N10408

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 238 OF 2022

BETWEEN:
ELA LUMKERE ENTERPRISES LTD
Plaintiff

V

ALA ANE, Acting Registrar of Titles
First Defendant

AND:
BENJAMIN SAMSON, Secretary, Department of Lands & Physical Planning
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
SOI WELFARE LIMITED
Fourth Defendant

Kimbe: Anis J
2023: 19th & 21st July

JUDICIAL REVIEW – Substantive review – review premised on decision by the Registrar of Titles to purportedly cancel title over a property pursuant to ss 160 and 161 of the Land Registration Act Chapter No. 191 – Review ground premised on ultra vires, breach of law or procedures prescribed by statute or sub-ordinate legislation designed to ensure procedural fairness in decision-making, error of law on the face of the record, real apprehension of bias, failing to take into account relevant considerations – claim premised mainly on breach of right to be heard or of natural justice – overall claim of constructive fraud
Cases Cited:

Jaro Investment Ltd v. Ala Ale and Ors (2022) SC2192
Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122
Joshua Kalinoe v Paul Paraka (2014) SC1366

Counsel:

B Takua, for the Plaintiff
R Bellie, for the First, Second, and Third Defendants
S Pokop, as personal representative of the Fourth Defendant

DECISION

21st July, 2023

1.	ANIS J:  I heard this judicial review application on 20 July 2023.  I reserved my decision thereafter to today.  

2.	This is my ruling.

BACKGROUND

3.	The plaintiff owns this business name called Ela Lumkere Enterprises (ELE).  On 24 March 2005, its business was issued with an agricultural lease, that is, Portion 2040, Milinch Ulawun, Talasea, West New Britain Province (the Property).

4.	The plaintiff developed the Property and planted oil palm with various farmers over a period of time.  There is no dispute regarding development and investment that had been put by the plaintiff over the Property over the years before disputes arose which is the subject of this proceeding.

5.	The plaintiff’s complaint in this proceeding is this.  On 20 August 2018, the second defendant issued a summons to the plaintiff’s business enterprise ELE to produce its Owner’s Copy of the title to the Property.  In the notice or summon which is dated 20 August 2018 (Summons to Produce or STP), it expressly gave 14 days to the plaintiff or ELE from 20 August 2018, to surrender the title to the Property.  The second defendant stated in the STP that he was exercising his powers under s.160(1) of the Land Registration Act Chapter No. 191 (LRA).  Then on 17 October 2018, the second defendant issued a second letter to the plaintiff and ELE (cancellation letter).  In the cancellation letter, the second defendant informed the plaintiff and ELE that he had, pursuant to s.161(1) of the LRA and in his exercising his power therein, cancelled the title to the Property.  In the cancellation letter, the second defendant referred to the STP and said that the plaintiff had failed to respond within the 14 days mediatory period and that the period had expired.

6.	The plaintiff was aggrieved with this decision and filed this judicial review.  Leave for judicial review was granted on 11 November 2022.

EVIDENCE

7.	The parties rely on the filed Review Book which was tendered as Exhibit P1.  Also accepted as part of the Review Book were 2 affidavits which were sworn and filed by Sam Pokop for the fourth defendant.  The first affidavit was filed on 6 July 2023 which was tendered as Exhibit D1, and the second affidavit was filed on 18 July 2023 which was tendered as Exhibit D2. 

FUNDAMENTAL FACT MISCONCEIVED

8.	At the outset, I note this fundamental fact which is not disputed which is this.  The parties do not dispute that the plaintiff did not surrender its title to the Property in view of the STP that was issued by the second defendant.

9.	What does that mean exactly?  That is, the fact that the plaintiff kept and continues to hold its Owner’s Copy of the title to the Property.

