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Steamship Trading Co v Allen [2021] PGNC 463; N9334 (11 February 2021)

N9334

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 891 OF 2016

BETWEEN:
STEAMSHIP TRADING COMPANY
Plaintiff

AND:
HON. BENNY ALLEN as Minister for Lands
First Defendant

AND:
LUTHER SIPISON as Acting Secretary for the Department of Lands
Second Defendant

AND:
SHIRLEY POHEI as the Acting Registrar of Titles
Third Defendant

AND:
NATIONAL HOUSING CORPORATION
Fourth Defendant

AND:
NATIONAL HOUSING ESTATES LIMITED
Fifth Defendant

Waigani: Gavara-Nanu J.
2019: 17^th July
2021: 11^th February

PRACTICE & PROCEDURE – Indefeasibility of title – Second title issued over same property – Second title issued erroneously – Validity of the first title conceded by holder of second title - Second title invalid.

PRACTISE & PROCEDURE – Judicial review – Statement of Agreed and Dispute Facts and Legal Issues (SADFLI )- Parties signing the SADFLI – Agreed facts in the SADFLI binding – Concessions by the defendants in the SADFLI fatal.

Cases cited:

Koitachi Limited v. Walter Shnaubelt (2007) SC870.
Papua Club Inc. v. Nusaum Holdings Limited (No.2) (2004) N2603

Counsel

D.Akane, for thePlaintiff
K.Kipongi, for the First, Second and Third Defendants
C.Gagma, for the Fourth and Fifth Defendants

11^th February, 2021

1. GAVARA-NANU J: In a Notice of Motion filed pursuant to Order 16 r 5 (1) of the National Court Rules (NCR) on 27 February, 2017, the plaintiff seeks orders in the nature of certiorari to bring into this Court and quash the following decisions of the third defendant:

1. To extend a State Lease in respect of a property known as Allotment 3 Section 24, Granville, NCD, in favour of the fourth defendant on 18 April, 2011, when the property was not available for leasing.

2. To register the said State Lease on or about 18 April, 2011, as Vol. 45 Folio 220.

3. Any decision by the Land Board to recommend such State Lease for the fourth defendant.

2. The plaintiff seeks a declaration that such decisions constituted proscribed unlawful acts under s. 41 of the Constitution.

3. The plaintiff seeks a further order that the fourth and fifth defendants deliver up the State Lease to the third defendant to be cancelled under ss. 160 1nd 161 under the Land Registration Act, Chapter No. 191.

4. The plaintiff seeks damages and costs.

5. The plaintiff holds a State Lease (lease) over the property described as Allotment 3 Section 24, Granville, NCD, (the property), thus is the registered proprietor of the property. The lease was initially issued to Guinea Airways on 08 November, 1939, it was subsequently transferred to the plaintiff on 19 September, 1950, it expires in 2038. The lease is an Annexure to the affidavit of Mary-Ann Hill, sworn on 22 December, 2020. Mary-Ann Hill is the Group legal counsel of the plaintiff. Notably, it is conceded by the defendants that the plaintiff holds a valid title over the property. Ordinarily, the effect of the concession is that the plaintiff is the registered proprietor of the property and therefore holds an indefeasible title. See, Papua Club Inc. v. Nusaum Holdings Limited (No.2) (2004) and Koitachi Limited v. Walter Shnaubelt (2007) SC870. The defendants have also conceded that the plaintiff’s title had never been cancelled by the Registrar of Titles. These concessions are made in the Statement of Agreed and Disputed Facts and Legal Issues (SADFLI).

6. However, given that there is another title currently held by the fifth defendant over the same property, the Court still needs to determine whether the plaintiff has valid and indefeasible title.

7. The fifth defendant’s title (second title) was issued after the then Minister for Lands made a public declaration in the National Gazette No. G309, on 21 December, 2010, in which the property was described as an unregistered government land. The Ministerial declaration was based on a physical inspection report compiled by the officers of the fourth defendant that the land was unregistered. Following the declaration, the Minister on 13 April, 2011 made a direct grant of a lease over the property to the fourth defendant. The land was then described in the National Gazette as improved Government Land. The grant was purportedly made under s.111 of the Land Act 1996. The fourth defendant’s State Lease is Volume 45 Folio 220.

8. On the same day, on 13 April, 2011, the Registrar of Titles registered the property under the fifth defendant’s name, hence the second title over the same property. According to the affidavit of Henry Wasa sworn on 28 June, 2017, the fifth defendant is an offshoot of the fourth defendant. Notably, the appropriate entries were also made in the Register of Titles.

9. What then is the legal status of the second title held by the fifth defendant? I have noted the matters deposed to in the affidavit of Mary-Ann Hill, particularly the improvements on the property including use of the property by China Railway Construction Group (PNG) Ltd to store its construction materials. To me, this information clearly indicates that the property was not lying idle, it was being used by the plaintiff at all material times.

10. There is no issue regarding compliance with the lease conditions by the plaintiff. In my view, had there been due diligence by the officers of the fourth defendant in their physical inspection of the property, they would have seen the clear physical evidence of the use and occupation of the property by the plaintiff. Such evidence would have alerted the officers to conduct a proper and thorough search of the property in the Titles Office to ascertain its true ownership. It is also clear that the report by the officers of the fourth defendant that the property was unregistered was factually incorrect. The report is critical because the subsequent Ministerial declaration in the National Gazette that the property was an unregistered Government land, then making a direct grant of a lease to the fourth defendant were all based on the report. That also resulted in the property being subsequently registered under the fifth defendant's name by the Registrar of Titles.

11. Thus, it is not surprising to me that the fourth defendant in signing the SADFLI unequivocally conceded that the plaintiff held a valid and indefeasible title. The concession by the fourth defendant in the SADFLI is binding on all the defendants. The concession also renders the State Lease Volume 45 Folio 220, held by the fifth defendant invalid and void of any legal effect.

12. I find the declaration by the Minister in the Government Gazette ultra vires, and the Gazettal notice void of any legal effect. Thus, I quash the Ministerial declaration and declare the subsequent direct grant of a lease to the fourth defendant by the Minister null and void. Pursuant to ss. 160 and 161 of the Land Registration Act, the fourth and fifth defendants are ordered to deliver up the fifth defendant's State Lease to the Registrar of Titles within 21 days from today’s date (21 February, 2021) to be cancelled. The Registrar of Titles is ordered to cancel the said State Lease within 7 days of the title being delivered up for cancellation. The plaintiff is to be provided with physical evidence of the fifth defendant’s State Lease being cancelled within 7 days of cancellation.

13. Should the defendants, in particular the third, fourth and fifth defendants fail to comply with these orders, especially those relating to the State Lease currently held by the fifth defendant, the plaintiff is at liberty to apply with sufficient notice.

14. The plaintiff also seeks damages in its Statement in Support. In judicial review proceedings, claims for damages are made pursuant to Order 16 r 7 of the NCR. In my view, sub-rules (1) and (2) are critical. The effect of these sub-rules is that the Court has power to award damages, if they are claimed in the Statement in Support and if the Court is satisfied that had the plaintiff issued ordinary civil proceedings, the plaintiff would have been awarded damages. Given the particular circumstances of the case, the plaintiff is ordered to file and serve particulars of its claims for damages on the defendants within 14 days from today in a form of Statement with particulars pleaded as required under Order 8 r 35 of the NCR. I note in passing that the defendants’ witnesses namely Henry Wasa and Oswald Tolopa have sworn affidavits in which they deposed that the defendants were aware of the plaintiff having a valid title over the property. In other words, the plaintiff’s claim had been conceded by the defendants. In the circumstances, it would have been better for the defendants to settle out of court, rather than defending the plaintiff’s claims.

15. The defendants are to file and serve particulars of their defence to the claims by the plaintiff under Order 16 r 7 (1) and (2) of the NCR within 14 days of receiving the particulars of the damages claimed by the plaintiff. The plaintiff is then to file a reply within 14 days of receiving the defendants’ defence. All these should be done by mid March, 2021. I order that the matter return for mention before me on Monday 22^nd March, 2021 at 9.30am. Plaintiff’s costs are to be paid by the State, which are to be taxed if not otherwise agreed.

16. The Orders of the Court are as follows:

1. The plaintiff has a valid and indefeasible title over the property described as Allotment 3 Section 24, Granville, NCD.

2. The Ministerial declaration made in the National Gazette No. G-308 on 21 December, 2020, that lease over the property was granted to the fourth defendant, viz; the National Housing Corporation and that the said property was unregistered Government land is hereby quashed.

3. The National Gazette described in Order No. 2 above is hereby declared null and void and has no legal effect.

4. The purported State Lease issued to the fifth defendant, viz; the National Housing Estates Limited by the Registrar of Titles on or about 13 April, 2011, over the property is declared invalid, null and void and has no legal effect.

5. The fourth and fifth defendants are ordered to deliver up the purported title currently held by the fifth defendant over the property to the Registrar of Titles within 21 days from today (11 February, 2021) for the Registrar of Titles to cancel forthwith pursuant to ss.160 and 161 of the Land Registration Act, Chapter No. 191.

6. The Registrar of Titles is to cancel the title held by the fifth defendant over the property as ordered in Order No. 5 herein within 7 days from the date of receiving such title from the fourth and fifth defendants.

7. The Registrar of Titles is to furnish a report and such other physical evidence of the fifth defendant’s title being cancelled within 7 days of cancellation.

8. The plaintiff is to file and serve particulars of its claims for damages within 14 days from today (11 February, 2021).

9. The defendants are to file and serve particulars of any defence they may raise against the claims for damages by the plaintiff within 14 days of the receipt of the plaintiff’s claims.

10. The plaintiff to file and serve any response/reply to the defendants’ particulars of defence, if any, within 14 days of receiving defendants’ defence.

11. The matter to return to Court on Monday 22 March, 2021, at 9:00 am for mention.

12. Parties are at liberty to apply with sufficient notice, should there be a need to do so, even before 22 March, 2021.

13. The plaintiff’s costs of and incidental to this proceeding are to be paid by the State, which are to be taxed, if not otherwise agreed.
    

14. Orders accordingly.

_____________________________________________________________
Dentons: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First, Second and Third Defendants
Gagma Legal Services: Lawyers for the Fourth and Fifth Defendants