2010 case was instituted, title to the Property had already moved from one Jacob Yalamen (“JY”) to the respondent and from the respondent to the applicant who was registered as the proprietor, and so Dominion Information Systems Limited (“Dominion”) sought, amongst other relief, declarations that:


(a) the respondent had obtained title to the Property by fraud;

(b) the transfer of title to the Property from the respondent to the applicant is null and void; and

(c) Dominion is the owner of the Property.


5. Thompson J had to determine in whom that right lay.


6. Dominion asserted the right on the ground that the purchase money which the respondent used to purchase the Property from JY belonged to it. The respondent asserted the right on the ground that the purchase money sourced from Dominion represented his entitlements; and the applicant, on the ground that he purchased the Property from the respondent for value without notice.


7. In deciding the 2010 case, Thompson J dismissed the claims of Dominion and the respondent and declared that the applicant was duly registered as proprietor of the Property.


Res Judicata


8. The applicant contends that the case under review is an abuse of process as the respondent had not exhausted his right of appeal or review of the decision of Thompson J in the 2010 case which determined the cause of action.


9. The basis for this contention is that the claim pleaded in the case under review was barred by the doctrine of res judicata as the judgment of Thompson J had determined the same claim. This doctrine requires that –


(a) sitting as the National Court, which is a judicial tribunal, Thompson J had jurisdiction over the cause of action;


(b) the decision of Thompson J was –

(i) a judicial decision;

(ii) pronounced;

(iii) final; and

(iv) determined the same issues which were the issues before the primary judge; and


(c) the parties in the 2010 proceeding and before the primary judge were the same: Yama v. PNGBC Ltd (2008) SC922.


10. There cannot be any dispute over the elements of the doctrine outlined in the last preceding sub-paras. (a) and (b) (i), (ii) and (iii). A copy of Thompson J’s judgment is in the evidence in this review.


11. As to the element in (b) (iv), the issues in the case under review and the 2010 case were the same as:


(a) the right claimed is the same in both proceedings; and


(b) in the 2010 case, the respondent asserted that he had not signed a contract and transfer with the applicant for him to sell the Property to the applicant and that he had, by an oral agreement between them agreed to sell the Property to the applicant for K250,000 of which the applicant had yet to pay the full amount. The applicant, on the other hand, asserted that he purchased the Property from the respondent pursuant to a written contract dated 2 September 2008 for K200,000;


(c) In the case under review, the respondent asserted that the written contract of 2 September 2008 between him and the applicant is fraudulent as he did not sign it and has no knowledge of it, and that in 2008 in an oral agreement between him and the applicant, they agreed for him to sell the Property to the applicant for K250,000.


12. In the 2010 case, the respondent was asserting the right of ownership for himself; it was not in support of the applicant to defeat Dominion’s claim.


13. Thompson J considered the respondent’s assertion and evidence in paras. 24 and 25 of the judgment and the applicant’s assertion and evidence in paras 26 and 28 of the judgment.


14. Her Honour then concluded:


  1. As fraud has not been shown against the 1st Defendant, the 2nd Defendant could not have had knowledge of any fraud. The Plaintiff has not proved that the 2nd Defendant was anything other than a bona fide purchaser. The Plaintiff has not proved actual fraud by the 2nd defendant, or proved knowledge of any fraud perpetrated by the 1st Defendant. The 2nd Defendant's title remains indefeasible, pursuant to S33 of the LRA.
  2. In relation to the 1st Defendant's claim to ownership of the property, his evidence that he did not enter into a written contract for the sale of the property to the 2nd Defendant was contradicted by the documents, was inherently implausible, and is rejected.

15. It is therefore not material for the application of the last element of the doctrine of res judicata as outlined earlier as between the respondent and the applicant that Dominion was a party in the 2010 case. The parties were the same so far as the cause of action and issues between the applicant and the respondent were concerned.


