N9257
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 1008 OF 2017

BETWEEN
CHEN JING
Plaintiff

AND
SOUTHERN CITY GROUP LIMITED
First Defendant

AND
SANAMO GROUP LIMITED
Second Defendant

Waigani:  Linge A J
2021:  30th August, 4th & 11th October

LAND LAW-overlapping title to property-prior instrument of title-new subdivision without excising prior allotment-indefeasibility of title

Cases Cited:

Mudge v The Secretary for Lands [1985] PNGLR 387
Paga No.36 v Joseph Eleadona (2018) SC 1671
The National Council of Young Mens’ Christian Association of PNG Inc. -v-Firms Services Limited, (2017) SC 1596 
John Soto -v- Our Real Estate, (2018) SC 1701

Counsel:

Mr.E.Asigau, for the Plaintiff
Mr.P Waraniki, for the First and Second Defendants 

JUDGEMENT
11th October, 2021

1.	LINGE A J: This proceeding relates to property described as Section 37 Allotment 19, Bomana, National Capital District contained in State Lease Volume 56 Folio 70.

2	The plaintiff commenced this proceeding on the 21 December 2017 seeking inter alia the following Orders:
(a)	Declaratory orders that he is the registered proprietor of Section 37 Allotment 19;
(b)	An order for eviction of the defendants from the said Section 37 Allotment 19;
(c)	Permanent injunctive order against the defendants from interfering with his quiet enjoyment of Section 37 Allotment 19.
Facts
3.	The plaintiff Chen Jing purchased Section 37 Allotment 19 Bomana from Sanamo Group Limited, the Second Defendant (Sanamo Group) pursuant to a Contract of Sale and Instrument of Transfer and was duly registered as the proprietor of a residential lease on the 19th May 2015.

4.	On or about 7th September 2015 Sanamo Group, consolidated all of Sections 37 Allotments 1-87 into Portion 3472 Milinch Granville Fourmil Moresby, National Capital District being State Lease Volume 67 Folio 207.

5.	Title to the new portion 3472 was issued to Sanamo Group on the 7th September 2015.

6. 	Sanamo Group then purportedly sold the whole of Portion 3472 to Southern City Group Limited (Southern City) and the latter was registered as title holder on the 5th November 2015.

7.	On or about November 2016 the plaintiff found out that his property Section 37 Allotment 19 had been fenced off by Southern City who had claimed it as within Portion 3472 of which it claimed to have title issued in its name.
Issue
8.	Is the Plaintiff’s title valid and effectual notwithstanding the consolidation and re issue to the First Defendant? 
Consideration of Evidence
9.	The plaintiff relies on his affidavit filed on the 21 December 2018 wherein he deposed to the process of transfer of title from Sanamo Group unto himself and his registration as a proprietor of Section 37 Allotment 19 contained in State Lease Volume 56 Folio 70.

10.	The plaintiff also relies on the following affidavits:
(a)	affidavit of Victor Lovai filed on the 19th January 2018;
(b)	affidavit of Lydia M.David filed on 19th January 2018;
(c)	affidavit of Chen Nengmei filed on 24th July 2018; and
(d)	affidavit of Emmanuel Asigau filed on the 16th July 2021.
11.	The second defendant filed one affidavit but was not admitted into evidence for reason of non-compliance with directions to file and serve. 

12.	Mr. Waraniki lawyer for the defendants conceded that he had no evidence and that he admitted to the facts established by the plaintiff and suggested that his clients can do the following two things:
(a)	refund the purchase money paid by the plaintiff; and
(b)	Sanamo Group is willing to allocate new allotment to the plaintiff.
The Law
13.	It is settled law in this jurisdiction that a registered proprietor holds an indefeasible title to land upon registration unless one of the exceptions set out in Section 33 (1) of the Land Registration Act, Chapter191 is successfully established by another challenging the title. 

14.	The relevant provision reads:
33.		“Protection of registered proprietor.
(1)		The registered proprietor of an estate or interest holds 	it absolutely free from all encumbrances except-
			in the case of fraud; and
(a)	the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(b)	the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(c)	in case of the omission or mis description of any right of way or other easement created in or existing on the same land; and
(d)	in case of the wrong description of the land or of its boundaries; and
(e)	as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(f)	as provided in Section 28; and
(g)	 a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(h)	Any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by law to be a charge on land in favour of the State or of a department or officer of the State or of a public corporate body.
		(2)  The of Subsection (1) is not affected by the existence in 	any other person of an estate or interest, whether derived by 	grant from the State or otherwise, which, but for this Act, 	might be held to be paramount or to have priority.” 
15.	In Mudge -v- The Secretary for Lands [1985] PNGLR 387, the Supreme Court held at page 387:
	“that registration of leases under the provisions of the Land Registration Act is effective to vest an indefeasible title in the registered proprietor subject to the exceptions enumerated in Section 33” 
16.	The most common use of Section 33 to challenge the indefeasibility of title relates to claim or allegation of fraud. See The National Council of Young Mens’ Christian Association of PNG Inc. -v-Firms Services Limited, (2017) SC 1596; John Soto -v- Our Real Estate, (2018) SC 1701; Paga No.33 -v- Joseph Eleadona (2018) SC 1671.

17.	The Supreme Court and National Court have been consistently reaffirming the clear intent of the Land Registration Act which is to protect the indefeasible interest of the registered proprietor. 

