N11189
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 67 OF 2020

BETWEEN
RADIO TAXIS LIMITED
Plaintiff

AND
JOHN WANO & SIWI KUNI CO LTD
First Defendant

AND
MOKONDA REINA REMA in his capacity as a Director and Shareholder of JOHN WANO & SIWI KUNI CO LTD
Second Defendant

AND
REGISTRAR OF COMPANIES with the INVESTMENT PROMOTION AUTHORITY
Third Defendant

AND
ALA ANE in his capacity as the REGISTRAR OF TITLES with the DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

WAIGANI: MAKAIL J
13 MAY 2022; 18 MARCH 2025

STATE LEASE – Land dispute – State Lease – Sale of land – Proof of registered title holder’s title – Transfer and registration of title – No record of entry on certificate of title of interest – No clear title established – Proceedings dismissed – Land Registration Act – Section 33(1)(a)

Cases cited
Nil

Counsel
Mr A Waira for plaintiff 
Mr F Kuvi for second defendant
No appearance for first, third, fourth & fifth defendants

JUDGMENT

1.	MAKAIL J: Pursuant to an originating summons filed on 3rd March 2020 and subsequently amended and filed on 3rd June 2021, the plaintiff seeks the following relief: 

“1.    A declaration that the third defendant’s dealing with executing the contract for sale on the 17th of April 2012 on State Lease Volume 8 Folio 1998.  Portion 441 and 442 Granville National Capital District to transfer the ownership to John Wano and Siwi Kuni Investment Limited as a Purchaser was nullity as an entity was not registered with the Investment Promotion Authority as a company and did not have legal personality or capacity to lawfully deal with the land and the contract of sales cannot be relied upon to challenge the plaintiff’s  title and the plaintiff’s right to excess and enjoyment have been denied and all the dealings are void and set aside.

2.    A declaration that the third defendant dealings in executing transfer to transfer the ownership of State Lease Volume 8 Folio 1998, Portion 441 and 442 Granville National Capital District to John Wano & Siwi Kuno Investment Limited as a transferee was nullity as the entity was not registered with the investment Promotion Authority and also did not involve in other dealings and the transfer and contractor for sale incompetent to be relied upon to challenge the plaintiffs title and are void.

3.    A declaration that the contract for sale executed on the 17th April 2012 to transfer ownership of State Lease Volume 8 Folio 1998, Portion 441 and 442 Granville National Capital District to John Wano and Siwi Kuni Investment Limited was stamped with the wrong common seal under John Wano & Siwi Kuni Investment Limited and no proper land dealings were done and contract for sale and all the dealings are void and set aside.

4.     A declaration that the first defendant did not use its name clearly in all the documents in the land dealings on Lease volume 8 Folio 1998 Portion 441 and 442 Granville National Capital District and used more than four incurred names and names are misleading, confusing and the first defendant did not create its obligations to others and all the dealings were nullity from the start and are incompetent and are void and set aside.

5.    A declaration that the first defendant did not execute the contract for sale and transfer document with the third defendant on the 17th April 2012 and is not privity to the contract and is a stranger to the land dealings on State Lease , Volume 8 Folio 1998 Portion 441 and 442 Milinch Granville Port Moresby Capital District and has no legal standing to rely on the contract for sale and challenge the plaintiffs title and challenges were nullity from the start and all forms of challenges are void and set aside.

6.   A declaration that the steps taken by the third defendant to acquire the ownership of State Lease, Volume 8 Folio 1998 Portion 441 and 442 Milinch from Mai Trading Limited did not eventuate and did not have a title or land interest and lacked authority and standing to competently deal with the land and the plaintiffs title is unnecessarily challenged and all the dealings including releasing official document by the third defendant on the 3rd August 2015 are void and set aside.

7.    A declaration that the third defendant questioned the nature and the manner in which the title was transferred to Mai Trading Limited on the 2nd January 2012 in respect of State Lease Volume 8 Folio, 1998 Portion 441 and 442 Milinch Granville, National Capital District and yet wrongly dealt with the plaintiff’s land and denying the plaintiffs right to excess to the land quickly.

8.   A declaration that the Notice or the Minute produced by the fourth defendant on the 2ndMarch 2016 confirmed that the transfer to Mai Trading Limited under the entry No. 7207 was done by error and cancelled and the status and the effects remained to this date.

9.    A declaration that the third defendant has taken steps to sell Business Lease consisting of 1.4662 hectares located in the prime location, Erima Six Mile in Port Moresby, the capital city of Papua New Guinea at unreasonably lowest and undervalued price of K60,000.00 and all the dealings are void and set aside.

