N6704
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 854 OF 2016

BETWEEN:

TOP BRAT TRADING LIMITED
Applicant

AND:
BIRU HITOLO, DEPUTY REGISTRAR OF TITLES FOR DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Respondent

AND:
NIUGINI INVESTMENTS PARTNERS LIMITED
Second Respondent

AND:
JOIKERE KUSIP TRADING AS KUSIP ASSOCIATE LAWYERS
Third Respondent

AND:
PNG PORTS CORPORATION LIMITED
Fourth Respondent

Kokopo:  Anis AJ
2017:  21st & 26th of April

JUDICIAL REVIEW – Application for leave to apply for judicial review - competency issue raised - originating summons seeking substantive relief - examination of pleadings in the originating summons - requirements for leave discussed - one contested issue - exhaustion of administrative remedies - sections 160 and 161 of the Land Registration Act Chapter No. 191 discussed - powers of the Registrar of Titles under the two provisions discussed

Case cited:

Alex Timothy v. Hon. Francis Marus (2014) SC1403
John Kombati v. Fua Singin (2004) N2691
Joshua Kalinoe v. Paul Paraka (2014) SC1366
Leto Darius v. The Commissioner of Police (2001) N2046
Louis Medaing v. Joseph Gabut (2016) N6431
National Airlines Commission (trading as Air Niugini) v. Aphmeledy K Joel, PNG Flight Attendance Association and Bunam Lambert Damon [1992] PNGLR 132
Peter Makeng v. Timbers (PNG) Limited (2008) N3317
Timothy Alex Apia v. Benjamin Samson (2012) N4777
Trista Abaijah v. Allan Mana (2015) N6071
132

Counsel:

Ms N Rainol, for the Applicant
Ms E Takoboy, for the First Respondent

RULING

26th April, 2017

1.	ANIS AJ:	The applicant applied for leave to apply for judicial review.  The actual hearing occurred at 9:30am on 21 April 2017.  At that time, the State through the office of the Solicitor General appeared on behalf the 1st respondent and contested the application.  Both parties presented oral and written submissions to the Court.

2.	I then reserved my ruling to 9:30am today.

3.	This is my ruling.

PRELIMINARY OBJECTIONS

4.	The State raised two competency issues at the start of the hearing.  The first relate to the filing of various interlocutory applications by the applicant.  The objection was discarded after I had informed both counsel that, based on settle case law and court rules, the interlocutory applications would have to wait until after leave has been decided.  I note that I did not point out the case law at that time.  Having had the opportunity now to write this judgment, the case authorities on point are Peter Makeng v. Timbers (PNG) Limited (2008) N3317, Joshua Kalinoe v. Paul Paraka (2014) SC1366 and Alex Timothy v. Hon. Francis Marus (2014) SC1403.

5.	The second competency issue concerns the originating summons.  I did not rule on that then so I will do so now.  The State says the originating summons seeks substantive relief.  As such, it says the originating summons is incompetent and must be dismissed.  The State also submits in the alternative that if the Court finds that the pleading in the originating summons is curable by amendment (paragraph 17 of its written submission filed on 21 April 2017), the Court should award costs in its favour.  The applicant on the other hand submits that the originating summons is in order.  It submits that the only relief sought in the originating summons was for leave to apply for judicial review.  It submits that the numbered pleadings in the originating summons were set out to explain the circumstances or facts surrounding the decision, which it plans to review.

6.	Let me look at the originating summons.  On the face of it, it seeks a single relief.  It begins with and I read, Leave to apply for Judicial Review of the following acts of the Defendants.  The applicant then sets out the acts of the defendants, which it proposes to review.  The applicant lists in Roman Numerical 14 of these so-called acts.  The query I have is this:  Whether the 14 pleaded "acts" in the originating summons explain the proposed decision, which the applicant seeks to review or whether they, some, or one of them consists of a substantive judicial review relief.

