N10746
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 18 OF 2023

BETWEEN:
SUN PACIFIC INVESTMENTS LIMITED
-Plaintiff-

AND:
ALA ANE in his capacity as REGISTRAR OF TITLES
First Defendant

PACIFIC NETWORK SERVICES LIMITED
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

L & Z ENTERPRISES LIMITED
Fourth Defendant

Waigani:   Dingake J
2024: 05th April
 
JUDICIAL REVIEW- Application for Leave to cross -examine a deponent – requirements to be met – no exceptional circumstances shown to depart from the Court Rules that do not generally permit -cross examination – leave refused.

Cases Cited:

Papua New Guinean Cases
Islander Village Management & Recreation Association Inc. Zhongzin Shi (2015) N6110; [2015] PGNC 209
Aloysius Evasia v Sir Mekere Morauta (2001) N2144

Overseas Cases
O’Reilly v Mackman (1982) 3 ALL ER 1124

Counsel
Ian Sheppard & Meli Muga, for the Plaintiff
Hezron Wangi, for the First & Third Defendants
Elizah Wambei, for the Second Defendant 
Milfred Wangatau, for the Fourth Defendant

RULING

05 April 2024

1.	This is an Application by the Second Defendant to cross examine, Mr. Jimmy Maladina, Director of the Plaintiff, who has deposed to affidavits in support of the Plaintiff’s Judicial Review Application before this Court.

2.	Leave for Judicial Review of the First Defendant’s decision as particularized in the Originating Summons, filed on the 30th of August, 2023, was granted by this Court on the 13th September 2023.

3.	At the heart of the dispute between the Plaintiff and Second Defendant is the property contained in State Lease Volume 72 Folio 227 known as Portion 3425 Millinch Granville, Fourmill, Moresby, National Capital District.

4.	The Plaintiff alleges that on or about the 22nd of July, 2016 it entered into a contract of sale with the Second Defendant, in terms of which the Second Defendant sold the said property to it.  It would seem on the evidence that the property was later transferred to the Plaintiff and duly registered in the Office of the Registrar of Titles.  It was registered on the 12th of October, 2016.

5.	Subsequent to the above, the Plaintiff says it realised that the First Defendant cancelled and reissued the title of the said property to the Second Defendant.  This is the decision the Plaintiff seeks to review and set aside.  

6.	The grounds of review are based on the First Defendant’s alleged non-compliance with the mandatory provisions of the Land Registration Act.

7.	The Second Defendant does not deny the sale.  Its case is that on or around 2016, it sold various portions of land, including Portion 3422, 3423,3424,3426 and 3427 together with Portion 3425 to the Plaintiff.                                                                                                      The Second Defendant says that Portion 3425 was mistakenly sold to the Plaintiff.

8.	The Second Defendant avers that the mistake was acknowledged by the then Managing Director of the Plaintiff, Mr. Meck Luo, who agreed that the title should be cancelled and transferred back to the Second Defendant. 

9.	It would seem that an agreement to that effect was duly executed by the parties as per annexure PG 3 to the Affidavit of Mr. Gigmai (Court document No: 7).  This allegation is also confirmed by the Affidavit of Mr. Ala Ane, the First Defendant.

10.	The Second Defendant in its various affidavits filed in support of this application accuses Mr. Maladina of having made untruthful statements in his affidavit filed on the 7th of March, 2023, when he claimed that Mr. Gigmai was in possession of the original title.   

11.	The Second Defendant through the affidavit of Mr. Simon Goiye Dewe, avers that the title was under the custody of Mr. Luo at all material times. The second Defendant also denies Mr. Maladina’s allegations that the owner’s original title was lost or destroyed.

12.	Order 16 Rule (13) (11) (3) of the National Court Rules provides that;
“The hearing shall be by affidavit evidence only.  Cross-examination on the affidavit shall not be allowed except with leave of the Court”.

