N8511
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 515 OF 2018

BETWEEN:
CRCE PROPERTY LIMITED
Plaintiff 

AND
BENJAMIN SAMSON, REGISTRAR OF TITLES DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Defendant

AND 
HONOURABLE JUSTIN TKATCHENKO MP, AND MINISTER FOR LAND AND PHYSICAL PLANNING
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 02nd September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Substantive Notice of Motion Order 16 Rule 5 (1) NCR – Judicial Review – Certiorari – Cancellation entry State Lease Portion 2333C Volume 35 Folio 99 – Decision of First Defendant – Restoration of Title – Costs.

Cases Cited:

Kavana v Hunter [2007] PGNC 93; N3208
Raumai No.18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952 
Marape v O'Neill [2016] PGSC 16; SC1492 
Ping Tan Enterprise Ltd v Wasa [2016] PGNC 314; N6512 

Counsel:

E. Asigau, for Applicant
No appearance for Defendants

					RULING 
 23rd September, 2020
1.	MIVIRI, J: This is the ruling of the court on the Plaintiffs substantive notice of motion of the 24th September 2018 seeking Judicial Review of the decision of the First Defendant, the Registrar of Titles, of the 29th November 2017 to cancelled entries numbered S 63011 and S 63790 of the transfer of State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, /fourmil Moresby, National Capital District (“the State Lease”) from one Anthony Gabutu Henao to Min Wang and then from Min Wang to CRCE Property Limited.

2.	The facts are not disputed and are set out in the Review Book filed 29th August 2019 at page 271. And for the purposes of the determination of this matter relevant are the following:- The plaintiff is locally registered on the 6th July 2012 and is the registered proprietor of State Lease volume 35 folio 99 being the whole of the land Portion 2333c Milinch, Granville, fourmil Moresby in the National Capital District, “the State Lease”. It has one director Sheng Liu who is from the Peoples Republic of China together with the Secretary Mr. Bo Qu. Both are resident at section 24 allotment 33 Ela Beach Port Moresby National Capital District.

3.	On 05th November 2009 late Anthony Gabutu Henao was the successful applicant for the State Lease described as a Special Agricultural and Business Lease under the Land Act 1996 running for 99 years from its commencement date of 6th December 2008. Late Anthony Gabutu Henao signed a contract for Sale of land and memorandum of transfer with a Mr. Min Wang, “the first contract”. The price for the purchase was K 2, 500, 000. 00 (two million five hundred thousand). And Stamp duty was K 125, 020.00 paid to the Internal Revenue Commission on the 09th November 2012. The balance of the purchase price emanating was paid out to Anthony Gabutu Henao’s wife and children and other family members. And on the 13th February 2013 the transfer of the State Lease from Late Anthony Gabutu Henao to Mr. Min Wang was registered on the certificate of title to the State Lease as registered entry number S. 63011.

4.	On the 28th January 2013 Mr. Min Wang signed a contract for Sale of the land and a memorandum of transfer with the Plaintiff (second contract) which was for two million five hundred thousand kina (K2, 500.000.00). And stamp duty for it was K 125, 020.00 which was paid to the Internal Revenue Commission on the 13th March 2013. And on the 09th May 2013 the balance of the purchase price was paid by the plaintiff to Mr. Min Wang. 

5.	On Friday 1st December 2019 an advertisement appeared in the National Newspaper which dealt with a lost or destroyed certificate of title to the State Lease and recorded, “…after the expiration of fourteen clear days from the date of publication of the notice, it was the first defendant’s intention to issue an official copy of the Special Agricultural and Business lease and also that the transfer and registration to Min Wang and the Plaintiff be cancelled”. This prompted the Plaintiff’s lawyers writing to the first defendant urging retraction of that publication on the basis that the subject State Lease had been previously sold in accordance with the First contract and then a second contract. 

6.	The first defendant replied by letter dated 28th February 2018 to the Plaintiff’s Lawyers, “…. The land transactions outline above were never completed and the most alarming thing was that no stamp duty had been paid on the contracts for sale of land that was signed between the parties to them…..” The plaintiff’s lawyers replied on the 1st June 2018 to the First defendant that he had incorrectly exercised his powers under section 160 and 161 of the Land Registration Act in cancelling the plaintiff’s registered interest on the certificate of title to the State Lease. And since that date up to the present no response has been forthcoming from the first defendant.

7.	What is challenged here is whether or not the Registrar of Titles had powers under section 160 and 161 of the Land Registration Act to cancel an interest that has been formally registered on a certificate of title to the land?

