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Mavoko v Kumbu [2022] PGSC 112; SC2308 (3 November 2022)

SC2308


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NO. 19 OF 2021


BETWEEN:
WILSON MAVOKO
Appellant


V
ISRAEL KUMBU
First Respondent


AND
NATIONAL HOUSING CORPORATION
Second Respondent


AND
MOUDOGEGILA MOGIYAUMA in his capacity as the Acting Deputy Registrar of Titles
Third Respondent


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


Waigani: Collier J, Anis J, & Narokobi J
2022: 28th October & 3rd November


APPEAL – appellant sought judicial review of decision of Registrar of Titles to register transfer of title – leave granted to bring judicial review application – appellant never held a registered title to the land – fact that appellant granted leave to bring judicial review application not equivalent to standing in substantive proceedings.

The National Court dismissed the appellant’s application for judicial review of a decision of the Acting Deputy Registrar of Titles to register the transfer of title to certain real property from the second respondent to the first respondent. The primary Judge found, inter alia, that the appellant lacked standing to seek the relief claimed. The appellant appealed on the basis that the primary Judge erred in finding no standing on the part of the appellant, and in particular that the appellant had standing because another Judge of the National Court had earlier granted the appellant leave to bring an application for judicial review.

Held:

The grant of leave to bring judicial review proceedings is a preliminary step in those proceedings. It is not conclusive of a party’s standing to seek judicial review. There is no barrier to a Court examining questions of standing at a later date despite leave having been granted. The Appellant lacked standing to seek judicial review as he was never the registered owner of the relevant land: Pipoi v Seravo, National Minister for Lands [2008] SC909.


Cases Cited:
Papua New Guinean Cases


Anthony Avaukava v Jimmy Tapat and Ors (2022) N9591
Chief Collector of Taxes v Bougainville Copper Limited [2007] SC853
Denny v Pipiya [2021] SC2125
Dr Lawrence Kalinoe v Phillip Kereme [2017] SC1604
Ila Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22
Ken Mondiai and 1 Or v Wawoi Guavi Timber Co. Ltd and Ors (2007) SC886
Kwayok v Singomat [2017] N7097
Peter Makeng v Timbers (PNG) Limited (2008) N3317
Pipoi v Seravo, National Minister for Lands [2008] SC909
Pora v Leadership Tribunal [1997] PNGLR 1
Re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] SC1154
Tony Vagi Heni v Guba Idau Maima (1994) N1201
Vanimo Jaya Ltd v East New Britain Provincial Government [2018] SC1734


Overseas Cases


Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644


Counsel:


L Baida, for the Appellant
D Wayne, for the First Respondent
J Palma, for the Second Respondent
N Yano, for the Third and Fourth Respondents


3rd November, 2022

1. COLLIER J: Before the Court is an appeal from a decision of a Judge of the National Court of 17 February 2021 in proceeding OS (JR) 169 of 2019 (primary proceeding). By that decision, the primary Judge dismissed the appellant’s application for judicial review of the decision of the third respondent to register the transfer of title to the property described as State Lease 42, Section 51 Allotment 253, Volume 72 Folio 41 (land), from the second respondent to the first respondent.

BACKGROUND

2. The appellant is the son of the late Mr Tom Mavoko. Mr Mavoko was granted a licence to operate a kiosk on “road reserve land of Sir Hubert Murray Stadium adjoining allotment 1 Section 61” for a period of 12 months from 10 January 1986. The appellant and his family moved to the land in March 1986, and the appellant has resided there since. The licence granted to the appellant’s father was never renewed following its expiry.

3. The land previously formed part of a portion registered to the Department of Civil Aviation and used as housing for its employees. In National Gazette G175, dated 5 July 2011, the Portion of which the land was part (Portion 2062) was transferred to the second respondent.

4. At some later point, the first respondent expressed an interest in purchasing the land. This sale to the first respondent by the second respondent was finalised, and title to the land was transferred from the second respondent to the first respondent on 20 April 2017.

5. The appellant sought to challenge the transfer of the title to the land from the second respondent to the first respondent, having occurred by act of the third respondent in his capacity as the Acting Registrar of Titles, by means of an application for judicial review in the primary proceeding. The appellant further contended that various respondents did not comply with administrative regulations referable to the sale and transfer of land in transferring title from the second respondent to the first respondent. Having been unsuccessful in the National Court, the appellant has appealed to this Court.