16. And, as was observed in Asivo v Cocoa Board of Papua New Guinea (2016) N6230, at para 22:


“ Commencement of separate proceedings that seek different remedies based on the same cause of action, or the same remedy based on the same facts (though a different cause of action is pleaded) will almost invariably be regarded as an abuse of process. A plaintiff who commences a second or, as here, a third set of proceedings to seek a remedy that could have been sought in earlier proceedings, which have been determined, will be adjudged to have engaged in a multiplicity of proceedings or conducted litigation in a piecemeal manner, which is actively discouraged: Ok Tedi Mining Ltd v Niugini Insurance Corporation [1988-89] PNGLR 425, National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Telikom (PNG) Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906, Pruaitch v Manek (2010) N4149. A very good explanation needs to be provided for commencing separate proceedings”.


17. I am satisfied that the cause of action and issues as between the applicant and the respondent in the 2010 case and the case under review are the same.


18. That cause of action merged in the judgment of Thompson J which resolved the competing assertions and declared the applicant as the proprietor of the Property.


19. Thus, the respondent had no cause of action to pursue in the case under review. In the result, on the face of the records, the orders under review were infected by an error of law which merits the review and that the failure of the respondent in exhausting his rights of appeal and review against the judgment of Thompson J and the policy reasons behind the doctrine of res judicata and issue estoppel are cogent reasons that it is in the interest of justice that the review be granted.


20. Such an error, as is pointed out in the joint reasons, is attributable also to the respondent’s non-disclosure of the outcome of the 2010 case notwithstanding the respondent’s misleading attempt at the hearing of the review before this court in suggesting that he disclosed in para. 12 of the amended statement of claim in the case under review that Thompson J had determined the 2010 case in favour of the applicant.


Personal Service of the Writ


21. The applicant also contends that in breach of Order 6 rule 3 (1) of the National Court Rules (“NCR”), judgment was given for the respondent when he had not effected personal service of the writ of summons and statement of claim in the 2010 case (“Writ”).


22. The effect of a breach of that rule would be that the judgment entered is irregular on the authority of Leo Hannett & Anor v. Australia and New Zealand Banking Group (PNG) Ltd (1996) SC505.


23. It is clear from the transcripts that at the trial that personal service of the Writ was assumed.


24. At the trial, the respondent relied on his affidavit of service filed on 10 July 2020, his additional affidavit filed on 21 July 2020 and further affidavit filed on 30 September 2020.


25. The evidence shows that the respondent had sent a copy of the Writ by email, receipt of which the applicant acknowledged.


26. The respondent does not dispute that personal service of the Writ had not been effected. He submits, however, that personal service was effected when a copy of the Writ was served on the applicant’s wife.


27. He also submits that Kandakasi DCJ granted substituted service of the Writ by email.


28. The first submission is consistent with the evidence and Hannett (supra) that the applicant had not been personally served with the Writ.


29. As regards substituted service, the evidence to support it is deficient; there is no minute or court endorsement to support that assertion. It is open, in the absence of evidence, that the direction by Kandakasi DCJ that the matter proceed to trial could have been because the respondent’s cause of action involved an allegation of fraud.


30. On the evidence and submissions, the mode of service deposed to does not constitute personal service.


31. For this reason and as the institution of the case under review is an abuse of process, I would grant the review.


32. As the registered proprietor, the applicant is entitled to possession and quiet use and enjoyment of the Property and thus the third order under para 58 hereof.


Costs on an Indemnity Basis


33. The applicant claims indemnity costs against the respondent should he succeed in his review.


34. Having considered the reasons given in the joint reasons, I respectfully decline to award costs on that basis. Although I have found that he had not been personally served, the applicant was aware of the case under review being instituted and that in it the respondent seeks relief which challenges the judgment awarded in his favour. Had he been proactive in challenging the case under review at the earliest opportunity, it would have saved him and the respondent the time - and its consequent costs - it has taken for that case to be prosecuted to judgment and for this review to be filed.