8.	And whether this includes firstly giving a proper notice with the provision of a valid service of the same including in particular: 

(a)	his intended action on all the parties to be affected by his decision; and
(b)	providing all parties who will be affected by his intended action opportunity to be heard; and
(c)	Where he has summoned for the delivering up of the certificate of title to the land is ignored or not met, obtaining an order from this court for the delivering up of that certificate of title that will be subject to his corrective action.

9.	In effect what were the powers envisaged under section 160 and 161 of the Act whether it only canvassed and was limited to typographical errors only, or extended as happened here?

10.	Section 160 and 161 of the Land Registration Act is in the following terms: 
 “160. PRODUCTION OF INSTRUMENTS WRONGLY ISSUED, ETC.
(1) Where it appears to the satisfaction of the Registrar that–
(a) an instrument has been–
(i) issued to a person in error; or
(ii) fraudulently or wrongly obtained by a person; or
(b) an instrument is fraudulently or wrongly retained by a person; or
(c) an instrument held by a person contains a misdescription of the boundaries, area or position of land; or
(d) an instrument held by a person contains an entry or endorsement–
(i) made in error; or
(ii) fraudulently or wrongly obtained; or
(e) an instrument of title is held by a party to an ejectment action whose right to the land has been determined,
he may summon that person to deliver up the instrument.
(2) Where a person refuses or neglects to comply with a summons under Subsection (1), or cannot be found, the Registrar may apply to the Court to issue a summons for that person to appear before the Court and show cause why the instrument should not be delivered up.
(3) Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.
(4) On the appearance before the Court of a person summoned under Subsection (2), or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.
(5) Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.
(6) Where a person–
(a) has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or
(b) has refused or neglected to comply with an order under Subsection (4),
the Registrar shall, if the circumstances of the case so require–
(c) issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and
(d) enter in the Register–
(i) notice of the issue of an instrument and the circumstances under which it was issued; and
(ii) such other particulars as he thinks necessary.
161. CANCELLATION AND CORRECTION OF INSTRUMENTS AND ENTRIES.
(1) Subject to Subsection (2), the Registrar may–
(a) cancel or correct an instrument delivered up under Section 160; and
(b) in any other case, on such evidence as appears to him sufficient, correct errors or omissions in–
(i) the Register or an entry in the Register; or
(ii) the other duplicate certificate of title or an entry on that duplicate.
(2) Where a correction is made under Subsection (1)–
(a) the Registrar–
(i) shall not erase or render illegible any words; and
(ii) shall affix the date on which the correction was made together with his initials; and
(b) the Register or other duplicate certificate of title so corrected has the same validity and effect as if the error had not been made except as regards an entry made in the Register before the time of correcting the error.
(3) Where the Registrar is satisfied that a matter in a certificate of title does not affect the land to which the certificate relates he may record on the title the cancellation of that matter in such manner as he considers proper.

11.	In my view section 160 denotes a production of the subject title of the State Lease. Here practically it means the Registrar the first defendant will firstly write to or cause notice by summons in the words of the section to the registered proprietor here the plaintiff of the subject state lease entries numbered S 63011 and S 63790 of the transfer of State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, /fourmil Moresby, National Capital District to be produced to him. Because the words of the section are production of instruments wrongly issued. To establish that it is wrongly issued it must be drawn to the registered proprietor that fact. He is summoned to produce so as to examine. A comparison is made of the records officially kept by the first defendant and that which has been issued and maintained in the possession of the registered proprietor the plaintiff here. And it is on the basis that it is wrongly issued to a person in this case the plaintiff. And it has been done in error or that there is fraud involved in its obtaining. This means production and the calling of evidence from the registered proprietor that the subject instrument is wrongly in the possession of as here the plaintiff. And the holder the plaintiff is wrongly retaining it on this basis. The instrument contains a misdescription of the boundaries, area, or position of land. 

12.	That is why subsection (1) specifically authorizes the first defendant to have the registered proprietor here the plaintiff to produce the subject State Lease to him. If the plaintiff does not produce as summoned the first defendant is granted liberty by the section to go before this court and apply for a summons directed at the plaintiff to produce the title instruments and to detail the circumstances pertaining to the obtaining of the said instrument. By the National Court Rules Order 4 Rule 3 originating summons supported by a notice of motion with affidavit seeking summons directed at the plaintiff to appear and to show cause as to the subject instrument relating to the subject property if there is examination to be conducted in court on the subject property, or as was done in Kavana v Hunter [2007] PGNC 93; N3208 (14 August 2007) summarily by the summons itself. This is where the facts are not in dispute as to the geniuness of the title by the registered proprietor. And here should it warrant there is power in the court to commit into a corrective institution for a period of up to six months a person summoned who does not deliver up the instrument as summoned. 

