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Airways Development Ltd v Tkatchenko [2020] PGNC 36; N8208 (20 February 2020)

N8208

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 784 OF 2018

BETWEEN:
AIRWAYS DEVELOPMENT LIMITED
Plaintiff

AND:
HON. JUSTIN TKATCHENKO,
MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND:
OSWALD TOLOPA, ACTING SECRETARY
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

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

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
DUBARA IDIBANA INCORPORATED LAND GROUP
Fifth Defendant

Waigani: Dingake J
2020: 10^th & 19^th February

JUDICIAL REVIEW - Grant of State Lease – Law Act – Section 33(1), Land Registration Act – Indefeasibility of Title – Effect thereof

Cases Cited:

The Papua Club Inc. v. Nusan Holdings Ltd (No. 2) (2004) N2603
Niugini Properties Ltd v. Jeffrey Londari (2014) N5727

Counsel:

Mr. Ian Shepherd/Ms. Ethel Heagi, for the Plaintiff
Mr. K Kupongi, for the Fourth Defendant
Mr. Chrisman Sumba, for the Fifth Defendant

20^th February, 2020

1. DINGAKE J: On or about the 12^th of December, 2018, the plaintiff was granted leave to apply for Judicial Review in this matter.
2. Leave to mount judicial review having been granted, the applicant now seeks, principally, an order in the nature of certiorari to quash the decision of the third defendant to grant certificate of title Volume 37, Folio 223 (the CT) with respect to the land to the fifth defendant, on the 11^th of July, 2018.
3. The full relief that the applicant seeks is as follows:
   • (a) A declaration that the plaintiff is the registered proprietor of the land known as Portion 3285 Milinch Granville Fourmil Moresby, National Capital District (the Land) being the whole of the land contained in State Lease Volume 71 Folio 231 (the Lease).
   • (b) An order in the nature of certiorari to quash the decision of the third defendant by his Deputy to grant Certificate of Title Volume 37 Folio 223 (the CT) with respect to the Land to the fifth defendant on 11 July 2018.
   • (c) Pursuant to sections 160 and 161 of the Land Registration Act, the fifth defendant shall, within 14 days of the date of these orders, return its Owner’s Copy of the CT to the third defendant for cancellation and the third defendant shall forthwith amend all records of the State under his control to reflect the orders of the Court.
4. The application is made pursuant to Order 16 Rule 5 of the National Court Rules.
5. The State has not taken any side in this application and leaves it to the Court to determine the matter.
6. The fifth defendant, on the day the matter was set to proceed, being the 19^th of February, 2020, made an application that the matter be adjourned and the trial date be vacated.
7. The application was opposed by the plaintiff.
8. No formal application was filed motivating the applicant to vacate the trial date and the affidavit of one Mathew Taviri, which was used to support the application was only served on the other parties and the Court on the date of trial. The affidavit simply blamed a number of lawyers who were instructed for not doing their job to represent the fifth defendant properly. It also alleged that there are a number of related matters in the Supreme Court and National Court, without attaching my supporting proof that would shed light on the relationship of those matters with the present matter, if any.
9. The Court being satisfied that there were no valid reasons for vacating the trial date and adjourning the matter, dismissed the oral application moved by Mr. Sumba, on behalf of the fifth defendant, and directed that the matter proceed to trial as scheduled. Principally there were two reasons that motivated the refusal to vacate the trial. Firstly there was no formal application made and due notice given to the parties and the Court. Secondly, the reasons given that the lawyers instructed did not carry out their functions properly or did not do what was required, is not a sufficient reason to adjourn a matter.
10. The plaintiff relies on the affidavit of Sir Kostas Constantinou sworn on the 10^th of October, 2018. Mr. Constantinou has in the same affidavit verified the facts, matters and circumstances referred to in the statement made pursuant to Order 16 Rule 3(2) (a) of the National Court Rules.
11. The fifth defendant failed to file any affidavit, despite proper service being effected on it.
12. The material and dispositive facts of the application are mainly common cause, and turn on a narrow compass.
13. The plaintiff has been the registered proprietor of the land in issue since 2008. The land has been subject to two subdivisions pursuant to Survey Plan No. 49/2917 which created Portions 2854 and 2853 and subsequently Portion 2854, was subdivided into Portions 3285 and 3284 by Survey Plan No. 49/3251, both of which are held by the plaintiff.
