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Emani v Assemblies of God Boroko Association Inc [2019] PGNC 305; N8018 (20 September 2019)

N8018

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 559 OF 2019

DANIEL EMANI, by himself as Principle Plaintiff for & on behalf of 2570 Others
Plaintiff /Applicant

V
ASSEMBLIES OF GOD BOROKO ASSOCIATION INC
First Defendant/ Respondent

AND
THADEUS KAMBANEI
Second defendant / Respondent

AND
BENJAMIN SAMSON Registrar of Titles Department of Lands & Physical Planning
Third Defendant/Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant / Respondent

Waigani: Miviri J
2019: 19^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating Summons – Leave application – Standing de jure as opposed to de facto – nexus to decision not clear – Inordinate inexcusable long delay – No Arguable case – Alternative remedies unclear – application for leave for Judicial Review denied – cost follow event.

Cases Cited:

Avia Aihi v. The State (No.1) [1981] PNGLR 81
In the Matter of The Land Registration Act; Independent State of Paua New Guinea v National Land Commission [2004] PGNC 2; N2918 (17 December 2004)
Iravela v Samson [2018] PGNC 101; N7212 (6 March 2018)
Itarai v Nokomo [2016] PGNC 25; N6176 (5 February 2016)
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008)
Somare, Re [1981] PNGLR 265

Counsel:

R. Obora, for the Applicants

No appearance for Respondents

RULING

20^th September, 2019

1. MIVIRI, J: This is the Ruling of the Court on an application seeking leave under Order 16 Rule 3 of the National Court Rules to apply for Judicial review of the decision of the Registrar of Titles the third defendant who issued title to the subject land section 389 Allotments 3, 4, & 5 Hohola (Garden Hills) to the first defendant.
   
2. From the material before me firstly the Originating Summons filed the 15^thAugust 2019, the Statement pursuant to Order 16 Rule 16 (3) (2) (a) of the National Court Rules, Affidavit verifying the statement filed under Order 16 Rule 3 (2a), Notice for Application for Judicial Review, and the affidavit of the Applicant the following have been established prima facie.
   
3. By way of background the Applicant does not have title in law to the said land. He has been living on it and has made improvements to it by constructing a house. As such, there is no obligation on the part of the Third Defendant who has gone ahead to give title and registration of the subject land to the First Defendant. The applicant has been aggrieved by that fact arguing here that, he has not been accorded fairness in that process having been the occupant of the subject land. He says that there is fraud even though he has not been one of the persons seeking registration of it. This ground would be substantive if he had title to the subject land.
   
4. This is an allegation of a process to acquire and to register the land and applicant has not shown prima facie where this process is and where he has been denied so as to fall into judicial review domain. And would in similar as In the Matter of The Land Registration Act; Independent State of Paua New Guinea v National Land Commission [2004] PGNC 2; N2918 (17 December 2004) invoke the jurisdiction of this court. And has observed there and in many other instances this is a discretionary power which is not open without adducing facts prima facie to follow. It is upon the applicant to show four basic premises.
   
5. First the Applicant has to demonstrate that he has standing or locus standi. Here he has sought the fact that he has lived on that land de facto as opposed to de jure, he is not the registered title holder nor is he one of the persons bidding for the subject land. He has not exchanged consideration for the subject land and nor is he the holder of a lease. But he has made improvements to the land by adverse possession and therefore has interest in the land. The decision has affected him because the title to that land is now in the hands of the first defendant. He is not likened to Iravela v Samson [2018] PGNC 101; N7212 (6 March 2018) where the plaintiff was the title holder and that the sale made to the defendant was not proper in law. Because he had entered into a relationship in law to purchase the subject house from the National Housing Corporation. There is no fiduciary relationship, but it is not as if his improvements on the land cannot be ignored and pulled down. That in my view would be the subject of another proceedings not the present as demonstrated by Itarai v Nokomo [2016] PGNC 25; N6176 (5 February 2016). Is he entitled under section 59 (2) of the Constitution the right to be heard here he has not pointed to a process prima facie in granting title to the subject land or any other land for that matter. It is difficult to root as a basis to his cause, hence the invoking of leave based on standing or sufficiency of interest is not made out.
   
6. But the court must do justice where its jurisdiction is invoked pursuant to Section 155 (4) of the Constitution Avia Aihi v. The State (No.1) [1981] PNGLR 81 and it must be pleaded what is the decision to be reviewed; Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). That in my view deduced here would be to point to a process by law and in law that has not been followed to the detriment of the Applicant hence invoking leave for judicial review. Administrative process being not in a vacuum but based upon law, Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). It follows that standing is by law not otherwise. It would open the flood gates to interpret that any person, whether in law or otherwise, is open to the process of Judicial review which is started by leave. By itself leave is discretionary and there ought to be proper basis established prima facie to invoke not otherwise. And this applies to Standing or locus standi: Somare, Re [1981] PNGLR 265 (3 August 1981). Applicant has not demonstrated to the required balance prima facie that he has standing in law given his facts that he was on the land in defiance not in compliance with the law. Put another way around, “he who seeks mercy must come with clean hands”. When there is nothing in law to give in the first place that is what will be accorded to him. He has named other persons, but the evidence prima facie is otherwise and not corresponding before the court. Consequently, he has no standing and this ground fails.
   
7. Further, there is undue delay in bringing this action Order 16 Rule 4 of the National Court Rules. The proceedings were filed on the 15^th August 2019. They became aware of the purported grant of mission leases in September 2018. That is a year ago from today 19^th September 2019. It did not prompt to bring this action. Or to seek as he has of recent done see out a process in law which is not in his favour given his facts here. And in that regard falls despite argument advanced to invoke the discretion of the court the facts here do not support and allow.
   
8. It falls that he has not demonstrated an arguable case prima facie. He challenges the registration of that land by the third defendant for the first defendant but has not pointed to what process and by what law to invoke that there is an arguable case. There is prima facie no error of law demonstrated. This ground has not been satisfied prima facie and fails against the applicant. The substance is not before the court only the leave application hence to look into the substance as invited by counsel would be error in law.
   
9. Applicant has not pointed to a process internally by law or both mixed fact and law here. Resort to the law is not in a vacuum, but by law given its own facts. That is not so, in the case of the applicant consequently he has not discharged this ground and his application fails.
   
10. In total I am not satisfied on the material that he has presented that he be accorded leave to apply for Judicial Review. Accordingly, his motion for leave is refused with costs.

Orders Accordingly.

__________________________________________________________________Raymond Obora Lawyers: Lawyer for the Plaintiff Applicant

No appearance for the Defendant