10.	The answer to that is simple.  The plaintiff or its business entity ELE continues to hold its Owner’s Copy of the title which has not been cancelled by the second defendant.  I note the position taken by the second defendant which is that he had purportedly exercised his powers under ss 160 and 161 of the LRA.  But then, the fact of the matter is that the plaintiff never handed to him its title to the Property.  As such, he could never have cancelled the said title exercising his power under the said provisions of the LRA.  The proper course, which is now settled by case law, should have been for the second defendant to apply to the Court to summon the plaintiff to produce its Owner’s Copy of the title to the Property and or to appear before the Court to explain why the Owner’s copy should not be cancelled.

11.	Sections 160 and 161(1) of the LRA states:

160.  PRODUCTION OF INSTRUMENTS WRONGLY ISSUED, ETC.

(1)  Where it appears to the satisfaction of the Registrar that–
(a)	an instrument has been–
(i)	issued to a person in error; or
(ii)	fraudulently or wrongly obtained by a person; or

(b)	an instrument is fraudulently or wrongly retained by a person; or
(c)	an instrument held by a person contains a misdescription of the boundaries, area or position of land; or
(d)	an instrument held by a person contains an entry or endorsement–
(i)	made in error; or
(ii)	fraudulently or wrongly obtained; or
(e)	an instrument of title is held by a party to an ejectment action whose right to the land has been determined,

he may summon that person to deliver up the instrument.

(2)  Where a person refuses or neglects to comply with a summons under Subsection (1), or cannot be found, the Registrar may apply to the Court to issue a summons for that person to appear before the Court and show cause why the instrument should not be delivered up.
(3)  Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.
(4)  On the appearance before the Court of a person summoned under Subsection (2), or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.
(5)  Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.
(6)  Where a person–
(a)	has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or
(b)	has refused or neglected to comply with an order under Subsection (4),
the Registrar shall, if the circumstances of the case so require–
(c)	issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and
(d)	enter in the Register–
(i)	notice of the issue of an instrument and the circumstances under which it was issued; and
(ii)	such other particulars as he thinks necessary.

161.  CANCELLATION AND CORRECTION OF INSTRUMENTS AND ENTRIES.

(1)  Subject to Subsection (2), the Registrar may–
(a)	cancel or correct an instrument delivered up under Section 160; and
(b)	in any other case, on such evidence as appears to him sufficient, correct errors or omissions in–
(i)	the Register or an entry in the Register; or
(ii)	the other duplicate certificate of title or an entry on that duplicate.

12.	The authoritative decision is that by the Supreme Court in Jaro Investment Ltd v. Ala Ale and Ors (2022) SC2192.  The facts are quite similar in terms of the registrar of titles exercising his powers under ss 160 and 161 premised on want of delivery of Owner’s copy of a title to a property.  The Registrar therein issued the summons under s 160(1) of the LRA. The appellant refused to comply with the summons.  The Registrar, however, proceeded on and issued a replacement State Lease to the fourth respondent, the effect being to cancel the appellant’s title.  The appellant filed judicial review proceeding before the National Court challenging the decision of the Registrar of 13 December 2018.  Its judicial review was refused by the National Court.  The primary Judge found that the Registrar had power under ss 160 to 162 of the LRA to summon, cancel and restore titles and the appellant had failed to prove any error of law in the exercise of those powers. The appellant appealed against refusal of judicial review.  The Supreme Court held, amongst others, as follows:

(1)  If a registered proprietor fails to comply with a summons issued by the Registrar under s 160(1) of the Land Registration Act to deliver up an instrument such as a State Lease, the Registrar must, before deciding to cancel the instrument under s 161 of the Act, follow the procedure in ss 160(2) to (6), including applying to the National Court for a summons for the registered proprietor to appear before the Court and show cause why the instrument should not be delivered up.

(2)  The Registrar may only replace an instrument of title under s 162 of the Act if it has been lost, destroyed or replaced and the registered proprietor applies under s 162(1) for a replacement instrument of title and procedures set out in s162(2) are followed. 

(3)  The Registrar’s decision of 13 December 2018, which purported to rely on s161 and s 162, was made contrary to the procedure in ss 160(2) to (6) and contrary to the requirements of s 162, and involved numerous errors of law.

13.	In the present case, it is not disputed that the second defendant did not apply to the Court to summon the plaintiff before purportedly cancelling its title to the Property.  