18.	In this case there are two titles to the same property. The Plaintiff purchased the land from Sanamo Group and was registered as proprietor, Residential purposes with description as Section 37 Allotment 19, Bomana, National Capital District on the 19th May 2015.

19.	In respect of the same piece of land, the Sanamo Group also undertook a subdivision whereby the said Section 37 Allotment 19 was not excised or surrendered but absorbed or included in Portion 3472 being for Commercial purposes then transferred the same to and registered in the name of Southern City on the 5th November 2015.   

20.	The plaintiff did not allege any irregularity including fraud, in the dealings up to the subdivision and re-allocation to portion 3472 and issuance of title to the First Defendant. 

21.	Also, the plaintiff had not alleged nor provided any evidence of any breach of the mandatory requirements of Sections 105, of the Lands Act, Conditions Precedents to Land being Advertised for Subdivision.
Findings
22.	 I find as a fact that there are two titles issued over the same property albeit under two different descriptions. The two title holders are Chen Jing, residential lease and Southern City Group, commercial lease.	 
23.	The obvious question is which of the two is valid and effectual in law? Section 33 (1) (c)   provides as one of the exceptions and thus a ground to invalidate a title where a person claims “the estate or interest of a proprietor claiming the same land under a prior instrument of title.

24.	That is, by virtue of Section 33 (1) (c) where there are two titles to the same property, the title issued earlier in time take precedence. In this case, I find that the title of Chen Jing supersedes that of Southern City Group Limited.

25.	Section 33 (1) (e) also provides another exception or ground to annul a title, “in case of wrong description of the land or of its boundaries”. The subdivision and allocation of Portion 3472 over the same parcel of land is a deliberate and a careless act on the part of Sanamo Group.

26.	I doubt whether the mandatory requirements of Section 105 and 106 of the Lands Act were fully complied with prior to the subdivision and redefining of the boundaries and thus I have grave doubts about the validity of Portion 3472.

27.	I therefore find that the subdivision and granting of portion 3472 by the Sanamo Group effectively gives a wrong description of the plaintiff’s land and a clear act of altering its boundary.

28.	In summary I find that the Plaintiff has a prior instrument of title which is not challenged, and thus there is a presumption that he has a valid and indefeasible title.  

29.	As to whether the Plaintiff can invoke ejectment action against any person especially the First Defendant, based on the provisions of Section 33 (1) (c) and (e), it is within his right to do so.

30.	Also, Section 146 (2) (h) of the Land Registration Act does not prevent an action of ejectment against a proprietor if the action is brought by…(h) “a registered proprietor claiming under a prior State lease registered under this Act where two State leases are registered under this Act in respect of the same land.”

31.	Finally, I consider the offer/suggestion by Mr. Wariniki lawyer for the defendants about his clients doing the following:

(a)	refund the purchase money paid by the plaintiff; and
(b)	Sanamo Group is willing to allocate new allotment to the plaintiff.

32.	Considering my findings, it would be improper for such to take place and instead I would invoke Sections 160 and 161 of the Land Registration Act and require Southern City to submit State lease Portion 3472 to the Registrar of Titles for it to be cancelled and corrected.

33.	I consider that the interest of justice would be served if the above steps are taken to resolve the dispute.

Order

1.	An Order that the Plaintiff is the registered proprietor of property described as Section 37 Allotment 19 Bomana, National Capital District contained in State lease Volume 56 Folio 70.
2.	An Order that the First Defendant their servants, agents, relatives, defendants or whosoever give up vacant possession of property described as Section 37 Allotment 19 Bomana, National Capital District contained in State lease Volume 56 Folio 70 by the 31st  October 2021.
3.	An order that the First and Second Defendants their servants, agents, relatives, defendants or whosoever forthwith dismantle and remove all fixtures, structures and buildings constructed on the property described as Section 37 Allotment 19 Bomana, National Capital District contained in State lease Volume 56 Folio 70 by 31st October 2021.
4.	An order empowering the Royal Papua New Guinea Constabulary to assist in the eviction of the First and Second Defendants their servants, agents, relatives, defendants or whosoever from the aforementioned property and to give effect to the orders of the court in the event that the Defendants their servants, agents, relatives, defendants or whosoever fail to comply with the orders of the court.
5.	An order that the First and Second Defendants their servants, agents, relatives, defendants or whosoever cease and refrain from holding themselves out jointly or severally as proprietors or claiming any right or licence over the property described as Section 37 Allotment 19 Bomana, National Capital District contained in State lease Volume 56 Folio 70.
6.	An order against the First and Second Defendants their servants, agents, relatives, defendants or whosoever from interfering, obstructing, harassing, threatening, intimidating or otherwise interfering with the plaintiff’s quiet enjoyment, occupation, use, possession, improvement or development of Section 37 Allotment 19, Bomana, National Capital District.
7.	The First Defendant shall submit the title deed to property described as Portion 3472 Milinch Granville, Moresby, National Capital District contained in State Lease Volume 67 Folio 207 to the Registrar of Titles who shall act on it pursuant to Sections 160 and 161, Land Registration Act so that property described as Section 37 Allotment 19 Bomana, National Capital District contained in State Lease Volume 56 Folio 70 stand alone. 
8.	The First and Second Defendants shall pay the plaintiffs costs of and incidental to this proceeding. 
9.	Time of entry of the Orders is abridged to the date of settlement of granting of the orders.
___________________________________________________________
Pacific Legal Group:  Lawyers for the Plaintiff
Wariniki Lawyers: Lawyers for the Defendants