N10178

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS  1231 OF 2021

BETWEEN:
ENGA PROVINCIAL GOVERNMENT
Plaintiff

AND:
LIPU YANGUKALI
First Defendant

AND:
REGISTRAR of TITLES
Department of Lands & Physical Planning
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
NATIONAL HOUSING CORPORATION
Fourth Defendant

AND:
IMMANUEL KILANDA
Fifth Defendant

Wabag: Kangwia J.
2022: 26th January; 22nd & 24th March

CIVIL JURISDICTION – revocation of Certificate Authorising Occupancy – certificate not surrendered - Occupier not consulted – land subdivided and transferred to National Housing Corporation – National Housing Corporation transfer of title to two others – Ministers decision to revoke CAO unlawful – all transfers after revocation by minister infected and void ab initio.

Counsel:

L. Kandi, for the Plaintiff
L. Toke, for the First Defendant
J. Yapao, for the Second & Third Defendants
No appearance for the Fourth Defendant
R. Lains, for the Fifth Defendant

24th March, 2022

1.      KANGWIA J:  By Writ of Summons the Plaintiff claimed the return of surveyed land described as allotment 01 Section 8 Wabag from the Registrar of Titles with special Damages, General Damages, costs and interest. The claim arose out of two separate titles obtained by the 1st and 5th Defendants from the National Housing Corporation (NHC) over the same land when the land was purportedly owned by the Plaintiff. 

2.     The undisputed facts are these. On 31 March 1984 the Plaintiff was granted a Certificate Authorising Occupancy (CAO) over the land for residential purposes. There were two residences under the auspices of Enga Yaka Lasemana. The Fifth Defendant occupied one of it.
 
3.     In 1994 the Plaintiff through a circular titled information paper no 1/94 offered its residential properties for sale to its public servants. Thereafter residential properties were valued by the Provincial Valuer and recommended their sale but never eventuated.  

4.     Following that circular, the Fifth Defendant requested a survey over the land for a subdivision. The request was refused by the Provincial Manger for Lands. 

5.     Private surveyors were engaged by the Fifth Defendant resulting in a sub-division plan for the land which was subsequently approved by the Physical Planning Board out of which allotments 9 & 10 were created. 

6.     On 14 February 2000 the Secretary for the Department of Lands & Physical Planning as delegate of the Minister, upon recommendation by the Senior Lands Administrator revoked the CAO held by the Plaintiff and issued a lease over the land to the National Housing Corporation (NHC). The reason for the revocation was twofold. First was that the Plaintiff had by memo proposed to sell its residential properties to the tenants. The second was that the NHC was the sole authority to sell residences belonging to the State.  

7.     The Fifth Defendant purchased from the NHC allotment 9 section 8 in 2005 and allotment 10 section 8 in 2015 for a consideration of K11,000 and K45, 000 respectively through contracts of sale.

8.    On 17 February 2016 the First Defendant purchased the same land under the original allotment 01 section 8 from the NHC for K58, 750 under a giveaway scheme also through a contract of sale.
  
9.    The Plaintiff claimed that it was still the lawful occupier of the land under the CAO which was still current. 

10.    At the commencement of trial all parties consented to rely on affidavits filed without cross examination of witnesses. It was also agreed that all parties would rely on the agreed and disputed facts. 

11.     Objection to the tender of two affidavits by the Plaintiff was upheld on the grounds that it was belated and not in compliance of a Court direction and suggested that they could be subsumed in submissions. It was also determined that issues of notice under the Evidence Act were to be dispensed with as all parties had consented to rely on the affidavits filed.   

12.     The Plaintiff then tendered into evidence by consent the affidavits of One Michael Kambao (Doc 17) and Melpai Yakili (Doc 48) which were admitted into evidence and labelled as Exhibit A & B respectively. 

13.     In the affidavit of Michael Kambao, he held himself out as Principal Legal Officer of the Plaintiff. He has averred that three titles, had been issued in respect of the land on which the Plaintiff held a CAO.  