PRIMARY PROCEEDING

6. The appellant applied for leave for judicial review regarding the sale of the land. The application was heard by Gavara-Nanu J in the absence of the fourth respondent, although his Honour was satisfied that the fourth respondent was aware of the proceedings.

7. Relevantly in determining the application for leave for judicial review on 11 July 2019, Gavara-Nanu J observed:

Having heard the counsel for the plaintiff, Mr Baida, and having considered the material – supporting affidavits including the – especially the affidavit by the plaintiff, I note that the plaintiff had expressed interest to purchase the property. It was in a letter to the defendants sent sometime in 2008. And they have been occupying that property for a long time, not only that but their licence was granted for them to be in occupation of the property and to use it for other purposes. In that regard, I am satisfied that they have sufficient interest – the plaintiff has sufficient interest.

The only issue appears to be the question of delay. However, that has been in my view as sufficiently explained. Inquiries made by the plaintiff as to the circumstances in which the property was transferred also contributed to the period of delay which is almost two years. However, given the circumstances which the property was transferred as to the possibility of fraud involved, there does appear to be a serious issue as to whether the title now held by the first defendant is valid. That is a serious issue which can only be properly determined on evidence by all parties. It is for those reasons that leave is granted so that all these issues can be properly decided at the substantive hearing.

Leave is granted to the plaintiff. The plaintiff is also directed to file the order 16 rule 5 (1) notice of motion which is for substantive hearing....

8. In the primary proceeding, the appellant sought the following relief by his Originating Summons filed on 26 March 2019:

  1. Leave of the Court pursuant to Order 16 Rule 3 of the National Court Rules.
  2. An Order in the nature of Certiorai to remove into this Honourable Court and to quash the decision made by the Third Defendant in transferring the title from the Second Defendant to the First Defendant on 20 April 2017 over the property described as State Lease Volume 72, Folio 41, Section 51, Allotment 153, Granville, National Capital District formerly known as Portion 2062, pursuant to section 42 of the Land Registration Act 1981.
  3. A Declaration that the said decision of the Third Defendant is null and void and of no effect,
  4. Such further Orders or Directions as this Honourable Court deems appropriate.

9. Relevantly the primary Judge found as follows:

  1. This is the ruling on the Plaintiff’s substantive notice of motion of the 17th July 2019 for judicial review pursuant to Orders 16 Rule 1(1) and (2) of the National Court Rules.
  2. He argues that declaration lies against the decision of the third defendant of the 20th 1 April 2017 to transfer the property described as State Lease Volume 72. Folio 41, Section 51 Allotment 153, Granville, National Capital District (the property) from the Second Defendant to the First Defendant pursuant to section 42 of the land registration act 1981 is ultra vires, null and void ab initio end of no effect.
  3. He also seeks an order in the nature of certiorari to quash the decision of the Third Defendant of the 20 April 2017 to transfer the property from the Second defendant to the First Defendant
  4. And further that upon cancellation of the title over the property, the third defendant to liaise with the second defendant to take reasonable steps giving first preference first right of refusal to purchase the subject property at a reasonable terms and conditions including price.
  5. The plaintiff in support relies on his own affidavit; firstly sworn and filed of the 26 March 2019, secondly of the 25th March 2019 and filed on the 26th March 2019, thirdly sworn and filed of the 22nd May 2019, fourthly sworn of 29 April 2019 and filed 30 May 2019, fifthly sworn of 4th June 2019; sixthly sworn and filed 5 June 2019 and seventhly sworn on 4 October 2019 filed 7 October 2019.

...

  1. The plaintiff's cause holds no water by the evidence of Bugave Gabina sworn and filed 18th October 2019. He is the Acting General Manager Property Management employed by the National Housing Corporation. He swears that the section 51 allotment 153 Granville, national capital district was property of the NHC before being transferred to the first defendant Israel Kumbu title deed is annexe “A” to his affidavit. It is dated 7 July 2016 and rests title on the National Housing Corporation residential lease upon it from 13 April 2016 to 4 July 2011. He has a high covenant residential lease, with transfers shown in the name of Israel Kumbu of the 20 April 2017. Annexe “B” is the land as shown of Section 51 Allotment 153. Annexe “C” is the National Executive Council decision number 78(a)/92 Meeting number 29/92 subjected Disposal of National Housing Corporation detached low-cost houses to sitting tenants and Sale of Institutional houses not on Institutional Grounds under which the sale was made to the first defendant Israel Kumbu.
  2. This is supported further with annexure “D” inter office memorandum under hand of one Edwin Oropa General Manager, he supports that,

