Leslie Amos Tagan v Anna Nawara and Philomena Piamari Nawara and Australia and New Zealand Banking Group (PNG) Limited and General Manager, National Housing Corporation and the Registrar of Titles and The Independent State of Papua New Guinea (2015) SC1443

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 10 July 2015
• Court: Supreme Court
• Citation: (2015) SC1443
• Docket Number: SC REV NO 19 of 2015
• Year: 2015
• Judgement Number: SC1443

Full Title: SC REV NO 19 of 2015; Leslie Amos Tagan v Anna Nawara and Philomena Piamari Nawara and Australia and New Zealand Banking Group (PNG) Limited and General Manager, National Housing Corporation and the Registrar of Titles and The Independent State of Papua New Guinea (2015) SC1443

Supreme Court: Makail J

Judgment Delivered: 10 July 2015

SC1443

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 19 OF 2015

BETWEEN

LESLIE AMOS TAGAN

Applicant

AND

ANNA NAWARA

First Respondent

AND

PHILOMENA PIAMARI NAWARA

Second Respondent

AND

AUSTRALIA AND NEW ZEALAND BANKING GROUP (PNG) LIMITED

Third Respondent

AND

GENERAL MANAGER,

NATIONAL HOUSING CORPORATION

Fourth Respondent

AND

THE REGISTRAR OF TITLES

Fifth Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Respondent

Waigani: Makail J

2015: 07th & 10th July

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to review – Review of decision of National Court to dismiss application for judicial review – Principles of leave considered – Exceptional circumstances – Satisfactory explanation for default – Failure to file appeal within 40 days – Arguable case – Constitution – Section 155(2)(b).

Cases cited:

Avia Aihi v. The State [1982] PNGLR 44

Jeffery Balakau v. Ombudsman Commission [1996] PNGLR 346; (1996) SC529

Danny Sunu v. The State [1984] PNGLR 305

The State v. Colbert [1988] PNGLR 138

Joseph Kupo v. Steven Raphael (2004) SC751

Martha Limitopa v. The State [1988-89] PNGLR 364

Leo Duque v. Avia Andrew Paru [1997] PNGLR 378

Walter Schnaubelt v. Hon. Byron Chan & Electoral Commission (2012) N4791

Micky Akai v. Warner Shand Lawyers (2014) SC1393

The Papua Club Incorporated v. Nasaum Holdings Limited (No. 2) (2004) N2603

The Papua Club Incorporated v. Nasaum Holdings Limited (2005) SC812

Koitachi Limited v. Walter Schnaubelt (2007) SC870

Mudge v. Secretary for Lands [1985] PNGLR 387

Eric Kiso v. Bennie Otoa & Ken Wutnalom (2013) SC1222

Paul Asakusa v. Andrew Kumbakor (2008) N3308

Counsel:

Mr. R. Habuka, for Applicant

No appearance, for First Respondent

Mr. C. Raurela for Second Respondent

Mr. T. Anis, for Third Respondent

No appearance, for Fourth, Fifth and Sixth Respondents

RULING ON LEAVE TO REVIEW

10th July, 2015

1. BY THE COURT: This is an application for leave to review a decision of the National Court dismissing an application for judicial review pursuant to Section 155(2)(b) of the Constitution. The Applicant had lost his right to appeal against the decision of the National Court which was given on 20th February 2015 when the statutory time limit of 40 days expired on 30th March 2015. That is not to say that he did not exercise that right. He did when he filed an appeal by using a Notice of Appeal in accordance with Form 8 (Order 7, rule 9(e) of the Supreme Court Rules (SCR)) instead of Notice of Motion under Form 15 (Order 10, rule 3(c) of the SCR). That Notice of Appeal was judged to be incompetent by the Supreme Court and was dismissed. By that time, 40 days had expired.

2. The power of the Supreme Court under Section 155(2)(b) of the Constitution is discretionary but the test applied in deciding whether to grant leave to an Applicant who has lost the right of appeal is higher than the one applied in the case of leave to appeal under Section 14 of the Supreme Court Act. Leave will only be granted in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity: Avia Aihi v. The State [1982] PNGLR 44.

3. There must be convincing reasons why leave should be granted, an explanation for the delay in filing the appeal in time and it must be shown that there is an arguable case on the merits: Avia Aihi (supra) and adopted in Jeffery Balakau v. Ombudsman Commission [1996] PNGLR 346; (1996) SC529.