14.    In the affidavit of Melpai Yakili he held himself out as the Director-Lands and Physical Planning in the Enga Provincial Administration. He affirmed that land on Section 8 Lot 01 was the property of the Enga Provincial Government (EPG) (Department of Enga). The Plaintiff never relinquished its interest in the land. He further deposed that the Acting Director for Alienated Lands from the Lands Department and the incumbent Secretary for the Department of Lands also affirmed that the land was the property of the EPG; that it was never revoked; and that NHC has never at any material time occupied, owned, or possessed the land. 

15.     It was asserted that the dealings on the land regarding transfer to NHC, subdivision of the land and alleged registration of the land were made in secret by the First, Fourth and Fifth Defendants with officers from the Lands Department.  

16.     It was then asserted that the lease in favour of the NHC had discrepancies and irregularities in the folio number as it was different from the one held by the Plaintiff. 

17.     It was also asserted that the purported Gazette granting the declaration was different from the one kept at the Government printing office and the one referred to in the affidavit of the First Defendant never existed.
 
18.     It was further asserted that the title given to NHC on 26 January 2016 and transferred to the First Defendant on 17 February 2016 was improper as it was issued without the Minister’s approval. The title transferred to the First Defendant was non-existent as it had been earlier subdivided into allotments 9 & 10. He later became aware that the First Defendant was directed to surrender the title to the Lands Department by way of a letter.

19.     On the Fifth Defendant’s title it was asserted that without notifying the Plaintiff of his intention to revoke the CAO or apply to the Provincial Physical Planning Board, initiated a subdivision of the land. The CAO was never revoked. 

20.     It was further averred that the former Acting Director Alienated Lands affirmed that the alleged transactions on the property were not recognised and not proper as the Plaintiff was first in time as the owner.

21.     The revocation notice relied on by the Fifth Defendant was flawed as the revocation was for allotment 09 and not allotment 01 which was the subject of the CAO. 

22.     It was further asserted that the title transferred to the Fifth Defendant failed to comply with statutory requirements. 

23.    The First Defendant tendered into evidence by consent an affidavit and a supplementary affidavit of Lipu Yangukali which were admitted into evidence and labelled as Exhibit C (doc 6) & D (doc 57) respectively.

24.     In his affidavits it was averred that he was the current leaseholder of State lease on Lot 01 Section 08 Wabag after purchasing it through an expression of interest to NHC under its giveaway scheme. After dispensing with the 10% required deposit he made two payments totalling K58, 750 as the purchase price. He denied fraud as claimed by the Plaintiff. 

25.     The Second and Third Defendants tendered into evidence by consent the affidavit of Benjamin Samson which was admitted into evidence and labelled as exhibit E. 

26.    In his affidavit he held himself out as the Acting Secretary for the Department of Lands & Physical Planning. He affirmed that the revocation of the CAO and the subsequent subdivision were improper;  that the certificate was still in force when the Fifth Defendant initiated a proposed sub-division plan and obtained permission to create two separate allotments without the consent of the CAO holder. Despite letters being sent to the occupants by the Provincial Administration, the Fifth Defendant and the NHC knowingly agreed through a contract of sale to have the titles transferred to the Fifth Defendant.

27.    The Fourth Defendant (NHC) made no appearance. The only inference to be drawn is that it is an admission that they were at fault for issuing two titles over the same property. 

28.    The Fifth Defendant tendered into evidence by consent the affidavits of Emmanuel Kilanda under Doc 12 and 18 which were admitted into evidence and labelled exhibit F & G respectively.

29.     In his affidavit he held himself out as a teacher when he moved into one of the houses on the old Allotment 1 Section 8. He was added as a party to the proceedings after the property he had title over was under dispute. 