7.	I have examined in detail the 14 pleaded purported acts of the defendants.  They are quite long and it is pointless listing them all here.  In my opinion, firstly and for pleadings (i) to (x), I would describe them as containing mixed background information as well as proposed contentions of the applicant's intended judicial review application.  However, I find that none of them can be regarded as a substantive judicial review relief.  At the same time, I also find it unusual that the applicant would produce such very long pleadings, which in my view is unnecessary and confusing.  What the applicant should have pleaded in the originating summons should have been just one simple paragraph requesting for leave to review the decision in question.  For example, something like this.  "Leave to apply for judicial review against the decision of the 1st respondent to on 26 October 2015 register the applicant's interest over the property (describe the property), then cancels and transfers the interest in the property to the 4th respondent."  That would have been sufficient and nothing more would have been required in the originating summons.

8.	Pleading (xi) reads, The plaintiff seeks Damages, to be paid by the First, Second, Third, Fourth Defendants by each and severally actions caused hardship and financial loss, pursuant to Section 150 (1) (b)-(d), 151 of the Land Registration Act 1981.  This obviously amounts to pleading a substantive relief.  It could also be regarded as a consequential relief.  This is however not allowed under the rules and case law.  Substantive relief for review are only permitted to be pleaded in the Statement that is filed under Order 16 Rule 3(2)(a) (Statement) of the National Court Rules [cases:  Peter Makeng v. Timbers (PNG) Limited (supra); Joshua Kalinoe v. Paul Paraka (supra)].  Is that inclusion fatal to the originating summons I ask?  I would answer "no".  The reason again is based on the same rule namely Order 16 Rule 3(2)(a).  The applicant's proposed substantive relief must be pleaded in the Statement.  If it is in fact pleaded in the Statement, it should suffice.  In the present case, the applicant has pleaded its claim for damages in the Statement.  I should also state that substantive relief that are pleaded in an originating summons but are not pleaded in the Statement, are or will be invalid.   They will also, after the leave issue has determined by the Court, be discharged together with the originating summons.  I say this because case law states that an originating summons shall be determined after leave has been granted [case: Peter Makeng v. Timbers (PNG) Limited (supra)].  At the grant of leave, an applicant can only use or rely on the Statement and nothing else, to extract its proposed substantive relief to include into the new substantive notice of motion for judicial review.  That is why I have reached the conclusion that the pleaded paragraph (xi) in the present originating summons was not fatal at the leave stage of this judicial review proceeding.  But such practice (i.e., pleading substantive relief in an originating summons in judicial review proceedings) must cease because it serves no purpose and is confusing.

9.	Pleading (xii) in the originating summons reads, Costs to be paid by the Defendants.  Pleading (xiii) reads, Any Other Orders deem fit by the Court.  And pleading (xiv) reads, Time for entry of the Orders be abridged.  The three (3) relief are not substantive judicial review relief within the meaning of the types of judicial review relief that are available and may be sought in a judicial review proceeding under Order 16 Rule 1 of the National Court Rules.  They are in fact standard consequential orders or relief that are available and may be sought in any types of proceedings, not necessarily limited to judicial review proceedings, at the National Court.  I therefore reject the State's claim.

10.	In summary, I find the originating summons substantially competent. 

FACTS

11.	According to the Statement, the applicant signed a contract (hereinafter referred to as the first contract) with the 2nd and 3rd respondents on 10 December 2014, to purchase a property in Kokopo for a total sum of K1.2 million.  The property is described as Volume 23 Folio 149 Allotment 3 Section 4 Kokopo (hereinafter referred to as the property).  The applicant paid a deposit of K250,000 in accordance with the terms of the first contract plus the other required fees.  Ministerial approval of the property took some time but was granted on 29 January 2015.  Within the same year in 2015, the applicant learnt that the 2nd and 3rd respondents had gone ahead to sign another contract of sale (hereinafter referred to as the second contract) over the same property with the 4th respondent without its knowledge.  The applicant did not know about that until late October 2016, that is, after it had conducted a title search with the Department of Lands and Physical Planning.  The search revealed that on 26 October 2015, unbeknown to the applicant, the property's registration status was changed twice by the 1st respondent.  That is and in a simultaneous act, the 1st respondent transferred the property to the applicant.  He then cancelled the said transfer of the property to the applicant and transferred it to the 4th respondent.

