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Sun Pacific Investments Ltd v Ane [2023] PGNC 360; N10509 (22 September 2023)

N10509

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2023

SUN PACIFIC INVESTMENTS LIMITED
Plaintiff

V

ALA ANE IN HIS CAPACITY AS REGISTRAR OF TITLES

First Defendant
And
PACIFIC NETWORK SERVICES

Second Defendant
And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant
And
L & Z ENTERPRICES LIMITED
Fourth Defendant

Waigani: Miviri J
2023: 13^th & 22^nd September

PRACTICE & PROCEDURE – Originating Summons – Application for Leave for Judicial Review – Registered Holder of State Lease – Cancellation By First Defendant – Registration Transfer to Fourth Defendant – Statement in support – Affidavit Verifying Facts – Standing – Delay – Internal Avenues exhaustion – arguable basis of – Ultra Vires – Denial of Natural Justice – Section 160 & 161 Land Registration Act – Procedural Fairness & Failure to Take Account of Relevant Considerations – Materials Relied Sufficient – balance discharged – Leave granted – Cost follow event.

Cases Cited:

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Timothy v Timothy [2022] PGSC 82; SC2282
NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70

Counsel:

I. Shepperd, for Plaintiff
H. Wangi, for Defendant

RULING

22^nd September 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application for leave for Judicial Review by originating summons dated the 07^th March 2023 to review the decision of the first defendant in his capacity as the Registrar of Titles on or about 30^th August 2022 (registered on 05^th September 2022) purportedly under section 161 of the Land Registration Act Chapter No. 191 to cancel entries No. S.75178 and No. S94045 being respectively a transfer of the said State Lease to the Plaintiff registered on 12 October 2016 and issuing to the Plaintiff of an official copy of the said State Lease registered on 27^th August 2021.
   
2. Further such other orders as discretion by the Court and costs of and incidental to the proceedings.
   
3. The Statement in support under Order 16 Rule 3 (2)(a) also filed 07^th March 2023, details that the plaintiff seeks to judicially review the decision of the Registrar of titles on or about 30^th August 2022 (registered 05/09/2022) purportedly under section 161 of the Land Registration Act to cancel entries No. S.75178 and No. S94045 on State Lease Volume 72 Folio 227, respectively a transfer of the said State Lease to the Plaintiff registered on 12 October 2016 and to issue to the Plaintiff an official copy of the said State Lease registered on 27^th August 2021.
   
4. He seeks an order in the nature of a certiorari to quash the decision of the Registrar of Titles dated on or about 30^th August 2022 (registered 05/09/22) to cancel entries No S.75178 and No. S94045 on State Lease Volume 72 Folio 227 being respectively a transfer of the said State Lease to the Plaintiff registered on 12^th October 2016 and to issue to the Plaintiff an official copy of the said State Lease registered on 27^th August 2021.
   
5. Further an order that the first defendant or his servants or agents do all such acts and execute all such documents as are reasonably necessary to be done or executed so as to restore the plaintiff as registered lease holder proprietor in respect of State Lease Volume 72 Folio 227 and to reinstate the official copy of the said state Lease registered on 27^th August 2021 as legitimate and sole registered proprietor of the said State Lease and cancel each and every other copy or version of the said State Lease including endorsing such copies of versions as “invalid” and “Cancelled”.
   
6. Essentially these are what the plaintiff seeks in this leave application for Judicial review. He relies on his own affidavit for Leave for Judicial Review. Material facts of which establish here that on the 12^th October 2016 He became the registered lease holder of State Lease volume 72 Folio 227 upon the second defendant transferring to him that land by consideration formalized by an instrument of transfer that was duly stamped and approved ministerially. It was implied that the owners copy of the State Lease had been destroyed. And so, in or around 2021 the plaintiff now the registered lease holder applied for a replacement of the subject. And on or about the 25^th August 2021 pursuant to section 162 of the Land Registration Act, an owner’s official copy of the subject State Lease Volume 72 Folio 227 was issued to the Plaintiff. And it was accordingly recorded in that register that “An Official copy of State Lease volume 72 Folio 227 has this day been issued pursuant to section 162 of the Land Registration Act chapter 191, it having shown to my satisfaction that the registered proprietor’s copy of the said Lease has been lost or destroyed.”
   
7. On or about the 30^th August 2022, the Registrar of Titles evidenced by Journal No 97196 on the said State Lease at the land Titles Office, registered on 05^th September 2022, purported to cancel Entry No. S75178 (the 2016 transfer to the Plaintiff) and Entry No. S94045 (the issuing of an official copy of the State Lease in 2021), as follows: “Cancellation of Entry No. S75178 & S 94045. It appears to my satisfaction that the within entries were entered in error thus cancellation is hereby affected under section 161 of the Land Registration Act Chapter191.” This took place without the knowledge or consent of the Plaintiff; and contrary to and without the procedure under sections 160 or 161 of the Land Registration Act Chapter 191.
   
8. The plaintiff argues that these facts give rise to ultra vires, denial of natural justice, and that the Registrar failed to consider relevant considerations. He also mistook facts and circumstance leading to a decision that was erroneous. No reasonable decision maker would have made that decision given his facts. It was a proscribed act within the meaning of section 41 of the Constitution. Plaintiff contends that these are arguable basis for the grant of leave for judicial review. And in my view, they are indeed arguable basis that would constitute basis to settle this ground. He settles this ground for leave.
   
9. He has also established given that he has sufficient interest because he was at all material times the registered holder of that State Lease Volume 72 Folio 227 known as portion 3425 Granville. And the decision of the First Defendant to cancel that registration of the 30^th August 2022 and to issue an official copy of the said State Lease on the 27^th August 2021 was made effecting that interest in law he had. And in his capacity as Registrar of Titles a public body, he made that decision without supplying any reasons basing as to why it was overturned from the initial grant by that act of registration: NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70. This ground is satisfied in favour of the plaintiff applicant. Because it remains arguable that no reasons were disclosed as to why the initial grant to him was overturned. He qualifies to be granted leave for Judicial review: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008).
   
10. There was no delay in pursing what was open to him given his facts set out above. Because the proceedings were filed on the 07^th March 2023 within the four months envisaged by the Rules: Innovest Ltd v Pruaitch [ 2014] PGNC 288; N5949 (17 March 2014). He was alerted by activity on the subject land on the 03^rd November 2022 and discovered that the transfer to him had been cancelled and official copy of the lease was cancelled. This is unlawful acquisition of property contrary to section 53 of the Constitution expounded in Timothy v Timothy [2022] PGSC 82; SC2282 (1 September 2022), giving substantive basis for leave for Judicial review.
    
11. There is no Internal process and procedure within other than to come as he has, and this ground is in his favour. In the aggregate he has discharged on the balance that leave lies for Judicial review in his favour. He is accordingly granted leave for Judicial review. He will file the substantive notice of motion for judicial review on or by 14 days as of today’s date 22^nd September 2023. That is on or by Friday 13^th October 2023 He shall file and serve the notice of motion upon all the parties effected there and then. The matter will return for directions before the court on Monday 16^th October 2023 at 9.30am.
    
12. The formal orders of the Court are:
    
    • (i) Leave is granted for plaintiff for judicial review.
      
    • (ii) The plaintiff shall file and serve the substantive notice of motion for judicial review on or by Friday 13^th October 2023.
      
    • (iii) The matter will be called for directions Monday 16^th October 2023 at 9.30am.
      
    • (iv) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Simpson Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor Generals: Lawyer for First Defendants