N5329

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

0S NO. 920 OF 2011

BETWEEN:

NATIONAL AIRPORTS CORPORATION LIMITED
First Plaintiff

AND:

PNG NATIONAL AIRPORT SERVICES LIMITED
Second Plaintiff

AND:

THOMAS LAKA
First Defendant

AND:

KEITH LAWI as Chairman of the PNG Land Board
Second Defendant

AND:

JOHN OFOI as Secretary for the Department of Lands & Physical Planning
Third Defendant

AND:

HENRY WASA as Registrar of Titles
Fourth Defendant

AND:
LUCAS DEKENA as Minister for Lands & Physical Planning
Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Kariko, J
2013: 19th April & 6th May

LAND LAW – State lease improperly granted to lessee – application by plaintiff for summary judgment to nullify grant of lease – grounds of summary judgment – consideration of - evidence of facts proving essential elements of claim and plaintiff giving evidence that in his belief there is no defence - both elements proven – application for summary judgment upheld – title issued to first defendant is null and void – title to land vested in first plaintiff - first defendant to surrender title to fourth defendant for cancellation – state to pay plaintiffs costs

Cases cited

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144
Motor Vehicles Insurance (PNG) Trust v Nand Waige & Ors [1995] PNGLR 202
Lang v Wagun (2008) N3592
Kumagai Gumi Ltd v NPF Board of Trustees (2006) SC 837 
Pacific Limited v Sir Albert Kipalan & Ors (2000) N1944 
Tarise v Ramu Nico (MCC) Ltd (2010) N4141 

Counsel

Ms D Doiwa, for the first plaintiff
Mrs A Warokra, for the second plaintiff
Mrs K Rema, for the first defendant
No appearances for the other defendants

RULING

6th May, 2013

1.	KARIKO, J: Thomas Laka holds title ("the State Lease") in respect of an area of land described as Portion 739, Milinch Hagen Fourmil Ramu (Kagamuga), Western Highlands Province contained in State Lease Volume 15 Folio 244 ("the Property"). The National Airports Corporation ("NAC") and the PNG National Airport Services Limited ("NASL") claim that the State Lease is null and void as the Property is aerodrome land that is by law vested in NAC and cannot be the subject of a state lease.

Application for summary judgement

2.	NAC has applied to have summary judgement ordered in its favour pursuant to O12 r38 National Court Rules which provides for summary judgment to be entered where there is:

(1)	evidence of the facts, proving the essential elements of the claim; and

(2)	the plaintiff or some responsible person gives evidence that in his belief there is no defence.

Issue

3.	Are there proper grounds for summary judgement to be granted?

The applicable law

4.	Case authorities in discussing 012 r38 have established that:

(1)	 summary judgment may be granted if there is evidence of facts on which the claim is based and that evidence is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim; Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112. 

(2)	summary judgment should not be readily ordered but granted only in a clear case where there is no serious conflict of fact or law; Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144.

Background

5.	A very brief background of this case leading to this application is as follows:

•	Mr Laka was granted the State Lease on 17th December 2009. 

•	He filed an eviction proceeding in the Mt Hagen District Court against NASL in respect of the Property.

•	During that proceeding, Mr Laka learnt that the Property had been gazetted in 1985 as aerodrome land.

•	The proceeding was dismissed and parties directed to take up the question of title to the Property in the National Court.

•	The current proceeding was filed on 1st December 2011 initially by NAC against Mr Laka.

•	NASL later joined as a plaintiff while various officers/officials of the Department of Lands and Physical Planning ("the Lands Department") and the State were joined as defendants.

•	In response to the plaintiff's claim, Mr Laka has maintained that the requisite procedures under the Land Act were followed in relation to the issue of the State Lease.

•	In the course of this case being progressed to trial, the Lands Department through its Secretary acknowledged that the Property is indeed aerodrome land and that the State Lease was unlawfully issued to Mr Laka.

•	The Secretary advised that the State Lease would have to be cancelled and Mr Laka granted another state lease over another suitable land. 

•	Parties then entered into discussions for draft consent orders to settle this proceeding for the Court's endorsement.

•	NAC would not agree to the draft consent orders proposed and insisted upon by Mr Laka, and filed this motion for summary judgement.

6.	There is essentially one sticky point in the parties agreeing to the draft orders. Mr Laka seeks the inclusion of a term that he will surrender his State Lease over the Property for cancellation on the condition that the Lands Department find another suitable land as a replacement and issue him another state lease over that land. NAC say that they cannot agree to such a term as it would be wrong for it to do so as the matter of a replacement land is a matter for Mr Laka and the Lands Department. 

Objection to the application

7.	Mr Laka was the only defendant represented at the hearing of this application for summary judgement. Through his counsel Mrs Rema, he objected to the application arguing that summary judgement would only settle the issue regarding title to the Property and not the other related issues that have arisen and in particular relief for Mr Laka who committed no wrong in the issue of the State Lease over the Property. Mrs Rema submitted that the proposed consent orders would finalise all issues. 