30.     He knew that the Plaintiff had a CAO over the land. He was motivated to purchase the property upon a notice by the Plaintiff to sell several of its houses to public servants. Since there were two houses on the land, he sought assistance from the Provincial Manager for Lands to sub-divide the land to separate the two houses. Owing to a delay in his request to subdivide the land he engaged a private surveyor to have the land sub-divided. He forwarded the proposal to the Acting Provincial Planner from which the Planning Board approved the sub-division and created allotments 9 and 10. The process for subdivision was through his efforts and all parties who had an interest were notified and involved.   

31.     It was averred that on the recommendation of the Senior Lands Administrator the delegate of the Minister revoked the CAO and the land was transferred to the NHC. 

32.     He applied to purchase allotment 9 and eventually purchased it. He then proceeded to purchase allotment 10. He was surprised to find that the First Defendant had secured title to the same land under allotment 01 section 8 which was non-existent. Since the purchase of allotment 9 he had developed the land with further intention to develop allotment 10 as well.

33.    After the trial parties were given time to file submissions. All parties have complied with the direction except the Fourth and Fifth Defendants. Objection was raised when the Fifth Defendant sough to rely on its submission filed after the lapse of time given to file them was overruled as inappropriate because the evidence was already in Court.
  
34.     From the totality of the evidence the obvious anomaly is that the NHC transferred two titles to two different persons purportedly on the same land the subject of this proceeding. First Defendant’s title was through John Dege as Acting Managing Director. The Fifth Defendant’s title was through Raphael Nagual as Executive Director.  

35.     On behalf of the Plaintiff Mr Kandi through an elaborate submission submitted that the land on s 8 lot 1 Wabag was reserved land for a public purpose pursuant to s 49 of the Land Act and the public interest should prevail over the Defendants private interest. Reserved Land meant it was reserved from lease or further lease. The land was vested in the Plaintiff and protected by the CAO.  

36.     The Land Registration Act did not apply to land reserved by a CAO and not subject to a lease or further lease as the CAO was never relinquished or revoked. A CAO can only be relinquished and revoked by the government body who was the holder of the CAO. This position was corroborated by the evidence of the Plaintiffs Second Witness and the letter by the Acting Director Alienated Lands from the Department of Lands. It was stressed that a state lease cannot be granted to anyone when the CAO granted to the Plaintiff was in force and still effective. The transfer to NHC was without administering the statutory processes under s 52 of the Land Act and the consent of the Plaintiff.

37.     The assertions by the Defendants that the CAO was revoked were untrue. The notices relied on were fabricated by those who seek to rely on them. The subsequent titles were issued under fraudulent circumstances initiated by the Fifth Defendant without the knowledge and authority of the Plaintiff and were caught by s 33 (1) of the Land Registration Act. 

38.     This position was affirmed by the incumbent Secretary of the Department of Lands in his affidavit relied on by the Second and Third Defendants. The Secretary affirmed that the Plaintiff had a CAO granted to it which was never revoked and was still in force. The purported recommendations and subsequent revocation were done erroneously. The land file for section 8 lot 01produced by the Registrar did not contain proper documents like titles, notices of grants, gazettal notices in relation to the fifth Defendants dealings on the land.

39.    It was also asserted that the Notice of Revocation was flawed. The purported revocation on allotment 9 section 8 was a non-existent lease and had no relevance to the Plaintiffs CAO over allotment 01 section 8. 
The revocation was also issued without the knowledge and authority of the Plaintiff as the holder of the CAO.

40.     On the subdivision it was submitted that the subdivision was done without revoking the CAO or a grant of a state lease to the Fifth defendant. It was also not approved by the Provincial Physical Planning Board hence there were breaches of provisions under the Physical Planning Act and s 130 of the Land Act.  

41.     On behalf of the First Defendant Mr Toke while conceding the grant of the CAO to the Plaintiff submitted that the CAO is not a lease instrument as it is a temporary unregistered and unsecured instrument granted by the Minister with no interest to hold and enjoy. The CAO was specifically for residential purposes. In the certificate there was hardly a provision as to time limitation or grounds upon which the CAO can be extended, terminated or revoked.
 