12.	The applicant is aggrieved and seeks leave of this Court to challenge the decision of the 1st respondent.

ISSUE

13.	The State says the applicant has met all but one of the requirements for this leave application.  That is, "exhaustion of administrative remedies."  I will address that now.

SECTION 160 & 161 - LAND REGISTRATION ACT

14.	The State says the applicant did not exhaust the process that is provided under sections 160 and 161 of the Land Registration Act Chapter No. 191 (hereinafter referred to as the LRA) before coming to this Court.  Let me quote the two provisions:

160.	Production of instruments wrongly issued, etc.

(1)	Where it appears to the satisfaction of the Registrar that—
(a)	an instrument has been—
(i)	issued to a person in error; or
(ii)	fraudulently or wrongly obtained by a person; or
(b)	an instrument is fraudulently or wrongly retained by a person; or
(c)	an instrument held by a person contains a misdescription of the boundaries, area or position of land; or
(d)	an instrument held by a person contains an entry or endorsement—
(i)	made in error; or
(ii)	fraudulently or wrongly obtained; or
(e)	an instrument of title is held by a party to an ejectment action whose right to the land has been determined,
he may summon that person to deliver up the instrument.

(2)	Where a person refuses or neglects to comply with a summons under Subsection (1), or cannot be found, the Registrar may apply to the Court to issue a summons for that person to appear before the Court and show cause why the instrument should not be delivered up.

(3)	Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.

(4)	On the appearance before the Court of a person summoned under Subsection (2), or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.

(5)	Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.

(6)	Where a person—
(a)	has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or
(b)	has refused or neglected to comply with an order under Subsection (4), 

the Registrar shall, if the circumstances of the case so require—

(c)	issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and

(d)	enter in the Register—
(i)	notice of the issue of an instrument and the circumstances under which it was issued; and
(ii)	such other particulars as he thinks necessary.

161.	Cancellation and correction of instruments and entries.

(1)	Subject to Subsection (2), the Registrar may—
(a)	cancel or correct an instrument delivered up under Section 160; and
(b)	in any other case, on such evidence as appears to him sufficient, correct errors or omissions in—
(i)	the Register or an entry in the Register; or
(ii)	the other duplicate certificate of title or an entry on that duplicate.

(2)	Where a correction is made under Subsection (1)—
(a)	the Registrar—
(i)	shall not erase or render illegible any words; and
(ii)	shall affix the date on which the correction was made together with his initials; and
(b)	the Register or other duplicate certificate of title so corrected has the same validity and effect as if the error had not been made except as regards an entry made in the Register before the time of correcting the error.

(3)	Where the Registrar is satisfied that a matter in a certificate of title does not affect the land to which the certificate relates he may record on the title the cancellation of that matter in such manner as he considers proper.

15.	The immediate question that comes to my mind now is this.  Are these two provisions available to the applicant as an administrative remedy?  In my opinion, sections 160 and 161 apply to the absolute discretion of the Registrar of Titles and his Deputy (hereinafter referred to as the RoT).  Section 161 is a follow on provision from section 160 so the two provisions are to be read together to understand their purposes or intentions.  See the case of Timothy Alex Apia v. Benjamin Samson (2012) N 4777.  The two provisions do not directly apply to or give any direct rights to interested persons such as the applicant, to invoke.  They instead only give direct rights and powers to the RoT to deal with instruments that have or may have anomalies in them.  The two provisions talk of the powers of the RoT to settle a title which has been issued in error or which may have been fraudulently obtained.  The RoT's power to correct an instrument or an entry in the register includes his power to cancel a title.  And both provisions, apart from granting the RoT powers, set out the processes for the RoT to comply with once he invokes his powers under the section 160 of the LRA.