8.	In support of his objection, the first defendant relied on the cases of Lang v Wagun (2008) N3592; Bruce Tsang v Credit Corporation (PNG) Limited (supra) and Kumagai Gumi Ltd v NPF Board of Trustees (2006) SC 837 for the proposition that the Court should not unfairly deprive a defendant for presenting his case. The first defendant also cited Pacific Limited v Sir Albert Kipalan & Ors (2000) N1944 and Tarise v Ramu Nico (MCC) Ltd (2010) N4141 for the submission that all relevant issues properly before the Court must be finalised. 

Findings

9.	To my mind, the only issue properly before this Court is the question of the validity of the State Lease issued to Mr Laka in respect of the Property. No other issues have been pleaded for my determination, and most certainly not the relief Mr Laka seeks from the Lands Department. I agree with Ms Doiwa of counsel for the NAC that: 

(1)	Mr Laka could have filed a cross-claim against the Lands Department but did not;

(2)	He and the Lands Department could separately enter into a deed of agreement in relation to the offer of a replacement land; and

(3)	He also has the right to file a separate proceeding against the Lands Department.

10.	In the circumstances I do not consider that the entry of summary judgement would unfairly deprive Mr Laka of his day in court. As already noted, the law is that summary judgment should be granted in cases where clearly there is no serious conflict of fact or law. In my view, the admission by the Lands Department of its error settles the plaintiffs' claim and there is no serious conflict of fact or law.

11.	I am satisfied that:

(1)	there is evidence of facts proving the claim (that the issue of the State Lease over the Property to Mr Laka was wrong in law and therefore null and void); and 

(2)	that the Director for NAC, being a responsible person has given evidence that in his belief Mr Laka has no defence. 

12.	I should add that I would be reluctant to endorse any consent order whereby the Lands Department offered to grant a State Lease over a piece of State land in substitute for a State Lease incorrectly issued over another piece of State land. I am not entirely sure that this is permitted under the Lands Act. But I need not make a determination on that question as the matter was not fully argued nor is my decision dependant on it. 

Costs

13.	Ms Doiwa invited me to award costs on an indemnity basis against Mr Laka. Awarding costs is a discretionary matter, and costs on a solicitor/client basis may be awarded against a party whose conduct has been improper, unreasonable and blameworthy; Rex Paki v MVIL (2010) SC1015.

14.	I do not consider it appropriate to award such costs. Having followed all requisite procedures under the Lands Act Mr Laka sincerely believed he had proper title to the Property and understandably so. I also find that since the Lands Department admitted its negligence, Mr Laka has genuinely believed that the proposed draft consent orders are proper to fairly compensate him. This proceeding is clearly a result of the negligence of the Lands Department.

Orders

15.	Before issuing the formal orders, I point out that the orders numbered 2 and 3 claimed in the amended originating summons do not accurately cite the legal basis for the orders sought. The Property was vested in the NAC pursuant to an Instrument dated 3rd August 2011 and made by the Minister for Civil Aviation under section 324A Civil Aviation Act 2000 (as amended) rather than section 4(1) Aerodrome (Business Concessions) Act. Secondly, the correct legislation for the reference to s.33(1)(h) is the Land Registration Act and not the Land Act. 

16.	This Court orders:

(1)	The first plaintiff's application for summary judgement is upheld.

(2)	Declarations:

(a)	That the land described as Portion 739, Milinch Hagen Fourmil Ramu (Kagamuga), Western Highlands Province contained in State Lease Volume 15 Folio 244 is aerodrome land pursuant to section 54 Land Act 1996.

(b)	That the land described as Portion 739, Milinch Hagen Fourmil Ramu (Kagamuga), Western Highlands Province contained in State Lease Volume 15 Folio 244 is vested in the National Airports Corporation pursuant to an Instrument dated 3rd August 2011 and made by the Minister for Civil Aviation under section 324A Civil Aviation Act 2000 (as amended).

(c)	That the title issued to the first defendant in respect of the land described as Portion 739, Milinch Hagen Fourmil Ramu (Kagamuga), Western Highlands Province contained in State Lease Volume 15 Folio 244 is null and void pursuant to section 33(1)(h) Land Registration Act (Chapter 191) and section 54(2) Land Act 1996.

(d)	That the first defendant has no legal or equitable rights, lease, licence or any interest in the land described as Portion 739, Milinch Hagen Fourmil Ramu (Kagamuga), Western Highlands Province contained in State Lease Volume 15 Folio 244.

(3)	The first defendant shall forthwith surrender the title issued to him for Portion 739 Milinch Hagen Fourmil Ramu (Kagamuga) Western Highlands Province contained in State Lease Volume 15 Folio 244 to the fourth defendant for cancellation.

(4)	The State shall pay the plaintiffs' costs of and incidental to this proceeding on a party-party basis, to be taxed if not agreed.

(5)	Time for entry of these orders is abridged.

_____________________________________________

Makap Lawyers: Lawyers for the First Plaintiff
Bradshaw Lawyers: Lawyers for the Second Plaintiff
PANG Legal Services: Lawyers for the First Defendant