13.	The case law dealing with grant of leave to cross examine in judicial review says that such leave may only be granted under exceptional circumstances. (Islander Village Management & Recreation Association Inc v Zhongzin  Shi (2015) PGNC 209; N6110.  In this case the reason the court gave for allowing cross-examination was that an affidavit was filed after the Review Book was compiled and filed.

14.	There is also case law of respectable lineage that says that leave to cross examine a deponent in judicial review proceedings maybe granted if it is in the interest of Justice to do so. (O’Reilly v Mackman (1982) 3 ALL ER 1124).

15.	In the case of Aloysius Evasia v Sir Mekere Morauta (2001) N2144 leave to cross examine was granted on account of material disputes of facts between the evidence of the Plaintiff and that of the Defendants.

16.	It is clear on the authority of the leading case of O’Reilly (Supra), that as a general rule, cross examination in judicial review proceedings is not allowed as the facts “can seldom be a matter of relevant dispute,” and also because judicial review is concerned with the process rather than the merits of the case or factual findings by the decision maker.

17.	I have considered the above authorities and have taken into account Lord Diplock’s warning, in the O’Reilly case (supra) that:
	
“..it will only be on rare occasions the interest of justice will require that leave be given for cross examination ..” in judicial review proceedings.

18.	I have also taken into account the risks warned of by Lord Diplock in the O’Reilly case (supra). These risks are:

a)	Cross examination can potentially present the court with the temptation of substituting its own review of facts; or

b)	Devour the court’s attention from the facts relied on by the decision making body on whom the exclusive jurisdiction to determine the facts have been conferred by Parliament when the court is merely an adjudicator.

19.	It flows from the above that, for the Second Defendant to succeed it must establish that there are exceptional circumstances that justify departure from the general rule that prohibits cross examination in review proceedings.

20.	In this case I have had to warn myself to focus on this application and be careful not to make commentary that may amount to pre-judging the substantive review case, that is pending. This is precisely what Lord Diplock in the case of O’Reilly warned about.

21.	In my mind the Rules of this Court although not an end in themselves are very important regulatory framework.  This Court should insist on compliance with the Rules unless there is good reason justifying non-compliance.

20.	In this case it would seem that the reason why the Second Defendant wishes to cross examine Mr. Maladina is to set the record straight on what actually transpired.  

21.	The Second Defendant complains that Mr. Maladina gives evidence on matters he was not involved in. The Second Defendant argues further that the Plaintiff has no standing to challenge the First Defendant’s decision.  According to the Second Defendant title to the Plaintiff has not passed.  

22.	The other reason the Second Defendant advances for seeking to cross examine Mr. Maladina is that there are serious disputes of fact in the proceeding and that the affidavit evidence given by the parties do not assist the Court in so far as what actually happened is concerned.

23.	Having regard to all the above and the case law governing the circumstances under which cross examination in judicial review may be permitted, I do not consider that the Second Defendant has established that there are exceptional reasons/ circumstances and or it is in the interest of justice to grant leave to cross examine Mr. Maladina.

24.	There are two reasons why I am not persuaded that the Second Defendant has satisfied the above requirements: 

(a)	On its own version the Second Defendant accepts the transfer of Portion 3425 to the Plaintiff “was an oversight or mistake during the conveyancing process”,

(b)	The Second Defendant does not seem to challenge the way in which the First Defendant took the decision, the subject matter of the review.  It is difficult to see how the cross-examination of Mr. Maladina would affect the case in anyway given that he is not the decision maker, regard being had to the fact that judicial review is about process and not the merits of the case.  

25.	I am also not satisfied that the alleged dispute of facts constitute exceptional circumstances as they do not relate to anything done or omitted to be done by the decision maker, the First Respondent. 

26.	In the result, the application is refused with costs, such costs to be agreed or taxed.
________________________________________________________________
Ashurst Lawyers:	Lawyers for the Plaintiff
Office of the Solicitor General:	Lawyers for the First & Third Defendants	
Jema Lawyers: Lawyers for the Second Defendant 
Ace Lawyers: Lawyers for the Fourth Defendant