“...........While allotment 153 was sold to Israel Kumbu as a vacant land sale for K 3,500,000.00. The documents were signed with IRC stamped and I believe the title have been transferred to the new owner. NHC was settled in full and title was released. The occupancy of Wilson Mavoko and family was not being registered or recognised by the national housing corporation and has been residing without the knowledge of the NHC. Per my inspection last week, I noticed that there are some structures which were made by themselves. I am not sure whether appropriate approvals were given to them to put up such structures. Even if they have, NHC would have been consulted as the Landlord. They claim to have occupied the property for more than 30 years under DCA. One of their parents must have been an employee of DCA then which allowed them to settle on the subject land...... The Makovo family has been living there without paying any form of rental to the National Housing Corporation and I cannot protect their interest. NHC is not obligated to the Mavoko family who does not have any form of legal documents to verify their tenancy. Finally if the property is transferred, NHC would not have any interest over the subject property. Israel Kumbu would have the bona fide the title and the subject property would be a private property if the transfer lodged at Lands Department is registered.”

  1. This is confirmed by annexure “E” a letter under hand of Kenneth Cooke Acting Manager Director of National Housing Corporation to Registrar of Titles Office of the Registrar of Titles Department of Lands & Physical Planning that once the title to the subject land section 51 Allotment 153 has been released and title transferred registered there is a new owner, and the NHC is relinquished of its interest in the subject land.
  2. The first defendant relies in defence on two affidavits of I. Kumbu sworn and filed 18th October 2020. In the case of Second, Third and fourth defendants there is no evidence for light on in the defence of the cause.
  3. The Primary facts contended by the plaintiff, he is a long time resident of the subject property since 1989 and that he inherited it from his father who is the first occupant initially. He has constructed developments for many years. And acknowledges the property was initially owned by the Department of Civil Aviation as the proprietor since 1989. Who according to the plaintiff agreed to sublease it to the plaintiff's father and family since 1989. And that it was waste and vacant land where they were making developments.
  4. In or around July 2011, portion 2062 was subdivided into 5 different allotments including the subject property being one of the allotments and were registered under the National Housing Corporation at the Department of Lands & Physical Planning. The plaintiff expressed interest to purchase the property from NHC under “First Right of Refusal” which was not accorded. On 19th December 2016 the first defendant expressed interest to purchase it. On the 29th December 2016 the National Housing Corporation made an offer to sell it for the price of K 300,000. The first defendant accepted and on the 20th January 2017, Contract of Sale was executed between National Housing Corporation as vendor and the first defendant. On 20th April 2017 the property was registered under the first defendant's name and entered on the title deed.
  5. On the 21st September 2017 a formal complaint was registered with the Complaints Desk Department of Lands & Physical Planning by the Plaintiff claiming that the subject land was a waste and vacant land and was developed with the approval of DCA. And on 29th September 2017, the Officer In Charge of Fraud and Complaints desk, Mr Peter Kila Pat acknowledged the complaint of the Plaintiff. He advised the sale was under investigation and there should be no further dealings with the Property. Investigations were made thereafter and on 17th July 2018 the Fraud and Complaints desk wrote the Plaintiff and other interested parties confirming that their investigations established no significant fraud and all allegations of fraud by the Plaintiff were cleared.
  6. In my considered view the evidence that is set out above does not show how procedure set up by law has been breached affecting the Plaintiff. Further in substantive law this evidence does not show breach in the transfer of the subject property. It has passed in accordance with the law to the recipient. In this regard the evidence is clear; the plaintiff was not registered proprietor of the subject land at law. He for all intent and purposes had no standing or locus standing to bring this course of action Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). Because here was simple contract between seller and buyer. He was not privy to it. It was a matter of private law not public law in light of Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989) he could not be seen it.
  7. His cause of action does not fall that judicial review is in his favour. It is the process not the substance, Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). And this was even clearer in view of Invest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). He has not demonstrated to the required balance where he is affected by the procedure. Nor has he shown similar as to where substantive law has wronged him. His case is without merit after consideration of all the evidence set out above. Therefore declaration does not lie as pleaded and is denied. Further certiorari does not lie as plated because the evidence and the law do not warrant and is denied. The title will remain as it is passed lawfully there is no room to accede as he has pleaded. Judicial review in all the circumstance does not lie and is refused forthwith with costs

APPEAL

10. The appellant relies on nine grounds in support of his appeal. These are, in summary, as follows:

evidence that is set out above does not show how procedure set up by law has been breached affecting the plaintiff. Further, in substantive law this evidence does not show breach in the transfer of the subject property. It has passed in accordance with law to the recipient.