16.	There are no definite rules or guidelines of what shall or may cause the RoT to invoke his powers under sections 160 and 161 of the LRA.  That said and in practice, the RoT may invoke his powers if he notices an anomaly in the instrument or supporting documentations, or, if he is suspicious of a transaction and after he has conducted his own investigations, he decides that that may be a matter where he should exercise his powers under sections 160 and 161.  Sometimes, an interested party may request the RoT to exercise his powers based on information they may provide to him.  But all these seems to be done on an ad hoc basis.  Therefore and in my view, the process (i.e., in a case where one decides to ask the RoT to invoke sections 160 and 161) is voluntary or optional.  I find that an applicant like the applicant herein can choose, that is, whether to go ahead and ask the RoT to exercise his powers under sections 160 and 161 of the LRA or file judicial review proceedings.  That brings me back to my judgment above where I have discussed sections 160 and 161.  Let me add this.  If for example, the two provisions have a sub-section which reads Any interested applicant whose interest is affected etc may apply or write to the RoT requesting him to exercise his powers under sections 160 and 161, I would not be inclined to grant leave to the applicant herein.  I would instead refer the applicant back to exhaust the said requirement under the sub-section before coming to the National Court.  However, the two provisions do not do that as I have already explained above in my judgment.  The applicant herein has chosen to seek judicial redress.  I find nothing wrong with the applicant's decision to come straight to the National Court.  There is another important reason, which is to do with the special nature of this case.  I will explain that now below.

17.	Based on the pleaded facts, the applicant is aggrieved because the 1st respondent, after transferring the interest of the former owner of the property to the applicant's name, cancels the applicant's interest in the property and had it transferred to the name of the 4th respondent.  What this means again based on the pleaded fact is that the 1st respondent may have already exercised his powers under sections 160 and 161 of the LRA to cancel the applicant's title.  The applicant is aggrieved and based on the Statement and the supporting affidavits filed, has come to this Court for judicial redress.  So it does not make sense if this Court were to dismiss the matter on the basis that the matter should go back to the attention of the 1st respondent so that he can again invoke sections 160 and 161 of the LRA to deal with the applicant's complaint.  How can the 1st respondent be asked to invoke sections 160 and 161 and review his earlier recent decisions that he had made on the same property where he had invoked sections 160 and 161 and had made decisions which, based on the applicant's allegations, were made against its interest to the property.

18.	In summary, I dismiss the State's contention regarding want of exhaustion of administrative remedies.  I am satisfied and find that the applicant has properly come before this Court.  I find no other appropriate administrative processes available to the applicant than to come to this Court for redress.

OTHER REQUIRMENTS

19.	Like I have said above in my judgment, the State did not challenge the other requirements or tests for applying for leave to apply for judicial review.

20.	I will nevertheless proceed to consider and summarise them briefly here.  I note that the four (4) main tests or requirements are, (i) sufficient interest, (ii) arguable case, (iii) no undue delay and (iv), exhaustion of administrative remedies, which I have already dealt with above in my judgment.  The case law is settled on these tests and I only need to mention one (1) or two (2) for this purpose.  I refer firstly to the case Trista Abaijah v. Allan Mana (2015) N6071.  Justice Hartshorn said and I read at paragraph 7, An application for leave for judicial review involves the exercise of discretion.  The discretion must be exercised judicially.  The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

21.  I note that in other cases, like for example the case Louis Medaing v. Joseph Gabut (2016) N6431 (and John Kombati v. Fua Singin (2004) N2691), the Court has included a further 5th test to the traditional four (4).  His Honour Justice Cannings held and I read:

(1)	There are five requirements for granting of leave to seek judicial review: (a) locus standi; (b) decision must be of a public body; (c) arguable case; (d) exhaustion of administrative remedies; (e) no undue delay.