14.	So, what this means in my view, amongst others and as stated above, is that the plaintiff continues to retain its Owner’s Copy of the Title; it was never surrendered and cancelled by the first and second defendants despite their claims that they have done so.  As I had pointed out to counsel, there is a practical reason behind the requirement or the need for the Registrar of Titles to summon a title in for cancellation.  There must be only one title issued over a property.  A single property or land cannot have more than one title to it, which is fundamental in Land Law or Land Law Practices.  The principle is expressly captured under s.33(c) of the LRA which states, The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–…(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title.  

15.	The first and second defendants have purportedly issued a new title to the fourth defendant after the purported cancellation.  The issuance of the purported new title is also not disputed.

16.	The status quo now in my view is that we have 2 issued titles over the same land or Property.  This is where I find that the defendants (in particular) have misconceived the material facts, that is, premised on their decision to purportedly cancel the plaintiff’s entity’s title to the Property and purportedly issue a new title to the fourth defendant.  The status quo is that the plaintiff’s title continues to exist and remains binding since it was never surrendered for it to be cancelled by the Registrar of Titles.

17.	In my view, the plaintiff had 2 options to come to the National Court to lay its complaint and both options would have been valid.  One of the options is by judicial review as the plaintiff has done herein.  The other option could have been by way of an Originating Summons where the plaintiff would assert its right or interest to the Property and ask the Court to declare the latter title issued to the fourth defendant as null and void premised on s.33(c) of the LRA.  

GROUNDS

18.	The grounds of review are contained in the Statement which is at [12] and [13] of the Review Book.  The plaintiff pleads 4 main grounds of review which are premised on (i), ultra vires, (ii) breach of law or procedures prescribed by statute or sub-ordinate legislation designed to ensure procedural fairness in decision-making, (iii) error of law on the face of the record, (iv) real apprehension of bias, (v) failing to take into account relevant consideration and (vi), constructive fraud.

GROUNDS (i), (ii), (iii), (iv) and (v)

19.	I will summarise grounds (i), (ii), (iii), (iv) and (v) as follows.  The plaintiff submits the second defendant acted beyond his powers under ss160 and 161 when he cancelled the title to the Property.  The plaintiff submits that it was never served with the STP.  Thus, the plaintiff submits that it was denied of its right to be heard or to natural justice premised on the case Jaro Investment Ltd v. Ala Ale and Ors (supra).  The plaintiff submits that even if it was found to have been served with the STP, premised on the case Jaro Investment Ltd v. Ala Ale and Ors (supra), the second defendant should have filed court proceeding to summon the plaintiff to produce its Owners’ Copy of the titled to the Property and demanded the plaintiff to explain why title should not be cancelled.  The plaintiff submits that the second defendant has failed in that regard.  The plaintiff also submits that there was an apprehension of bias because it was not given an opportunity to be heard before its title to the Property was purportedly cancelled.  The plaintiff submits that the second defendant only received one sided information furnished by the fourth defendant, in its internal investigation, to come up with the conclusion of fraud and its decision to issue the STP and to purportedly cancelled the title to the Property.

20.	I note the submissions of the parties.

21.	The fourth defendant appeared through its representative Mr Pokop.  Mr Pokop made oral submissions as a lay person.  He also relies on his 2 affidavits that were filed.  In summary, his material evidence and submission is that the fourth defendant had followed due process after the cancellation of the Property to acquire its title.  Mr Pokop submits that it was not the case where the title to the property was simultaneously transferred by the second defendant to the fourth defendant; that the company had to apply to the Land Board; that its application was rejected; that the company had to appeal the decision of the Land Board; that it was only after the appeal that it was successful and that title was issued to the fourth defendant on 31 March 2021 [annexure L to Exhibit D1].  As such, he submits that the claim should be dismissed.