On the basis that the land that was sold by the second respondent to the first respondent was incorrectly identified in the contract of sale, consent for the sale was not obtained from the second respondent pursuant to s 65 of the National Housing Corporation Act 1990 (NHCA), and that the first respondent was interested in purchasing the land in order to develop a service station on it contrary to the core functions of the respondent outlined in s 28(1) of the NHCA (Ground 2.4);

11. The appellant also seeks the following relief:

  1. The appeal is allowed.
  2. The National Court’s judgment dated 17 February 2021 is quashed.
  3. The Appellant’s application for Judicial Review in the Court below is upheld.
  4. The Respondents shall pay for the Appellant’s costs of and incidental to this Appeal and the application for Judicial Review.
  5. Any further or other orders this Honourable Court deems appropriate.

RELEVANT LAW

12. The factors to be considered in determining whether an appeal should be allowed are well-settled. As Kapi CJ, Sevua and Kandakasi JJ held in Chief Collector of Taxes v Bougainville Copper Limited [2007] SC853 at [18]:

What this means for the case before us is simple. Only if this Court finds that the learned trial Judge fell into some identifiable error, this Court could interfere with the exercise of the trial Judge’s discretion. Such an error could be committed if the learned trial Judge acted upon a wrong principle, or he allowed extraneous or irrelevant matters to guide or affect him, or he mistook the facts, or he did not take into account some material considerations. Further, if such errors are not apparent from His Honour’s judgment, it would be sufficient if on the facts it is clear that, the decision is unreasonable or plainly unjust. If such a case is made out by BCL which has the burden to do so, only then can this Court interfere and make the orders that are necessary on the facts on grounds of substantial error.

(emphasis added)

STANDING

13. It is useful to turn first to the issue of the appellant’s standing to seek judicial review of the relevant decisions. A finding that the appellant lacked standing would be fatal to his appeal. In doing so, I will deal with Ground 2.1 and Ground 2.2 together.

14. The primary Judge addressed the appellant’s standing at [17] of his reasons in the following terms:

In my considered view the evidence that is set out above does not show how procedure set up by law has been breached affecting the plaintiff. Further in substantive law this evidence does not show breach in the transfer of the subject property. It has passed in accordance with law to the recipient. In this regard the evidence is clear; the plaintiff was not the registered proprietor of the subject land at law. He for all intent and purposes had no standing or locus standing to bring this course of action Pipoi v Seravo, National Minister for Lands [2008] PSGC 7; SC909 (10 April 2008). Because here was a simple contract between seller and buyer. He was not privy to it. It was a matter of private law...


APPELLANT’S SUBMISSIONS


15. The appellant submitted that his standing to bring judicial review proceedings referable to the land was recognised by the Gavara-Nanu J in the National Court in granting leave for him to bring an application for judicial review against the four respondents on 11 July 2021. Pursuant to Order 16 Rule 3(5) of the National Court Rules, standing must be demonstrated in order for leave to review to be granted.

16. By finding that the appellant did not have standing, the appellant contended that the primary Judge erred by effectively causing two differing decisions to be made, on the same issue and in the same proceeding. The appellant submitted that this state of affairs is contrary to the principles outlined in Dr Lawrence Kalinoe v Phillip Kereme [2017] SC 1604.

17. The respondents, in the appellant’s contention, did not seek to appeal the grant of leave by the National Court on 11 July 2021, and as such questions as to the appellant’s standing should not have been entertained or decided by the primary Judge in the primary proceeding.


