N8999
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 27 OF 2020 (IECMS)

BETWEEN:
MARGARET RASAKA YUKU
Plaintiff

AND:
LUKOM TRADING LIMITED
First Defendant

AND:
HON BENNY ALLAN MP-MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
THE NATIONAL HOUSING CORPORATION
Fourth Defendant

Waigani: Miviri J
2021: 13th July, 6th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of motion – Dismissal of entire proceedings – Abuse of Process Order 16 Rule 13 (13) (2) (a) (b) NCR – Abuse of Court Process – Failure to Disclose reasonable cause of action – Evidence of Fraud apparent – Title obtained by Misrepresentation – Section 33 Land Registration Act – Sections 121, 122, & 123 Land Act – Effect of Section 155 (4) Constitution – Motion to dismiss refused – First Defendant to surrender Title – Revocation – Reissue – Title in law by Evidence of – costs follow event.

Cases Cited:

Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603
Mai and Avi, The State v [1988-89] PNGLR 56 
Aihi v The State (No 1) [1981] PNGLR 81 
Tanabo v State [2016] PGSC 61; SC1543 

Counsel:

L. Tangua, for Plaintiff
B. Lakakit, for First Defendant
K. Kipongi, for the State

					RULING 
 06th August, 2021

1.	MIVIRI, J: This is the ruling on a notice of motion filed 24th June 2021 by the First defendant seeking, firstly, pursuant to Order 16 rule 13 (1) of the National Court Rules and section 155 (4) of the Constitution for leave to be granted him to withdraw his notice of motion earlier filed of 20th April 2021.

2.	Leave is granted for the withdrawal of that motion from the record of the proceedings forthwith.

3.	Secondly, he seeks pursuant to Order 16 Rule 13 (13) (2) (a) and (b) of the National Court Rules for dismissal of the entire proceedings for abuse of court process and for failing to disclose a reasonable cause of action.

4.	He is also seeking the costs of the proceedings, together with any other orders as discretion by the Court. Abridgement to time is also sought.

5.	Abuse of the process of court denotes that the plaintiff against whom he makes the allegation has abused the process of court, so much so that it is enough on the basis of which to ask that the proceedings be dismissed in its entirety pursuant. The action has been instituted by the Plaintiff to get the subject parcel of land described as State Lease Volume 67, Folio 220 for allotment 29 Section 4 Bomana National Capital District as the title is with the First Defendant. The land is located at Nine (9) Mile on the outskirts of Port Moresby.

6.	Evidence filed to this point is the affidavit of Benjamin Samson of the Department of Lands and Physical Planning, P. O. Box 5665 National Capital District. He is the incumbent Secretary of that Department. He deposes that the subject land is subject to the National Housing Corporation self help Housing Scheme which applies to settlement areas such as Nine (9) mile and Morata settlements. Between 1986 and 1987 NHC was granted Town Subdivision Lease (TSL) under the repealed land Act Chapter No. 185. It was surveyed and subdivided into allotments with access roads leading into those subdivided allotments. However, there was no structural improvements erected on the land nor trunk utilities such as water reticulation, sewerage and electricity connected to the subdivided allotments. The purpose of the NHC Self Help Housing Scheme was to provide vacant or unimproved land known as no covenant Land to Sitting Tenants who can improve or develop the land with a permanent house and subsequently follow the land allocation process administered by the DLPP as the sole applicant and the land concerned may be exempted from advertisement or public tender.

7.	In this case the Plaintiff (Margaret Rasaka Yuku) entered into a tenancy agreement with the National Housing Corporation (NHC) on the 05th of May 1999 and subsequently proceeded with the development of the land by constructing a low post medium covenant house. Annexure “B” is a copy of the said Tenancy Agreement and marked “C” is a copy of the Inspection Report dated 21st March 2017. 

8.	On the 30th January 2019, the Plaintiff fully settled her outstanding land rental with the NHC.  However, a state Lease over the subject land was instead granted in favour of the First Defendant (Lukom Trading Limited) on 16th June 2015 for a term of Lease for ninety-nine (99) years through the land Allocation process administered by the DLPP. Annexed and marked “D” is a copy of the Outstanding Land Rent NHC settlement and Marked “E” is a copy of the State Leases.

DLPP Land Allocation Process. 

9.	The land allocation process stipulated under section 68 to 76 of the Land Act 1996 begins with a site inspection step conducted on the land followed by a compilation of an inspection report. The purpose of the site inspection is to ascertain the development status of the Land and to assist the DLPP officers especially the Allocation Officers to make Land available for Leasing through tender or advertisement.

