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HBS (PNG) Ltd v Manda [2020] PGNC 24; N8193 (17 February 2020)

N8193

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 170 OF 2019

HBS (PNG) Limited
Plaintiff

V
CHRIS MANDA, Acting Surveyor General.
First Defendant

AND
OSWALD TOLOPA, Acting Secretary for Lands and Physical Planning
Second Defendant

AND
HON. JUSTIN TKATCHENKO MP, Minister for Lands and Physical Planning
Third Defendant

AND
BENJAMIN SAMSON, Registrar of Titles
Fourth Defendant

AND
SHEILA PATI HAROU, as Chairman and Members of the Morobe Provincial Physical Planning Board
Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

AND
KEPPA JANGIKO
Seventh Defendant

Waigani: Miviri J
2019: 25^th October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Substantive notice of Motion –State Lease–Certiorari Order 16 Rule 1 (1) NCR – Land Act 1996 – Allegation of Fraud – Indefeasibility of title –Section 130 Land Act –Effect of non-compliance– Abuse of Process law –no title in law – Judicial review not made out – proceedings dismissed – cost follow event.

Cases Cited:

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Counsel:

C. Joseph, for Plaintiff
R. Uware, for First, Second, Third, Fourth, Fifth & Sixth Defendants
J. Unua, for Seventh Defendant.

RULING

17^thFebruary, 2020

1. MIVIRI, J: This is the Ruling on the substantive Notice of Motion of the Plaintiff Applicant seeking to review three decisions of the defendants firstly of the 29^th April 2008 to register a survey plan portion 671 as 31/1368 which subdivided Portion 585 into two new portions of 671 and 669. And secondly on the 5^th September 2014 to register a survey plan of Portions 936-952 as cat no 31/1581 which renamed portion 671 as portion 936 which is within portion 585 and reduced its land area from 7.14 hectares to 6.99 hectares. And thirdly on the 22^nd February 2019 where a stop work notice was given by the First defendant claiming that the plaintiff was using State Lease volume 12 Folio 146 known as portion 585 without title and required the plaintiff to stop work forthwith.
   
2. It is clear compliance of section 130 of the Land Act was heeded to by the title holder in law Aba Kulame McKergow and Anna McKergow for the decision pertaining to register a survey plan portion 671 as 31/1368 which subdivided Portion 585 into two new portions of 671 and 669 that was made 29^th April 2008. The title documents evidence here are consistent with the evidence contained in the affidavit of the seventh defendant Keppa Jangiko review book page 143. He was dealing with Aba Kulame McKergow and Anna McKergow since 2005. Both were joint owners of the subject portion 585 there and then and not the plaintiff. Consequently, that decision did not relate to him and he was not part of it and could not be said to be affected by it. Judicial review does not lie for him. He is not a privy to that decision and therefore cannot bring the matter as he does now. His application here is without merit and substance in law and is therefore dismissed forthwith.
   
3. It is clear portion 585 was accepted for sale and commitment was made by the seventh defendant to pay and did pay K20, 000.00. Following which private surveyor No. 1 Surveyors were engaged to subdivide portion 585. Upon payment of the full price title would be surrendered to Department of Lands and Physical Planning in place for two titles portions 669 and 671. And it is clear that the plaintiff after the death of the mother Aba Kulame McKergow sought to negotiate with Anna McKergow to sell portion 585 so the seventh defendant delivered a manila folder with documents on the subdivision work carried out on Portion 585 and discussed with both the Managing Director and the General Manager of the plaintiff telling them of the subdivision of portion 585 into portions 669 and 671 and asked both to surrender the title to be arranged with the Lands Department. And which both did not do so. There is substance here because the owner’s copy of the lease does not have corresponding entries relating. This is fundamental because if it is to be accepted that both documents were produced as a result of the process of law both would mirror and be the same in all entries. It would not be wrong to determine that the owner’s copy did not see through the process of law and is therefore deprived of the entries consistent with compliance of the law under section 130 of the Land Act. Giving heed to the assertions of the plaintiff in this regard would be an error in law. The issue raised is without merit given and will be dismissed with costs. He has been at liberty all along for 8 years and has not seen right to raise it. It is serious to rely on the assertion that he raises because there is no substance nor merit even in view of the alleged title documents he professes to have.
   
4. The plaintiff must have a state lease at law and not on paper in respect of Portion 585. Evidence produced here of title on paper is not enough. There must be transition of and from the initial holder to the incumbent. The History recounted above is relevant as the lineage that portion 585 took to where it is at present. In this regard what evidence points to this fact so as to make the actions of the defendants in breach of section 130 of the Land Act. It is the basis upon which the actions of the defendants are warranted and sanctioned by law.
   
5. Section 130 denotes that the plaintiff in this case must have a lease at the outset for him to apply to the Minister for subdivision of the lease that he holds. It is written application accompanied by a plan showing the manner in which the subdivision is proposed. And if the land is within a physical planning area accompanied by planning permission under the Physical Planning Act 1989. If the minister approves the application he notifies accordingly as set out under the Act including payment of any fees if any and here the lessee surrenders within 30 days his lease so that a new lease is issued with the subdivided portions set out. The new lease expires on the date as the surrendered lease. It is official government records in the normal course of events by law and would be in the custody of the defendants and would prevent the defendants from acting as they did.
   