RESPONDENT’S SUBMISSIONS


18. The first respondent, in written submissions, contended that it is trite law that substantive relief may only be sought or granted following a successful application for leave. The National Court, in order to grant leave, need only conduct a prima facie examination of whether leave should be granted. The first respondent further contended that a grant of leave in no way confers any rights or interests on the individual seeking leave be granted, and it followed that the appellant cannot rely on the grant of leave as demonstrative of his standing to bring judicial review proceedings against the respondents.

19. In written submissions, the second respondent contended that while the appellant had been granted leave to review by the National Court, the primary Judge correctly concluded that the appellant had no standing. This was primarily because the primary Judge could not identify any legal relationship between the appellant and the second respondent, and as such the appellant did not have standing to prosecute his application for judicial review.

20. The third respondent appeared at the hearing on 28 October 2022 and handed up written submissions. Those submissions, and the oral submissions made at that hearing, echoed the submissions made by the first and second respondents


CONSIDERATION OF STANDING

21. In Pipoi v Seravo, National Minister for Lands [2008] SC909, Sevua, Kandakasi and Lenalia JJ outlined the principles relevant to establishing standing in the context of judicial review as to ownership of property at [23]:

The first ground of appeal (ground (a)) concerns the issue of sufficient interest, or standing to apply for leave. Order 16 Rule 3 (5) of the National Court Rules is relevant, which codifies the relevant principle. The principle is that the Court shall not grant leave unless it is satisfied that the applicant has sufficient interest in the subject matter. The law is succinctly set out by Wilson, J in NTN Pty Ltd v. Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70. At 74 His Honour said:

"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)."

That case has been cited and adopted in many subsequent cases. The requirements to be satisfied before leave is granted are set out in Ombudsman Commission of Papua New Guinea v. The Hon. Justice Sakora & Ors (1996) unreported, N1720, 6th December 1996. The same requirements have been adopted in many subsequent cases as well.

22. The Court in Pipoi went on find that the appellant there lacked standing in that matter as they were not the registered owners of the land which was the subject of the application for judicial review. In doing so, their Honours noted, at [36]:

Order 16 Rule 3 (5) is clear. The Court shall not grant leave unless it concludes that the applicant has a sufficient interest in the matter to which the application relates. The trial Judge’s finding that nowhere in the judgment of Phillips, J, is there a finding that No 1 Tribe own any of the land, the subject of the proceedings before Phillips, J, is correct. We find no error in that finding of fact.

23. In light of these observations, and for the following reasons, I am satisfied that, simply because Gavara-Nanu J had earlier ruled that the appellant had sufficient interest to enable a grant of leave for a judicial review application, it cannot be said that the primary Judge erred when he determined that the appellant had no standing to bring the application on which he relied for judicial review.

24. First, the appellant was never the registered owner of the land. While it is not disputed that he occupied it for a period, and may have had an equitable interest in it, he cannot bring proceedings for judicial review referable to the sale and transfer of the land from the second respondent to the first respondent owing to the position articulated in Pipoi.

25. Second, a grant of leave to bring judicial review proceedings is a preliminary step in those proceedings. There is no barrier to a Court examining questions of standing at a later date despite leave having been granted. As the Supreme Court, per Batari J, opined in Vanimo Jaya Ltd v East New Britain Provincial Government [2018] SC1734 at [20]:

That concession makes the application before this Court a frivolous and vexatious cause. The applicant has not shown an arguable or prima facie case or demonstrated the trial judge was wrong. The question of standing is a jurisdictional issue that can be raised at any stage of the proceedings at the primary court or before the Supreme Court. The applicant has these recourses still open to pursue at the substantive hearing. This is the kind of situation that a tight rein should be kept against spurious and time wasting applications for leave to appeal against a decision of the primary court which on the face of the records, does not show the exercise of discretion to be manifestly unreasonable, or exercised on a wrong principle or a mistake of fact. I am not satisfied that any injustice has been caused to the applicant. Besides, cause has not been shown why the trial process should be interrupted by an appeal.

(emphasis added)

26. In addition, the Court has an inherent jurisdiction to review standing upon request by a party to a proceeding, or entirely under its own steam without any party requesting it do so: Re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] SC1154 (see also comments of Nablu J in Kwayok v Singomat [2017] N7097).