10.	In our current case, a site inspection was carried out on the subject land and a report compiled thereafter on 21st March 2017 by an Allocation Officer, Mr. Wilson Ason (refer to annexure “C”) However, the said action officer did not identify the sitting tenant on the subject land to state it in the inspection report given that the subject land was under the NHC-Self Help Housing Scheme. On the 29th of May 2014, a tender No. 050/2014 was advertised in the National Gazette No. G215 where two applicants applied including the First Defendant and one other applicant known as B.M.A Holdings Limited. The Plaintiff was never an applicant nor lodge her application with the DLPP although she was the Sitting Tenant. Annexed and marked “F” is a copy of the Tender No. 050/215 advertised in National Gazette No. G215-29th May 2014.

11.	The subject land then went before the PNG Land Board Meeting No. 01/2015 as item No. 106 where after consideration and deliberation of the applications the PNG Land Board recommended that the grant of State Lease over the subject land be made in favour of Lukom Trading Limited. Annexed  and Marked “G” is a copy of the PNG Land Board recommendation.

12.	On the 22nd of August 2019, the DLPP received a complaint letter from the Plaintiff alleging the fraudulent grant of the subject parcel of land to the First Defendant. Annexed and Marked “H” is a copy of the complaint Letter written by the Plaintiff. The DLPP then considered an investigation into the matter and the following facts were discovered:	(a) Luke Komean who is the sole proprietor of Lukom Trading Limited (The First Defendant) is also residing on the subject parcel of land as in occupying the Bakery shop erected in front of the subject land through an arrangement between Margaret Raska Yuku and himself as relatives. (b) Luke Komean misled the DLPP into believing that he was the sitting tenant of the subject land when the Plaintiff was in actual fact the sitting tenant.
(c)The grant of State Lease to the First Defendant was done in error as the subject land was under the NHC-Self Help Housing Scheme where sitting tenants are usually  given first preference or become sole applicants as per the Tenancy Agreement between NHC and the Sitting Tenant.
(d) The plaintiff advised that they would deal with the matter through out of Court Mediation hence the Department did not take any further Steps to deal with the matter administratively but this has not eventuated resulting in the Plaintiff filing this proceeding.

13.	I therefore advice this Honourable Court that although the Land Allocation process stipulated under the Land Act 1996 was duly complied with by the DLPP which resulted in a title being issued to the First Defendant over the subject land, there was an oversight on our part in terms of identifying the appropriate applicant which should at all material times be the sitting tenant in such circumstances. In addition, the First Defendant has falsely represented Himself and misled the DLPP into believing he was the sitting tenant. The foregoing is to the best of my knowledge sworn by Benjamin Samson at Waigani.”

14.	This evidence is independent of either the plaintiff or the First Defendant. It is the truth in the matter held out by the Department of Government, responsible for all land matters the Department of Lands & Physical Planning, who has laid down the truth as it knows from what it does as the government department responsible in all land matters from its records, details of which it has annexed as part of the evidence completing. It means for all intent and purposes that is the evidence that sets this case apart from either side as to where lies the truth in the proceedings taken out.

15.	It follows from that evidence that the notice of motion of the First Defendant is refused in its entirety as the grounds relied with the evidence pleaded do not support that the motion be granted as pleaded. He has not discharged the balance to sway on the basis of the material that he has filed to be granted the motion. When weighed with the evidence of Benjamin Samson set out above it is clear that the State Lease that he holds has been obtained by fraud and deceit. He misrepresented that he was there Sitting Tenant when he was not. Because annexure “C” of the affidavit of Benjamin Samson is very clear, “Tenancy Agreement Self Help Housing Scheme No Covenant Land. Agreement made this 05th May 1999. The National Housing Corporation authorizes that the Tenant may occupy the land immediately after signing the agreement Tenant’s name is inscribed as Mr Margaret Raska P. O. Box 4673 Boroko. Self Employed. The subject land is allotment 29 Section 4 Portion 9-mile Port Moresby NCD.” It is not the name of the First Defendant. Clearly, he by falsely represented himself and therefore has not attained a State Lease in law pursuant. 

16.	Whatever process and procedure was followed following set out above does not make the title holding in law. Its initial act of falsely representing as the sitting tenant and getting the officers of that office to act accordingly knowing that fact to be false and not holding in law defeats what entails. If it is not given with the steps set out by law to the fullest, it cannot be title indefeasible in law per section 33 Land Registration Act. The exception there is fraud, and here there is proof of that fact by the evidence that I set out above, it would be consistent with Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603 (3 September 2004). Hence the Court is entitled by the clear evidence to take account and to determine and remedy accordingly. If it is illegal and unlawful it remains so and is not made good by later events, Mai and Avi, The State v [1988-89] PNGLR 56. Criminal Appeal but the principle is applicable here, because the title did not follow from a legal act, but false representation and illegal act, the Title did not stand in law in favour of the first defendant.

