SC2062

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 19 OF 2019

BETWEEN:
JOHANNES HAPA
Appellant

AND:
DESH BESH ENERPRISES LIMITED
First Respondent

AND:
NATIONAL HOUSING CORPORATION
LIMITED
Second Respondent

AND:
SAMSON BENJAMIN – REGISTRAR
OF TITLES
Third Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J,
2020: 9th & 12th October
              
SUPREME COURT – practice and procedure - Application for leave to appeal

Cases Cited:
Oberia v. Charlie (2005) SC801
O’Neill v. Eliakim (2016) SC1539
Counsel:

Mr. Johannes Hapa, the Applicant 
Mr. M. Philip, for the First Respondent 

12th October, 2020

1. HARTSHORN J: This is a decision on a contested application for leave to appeal an interlocutory decision of the National Court (decision appealed). The decision appealed is a refusal of the applicant’s application to be joined as a party to a judicial review proceeding.

Background

2. The applicant maintains that he was sold a certain property by the National Housing Corporation, the second respondent, for which he paid K10,000.00 in May 2014. Whilst the conveyancing process was awaiting completion, the second respondent sold the same property to Desh Besh Enterprises Ltd, the first respondent for K50,000.00. The transfer of the property to the first respondent was registered upon the State Lease for the property.

3. The Registrar of Titles, the third respondent, then cancelled the registration of the transfer of the property to the first respondent. The first respondent commenced a proceeding in the National Court to judicially review that cancellation decision (judicial review proceeding).

4. The applicant made application to join the first respondent’s judicial review proceeding. This resulted in the decision appealed.

Application for leave to appeal

5. The applicant submits that he should be granted leave to appeal the decision appealed as:

a)	the judicial review proceeding concerns a property that was initially sold to him in May 2014. He therefore has a direct and sufficient interest;

b)	the property was somehow transferred to the first respondent, while the applicant was awaiting the property to be formally transferred to him;

c)	his remedies lie within the judicial review proceeding and not in other proceedings as was indicated by the primary judge;

d)	his rights will be prejudiced if leave is not granted as the second respondent, third respondent and the State have not been represented and have not defended the judicial review proceeding, making it likely that the first respondent will be successful in the judicial review proceeding;

e)	his inclusion in the judicial review proceeding will assist the Court to fully understand the background and reasons behind the cancellation of the registration of the transfer of the property to the first respondent;

f)	the primary judge did not give sufficient reasons for refusing the applicant’s application for joinder;

g)	otherwise, the judicial review proceeding will proceed undefended, the applicant will not be able to defend his rights and he will be prejudiced.

6. The first respondent submits that leave should not be granted as amongst others, the applicant does not have a sufficient interest in the judicial review proceeding which warrants his joinder, he does not have an arguable case that the primary judge fell into error in refusing his application for joinder, his recourse against the second respondent is not in the judicial review proceeding but in other proceedings which he is entitled to commence and he will not suffer prejudice or injustice if this application is refused.

Law

7. The requirement to seek leave is a procedure that ensures that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgment.

8. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:
	
a)	is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?
	
b)	does the appellant have other recourse in the court below?
	
c)	was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

d)	does the decision have any bearing on the final determination of the issues between the parties?  Will it affect the primary rights of the parties or prevent the determination of the issues?

e)	will substantial injustice be caused by allowing the decision to stand?
	
f)	has cause been shown that the trial process should be interrupted by an 	appeal?

Consideration

9. The decision to be reviewed in the judicial review proceeding from which this application for leave to appeal emanates, is of the third respondent by which he purports to cancel the registration of the transfer of the property to the first respondent.

10. If the first respondent is successful in the judicial review proceeding, this will likely result in the cancellation decision being quashed and the first respondent being the registered proprietor of the property. If the first respondent is not successful, the registered proprietor of the property will be the registered proprietor on the State Lease for the property, before the purported transfer to the first respondent. That is the second respondent. It is not the applicant. In the submissions of the lawyer for the applicant before the primary judge in the judicial review proceeding, it was acknowledged that the title to the property was not issued to the applicant (transcript 14/2/19 p5 lines 26-34) and a perusal of the copy of the State Lease for the property reveals that no interest of the applicant was registered upon the State Lease.

11. In my view therefore, it is not the position that the applicant is directly affected by the cancellation decision and he will not be directly affected by any substantive decision which is made by the National Court in the judicial review proceeding concerning the cancellation decision, whichever way the Court decides. That it is necessary for a person or entity to be directly affected to enable a successful joinder to judicial review proceedings was referred to in O’Neill v. Eliakim (2016) SC1539. At [44] the Court (Kandakasi J, (as he then was) Hartshorn J, Kassman J) said:

“44. As to the nature of the interest that is required to be a party in a judicial review proceeding, a different test is contemplated to the tests provided for under Order 5 Rule 8(1) National Court Rules. Order 16 Rule 13(5) National Court Rules refers to service on “persons directly affected by the decision the subject of the review”.”

12. I am not therefore satisfied that the applicant has successfully demonstrated that he has an arguable case that the primary judge fell into error in finding that the applicant did not have a sufficient interest in the judicial review proceeding.

13. In regard to the submissions of the applicant that he will be prejudiced if he is not joined as the State defendants are not properly defending the judicial review proceeding, even if the first respondent is successful in the judicial review proceeding and the cancellation decision is quashed, from the evidence, the applicant likely has a cause of action against the second respondent for damages for breach of contract. If the first respondent is not successful in the judicial review proceeding, the applicant may also have a claim for specific performance against the second respondent. In any event, the applicant is not without remedy. As to what remedy he has, would not be affected by his joinder to the judicial review proceeding. His joinder would not in any way cause relief to be granted to or against him as it is not that type of proceeding. Further, the proceeding is not concerned with any relief sought by or against the applicant and is not concerned with any of his rights.

14. I am not satisfied therefore, that the applicant will suffer prejudice if this application for leave is not granted.

15. As to the applicant’s allegations of fraud, none of which were detailed before the court, the applicant should raise such allegations with the police.

16. In conclusion, I am not satisfied that the application for leave should be granted. This is because the applicant has not sufficiently demonstrated that he has an arguable case that the primary judge fell into error. Further, he has not sufficiently demonstrated that he does not have other recourse, or that he will suffer prejudice or that he will suffer substantial injustice if the application is not granted. The application for leave to appeal should be dismissed.

Orders

17. It is ordered that:

a)	The application for leave to appeal is dismissed;

b)	The applicant shall pay the costs of the first respondent of and incidental to the said application for leave to appeal.
__________________________________________________________________
Mr. Johannes Hapa Applicant in person                                               
Korerua & Associates:  Lawyers for the First Respondent