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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS (JR) NO. 44 OF 2025
BETWEEN:
NIMUKIRI GOROGAHA INCORPORATED LAND GROUP
Plaintiff
AND:
ALA ANE in his capacity as REGISTRAR OF TITLES, DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
WAIGANI: DOWA J
21, 28 MAY 2025
PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – application to review decision of the Registrar of Titles which refused to register transfer of titles- whether Plaintiff has sufficient interest-whether grounds exist for leave- whether executive of ILG has authority to transfer certificate of title in fee simple-whether Plaintiff has standing-whether there is arguable case – failing to establish sufficient interest and disclosing no arguable case- application for leave refused.
Cases cited
NTN v PTC [1987] PNGLR 70
Asakusa v Kumbakor (2008) N3303
Danley Kotapu v David Manning & Others (2025) N11282
Counsel
A Benny for the plaintiff
Z Waiin for the defendants
RULING
Brief Facts
Documents
The hearing
Issue
8. The main issue for consideration is whether the Plaintiff be granted leave to apply for judicial review.
Law
9. The principles applicable to an application for leave to apply for judicial review are settled in this jurisdiction: refer NTN -v- PTC (1987) PNGLR 70 and Asakusa -v- Kumbakor (2008) N3303. The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:
10. On the use of discretion, the Court in NTN v PTC, said this at page 7 of the judgment:
“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).
In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):
"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."
11. I will now turn to the present case to consider whether the Plaintiff has met the prerequisites for leave to apply for judicial review.
12. Counsel for the Plaintiff submits that the Plaintiff is the registered owner of land described as Portion 2734C, Milinch Granville, Fourmil Moresby, Certificate of Title Volume 40, Folio 181. It has agreed to sell and transfer the title of the land to a third party. The Plaintiff submits that the first Defendant’s refusal decision in registering the transfer has directly affected its interest and thus has standing.
13. Ms. Waiin, counsel for the Defendants, submits that the Plaintiff does not have standing and does not have sufficient interest because there is no evidence of resolution by the members of the land group authorizing the sale and transfer of the land and the commencement of the current Court proceedings.
Consideration
14. For the Plaintiff to succeed, the Plaintiff must demonstrate that the refusal decision to register the transfer has affected its interest or rights be it financial, land rights or interest of some sort. I have considered the pleadings, evidence and submissions of counsel carefully and make the following findings.
15. Firstly, there is no evidence that the members of the Plaintiff land group are affected by the refusal decision of the Registrar of Titles to register the transfer of their land to a third party.
16. Next, the Plaintiff lacks legal capacity to bring the action. I note the name of the Plaintiff, Nimukiri Gorogaha Incorporated Land Group, is different from the name in the Certificate of Recognition of Incorporated Land Group. The Certificate of Recognition attached to the Affidavit of Roua Vaita filed 20th May 2025 shows the registered name is Nimukiri Gorogaha Land Group Incorporated. I find as a matter of both law and fact , that the Plaintiff, an unregistered entity, cannot sue or be sued. On the same token, the sale and transfer executed by the Plaintiff, an entity not duly registered or incorporated, is voidable.
17. Thirdly, the Plaintiff does not have legal standing to commence the proceedings. Section 13 (1) of the Land Group Incorporation (Amendment) Act 2009 provides that:
“the powers of an incorporated land group......(b) shall be regulated and exercised in accordance with, and subject to any conditions
or limitations imposed by, its constitution and any relevant custom; and(c) shall be exercised in the manner specified by its constitution
or any relevant custom, or otherwise by law.”
18. The Plaintiff has not provided a copy of its constitution. There is no evidence of a resolution by the members of the Nimukiri
Gorogaha Land Group Inc. of their decision to sell and transfer their land. This is necessary as the land area is large, containing
1,243 hectares, and all the members must agree to part with ownership. The members must also agree on the commencement of these proceedings.
Mr. Roua Vaita, deposed in his affidavits that he is the Chairman of the Plaintiff land group. However, he did not depose in any
of his affidavits that he represents the members of the land group or that the members have all agreed to sell and transfer the entire
land to a third party. Furthermore, there is no evidence of the members, including the executive members, agreeing to the sale and
transfer and the commencement of this Court proceeding. This is necessary to dispel the underlying reasons for the refusal decision.
19. The law on sufficient interest, standing and representative capacity is settled by the Supreme Court in various cases including Simon Mali v State (2002) SC690, Malewo vs Faulkner (2009) SC960, Karaie v Kalandi (2024) SC2695, Dumal Dibiaso Incorporated Land Group No 1664 v Kala Kuma & others (2005) SC805, Mineral Resources Development Company Ltd v Sisimolu (2010) SC1090. The principles enunciated from the above cases are:
20. In the present case, the Plaintiff is not a corporate entity capable of suing and being sued. There is no evidence of a resolution by the members of the legitimate incorporated land group to institute the current Court proceedings. There is virtually no evidence filed in Court that the Plaintiff’s interest in the land is affected by the refusal to register the transfer of their land.