22.	The State did not file any evidence to support its defence.  However, counsel Mr. Bellie relied on the evidence filed by the fourth defendant.  In so doing, he made the following material submissions.  Counsel submits that there is evidence adduced that the plaintiff had been served with the STP.  Counsel referred to annexure B to the Exhibit D2 which consisted of an affidavit by Constable Manase Weda filed 7 September 2018.  The evidence shows that the STP was served on the plaintiff’s Managing Director Dominic Balpagarea at the Bialla Police Station on 7 September 2018.  This evidence appears to contradict the plaintiff’s evidence and claim that it was not served with the STP.  Mr. Bellie’s next main contention is that because the plaintiff’s business ELE was not a natural person, the right to natural justice or the right to be heard did not apply to it.   Counsel, however, did not refer to any law or case law to support this argument.  The 3rd main argument refers to the internal findings by the first and second defendants of purported fraud against the plaintiff and ELE.  Counsel submits that there was evidence of fraud which justified the actions of the second defendant in cancelling the title to the Property.  

CONSIDERATION

23.	I make the following observations.  First, I note that Mr Pokop’s submissions do not address the material issues.  As such, I dismiss them herein.  

24.	In so doing, I refer to the arguments by the State.  I firstly note that arguments that relate to the internal findings of alleged fraud by the first and second defendants are not the subject of this judicial review.  I uphold the submissions of counsel for the plaintiff in this regard.  Judicial review, as correctly submitted by counsel, concerns review of a decision-making process and not the decision itself.  See cases:  Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122 and Joshua Kalinoe v Paul Paraka (2014) SC1366.

25.	The first and second defendants’ submission regarding want of right to be heard by the plaintiff and or its business ELE is made without regard to any law thus I dismiss it.  I need not elaborate further except to say that the argument is also contradictory to the actions of the second defendant.  If the plaintiff had no right, standing or legal status then why bother issuing the STP.  And this.  The plaintiff’s title to the Property was issued by the second defendant in the first place on 24 March 2005, and the plaintiff and its business have held the title to the Property for 13 years without any issue before the second defendant decided to purportedly cancel it.  The argument is also made contrary to the requirements under ss. 160 and 161 as clarified by the Supreme Court in Jaro Investment Ltd v. Ala Ale and Ors (supra).  

26.	Finally, I refer to the first and second defendants’ claim that the plaintiff had been duly served with the STP.  My first observation is that the submission is made contradictory to their argument of want of right to be heard as I have discussed above herein.  But besides that, I do find as a matter of fact that the STP was served on the plaintiff and its business ELE.  Evidence of that again is contained at annexure B to Exhibit D2.  However, that is not the end of the matter.  I note that the STP was served on Mr. Balpagarea on 7 September 2018, which is 4 days after the expiry of the 14 days period required in the STP for the plaintiff to respond or surrender its title.  In other words, the STP was received by the plaintiff after it had expired.  And it would seem that premised on this, that the second defendant had exercised his power under ss 160 and 161 of the LRA.

27.	In summary, except for the ground constructive fraud, I uphold all the grounds of judicial review pleaded by the plaintiffs.  I find as follows:

•	Firstly, I find that the second defendant acted ultra vires under ss 160 and 161 of the LRA when he, without receipt or having in his possession the Owner’s Copy of the title to the Property, purportedly cancelled the said title of the plaintiff and its business ELE;
•	Secondly, the second defendant breached procedural fairness when he failed to allow the plaintiff and ELE the right to be heard, as per the requirements under ss 160 of the LRA which is also stated by the Supreme Court in Jaro Investment Ltd v. Ala Ale and Ors (supra);
•	Thirdly, the second defendant erred in law on the face of the record when he purportedly cancelled the titled to the Property when he never first received the Owner’s Copy of the title to the Property from the plaintiff and its business entity ELE;
•	Fourthly, there was a real apprehension of bias given the following:

(i)	the defendant’s own evidence shows that they knew or ought to have known that the STP was received by the plaintiff well after the 14-day mandatory period required in the STP yet that did not prevent the second defendant from exercising his powers to purportedly cancelled the title to the Property;
(ii)	the decision by the second defendant to purportedly cancel the title to the Property was premised on his own internal investigation which was premised only on the materials and information furnished by the fourth defendant; the plaintiff, by the action of the second defendant in preventing it to respond within the stipulated time, did not get the chance to have a say before its title was purportedly cancelled.