35. Furthermore, under Order 10 rule 12 (2) of the NCR, it was also open to the applicant to apply before the trial judge to set aside the orders under review in which case the scale of costs applicable would be of that court.


36. For these brief reasons, I would award costs to the applicant on a party and party basis.


Referral to Registrar for Investigation and Prosecution


37. The applicant also seeks an order that the respondent be referred to the Registrar for investigation and potential charges for perjury and contempt of Court.


38. As I understand it, the applicant seeks this relief on the ground that the respondent had created fraudulent documents which he submitted as evidence to support his claims that he had served the Writ and court documents and that the applicant was aware of the case under review based on their communication by email and mobile phone. Also involved in the reliance on such evidence was the suggestion that a false email address might have been created and used by the respondent to manufacture evidence concerning service.


39. As the applicant himself has failed to participate in the case below to challenge such evidence, I would decline to grant such relief.


40. ANIS J & ELIAKIM J: This is a review filed under s.155(2)(b) of the Constitution. Leave to review under s.155(2)(b) is required. It was first refused by Hartshorn J sitting as a single Judge of this Court on 23 May 2022. The applicant then applied for leave before the full Court, and on 28 October 2022, this Court (Murray J, Geita J, Miviri J) granted leave to the applicant to review a final decision of a primary Judge made on 12 October 2020.


41. We refer to the case under review. In that proceeding, the respondent sought various declaratory orders over the Property. The hearing was conducted ex parte, and on 12 October 2020, the primary Judge made these final orders:


  1. It is declared that the Plaintiff is the Sole Registered Proprietor of the property on Allotment 54 Section 240 in State Lease Volume 14 Folio 33 Gerehu Stage 02.
  2. It is declared that the Contract of Sale between the Plaintiff as purported vendor and the Defendant as purported purchaser dated 02 September 2008 is unlawful and void ab initio.
  3. Any deed of transfer of title under the Contract of Sale referred to under Order 02 is defective, void and of no effect in law.
  4. Judgement is entered in favour of the Plaintiff in the sum of K70,000 as amounts owing and yet to be paid by the defendant with interest of 8% per month from the date of Sale to the date of settlement.
  5. Damages are awarded to the Plaintiff to be assessed.
  6. Costs of and incidental to this proceeding shall be borne by the Defendant to be taxed if not agreed.

42. The applicant later learnt of the decision and filed this review.


PRELIMINARY MATTER


43. At the start of the hearing, we were notified of a pending application that was filed by the applicant, which had sought to include additional documents that should have been but were not included in the Review Book. The Review Book was filed on 5 February 2024 (Review Book). The documents sought to be included were contained in an affidavit of the applicant filed 29 July 2024, which were:


(i) Certified transcript of proceedings in WS 19/2020 for hearings held on 5, 8 and 12 October 2020;

(ii) Writ of Summons and Statement of Claim of WS 19/2020 filed on 19 May 2020; and

(iii) Written Submissions of Thomas Yetuin used in WS 19/2020 filed on 2 October 2020.


44. The application was contested and after hearing from the parties and in an ex-tempore decision, we granted the application and permitted the 3 documents to be included as part of the Review Book.