4. It was contended on behalf of the Applicant that the default in complying with the statutory time limit of 40 days to file an appeal can be satisfactorily explained. The explanation was; the Applicant had used a form to institute the appeal which was later found to be incorrect and the appeal was dismissed. This was not a case where the Applicant had sat on his right of appeal like the Jeffrey Balakau case (supra) but one where the Applicant had took active steps to challenge the decision under consideration. The use of the incorrect form was the doing of the Applicant’s former lawyers and the Applicant should not be penalised for the lawyers’ error of judgment or incompetence.

5. But this is not a satisfactory explanation. The Applicant had retained the services of lawyers to act for him in the appeal. It was expected of them as the Applicant’s legal advisors to properly advise him on how to prosecute the appeal; beginning with the basics, such as ensuring that the appeal was instituted using the correct form prescribed by the Supreme Court Rules. These are basic things that must be done correctly.

6. It was also pointed out by the Second Respondent that the incorrect form was drawn to the attention of the Applicant’s former lawyers and also the current lawyers before the time limit of 40 days had expired but they took no steps to rectify it. This does not improve the Applicant’s position when it comes to working out whether there is a satisfactory explanation for the default. When it is considered as a factor against the exercise of discretion, it confirms that lawyers’ error of judgment or incompetence is fatal to the Applicant’s application for leave to review.

7. Both the Supreme Court and the National Court have made it abundantly clear that lawyers’ error of judgment or omission resulting in a default is no explanation for the default. In such a case, leave would be refused. The remedy against the lawyers is in damages for professional negligence: Danny Sunu v. The State [1984] PNGLR 305; The State v. Colbert [1988] PNGLR 138; Joseph Kupo v. Steven Raphael (2004) SC751; Martha Limitopa v. The State [1988-89] PNGLR 364; Leo Duque v. Avia Andrew Paru [1997] PNGLR 378 and Walter Schnaubelt v. Hon. Byron Chan & Electoral Commission (2012) N4791. See also Micky Akai v. Warner Shand Lawyers (2014) SC1393.

8. Based on this consideration alone, there is nothing exceptional about this case for the discretion to be exercised in favour of the Applicant. Neither is it peculiar such that it would bring it within the bounds of an exceptional case and warrant a further consideration. The conflict between the parties, moreover the Applicant and the Second Respondent is a common one. It is about a residential property at East Boroko in the National Capital District. The Second Respondent is the current registered proprietor. The Applicant instituted judicial review proceedings and sought orders to set aside the title based on fraud. He claimed that he had an interest in the property as a sitting tenant of the Fourth Respondent and as an intending purchaser. Unbeknown to him, the property was sold to the First Respondent and subsequently to the Second Respondent.

9. It was his further claim that the sale of the property to the First Respondent, in the first instance, was done in fraudulent circumstances. First, the First Respondent was not a sitting tenant of the Fourth Respondent and secondly, the sale was not approved by an authorised officer of the Fourth Respondent. Thirdly, no consideration was given for the property (the Fourth Respondent received no money from the sale of the property). Fourthly and as a direct consequence of the unauthorised sale, there were two titles issued to two different title holders; one the Second Respondent and the other the Fourth Respondent.

10. He raised a further point in relation to the conduct of the First and Second Respondents by asserting that while the legality of the title was pending in the District Court by reason of an eviction proceeding instituted by the First Respondent against him and others, the First Respondent sold the property to the Second Respondent, thus implying that the Second Respondent was aware and part of the fraudulent transaction.

11. Under Section 33 of the Land Registration Act, a registered proprietor holds an indefeasible title. The title can be set aside if fraud is proven against the registered proprietor. Relying on the cases of The Papua Club Incorporated v. Nasaum Holdings Limited (No. 2) (2004) N2603; The Papua Club Incorporated v. Nasaum Holdings Limited (2005) SC812; Koitachi Limited v. Walter Schnaubelt (2007) SC870 and Mudge v. Secretary for Lands [1985] PNGLR 387, the learned trial judge found that the Applicant failed to prove fraud against the Second Respondent as the registered proprietor and dismissed the proceedings. His Honour found that there was no evidence to establish that the Second Respondent was privy to the transaction that occurred prior to the transfer of title from the First Respondent to the Second Respondent in order to connect her to the fraudulent transaction. His Honour found that she was a bona fide purchaser.

12. The Applicant’s proposition that fraud can be inferred based on the irregularities surrounding the transfer of title to the Second...