Unreported National Court Decisions
N1739
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 356 OF 1996
DALE CHRISTOPHER SMITH - PLAINTIFF
V
REGISTRAR OF TITLES - FIRST DEFENDANT
THE STATE - SECOND DEFENDANT
DUNA PEOPLES ASSOCIATION INC - THIRD DEFENDANT
Waigani
Woods J
24 June 1998
7 July 1998
REAL PROPERTY – two leases over the same land – priority of leases - indefeasibility of title.
Counsel
W Frizzell for the Plaintiff
No Appearance for the 1st & 2nd Defendants
P Parkop for the Third Defendant
7 July 1998
WOODS J: The Plaintiff is seeking certain declarations over the status of a State Lease that has been issued over certain land that he holds under an earlier State lease. 
The facts are and these appear to be undisputed:
The Plaintiff was in the National Gazette of 14 July 1988 declared to be the successful applicant for a State Lease over land being Portion 1435 Granville. 
The Plaintiff was issued as the registered proprietor with State Lease Volume 119 Folio 76 being a Special Purposes Lease over Portion 1435 Milinch Granville.
The Plaintiff has never been served or issued with a Notice of forfeiture or other notice concerning his ownership of Portion 1435.
In February 1994 the State purported to issue a State Lease Volume 11 Folio 148 over land referred to as Portion 2269 Granville to the Duna People’s Association Inc. Portion 2269 appears to be a surveyed portion of land within the above referred Portion 1435 and therefore within the prior existing State Lease Volume 119 Folio 76. 
The above matters raise directly the question of the indefeasibility of a prior registered title. In the case Mudge v Secretary for Land & The State [1985] PNGLR 387 the Supreme Court has agreed with the principle that the registration of leases under the provisions of the Land Registration Act Ch 191 is effective to vest an indefeasible title in the registered proprietor subject only to the exceptions enumerated in Section 33.
The plaintiff is asserting that Section 33 (1) ( c) is relevant to his title. That Subsection states: 
33(1)  The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except...
(c)      the estate or interest of a proprietor claiming the same land under a prior instrument of title;
It is submitted on behalf of the Plaintiff therefore that even if the third defendant was validly issued with a State Lease over part of the land in the Plaintiff’s own State Lease then the third defendant can only hold that State lease subject to the estate of the Plaintiff as he holds the prior interest. 
It would seem that there has been a serious error on the part of the Lands Department and the Land Board in that they have considered an application for a Lease over land the subject of an existing State Lease without there having been any forfeiture proceedings nor any proper subdivision application. The State has produced no evidence as to how this could have happened nor assisted the court with any submissions on the respective rights of the parties in view of the actions of the officers of the State. This should be a matter for an investigation into the operation of the Department of Lands. As to how land could be surveyed whilst it was already the subject of an existing survey and lease and then granted to another party raises serious questions as to the competence and actions of certain Lands Department officers. Further how an area of land could be surveyed and accepted without any access to a properly surveyed and gazetted road access raises questions as to the bona fides of the recipient of the later lease. 
I find that the land apparently surveyed as portion 2269 and surveyed under Lands Dept reference number M49/1127 cannot be the subject of a State Lease independent of State Lease Volume 119 folio 76 granted to the plaintiff. 
I declare that State Lease Volume 11 Folio 148 being Portion 2269 Granville is null and void and I order that the Register of Titles be rectified such that all references to Portion 2269 be removed from the Special Purposes Lease Portion 1435 Granville. I further Order that the Third Defendant its servants and agents are restrained from taking or purporting to take possession of any of the land in Special Purposes Lease Portion 1435 Granville being the land in State Lease Volume 119 folio 76. 
Lawyer for the Plaintiff: Warner Shand
Lawyer for the Third Defendant: Parkop Lawyers