GROUNDS OF REVIEW


45. The applicant pleads 6 grounds of review. We set them out as follows:


  1. The Trial Judge erred in law and in fact in failing to find that the matter was res judicata. In particular Trial Judge failed to find, as the Respondent failed to disclose, that the Property was the subject of court proceeding WS 757/2010 which was concluded, and an order was made by Her Honour Thompson J declaring that the Applicant was lawful and sole proprietor of the Property in question.
  2. The Trial Judge erred in law and in fact in failing to find that the proceeding (WS 19/2020) was an abuse of process because the Respondent had not exhausted his right to Appeal or Review the decision of Thompson J in WS 757/2010.
  1. The Trial Judge erred in law and in fact in failing to find that the claim in WS 19/2020 was time barred under the Frauds and Limitations Act 1988 in that alleged cause of action arose (2008) more than 6 years (12 years to be exact) prior to the lodgment (2020) of the proceeding by the Respondent.
  1. The Trial Judge erred in proceeding with the Trial ex parte despite want of proper service of Notice of Trial and related documents on the Applicant, and without granting leave to the Respondent to effect substituted service on the Applicant of the Writ of Summons and subsequent Court documents.
  2. The Trial Judge erred in law and in fact in failing to find that the Respondent had filed defective affidavits of service to the Court that were potentially contemptuous and perjurious and fraudulent.
  3. The Trial Judge erred in law and in fact in failing to take notice that the Respondent’s evidence did not support the particulars of his claim, and further did not caution himself as to the insufficiency of evidence procured by the Respondent which was not corroborated by the Respondent and not challenged by a proper defence. In particular:
    1. The Respondent adduced no evidence of the purported oral contract for lease and eventual sale of the property as claimed in his Statement of Claim.
    2. The Respondent did not disclose in pleadings and in evidence, the exact/approximate date at which he purportedly became aware of the Contract of Sale for and Transfer of Title of the Property the validity of which he was challenging; and there is no evidence to suggest the Respondent attempt at his earliest opportunity to rectify the transfer of title.
    3. The Respondent claimed that there were prolonged negotiations between himself and the Applicant, but no evidence was adduced to support that claim.

LAW


46. To begin, we remind ourselves of reviews that are filed under s.155(2)(b) of the Constitution. The case law is settled on this. Unlike normal appeals that are filed as of right or with leave of the Court under the abbreviation SCA, a review of this nature is similar to judicial review proceedings. The Court is tasked to consider and make findings not on the actual decision itself, but rather, on the decision-making process that was applied by the primary Judge to arrive at his decision. See cases: Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157, Anisi v. Aimo (2013) SC1237 and Waranaka v. Dusava (2009) SC980.


47. What are the types of situations that may permit a review Court to uphold a review that is filed under s.155(2)(b) of the Constitution? This Court in Moi Avei & Electoral Commission v Charles Maino (supra) stated as follows:


“ Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision-making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker.


......


Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s 220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process. SC Review No. 1 of 1990; Application by Electoral Commission [1990] PNGLR 441.


The Constitutional provision granting the power of review doesn’t themselves deal with the rights of person seeking to invoke those power or the procedures for doing so. They are provided for elsewhere in the Constitution and by other laws. Nor has the Supreme Court laid down rules for the conduct of applications for judicial review. But by decisions commencing with Avia Ahi it has determined that its inherent powers entrenched by the Constitution will be exercised only with caution. In claims made when parties have failed to exercise appeal rights within time in criminal or civil cases, the Court requires that it be shown that a review sought (a) is in the interest of justice; (b) there are cogent and convincing reasons and exceptional circumstances, where 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, PNG v Colbert [1988] PNGLR 138”.


48. Premised on the case law [including Moi Avei & Electoral Commission v Charles Maino (supra), Anisi v Aimo (supra), Waranaka v Dusava (supra), Erie Ovako Jurvie v Bonny Oveyara & Electoral Commission (2008) SC935, Application by Ben Semri (2003) SC723) and Gengewe Neritha Ganzik v Hon, Koni Iguan and 1 Or (2025) SC2668], the relevant criteria for consideration by a review Court may by summarised as follows:


  1. There is a clear error of law on the face of the record.
  2. There is gross error in the findings of fact.
  3. Procedural irregularity.
  4. When it is plain that the decision reached is such as to be unsustainable in law or reason.
  5. The decision is considered as so outrageous or absurd so as to result in injustice.

CONSIDERATION


49. We note the submissions of the parties in regard to the grounds of review and the case authorities cited. We begin by making the following observations:


(1) The Plaintiff’s claim against the 1st and 2nd Defendants, is dismissed.

(2) The 1st Defendant’s claim for relief against the 2nd Defendant, is refused.