42.     It was further argued that when the Plaintiff proposed to sell its properties including this land, the Minister through his delegate revoked the CAO to vest the property in the NHC as the appropriate authority to sell it because the proposed sale by the Provincial Government was not authorised. 

43.     The NHC transferred title to the First Defendant through the giveaway scheme and the First Defendant was the only leaseholder pursuant to Gazette No G20. It was then asserted that by the revocation, the temporary occupation held by the Plaintiff ceased. Therefore, the Plaintiff cannot plead fraud against the First and Fifth Defendants or the revocation owing to lack of standing. 

44.     It was further asserted that while the CAO was vested in the Plaintiff the Fifth Defendant also had no interest in the lease. It amounted to constructive fraud when the Fifth Defendant proceeded with sub-division without complying with mandatory requirements under s 49 of the Land Act. The subdivision was not done on the authority of a leaseholder and as the Fifth Defendant was not the lease holder, the subsequent titles on allotments 9 & 10 were unlawful.  

45.     The case of National Airports Corporation Limited v Airport Guesthouse Limited & Ors [2018] SC1867 was referred to as standing for the proposition that a right under a title over a property prevails over the right of occupation under a CAO. 

46.     On behalf of the Second and Third Defendants Mr Yapao submitted that the CAO is not the same as reserved land under s 49 of the Land Act and therefore cannot perform the function of reserved land under s 49 of the Land Act. 

47.     The cancellation of the CAO and the sub-division done on allotment 01 section 8 was legal and valid. By the sub-division former section 8 lot 1 no longer existed as it was superseded by section 8 allotments 9 &10.  

48.   It was submitted that the Fifth Defendant complied with proper administrative processes and the transfer of title to the NHC and subsequently to the Fifth Defendant were proper. The transfer to the First Defendant was irregular and a letter to surrender the title had been issued. 

49.     On behalf of the Fifth Defendant Mr Lains submitted that the proceeding should be dismissed with consequential orders. The Fifth Defendant held indefeasible titles over allotments 9 & 10. It was an agreed fact that the Plaintiffs CAO was revoked and subdivided to allotments 9 &10 and the Plaintiff was bound by it. The subdivided allotments 9 &10 superseded section 8 allotment 01. Therefore, the Plaintiff had no standing. It was also submitted that since a CAO is not a registered interest, the Plaintiff cannot claim it owned the property or was the proprietor. 

50.     It was further submitted that the Plaintiff made assertions without pleading fraud to overturn the indefeasibility of title. It was then submitted that the Plaintiff used the wrong mode of proceeding. Upon cancellation of the CAO judicial review should have been instituted. 

51.    The titles to section 8 allotment 9 was granted to the Fifth Defendant pursuant to s 111 of the Land Act by the Minister and gazetted. The First Defendant’s title alleged as section 8 allotment 01 never existed upon subdivision. As to the two different titles over section 8 allotment 01 was an issue of fraud. The Plaintiff while relying on assertions failed to prove fraud, hence the proceeding should be dismissed.  

52.     From the totality of the submissions the main issue is who has the better title over the land on section 8 allotment 01. It is a question of law. Therefore, the law relevant for the present case needs mention.

53.     The law governing State land is the Land Act. It is prescribed by s 4 in the following manner:

4. National Title to Land.

(1)	All land in the country other than customary land is the property of the State, subject to any estates, rights, titles or interests in force under any law.
(2)	All estate, right, title and interest other than customary rights in land at any time held by a person are held under the State.

54.     The provision is self-explanatory. All land apart from customary land is State land hence the land the subject of this proceeding is State land. Ownership is vested in the State. The interest in the land in contention relate to occupancy. Generally, occupancy can be obtained through various leases from the State. For occupancy of State leases only the Minister or a delegate of the Minister may grant a state lease pursuant to s 65 of the Land Act. It can also be through a certificate of occupancy (CAO). 
  