17.	Because the truth is clear that the sitting Tenant on the subject land was the Plaintiff and She should have got the subject Lease in her name and not the First Defendant. He “the First Defendant has falsely represented Himself and misled the DLPP into believing he was the sitting tenant”. She may have not applied but it did not give reason for her to be derailed. She was on the land first come first serve. Therefore, what is not there in law from day one cannot be there. It means that lease issued to the First Defendant has been secured by false representation. It is open given to invoke the provisions of Section 33 of the Land Registration Act, protection of the registered proprietor. Here “section 33 (1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–
(a) in the case of fraud;” The evidence is explicit that, the First Defendant has falsely represented Himself and misled the DLPP into believing he was the sitting tenant”. He is not the title holder in law. The State Lease that he now holds has been obtained by fraud. Accordingly, it is not title at law against the whole world. The plaintiff has not pleaded initiating, but it is explicit evidence on the record of the proceedings that the Court is not obliged to ignore, because of that fact. It is evidence that is properly before the Court. It must be given its proper basis and weight in law to determine the matter. Justice is by the evidence on record in court not otherwise. I am warranted given to make the findings and determination here as I do in law. This is not constructive fraud but real apparent fraud.
18.	Accordingly, the notice of motion of the First Defendant to dismiss pursuant to Order 16 Rule 13 (13) (2) (a) & (b) of the National Court Rules is refused with Costs. And by the operation of section 33 of the Land Registration Act in particular section 33 (1) (a) of the Land Registration Act, the State Lease held by the First Defendant the subject parcel of land described as State Lease Volume 67, Folio 220 for allotment 29 Section 4 Bomana National Capital District is hereby declared as void ab initio having not being obtained from due process under the Land Act. It has been obtained by fraud and does not give title to the First Defendant. He will forthwith surrender it to the Minister pursuant to section 122 (2) (e) Land Act, because it is clear now that it was obtained by false pretence and therefore is not in the register by law. It will be surrendered forthwith to the Registrar of Titles as delegate of the Minister responsible in law for upkeeping maintaining all records and the registry to make the amendments to the records to accommodate what is clear in law.

19.	The First defendant’s title is not indefeasible at law pursuant to section 33 of that Act, because there is clear evidence of fraud in it obtaining. And accordingly, He will surrender that title forthwith for process of law to take place to settle in law by the Land Act sections 121, 122 and 123, surrender, forfeiture, and revocation of the subject title from the records of the Registry to read correctly, and reissuance to the person immediately due from the evidence set out above the Plaintiff Margaret Rasaka Yuku. She may have not applied she is still interested in maintaining it hence this proceeding. That ought to be reason enough to grant her.

20.	This is a judicial review case that has not got round to the substantive motion by the Plaintiff. Because it is clear here by the evidence that the procedure to acquire title in law has not been followed by the First Defendant Lukom Trading Limited. He has by falsely pretending swayed the lands officer to make it that, he was the sitting tenant and registering him as the holder of the State Lease. He is by that fact not the holder of the state Lease at law. He has breached the procedure and obtained by unlawfully. He stands without in law pursuant. He is not the holder in law of that state Lease Volume 67, Folio 220 for allotment 29 Section 4 Bomana National Capital District forthwith. Because the evidence is clear and bold according to law and falls squarely with the law. 

21.	It leaves nothing apparent, or identifiable in law, other than to order immediate surrender, revocation, and reissuance, of that title to the Plaintiff forthwith. She held the position of sitting tenant at law and ought to have been given first preference, she is still interested to hold what she initiated and must be so accorded. Section 155 (3) (4) of the Constitution will facilitate that for her with reverence to the Land Act and the Land Registration Act particulars set out above. The application will be followed from Aihi v The State (No 1) [1981] PNGLR 81 reiterated in many instances in all facets where justice ought and must be done immediately in the face of impending reoccurring hand of injustice, Tanabo v State [2016] PGSC 61; SC1543 (28 October 2016). I do not make orders as to cost as prayed by the plaintiff because counsel on record was not on record initially. Cost will therefore follow the event forthwith.

22.	The formal orders of the Court are:

(i)	The Notice of Motion is without merit.

(ii)	It is denied in its entirety and dismissed.

(iii)	The first defendant is ordered to surrender the State Lease Lease Volume 67, Folio 220 for allotment 29 Section 4 Bomana National Capital District to the Registrar of Titles forthwith.

(iv)	The Registrar of Titles is ordered pursuant to section 155 (3) (4) of the Constitution, and Sections 121, 122, &123 of the Land Act & Section 33 of the Land Registration Act to amend the records register of  State Lease Volume 67, Folio 220 for allotment 29 Section 4 Bomana National Capital District so the Plaintiff is inserted as title holder in law forthwith.

(v)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Tangua Lawyers  	        : Lawyers for the Plaintiff 		
Lakakit & Associates:	 Lawyers for First Defendant
Office of the Solicitor General: Lawyers for the State