27. Further, the situation that exists in the present case is entirely different to that which occurred in Kalinoe on which the appellant relied. In Kalinoe, the Court took issue with subsequent enquiry into the legal capacity of the appellant to sue, satisfaction with which was not required in granting leave under the National Court Rules. Having a “sufficient interest” in the matter to which the application relates is a requirement for granting leave for judicial review under Order 16 Rule 3(5) of the National Court Rules. In light of these observations and the authorities to which I have referred, the appellant’s contention that neither the National Court nor this Court can examine his standing is entirely misguided.

28. Third, as the primary Judge correctly identified, no legal relationship existed between the appellant and the second respondent. The appellant was not able to identify any evidence to suggest any form of legal relationship between himself and the second respondent. It follows, in my view, that he consequently did not have standing to pursue judicial review proceedings against the second respondent.

29. Fourth, the appellant cannot assert that a grant of leave in accordance with Order 16 Rule 3(5) of the National Court Rules amounts to substantive recognition of his interest in the land, or was in any way conclusive of his standing to bring judicial review proceedings against the respondents. The interest required for leave to be granted under Order 16 Rule 3(5) of the National Court Rules is entirely separate and distinguishable from legitimate standing to bring an action for judicial review. The standing the appellant seeks to demonstrate forms part of the substantive relief sought by him in the primary proceedings. It is well-settled that substantive relief cannot be granted at the same time that leave for judicial review is granted. On this point Cannings, Makail and Collier JJ held in Denny v Pipiya [2021] SC2125:

Here, substantive relief was granted at the same time as leave for judicial review was granted. This was a serious error of law warranting quashing the whole of the decision of the National Court. It was also a decision made contrary to the principles of natural justice. The appellant, whose interests were directly affected by the decision, was not a party to the National Court proceedings and was given no notice of the decision and had no opportunity to be represented at the hearing of what should have been a simple application for leave.

(emphasis added)

30. Applications for leave to seek judicial review are usually heard ex parte. It is a non sequitur to suggest that inviolable or inarguable standing was vested in the appellant by granting him leave to pursue judicial review proceedings against the respondents.

31. I am not persuaded, on the grounds on which the appellant relied, that the primary Judge erred in determining that the appellant lacked standing to pursue judicial review proceedings against the respondents.

CONCLUSION

32. The appellant has failed to demonstrate that the primary Judge erred in finding the appellant lacked standing to prosecute the proceedings below. This is fatal to the appellant’s appeal. On that basis there is no need to further consider the grounds of appeal before the Court.

33. For the reasons I have outlined, I would dismiss the appellant’s appeal.

34. It is appropriate that the appellant pay the respondents’ costs of and incidental to the appeal, to be taxed if not otherwise agreed.

PROPOSED ORDERS:

35. I propose the following orders:

  1. The appellant’s appeal dated 26 March 2021 is dismissed.
  2. The third respondent discharge any caveats registered against Section 51, Lot 153, Granville, NCD, Volume 72 Folio 41 (property) within 14 days of the date of these Orders.
  3. The appellant give the first respondent vacant possession of the property within 14 days of the date of these Orders.
  4. The appellant pay the costs of the respondents of and incidental to this appeal, such costs to be taxed if not otherwise agreed.

36. ANIS J: This matter was heard at 9:30am on Friday, 28 October 2022. We heard and reserved our ruling on the matter to a date to be advised.

37. This is my ruling.

BACKGROUND/GROUNDS

38. My sister Justice Collier has duly set out in her decision the background and grounds of appeal for this matter which I am truly grateful for and adopt herein.

STANDING/ SUFFICIENT INTEREST

39. The trial Judge, as a preliminary matter, considered and dealt with the issue of whether the appellant had sufficient interest.

40. In his written decision dated 17 February 2021 [at pp 576 of the Appeal Book (AB)], the trial Judge found that the appellant had no standing in the matter. It was the first, if not, the main reason for dismissing the judicial review application.

41. The National Court proceeding concerned is OS(JR) No. 169 of 2019 – Wilson Mavoko v. Israel Kumbu, National Housing Corporation, Moudogegila Mogiyauma and the State. The appellant’s first, second, and third grounds of appeal (2,1, 2.2. and 2.3) challenge the findings of the trial Judge on standing. In regard to the first 2 grounds, the appellant submits that the issue of standing had been considered and granted by the leave Court. As such, the appellant submits under the 2 grounds of appeal that the trial judge erred in law when he reconsidered the issue of standing and found against the appellant, that is, when the trial Judge found that the appellant had no standing or sufficient interest in the matter. The appellant also submits that respondents should have appealed the decision if they were aggrieved but they had not done so, and therefore that it was not an issue that should have been raised by them nor heard by the trial Court.