•	Fifthly, the second defendant failed to take into account relevant consideration in that:

(i)	when he had knowledge of or information that the STP was served on the plaintiff after the 14 days mandatory period, he should have refrained from exercising his powers under ss 160 and 161 and instead re-issue a new summons to produce; or 
(ii)	instead of re-issuing a fresh summons to produce, he should have applied to the Court under s.160 of the LRA to seek orders to summon the plaintiff.

28.	The above reasons are sufficient reasons for me to grant the judicial review application.  It is therefore not necessary for me to consider the ground constructive fraud.  With that, let me make this remark.  The plaintiff is not alleging fraud against the purported title that has been issued to the fourth defendant.  Rather, the plaintiff is challenging the decision of the second defendant in purportedly cancelling its title to the Property which to this date, the said titled continues to remain with the plaintiff’s business entity which is ELE.  Thus, the argument that the plaintiff has or ought to establish fraud against the fourth defendant is misconceived.

RELIEF

29.	I refer to the pleaded relief in the Notice of Motion at [117] of the Review Book.  I am minded to grant relief 1 to 5 of the Notice of Motion.  I am not minded to grant permanent restraining orders against the fourth defendant.  To do so would be to interfere with its right as a legal person.  The fourth defendant should be at liberty to decide its own course or action or path to take.

30.	I note that the error in the registration of the title to the Property in the business name of the plaintiff may have contributed to this dispute which appears frivolous and a waste of time and resources (as revealed in the adduced evidence of the parties).  Evidence adduced shows that ELE is a business name which is owned by the plaintiff.  For avoidance of doubt, it is therefore prudent that I should make orders as proposed in the relief to be awarded in favour of the plaintiff so that the title to the Property is registered to the name of the plaintiff.

COST

31.	Cost is discretionary.  I am minded to order cost to follow the event.

ORDERS OF THE COURT

32.	I make the following orders:

1.	An Order in the nature of Certiorari to remove into this Court the decision of the first defendant of 17th October 2018 to cancel the lease Title over Portion 2040 Milinch Ulawun Fourmil Talasea, West New Britain Province registered under the plaintiff’s business lease name Ela Lumkere Enterprises and subsequently re-issue a new lease over the same property to the fourth defendant is quashed.

2.	A declaration that the Registrar of Title’s decision of 17th October 2018 to cancel the lease over Portion 2040 Milinch Ulawun Fourmil Talasea, West New Britain Province registered under the plaintiff’s business lease name Ela Lumkere Enterprises and subsequently re-issue a new lease over the same property to the fourth defendant without first exhausting the procedures set out under sections 160(1) and (2) of the Land Registration Act, is null and void and of no legal effect.

3.	An Order that the first and second defendants’ decision of 17th October 2018 to cancel the lease over Portion 2040 Milinch Ulawun Fourmil Talasea, West New Britain Province registered under the plaintiff’s business name Ela Lumkere Enterprises is hereby quashed.

4.	An Order that the plaintiff’s original lease title over Portion 2040 Milinch Ulawun Fourmil Talasea, West New Britain Province registered under its business name ‘Ela Lumkere Enterprises’ be reinstated and corrected by removal of the plaintiff’s business name Ela Lumkere Enterprises and be replaced with the plaintiff’s company name ‘Ela Lumkere Enterprises Limited’ as incorporated with the Investment Promotion Authority.

5.	And order that the first and second defendants make all necessary changes with the records at the title’s registry in respect of Portion 2040 Milinch Ulawun Fourmil Talasea, West New Britain to give full effect to, and reflect the terms of the preceding orders (1), (2), (4) and (5).

6.	The defendants to pay the plaintiff’s cost of the proceeding on a party/party basis to be taxed if not agreed.

7.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
Public Solicitor: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First, Second and Third Defendants
Personal Representative: For the Fourth Defendant