55.     The Act identifies various types of leases (residential, commercial etc) that are capable of being granted to persons or entities which generally lapses after 99 years of the grant. Grant of State leases is a serious matter as it attaches with indefeasibility of title. It confers ownership on a person to the exclusion of all others for the prescribed period only. By the serious nature of indefeasibility any instrument conferring title must be perfect beyond any doubt through compliance of all requirements. 

56.     Conversely a Certificate of Occupancy is not a state lease. It is a permit reserving State land for public purposes. It does not vest any registerable interest under the Land Act. (See West New Britain Provincial Government v Kimas (2009) N3834). 

57.     However, my view is that a CAO is not subservient to a state lease owing to its very nature and what it is composed of. I have my reservations on the binding decision in National Airports corporation Limited v Airport Guesthouse Limited & Ors [2018] SC1867 that a right under a title over a property prevails over the right of occupation under a CAO. The simple reason is that in both instances they protect state land from adverse possession or ownership. The holder of a CAO has a better or stronger ownership than a person holding a title over land because the holder of a title is limited in time of occupancy (subject to renewal) while the holder of a CAO has no time limit to occupy such land. 

58.     The present case stemmed from a purported revocation of a CAO. Apart from the attributes to land referred to, the Land Act is silent on the authority of a CAO relating to a grant or revocation.  

59.      On this issue two opposing views surfaced from submissions of counsel. One stood for the proposition that a CAO was a creature of s 49 of the Land Act and was reserved land not subject to the Land Registration Act, while the other says it is an administrative practice and process as it was not based on any written law hence it cannot perform the function of the Reserve land under s 49. 

60.    There is ample authority for the view that a CAO is not a State lease nor is it a creature of statute. (See WNBPG v Kimas). It is also a purposeful view that a CAO holds State land in reserve without title for public purposes. Therefore, the Land Registration Act does not apply to land under a CAO. On the issue of reserve land section 49 of the Land Act seems to attract opposing views. Section 49 is in the following terms:

49. Reservation from lease or further lease

The Minister may, by notice in the National Gazette, reserve from lease or further lease-
a)	Government land; or
b)	Land that is subject of a state lease, that he considers is or may be required for a purpose specified in the notice

61.     The purpose for this provision is clear. It is to reserve state land from lease or further lease. Discretion is conferred on the minister to implement this provision to protect land that he elects or chooses to reserve. Such land is not available for lease howsoever. That presumption is further enhanced by s 52 in the following manner:

52. Special purpose lease or further lease

Where Government land is reserved from lease the land shall not be granted on application or tender, and a special purpose lease over the land shall be issued and registered in the name of the independent state of Papua New Guinea.

62.     From that provision a CAO holds land in reserve for a future purpose. In the present case the CAO issued to the Plaintiff was specified for a purpose being staff residences. There is no provision in the Land Act under which a CAO can be granted or identifies what a CAO is. In the absence of any statutory provision, it is my strong view that the purpose specified in the CAO is derived from s 49 (b). The purpose specified under the CAO in the present case was for residential. Therefore, the CAO was a creature of s 49 of the Land Act. There is no other way statutory or otherwise to safely determine where the CAO emerged from and what its attributes are. 

63.     By that position, it augurs well with s 52 that application and tenders for leases do not apply to land under a CAO. In the present case the land on s 8 allotment 1 was reserved for public purpose pursuant to s 49 and was not available for lease. The only way a lease could have been available was after complying with the mandatory requirements of s 52 by converting reserve land to a Special Purpose Lease under the name of the Independent State of Papua New Guinea. That did not happen here. 

64.     On the issue of whether the CAO was lawfully revoked the law is settled. It is appropriately stated in the case of Huafolo v Tadabe [2021] N8956 that where a CAO granted is revoked or cancelled without notice or consent of the governmental body concerned, the revocation or cancellation is void ab initio. 

65.     In the present case it is undisputed that the Plaintiff was granted a CAO and registered on 31 March 1984. The Plaintiff is the Provincial Government. 
There is a presumption that the Provincial Government is the agent for all government houses in each province not owned by the NHC. (See Southern Highlands Provincial Government v David Kapipi (1996) N1486). 