(Underlining is mine)

22.	His Honour adopted his findings from the earlier case of Leto Darius v. The Commissioner of Police (2001) N2046.  

23.	My general view firstly is that there is no fixed requirement on these tests for leave applications.  And I do not think that the traditional four (4) tests will outlive time's test either.  These may change as the law on judicial review evolves or adapts to the circumstances of the society from time to time.  But having said that and in relation to the 5th test namely that the decision must be of a public body, I, with respect, differ with qualification.  I am not inclined to say that it should fit in as one of or part of the four (4) tests for a leave application.  I think that it (i.e., decision must be of a public body) should be addressed or treated separately as a jurisdiction or competency issue in judicial review proceedings generally than to say that it is one of the tests for the grant of leave to apply for judicial review.  The main reason for my view is that failure by an applicant to observe the requirement that the decision must be of a public body would be fatal to the proceeding.  If the requirement is not met, the Court does not have discretion and would be obliged to dismiss the proceeding whether it be before or after the leave stage of a judicial review proceeding.  Justice Brown in the case National Airlines Commission (trading as Air Niugini) v. Aphmeledy K Joel, PNG Flight Attendance Association and Bunam Lambert Damon [1992] PNGLR 132, held on point and I quote, I consider it is not a matter of my discretion, whether leave should now be refused or not; rather, before that point is reached, I must be satisfied that the Court has jurisdiction and, as I say, I do not consider Mr Joel is a decision maker "empowered by public law". I, consequently, am not satisfied on the plaintiff's argument to the contrary.  Now, the same cannot be said where for example an applicant has failed to observe one or more of the four (4) standard tests in a leave application.  The Court would still have the discretion to decide whether to grant leave or not.  Finally and having said all that, I note that the 5th test, which I have found to be jurisdictional in nature, may be raised together with the four (4) standard tests at the leave stage but so long as its distinction is noted.

24.	Let me address the remaining three (3) tests now.  In regard to the test sufficient interest, I find and am satisfied that the applicant has sufficient interest in the matter.  Its interest in the property was allegedly cancelled by the 1st respondent and transferred to another person.  There is prima facie evidence and facts pleaded in the Statement, which establishes the sufficient interest requirement.

25.	In relation to the test undue delay, I find that there was no undue delay by the applicant in bringing the matter to Court.  The alleged registration and cancellation of the applicant's interest in the property arose on 26 October 2015.  The applicant said it discovered that in October 2016.  The applicant took steps soon after including lodging a caveat within the said month on 25 October 2016.  The applicant filed proceedings for leave to apply for judicial review on 12 December 2016, which is just over a month since the applicant first became aware of the alleged actions of the 1st respondent.  

26.	In relation to the test arguable case, I find prima facie evidence as well as sufficient facts pleaded in the Statement that supports the applicant's proposed claim.  The proposed claim is that the 1st respondent has erred in law contrary to the provisions of the LRA when he, in a single act, registered, cancelled and transferred the applicant's interest in the property over to the 4th respondent.  This, obviously and in my view, may call upon a judicial review Court to examine the steps and actions of the 1st respondent at the material time.  The obvious proposed issue may be this.  When the 1st respondent had invoked his powers under sections 160 and 161 of the LRA to effect the transfer, cancellation and then transfer the property between the applicant and the 4th respondent, did he breach any law?

SUMMARY

27.	I will exercise my discretionary power and grant leave to the applicant to apply for judicial review.

COSTS

28.	I will order costs to the judicial review application.

THE ORDERS OF THE COURT

I make the following orders:

1.	Leave is granted to the applicant to apply for judicial review.

2.	Costs shall be costs to the application for judicial review.

3.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.
______________________________________________________________
NatPhil & Associate Lawyers	:  Lawyers for the Applicant
Office of the Solicitor General	:  Lawyers for the 1st Respondent