42. The respondents, on the other hand, submit that they were entitled to raise the issue of standing at the trial proper and that the trial Court had correctly found in their favour. The first question I have and ask is this. In an application for judicial review (i.e., substantive hearing), can the Court revisit and deal with the following matters, namely (i), standing or sufficient interest, (ii). arguable case, (iii), undue delay and (iv), exhaustion of administrative remedies?

43. In my view, the answer may be found by looking at the leave Court and its role. What is the purpose of the leave Court in a judicial review matter?

44. In Peter Makeng v. Timbers (PNG) Limited and others (2008) N3317, which is a case where its principles have been adopted and applied by this Court in its various rulings, Injia DCJ (as he then was), stated at [16]:

“Judicial Review is a special procedure developed by the Courts to deal with complaints by person aggrieved by decisions made by public administrative bodies and persons exercising power conferred by statute...”

45. Kapi DCJ (as he then was), in the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644:

“If, on a quick perusal of the material 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 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 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.” [Underlining mine]

46. This passage was adopted by this Court in Ila Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22.

47. And finally, this Court in Ken Mondiai and 1 Or v. Wawoi Guavi Timber Co. Ltd and Ors (2007) SC886 stated at [45] and [46]:

“45. We do not consider that this ground can succeed. It is well settled that, apart from the grant of leave itself, nothing is finally determined on the application for leave. All issues are open and only finally determined on the substantive hearing of the judicial review.

"On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirements of O16 rr2,3 and 5. The application, of course, is ex parte and the Court does not have any other material contesting the application. The Court is not required to address the matter specified in O16 r1(2). These are matters for consideration by the Court hearing the substantive application". Ombudsman Commission v Donohue [1985] PNGLR 348 at 361 Amet J. [Underlining mine]

46. Even questions concerning standing to apply for judicial review, which must be decided in a preliminary way on the application for leave, are not finally decided until the substantive hearing. It is preferable to lean towards recognizing the standing of the applicant on the application for leave and to let the issue be finally determined on the substantive hearing, except in cases where it is very clear that the applicant does not have standing: R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1980] 2 All E.R. 378 at 642-644.” [Underlining mine]

48. Cases that have recognised this special judicial review process, principles or considerations are many, including Tony Vagi Heni and Ors v Guba Idau Maima and Ors (1994) N1201 and more recently in the case of Anthony Avaukava v. Jimmy Tapat and Ors (2022) N9591.

49. So, with that clarity, the submission by the appellant under the first and second grounds of appeal, which is that the respondents were precluded from raising the issue of standing at the trial proper and that the trial Judge erred when he considered and made a determination on the said issue, is baseless and is dismissed.

50. The immediate question that follows is in regard to ground 2.3, which I will, for references, re-state herein as follows:

“2.3 The Trial Judge further erred in fact when His Honour failed to properly consider the evidence before the lower Court and exercise His discretion suo moto to make a finding that the Appellant had some form interest if not direct, equitable interest considering the fact that the Appellant had resided on the property for a number of years without any disturbance and expended considerable amount of monies developing the property which included amount others assisting with the fees for subdividing the property (previously Portion 2062), connecting important utilities such as electricity and water, regularly paying for these utilities, etc.”

51. Under this ground, the appellant argues that based on the adduced evidence that were before the National Court, the trial Court should have taken into account the proceedings that had been commenced at the District Courts. Had that been done, they submit, they would have demonstrated the standing or sufficient interest the appellant had in the matter.

52. I fail to see the relevance of this argument and, in so doing, dismiss it. Firstly, at the material times when the District Court proceedings were commenced (see pp 28 of the AB) on 6 June 2017 (DC No. 320 of 2017), 30 November 2017 (Complaint No. 181 of 2017), and 6 August 2018 (Complaint No. 702 of 2018), the first respondent already had title over the property in question, that is, State Lease (Residential – High Covenant), Allotment 153, Section 51, Granville, National Capital District (the Property). Let me elaborate. The material and undisputed facts before the trial Court were as follows. The Property’s prior owner was the second respondent. The second respondent had acquired title to the Property for a period of 99 years. The issued date of the title to the Property is 9 August 2012, and the lease operates from 5 July 2012 to 4 July 2111. On 20 January 2017, the second Defendant sold the Property to the first respondent for K300,000. A contract for sale was executed for that sale between the first respondent and the second respondent. Formal entry of registration (of the title to the Property) into the register was effected on 20 April 2017. This is also evident in the title to the Property. True copies of the title to the Property were tended in evidence before the trial Court. They are also attached in the AB.