6. Plaintiff relies on the affidavit of Robert Lesly Watkins filed the 22^nd March 2019. He is the Managing Director of HBS (PNG) Limited, the plaintiff. He attests that the subject land Portion 585 Milinch Erap, Fourmil Markham Morobe Province was State Lease Volume 12 Folio 146 it was initially granted to Partridge Holdings Limited on 23^rd July 2004. And was transferred to one Aba Kulume McKergow and Anna McKergow as Joint Tenants on the 28^th August 2008. A notice of death was registered on 19^th March 2010 and on 29^th May 2012 Anna McKergow transferred the State Lease to the Plaintiff which was registered on the same date. A stop work notice was delivered to the Plaintiff with a letter on the 8^th January 2018. He was not given an opportunity to be heard before the decision was made to stop work. It was on the basis that he was using Portion 585 without title to it.
   
7. Attached to this affidavit is annexure “A” letter addressed to Hon. Justin W. Tkatchenko under hand of John Onguglo, Lease officer, Momase. The letter alleges fraud and improper dealings in the subject land. That the original leaseholder was illiterate, and the surviving joint tenant took advantage and collaborated with lands officer and facilitate. This allegation is consistent with the affidavit of the seventh defendant Keppa Jangiko sworn 5^th June 2019 that portion 585 was jointly tenanted by Aba Kulume McKergow and Anna McKergow, but after the death of the mother Aba Kulume McKergow the latter took responsibility over the subject tenancy. This is a joint tenancy that was supposedly severed by the death of the other partner in tenancy. The process of law taken to accommodate this fact is not clear so that there is proper basis in law for the transition of the title. This is an important fact as it would show the transition of the title from the initial holder to the new incumbent the plaintiff. Because Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005).
   
8. The evidence asserted and relied on by the Plaintiff in the reliance on the title is not clear. Against his reliance is the fact that the owners copy, and the land copy differ the owners copy reveal that death notice of Aba Kulume McKergow was registered on 19^th March 2010 and transfer of the property to the plaintiff and registration is on the 29^th May 2012. These entries are absent on the original land file copy for 8 years. It would appear apparent that the process in law was not adhered to and would not in my view amount to compliance of section 130 of the Land Act 1996. This is pertinent and glaring to the heart here, to ignore would be to err in the application of law considering the evidence illuminated. Consequently, the issues raised whether or not on the 5^th September 2014 the decision then made was in breach of the law under section 130 and in breach of the principles of natural Justice would be answered in the negative given. Because primarily and at the heart is that there was never any transition of title from the initial under law by that section from both Aba Kulame McKergow and Anna McKergow as joint tenants and then after death of the former to the latter and then to the plaintiff. The evidence is not conclusive because he who asserts must provide and prove. Here the required balance is on the balance of probabilities and that is not satisfied by the plaintiff to that balance. There was no surrender to subdivide as required by section 130 of the Land Act upon the Plaintiff. There is no evidence he complied in satisfaction and the title on paper is questionable and does not satisfy the doubt as the transition in law in that title from the initial in law to him. And the particulars which are set out above do not quell that against the plaintiff. He has asserted but has not discharged the required balance.
   
9. The issues raised as to whether or not, the decision of the 22^nd February 2019 by the First defendant in its Stop work notice contending that the plaintiff was using State lease Volume 12 Folio 146 known as Portion 585 without title will also be answered in the negative against the plaintiff. In essence he had no title in law in satisfaction of the requirements of section 130 of the Land Act, The decision taken by the first defendant was within law and did not breach 130 of the Land Act. Rather he acted in satisfaction because the plaintiff had not complied. There was no evidence that he had complied in satisfaction. The title in paper was not made out in law. He had not derived by due process nor transition from the initial holders in law both Aba Kulame McKergow and Anna McKergow as joint tenants and then after death of the former to the latter and then to him and therefore in compliance of the law. His evidence does not satisfy the required balance on the probabilities. He had no title in law attained by satisfaction and in compliance of section 130 of the Land Act to the subject portion 585 State Lease volume 12 Folio 146 and the actions of the first defendant to issue a Stop Work did not breach law nor principles of natural Justice, because the plaintiff was not seen in law nor could he assert in law. It would be an error in law to uphold the contention that he makes in view accordingly his application for Judicial review is refused and dismissed.
   
10. All four issues raised suffer the same consequence in law because of the reasons set out above. The discretion of the court will not be invoked in favour of the plaintiff as no comprehensive and persuasive cause for judicial review has been invoked and established on the required balance. All issues raised are determined in the negative and his action fails on all fours.
    
11. Judicial review is denied and dismissed with cost to follow the event.

Orders Accordingly.

_________________________________________________________________

Ashurst Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants