N9304
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 445 OF 2019

BETWEEN
SORENTO INDUSTRIES LIMITED
Plaintiff

AND
WALTER YANGOMINA
First Defendant

AND
OSWALD TOLOPA, AS ACTING SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2021: 13th August & 22nd November

PROPERTY – State Lease – Conflict over State Lease – Compulsory acquisition – Registered proprietor’s interest – Indefeasible title – Land Act, 1996 – Sections 12 & 13 
PRACTICE & PROCEDURE – Mode of proceedings – Competency of proceedings – Order 16 judicial review proceedings – National Court Rules – Order 4, rule 3 & Order 16 
Cases Cited:
Nil

Counsel:

Ms. J. Topo, for Plaintiff
Mr. M. Mukwesipu, for First &Third Defendants
Mr. J. Bakaman, for Second & Fourth Defendants

JUDGMENT
22nd November, 2021

1.	MAKAIL J: This case is about a conflict over a property described as Allotment 5 Section 434, Volume 61, Folio 102, Hohola, National Capital District.  It is a piece of land and located at Ensisi Valley.  The plaintiff claims it is the registered proprietor having been granted State Lease on 15th August 2014 while the first and third defendants claim the property was acquired by compulsory process to build a public market under Section 12 of the Land Act, 1996 (“Land Act”).

Objection to Competency of Proceedings

2.	Counsel for the first and third defendants raised detailed and lengthy preliminary arguments in his written submissions in relation to the competency of the proceedings pointing out that the plaintiff in effect seeks to challenge the decision of the Minister for Lands and Physical Planning to compulsorily acquire the property and the correct mode of proceedings to do that is by an Order 16 Judicial review proceedings.

3.	However, that is not what the plaintiff seeks in these proceedings.  The preliminary objection will be dismissed because as will be demonstrated shortly, the plaintiff seeks to affirm its right to the property pursuant to its title under a State Lease.  

State Lease

4.	Based on the affidavits that have been relied on by the plaintiff, it is the plaintiff’s case that, it is the registered proprietor of the property having been granted State Lease on 15th August 2014 after it was one of the applicants for the property and the PNG Land Board had recommended it to be awarded to it.  The type of State Lease is a Business (Commercial) Lease.

5.	Unless there is evidence to establish one or more of the grounds under Section 33(1) of the Land Registration Act, the plaintiff holds an indefeasible title and it is open to grant the orders sought by it in the originating summons filed on 2nd July 2019.  It seeks a declaration that it is the lawful proprietor and legal owner of the subject property and permanent injunction restraining the defendants, their servants and/or agents from assaulting, harassing, threatening, and interfering with its right of quiet enjoyment.  It further seeks a consequential order for the arrest and prosecution of those who breach the injunction.

Compulsory Acquisition

6.	Instead of the defendants producing evidence to counter the plaintiff’s indefeasible title to the property under any of the grounds under Section 33(1) of the Land Registration Act the first and third defendants produced documents to show that the property was acquired by the State by compulsory process under Section 12 of the Land Act.  The documents are:

	(a)	Notice of Compulsory Acquisition dated 15th June 2017,
	(b)	Gazettal Notice G461 dated 26th June 2017, and
(c)	Notice of publication in the daily newspaper dated 28th September 2017.

7.	They assert that the property was acquired to build a public market for the residents of Ensisi Valley area.  It is to be funded by the third defendant and supported by the Member for Moresby North-West electorate.

8.	The requirements for the State to acquire a State Lease by compulsory process are set out in Section 12 of the Land Act.  Amongst them is the requirement for the Minister for Lands and Physical Planning to give a Notice to Treat to the Lease holder.  

9.	While the first and third defendants have produced documents identified at [6] above, the Notice to Treat is lacking.  This notice is crucial to the process of compulsory acquisition because it is the first of series of notices given by the State for the purpose of notifying the Lease holder of the State’s intention to acquire the property.  And it may be that the named defendants have produced the other notices to verify their assertion but the crucial notice is lacking.  Section 13 of the Land Act reinforces this view.  

10.	Secondly, the notice must be served on the Lease holder.  Section 13 states that “The Minister shall not acquire by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertain, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in  the land”.

11.	Contrary to counsel for the first and third defendants’ submission that the notice was served on the plaintiff, there is no evidence to support this submission.  The lack of service of the notice is reinforced by the evidence of the second defendant’s current Secretary Mr Benjamin Samson who deposes that “DLPP is not aware of such (compulsory acquisition)…..”.

12.	Here is the current head of the Department of Lands and Physical Planning who is saying that he is not aware of the claim by the first and third defendants that the property was acquired by compulsory process.  It puts a huge dent in the defence case that the property was acquired by compulsory process.

13.	The lack of service of notice further explains the plaintiff’s lack of knowledge of the property been acquired by compulsory process.  Furthermore, and contrary to the first defendant’s assertion of not being aware of any confrontation between the parties, it explains why the plaintiff and his servants and agents were denied access to the property when they went there to undertake development work after being granted State Lease.  

Conclusion

14.	The lack of notice and the second defendant being unaware of the compulsory acquisition of the property are sufficient grounds to reject the first and third defendants’ claim to the property and uphold the plaintiff’s claim as the registered proprietor of the property.

15.	As the second defendant supports the plaintiff, the first and third defendants shall pay the plaintiff’s and second defendant’s costs of the proceedings to be taxed, if not agreed.

Order

16.	The orders are:

1.	A declaration that the plaintiff is the registered proprietor of the State Lease described as Allotment 5 Section 434, Volume 61, Folio 102, Hohola, National Capital District pursuant to Section 33 of the Land Registration Act.

2.	A permanent injunction restraining the defendants, their servants and/or agents from assaulting, harassing, threatening, and interfering with the plaintiff’s right of quiet enjoyment of the property described as Allotment 5 Section 434, Volume 61, Folio 102, Hohola, National Capital District.  

3.	A consequential order for the arrest and prosecution of those who breach the injunction.

4.	The first and third defendants shall pay the plaintiff’s and second defendant’s costs of the proceedings, to be taxed, if not agreed.

5.	Time for entry of these orders, shall be abridged to the date of settlement, by the Registrar, which shall take place forthwith.

________________________________________________________________
Emunah Legal Lawyers: 		Lawyers for Plaintiff 
Mukwesipu Lawyers:		Lawyers for Third Defendant
Solicitor General: 			Lawyers for Second & Fourth Defendants