66.     It is also undisputed that the property in issue was not originally owned by the NHC. It was granted a lease after the purported revocation of the CAO held by the Plaintiff. 

67.     There is no evidence that the Plaintiff disposed of or relinquished the CAO in any way. That position stood until 31 March 2000 when the CAO was revoked by the delegate of the Minister for Lands. The Minister’s decision was made on the back of a recommendation from the Senior Land Administrator Southern and Highlands. The recommendation was made without notification, consultation, or the consent of the Plaintiff as the CAO holder. The reasons for the revocation given by the delegate of the Minister for lands states verbatim:

“The property is now under NHC sale of Government houses to be sold to the sitting tenants (public servants). The current sitting tenant on the above property is a teacher with the education Department in Enga Province. The revocation of CAO is effective forthwith and the sale of the property from the NHC to the tenants is to proceed henceforth.
 
 					SCHEDULE
All that piece of land described as allotment 09 section 08 town of Wabag, depicted on the Lands Department survey plan as Cat no 10/534 situated in Enga Province. Subject land was formerly part of allotment 01 section 8 Wabag.”

68.    Based on those reasons the CAO was revoked without notice to the Plaintiff. Even then there is no evidence that the revocation was registered in the National Gazette.

69.    The reasons for the revocation are fraught with glaring errors and irregularities. Upon a close perusal of the reasons the bemusing reason by the delegate of the Minister for Lands seems to enhance personal interest of a teacher. It does not in any way reflect on public interest as would normally be deemed in the issuance of the CAO. The CAO was issued to the Plaintiff a public body purportedly for a public purpose. To keep matters short the subsequent declaration is inconceivable bordering on gross abuse on the part of the Minister’s delegate.  

70.     Secondly by directing “the sale of the property from NHC to the tenants is to proceed henceforth” there is a presumption that the NHC had proceeded to sell the property while the CAO was current which was unlawful and bordering on fraud.  

71.    Thirdly there is a glaring flaw that affects the revoked status of the CAO. The schedule in the revocation notices names allotment 9 section 10 town of Wabag as the land the subject of the revocation. The CAO No 04/94 (H) issued to the Plaintiff was not over allotment 9 section 8. It was issued over land on allotment 01 section 8. 

72.    The delegate of the Minister revoked allotment 9 section 8 which was non-existent. Allotment 9 section 8 was created after a purported revocation of the CAO and a subdivision made on allotment 01 section 8 and therefore allotment 9 section 8 could not possibly have been revoked. 

73.     The Delegate of the minister’s attempt to qualify the revocation by further stating that, “the subject land was formerly part of allotment 01 section 8 Wabag” falls into disarray after he revoked allotment 9 section 8 which was non-existent.
 
74.     The instrument revoking the CAO is faulty from the errors identified rendering the revocation void.  The principle of indefeasibility of title demands that any form of activity on State land must be faultless, for the sole reason that it is a very serious matter concerning ownership to the exclusion of others. 

75.     On the issue of subdivision, the approval for subdivision of section 8 lot 01 seems to have emanated from a former approval for subdivision by the former Department of Urban Development on 2 February 1982 which is identified as TRP 58/17.  This information is contained in a letter from the Chief Physical Planner to the acting Provincial Manager - Lands in Wabag. This is an irrelevant basis for subdivision when the CAO issued on the land on 9 January 1994 superseded the former approval. 

76.     The subdivision was instigated by the Fifth Defendant to serve his interest as an occupant of one house on the land. His request for a subdivision was refused. By correspondence annexed to the affidavit of Melpai Yakili the Fifth Defendant was one of the occupants subject to an eviction. He had every reason to protect his interest by doing what the Plaintiff could not do on his request.  

77.     I agree with Mr Toke that the Fifth Defendant lacked standing and authority to initiate and introduce the subdivision. He had failed to comply with the mandatory requirements of s 130 of the Land Act.
 