14. On or about the 29^th August, 2018, the plaintiff became aware that the fifth defendant was attempting to sell or sublease the Certificate of Title which it had obtained in July 2018.
15. It is clear on the evidence before me that the subject land herein, in July 2018, having been alienated in 2008, was not customary land.
16. It is trite learning that judicial review is discretionary and it is only concerned with correcting errors in the decision making process.
17. In this case, the plaintiff contends, inter alia, that the decision of the third defendant to grant a Certificate of Title to the fifth defendant was made arbitrarily and contrary to law, particularly, Section 33(1) (c) of the Land Registration Act. In particular the plaintiff contends that the third defendant in granting Certificate of Title to the fifth defendant failed to take into account relevant considerations in particular the fact that the plaintiff had been granted prior title in the State Lease in 2008.
18. It is a matter of record that an affidavit sworn on the 28^th of March, 2019 and filed on the same date, Mr. Benjamin Samson, the Registrar of Titles, Department of Lands & Physical Planning, deposed to an affidavit, in which he says, inter alia, “... the Certificate of Title held by the fifth defendant over Portion 2854C was issued in error ... the plaintiff has an indefeasible title over Portion 3285”.
19. Section 33(1) of the Land Registration Act of 1981, protects a prior title holder of land. Once title has been registered in favour of any person or entity, the owner maintains indefeasibility of title, save in the case of fraud and except in the case of a proprietor claiming the same land that is under a prior instrument of title (The Papua Club Inc. v. Nusan Holdings Ltd (No. 2) (2004) N2603.
20. A mere allegation of fraud that is unproven can’t defeat the indefeasibility of title contemplated by Section 33(1) of the Land Registration Act.
21. The leases registered in favour of the plaintiff, as demonstrated by the evidence placed before this Court, gives rise to a presumption that the plaintiff’s title is good and indefeasible.
22. The onus to prove fraud lies in the person alleging same (Niugini Properties Ltd v. Jeffrey Londari (2014) N5727).
23. In the present case, I find that the plaintiff’s State Lease was granted first in time in 2008. It follows in my respectful view that the plaintiff as the prior registered title holder to the land has an indefeasible title. In terms of Section 33(1) of the Land Registration Act, the plaintiff holds the subject land free of all encumbrances.
24. In my considered opinion the fifth defendant cannot claim protection under the Land Registration Act. There simply cannot be two titles for the same property.
25. It follows in my view that the decision of the third defendant to grant the Certificate of Title Volume 37 Folio 223 (the CT) with respect to the land to the fifth defendant on the 11^th of July, 2018 was done contrary to Section 33(1) of the Land Registration Act and is liable to be quashed.
26. In the result, the plaintiff’s application for judicial review is granted.
27. In this case, the plaintiff is not seeking any costs against the State, but seeks costs against the fifth defendant in the event of opposition. The fifth defendant opposed the application, through its Counsel, Mr. Sumba. I see no reason why costs should not follow the event.
28. In the premises, the Court grants the following orders:
    • (a) A declaration that the plaintiff is the registered proprietor of the land known as Portion 3285 Milinch Granville Fourmil Moresby, National Capital District (the Land) being the whole of the land contained in State Lease Volume 71 Folio 231 (the Lease).
    • (b) An order in the nature of certiorari to quash the decision of the third defendant by his Deputy to grant Certificate of Title Volume 37 Folio 223 (the CT) with respect to the Land to the fifth defendant on 11^th July 2018.
    • (c) Pursuant to Sections 160 and 161 of the Land Registration Act, the fifth defendant shall, within 14 days of the date of these orders, return its Owner’s Copy of the CT to the third defendant for cancellation and the third defendant shall forthwith amend all records of the State under his control to reflect the order of the Court.
    • (d) Costs of suit against the fifth defendant, only.
    • (e) Time to be abridged.
      

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Ashurst PNG Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Fourth Defendant
Elemi Lawyers: Lawyers for the Fifth Defendant