(3) The 2nd Defendant is the duly registered proprietor of the property on Lot 54 Sect 240 Hohola.

(4) The Plaintiff and the 1st Defendant are to equally pay the 2nd Defendant’s costs on a solicitor/client basis, to be agreed or taxed.

(5) The Plaintiff and 1st Defendant are each to pay their own costs.


“4. On 28th of March, 2008, a Contract of Sale of Land was executed by the Plaintiff and one Jacob Yalamen; subsequently the Property was purchased by the Plaintiff and was registered to the Plaintiff on 26th April 2007. The Plaintiff holds indefeasible title over the Property thereon. [Underlining ours)


50. Having considered the above, what is glaring to us is the fact that the National Court had earlier, in the 2010 case, awarded ownership of the Property to the applicant; the issue of ownership of the Property was decided by her Honour Thompson J in the 2010 case. As such, it is apparent that the respondent had commenced the case under review to re-litigate what was a concluded matter. And by so doing, the primary Judge had made orders in his favour including ownership of the Property; orders that were made that directly conflicted with the earlier orders of the Court in the 2010 case. It is also apparent to us that the respondent, by his actions, has committed serious abuse of the Court process, that is, the respondent appeared to have deliberately concealed the 2010 case from the Court in the case under review. If the respondent had issues concerning the Property and the transactions that had taken place then or was aggrieved by the Court’s decision in the 2010 case, he should have appealed to the Supreme Court.


51. We also consider that the actions of the respondent may be described as fraudulent in nature. The respondent appeared to have deliberately misled the primary Judge into making the orders of 12 October 2020 which are now before us for review.


52. We therefore find clear errors of law on the face of the record, and also, gross errors in the findings of facts. We also find the decision reached by the primary Judge to be unsustainable in law and reason. Further, we find the decision to be absurd that if not set aside, that it will not only cause injustice upon the applicant but would contravene another existing binding order of the National Court, which is the decision of her Honour Thompson J made on 11 March 2020 in the 2010 case.


53. We must state with clarity that the primary Judge was misled on the matter to arrive at the final decision in case under review. The respondent had the duty to disclose all the material facts before the Court which he had failed to do so.


SUMMARY


54. For these reasons, we are minded to uphold the review with consequential orders. Also, and given our findings, it is not necessary to consider the other grounds of the review that may not have been covered in our decision.


55. The applicant, as part of his relief, also requests that the respondent should be referred to the Registrar for investigation and potentially be charged for perjury and contempt of court. Premised on our observations and decision, we are minded to also grant this relief. We find the actions of the respondent to suggest that he may have deliberately (i) misled the Court in the case under review or (ii) perjured himself in the said proceeding, to obtain the orders as had been done.


COST


56. We will order the respondent to pay the applicant’s cost of the review. The applicant has asked this Court to order cost to be assessed on an indemnity basis.


57. We are minded to award cost on an indemnity basis. The conduct of the respondent in the case under review may be regarded as serious act of abuse of the court process, that is, as an attempt to undermine the judicial process or court system in this jurisdiction. Therefore, and in our view, these factors should warrant us to exercise our discretion and order cost to be assessed on that basis.


ORDERS OF THE COURT


58. The final decision of the Court by majority is as follows:


  1. The review is upheld.
  2. The decision of Kangwia J made on 12 October 2020 in WS 19 of 2020 is quashed in its entirety.
  3. The respondent, his family and agents, are permanently restrained from interfering with the applicant’s lawful possession, control and enjoyment of the property described as Allotment 54 Section 240 in State Lease Volume 14 Folio 33 Gerehu, NCD.
  4. The respondent shall be referred to the National Court Registrar for investigation and potential charges for perjury and contempt of Court.
  5. The respondent shall pay the applicant’s costs of the review on an indemnity basis to be taxed if not agreed.

________________________________________________________________
Lawyers for the applicant: Kassadale


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