13.	It is a serious and grave matter where land is involved where money is exchanged in large sums going into millions of Kina. And developments that emanate from these lands are such that there is hurt, and pain caused by loss in profits and the like suffered in the hands of the registered proprietor or any others with interest therein immediate or distant collateral or otherwise. The duty upon the first defendant by section 160 reinforced by section 161 of the Act are not light duties upon because they drive from the Constitution. And so, there is need to give effect to section 59 Principles of Natural Justice. Here in an administrative situation pertaining to land, and its registration to be accorded opportunity to be heard before the decision is made as here.  

14.	This is an intricate and delicate process because of the implication of section 33 Protection of Registered Proprietor of the same Act. He holds title that is indefeasible and should be free from so holding unless there is fraud or other impropriety against the law. Here fraud is not in the light sense but in the criminal law sense. And therefore, is no light matter to simply annul or void an instrument evidencing title as here by the publication of a newspaper advertisement. This gives effect to section 53 Protection from unjust deprivation of property and section 54 Special provision in relation to certain lands of the Constitution. There are rights by the instrument that the plaintiff holds here over state lease entries numbered S 63011 and S 63790 of the transfer of State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, /fourmil Moresby, National Capital District and because these are effected there is in my view a mandatory requirement to give notice to the registered proprietor to show cause, Raumai No.18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952 (28 September 2018).

15.	Because the measure is whether the first defendant has acted, “fairly and in principle, has been seen to act fairly” in the way that he has by a newspaper advertisement annulled voided the title to the subject land on the plaintiff. There is power exercised by a public authority in its administrative role. And which exercise produce results that are legal in nature to a large extent in the way that a legal position of a person is altered, as here in the case of the plaintiff. There are therefore steps envisaged which include the opportunity to be given as to what is the allegation and of the need to be heard in return on it before a determination or administrative decision is made as here: Marape v O'Neill [2016] PGSC 16; SC1492 (18 March 2016). 

16.	In my view the decision of the First Defendant, the Registrar of Titles, of the 29th November 2017 to cancel entries numbered S 63011 and S 63790 of the transfer of State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, /fourmil Moresby, National Capital District (“the State Lease”) from one Anthony Gabutu Henao to Min Wang and then from Min Wang to CRCE Property Limited is ultra vires section 160 and 161 of the Land Registration Act. Cancellation is not automatic per se. Here the publication in the newspaper without an opportunity for the Plaintiff to be heard was ultra vires section 160 and 161 of the Act. He had rights to the State Lease. He had exchanged valuable consideration K 2, 500, 000. 00 (two million five hundred thousand). And Stamp duty was K 125, 020.00 paid to the Internal Revenue Commission on the 09th November 2012. He stood to lose substantial amount of money from the decision of the first defendant. He also paid stamp duty and therefore it did not stand the decision taken by the first defendant in the cancellation for that reason. 

17.	Plaintiff ought to have been heard under section 160 and 161 of the Land Registration Act. He was not summoned internally between the office of the first defendant and himself, nor was he summoned on the institution of process in court by the first defendant. Hence discharging that he was aware of what was alleged and that he was given opportunity and heard before determination was made to cancel his title in that State Lease by the first defendant. And therefore the failure to observe was detrimental as observed in Ping Tan Enterprise Ltd v Wasa [2016] PGNC 314; N6512 (4 November 2016). 

18.	In my view the facts here warrant similar and therefore Judicial Review is granted to the plaintiff against the decision of the first defendant of the 29th November 2017 to cancel entries numbered S 63011 and S 63790 of the transfer of State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, /fourmil Moresby, National Capital District (“the State Lease”) from one Anthony Gabutu Henao to Min Wang and then from Min Wang to CRCE Property Limited.  

19.	This decision is brought into court and quashed forthwith. 

20.	Consequently, the first defendant is ordered to restore forthwith the title of the Plaintiff to the subject land described as State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, /fourmil Moresby, National Capital District including all related entries thereto prior to the cancellation.

21.	The orders of the court are:

(1)	Judicial Review is granted.
(2)	Certiorari lies against the decision of the first defendant of the
29th November 2017 to cancel entries numbered S 63011 and S 63790 of the transfer of State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, Four Mile, Moresby, National Capital District (“the State Lease”) from one Anthony Gabutu Henao to Min Wang and then from Min Wang to CRCE Property Limited.  
(3)	Accordingly, that decision is brought into court and quashed forthwith.
(4)	Consequently, the first defendant is ordered to restore the title of the plaintiff on the State Lease Volume 35 Folio 99 Portion 2333c Milinch Granville, Four Mile, Moresby, National Capital District forthwith.

22.	Costs will follow the event.

Orders Accordingly.
__________________________________________________________________
Pacific Legal Group Lawyers: Lawyer for the Plaintiff/Applicant		
No appearance for the Defendant