53. The appellant did not challenge ownership of the Property when the second respondent acquired it on 9 August 2012. The second respondent owned the Property for a period of 5 years thereafter. Again, no challenge to the Property’s ownership were filed by the appellant. Then on 20 January 2017, the second respondent sold the Property to the first respondent.

54. So, the appellant’s argument that he has or may have valid or sufficient interest because he had been named as a party in the District Court proceedings which the trial Judge had failed to take into account, is baseless. The appellant did not have any legal interest over the Property at the material times when proceedings were commenced in the District Courts. He may have equitable interest then but that would not have given him any legal right or interest to question or challenge ownership of the Property then, as well as before the trial Court, and now before this appellant Court. The appellant’s understanding of standing or sufficient interest is baseless and misconceived.

55. I therefore find that the trial Judge did not fall into error when he found that the appellant did not have standing or sufficient interest to question or raise challenge on the legal proprietorship of the title to the Property.

SUMMARY

56. For these reasons, it is not necessary to consider the other grounds of appeal which are dependent on the issue (i.e., premised on grounds 2.1, 2.2 and 2.3) of standing or sufficient interest.

57. The appellant, in my view, has no standing/sufficient interest to commence the judicial review proceeding in the first place before the National Court. The trial Judge was correct and did not err in his findings in that regard. The appeal shall fail for this reason alone, and therefore shall be dismissed forthwith.

PROPOSED ORDERS

58. In regard to the orders of the Court, I agreed with the draft orders as proposed by Justice Collier.

59. NAROKOBI J: I have read both judgments of Justices Collier and Anis, and they both advance the position that the primary judge did not err when he found that the appellant lacked standing to bring proceedings. I agree with their Honours’ reasons and the final orders proposed.

60. The various instances of irregularity that the appellant advanced cannot legitimately be pursued by the appellant unless he has met the threshold issue of standing. It is akin to a situation where the doctrine of privity of contract arises, that is only a party to a contract can sue and be sued in a contract. The contract of the sale of land is between the vendor and purchaser of the property. There is no issue that the National Housing Corporation had a valid title to the property. It therefore exercised its rights to sell the property. Neither the vendor nor the purchaser has any complaints about the sale. Outside of these two parties, any person claiming the sale was not done properly would be impeded by their lack of standing.

61. The claim by the appellant that he has an equitable interest arising from his long occupation and as a sitting tenant is secondary to the primary rights of the registered proprietor, that is National Housing Corporation to deal with the property. Such interests may or may not amount to a right to compel the National Housing Corporation to sell the property to the appellant under the auspices of the National Housing Corporation Act 1990, especially ss 37 and 38. However, in this case, a third party has purchased the property in good faith and any window of opportunity available to the appellant to test this possibility under the National Housing Corporation Act in a court of law has now come and gone as title has now passed.

62. The argument that the issue of standing has already been determined is mischievous. The standard applied to determine whether leave for judicial review should be granted is on a prima facie assessment of the case, and done ex parte, except for the State’s right to be heard. This is not a situation where the doctrine of res judicata applies, far from it. The court can, suo moto determine a matter in the interests of justice and to protect itself from abuse of the court process.


FINAL ORDERS OF THE COURT:

  1. The appellant’s appeal dated 26 March 2021 is dismissed.
  2. The third respondent discharge any caveats registered against Section 51, Lot 153, Granville, NCD, Volume 72 Folio 41 (property) within 14 days of the date of these Orders.
  3. The appellant give the first respondent vacant possession of the property within 14 days of the date of these Orders.
  4. The appellant pay the costs of the respondents of and incidental to this appeal, such costs to be taxed if not otherwise agreed.

________________________________________________________________
Nelson Lawyers: Lawyers for the Appellant
Express Legal: Lawyers for the First Respondent
Adam Ninkama Lawyers: Lawyers for the Second Respondent
Solicitor General: Lawyer for the Third and Fourth Respondents


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