78.     He possessed no lease on the land which he could surrender to initiate a subdivision. There is no evidence that the Plaintiff as the occupier applied for or requested for the land to be sub-divided. The Plaintiff as the current authorised occupier was entitled to the first right of refusal. It was not accorded, amounting to a breach of natural justice.  

79.     On the transfer of the lease to the NHC it is obvious that the NHC obtained title to allotment 01 Section 8 through direct grant. The transfer was done after a purported revocation of the CAO over the land. There is no evidence that the land was advertised for lease after the revocation pursuant to s69 of the Land Act. It is mandatory to advertise except through an exemption by the minister. From the number of lease transfers, requirements under s 130 of the Land Act and relevant provisions of the Land Act were not complied with. 

80.     Notwithstanding any breach of the Land Act the Fifth Defendant holds an indefeasible title under s 33 of the Land Act. Despite that the law in SC in Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR states that the consequences of breaches of statutory procedures or irregularities were tantamount to fraud as sufficient to overturn a registered title. 

81.     The transfer to the First Defendant of allotment 01 section 8 was a portion of land that no longer existed after a purported subdivision. 

82.     The transfers starting from the Lands Department to the NHC and eventually to the First and Fifth Defendants were fraught with irregularities. Breaches of the Land Act and Land Registration Act were committed. 

83.     The grant of state lease to the NHC amounted to constructive fraud rendering the lease ineffective at law and should not be allowed to stand. It is also constructive fraud for the NHC to transfer two leases on the same land. 

84.      The mandatory requirements under s 52 were not complied with in respect of the land in issue. Therefore, the processes involved in the transfer of a purported lease to NHC and the subsequent transfers of leases to the First and Fifth Defendants were irregular and unlawful. The conclusion therefrom is that the Plaintiff had never been lawfully divested of their interest under the CAO when the lease was transferred to the NHC. The land under that situation was also not available for leasing in the first place. (See WNB Provincial Government v Pepi Kimas (2009) N3834). 

85.    Therefore, the decision by the delegate of the Minister for Lands to revoke the CAO had no proper basis in law. The erroneous decision to revoke the CAO infected all subsequent decisions under the Land Act and Land Registration Act. Given the circumstances of this case, declaratory and other orders in the exercise of discretion shall be ordered. The following orders are made.

1.	The decision by the delegate of the Minister for Lands to revoke the CAO held by the Plaintiff is declared null and void. 
2.	The decision by NHC to transfer leases to the First and Fifth Defendants are declared null and void.
3.	The Secretary for Lands as delegate for the Minister for Lands shall execute a notice of forfeiture of the state lease on section 8 lot 01 granted to the NHC stating that the lease is forfeited by order of the Court. 
4.	The Secretary for Lands as delegate of the Minister for Lands publish the forfeiture in the National Gazette.
5.	The Registrar of Titles shall within 7 days upon receipt of the notice of forfeiture amend the Registry of State Leases and all other records under his control to reflect the decision for the forfeiture. 
6.	The NHC shall within one month after amendments to the Register of State Leases, refund all the money spent to purchase section 8 allotment 01 by Lipu Yangukali with interest at 2 % per annum from the date the lease was granted to NHC.
7.	The NHC shall within one month after amendments to the Register of State Leases, refund all the money spent to make purchases of section 8 lot 9 and 10 by Emmanuel Kilanda with interest at 2 % per annum from the date the lease was granted to NHC.
8.	Costs for the First defendant shall be paid by the NHC with interest at 2% from the date he paid the purchase price. 
9.	Costs for the Plaintiff shall be paid by the Fifth Defendant with interest at 2% per annum from the day the CAO was revoked. 

________________________________________________________________
M. S. Wagambie Lawyers: Lawyers for the Plaintiff		
Public Solicitor: Lawyers for the First Defendant
MaCKenzie Lawyers: Lawyers for the Second and Third Defendants
No appearance for the Fourth Defendant	
Hardy & Stocks Lawyers: Lawyers for the Fifth Defendant