21. I conclude that the Plaintiff does not have legal standing and does not have sufficient interest to be granted leave to file an application for judicial review.
c) The applicant must have an arguable case.
22. Apart from sufficient interest, the next important consideration is whether an applicant has an arguable case. That is the applicant has raised important, serious or substantive points of law and or facts which require judicial determination. In the present case, the Plaintiff raises the following grounds:
a. errors of law
b. failure to consider relevant factors
c. unreasonable decision under the Wednesbury principles
23. The Plaintiff submits that the first defendant erred in law in rejecting the registration of transfer under Section 13 of the Land Registration Act. Counsel for Defendant submits that Section 13 is not applicable because the section applies to issuance of a new Certificate of Title in the name of the Transferee after registration of transfer.
24. Section 13 of the Land Registration Act is relevant, and it reads:
“13. NEW CERTIFICATE FOLLOWING TRANSFER.
(1) Where the certificate of title of a registered proprietor (in this subsection called “the proprietor”) bears the name of the previous proprietor the Registrar shall, at the request of the proprietor, issue to him a new certificate of title in his name.
(2) Where a transfer relates to the whole of the land in a certificate of title, the Registrar shall, at the request of the transferee, issue to him, on registration of the transfer, a new certificate in the name of the transferee.
(3) Where a transfer relates to part of the land in a certificate of title the Registrar may, at the request of the transferor, issue to him, on registration of the transfer, a new certificate of title as to the residue of the land in the certificate of title in the name of the transferor.
(4) A transferee of part of the land in a certificate of title shall take out a new certificate in his own name.”
25. For the purposes of this application, only Section 13 (2) of the Act is relevant. However, it does not apply to the circumstances
of this case because subsection (2) provides for the issuance of a new Certificate of Title in the name of the transferee after registration
of the transfer. The transfer to the purchaser is yet to be registered and the submission of counsel for the Plaintiff is misconceived.
In the present case, the Plaintiff is a transferor and not a transferee. I am not satisfied there is an arguable case based on errors
of law.
26. The Plaintiff submits that the first Defendant relied on Survey General’s Minute dated 19th August 2021, an irrelevant factor, to reject the registration of the Transfer and failed to consider that the matters raised in the Survey General’s Minute were addressed and resolved by the National Court in proceedings -OS (JR) No 12 of 2022.
27. The first Defendant refused to register the Transfer of title signed by the Plaintiff as transferor and the third party, Charles Lakau Aiyok, as transferee. The first Defendant reasoned that the land under the description Portion 2734C did not exist according to a Minute provided by Surveyor General dated 19th August 2021. In that advice, the Surveyor General said the land Portion 2734C has been sub-divided by various landowner groups and thus it does not exist. Although the Plaintiff says the issue of the existence of Portion 2734C was resolved in the earlier proceedings, it is noted the issue raised in OS(JR) No 12 of 2022 involved the determination of whether to process the issuance and registration of the Plaintiff’s interest/title in Portion 2734C whereas the current application involves the registration of the Transfer of Title to a third party. The third party is not a party to the current application. For this reason, I find the Plaintiff does not have an arguable case.
c. unreasonable decision under the Wednesbury principles
28. The Plaintiff submits that the decision of the first Defendant rejecting the registration of the Transfer based on Survey General’s Minute which was eventually resolved by the Court in OS (JR) No 12 of 2022 was unreasonable. As stated earlier, the earlier decision in OS(JR) 12/2022 resolved the registration of title for the Plaintiff. The same cannot be said of the registration of the Transfer to a third party. The present issue involves the transfer of land from the Plaintiff to a third party. There is no evidence that the members of the land group are affected by the refusal decision of the Registrar of Titles to register the transfer of their land. The person likely to be affected is the transferee and he is not a party to the proceedings. I am not satisfied that the decision of the Registrar of Titles is unreasonable and thus there is no arguable case.
Conclusion
29. The Court has a discretion whether to grant or refuse an application for leave to apply for judicial review. The Court shall exercise its discretion judicially. This is what I stated in my recent decision in the case, Danley Kotapu v David Manning & Others (2025) N11282:
“Finally, the Court is mindful that the Plaintiff should not be driven from the judgment seat prematurely. This is especially so in applications for leave to apply for judicial review. If there is a shred of argument that the Plaintiff might have and which, with the filing of additional documentation, improve his chances in a substantive hearing, the Court would and should allow him to present his case. However, if it becomes clear and obvious that the Plaintiff is unlikely to succeed in his substantive application, the Court should not give a false impression that the Plaintiff will somehow succeed.”
30. In the present case, the Plaintiff has not demonstrated that its interest has been affected by the decision of the first and second Defendants. It has not demonstrated that it has standing to seek judicial review of the first Defendant’s decision. It has not demonstrated that it has an arguable case. I will therefore refuse the application for leave to apply for judicial review.
ORDERS
31. The Court orders that:
Lawyers for the plaintiff: Niuage Lawyers
Lawyer for the defendants: Solicitor General
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