10.   A declaration that the plaintiff did not give the consents of the first defendant and the second defendant to occupy state lease Volume 8 Folio 1998 Portion 441 & 442 Milinch Granville, National Capital District and the said defendants have trespassed and occupied the land without right to authority and denied the plaintiff’s right to excess and peaceful enjoyment.

11.     An order that all the land dealings including producing documents by any defendant especially under John Wano and Siwi Kuni Investments Ltd and John Wano and Siwi Investments Ltd in respect of State Lease, Volume 8 Folio 1998 Portion 441 and 442 Granville National Capital District are set aside.

12.    An order pursuant to Section 155(4) of the Constitution that the Port Moresby District Court matter entitled DC. No. 109 of 2015 filed by the plaintiff against the occupants of Section State Lease Volume 8 Folio 1998 Portion 41 and 442 Granville National Court and orders granted to given vacant possession to the plaintiff on the 3rd of August 2016 is set aside.

13.   An order that the first defendant, second defendant and all other occupants of State Lease, Volume 8 Folio 1998 Portion 441 and 442 Milinch Granville National Capital District give vacant possession to the plaintiff within 30 days from today.

14.   An order that if the vacant possession is not given within 30 days, the members of the police force are empowered to enter the land and remove and said defendants and other occupants with their belongings and demolish their structures at any time between 9.00am to 3.00 pm but not during the weekend and the public holidays and upon eviction, members of the police are empowered to continue to enter the land at any time and prevent any possible trouble and stop the defendants and other occupants from reentering until complete vacant possession is given to the plaintiff.

15.    Cost of the proceedings to be paid by the first defendant, third defendant and the fifth defendant on equal footing”.

2.	The plaintiff seeks these orders because it claims that it is a title holder of a portion of land contained in a State Lease described as Volume 8, Folio 1998, Portions 441 & 442 Milinch, Granville, Fourmil, National Capital District. 

3.	At trial a related proceeding between the first and second defendants as plaintiffs and the plaintiff as defendant in OS No 561 of 2016 which was fixed together with this proceeding for trial, was dismissed for want of prosecution because of their unreadiness.  The learned counsel for the second defendant briefly submits that the present proceedings failed to disclose a cause of action and should be dismissed.

Parties’ Evidence

4.	The plaintiff relies on the following affidavits:

(a)	affidavit of Adam Kutana Kuli sworn on 7th July 2021 and filed on 9th July 2001,  

(b)	affidavit of Adam Kutana Kuli sworn on 13th September 2021 and filed on 14th September 2001, and

(c)	affidavit of Adam Kutana Kuli sworn and filed on 29th November 2001.  

5.	The second defendant relies on the affidavit in support of Mokonda Reima Rema sworn on 22nd September 2021 and filed on 30th September 2021.

Findings of Fact

6.	Except where the assertions are inadmissible for being hearsay or irrelevant, the majority of Mr Kuli and Mr Rema’s assertions are uncontested.  Accordingly, the Court makes the following findings: 

•	on 14th July 1975 the plaintiff was granted a title of a land contained in a State Lease described as Volume 8, Folio 1998, Portions 441 & 442 Milinch, Granville, Fourmil, National Capital District. 

•	the proprietor of the plaintiff was an expatriate by the name of Frank J De Graaft. 

•	on 19th August 1990 the plaintiff sold the land to Mai Trading Pty Limited.

•	on 23rd November 1990 the title of the land was transferred and registered to Mai Trading Pty Limited.  

•	on 4th September 1991 the National Court ordered amongst others, declaring the Mai Trading Pty Limited as the registered proprietor of the land and ordered the defendants including Mr John Wano to vacate the land.

•	on 21st January 2009 the plaintiff was removed from the register of companies by the third defendant as Registrar of Companies.  

•	on 13th August 2012 the managing director of the plaintiff Mr Katuna Adam Kuli submitted an application for reinstatement of the plaintiff to the third defendant.  
•	after three years of de-registration, on 9th November 2012 the plaintiff was reinstated on the register of companies.

•	according to company extract of the plaintiff as of 20th May 2013, the shareholders of the plaintiff are Katuna Kuli and Iso Kuli.  

•	meanwhile, according to a certificate of incorporation and company extract as of 21st July 2021, on 01st October 2011 the first defendant was incorporated.  

•	then on 04th October 2011 the second defendant and John Wano wrote a letter under the letter head of John Wano & Siwi Kuni Investment Limited to the third defendant as directors of the first defendant company and expressed their interest to purchase the land.  

•	they advised that the title be transferred to the first defendant company as a newly incorporated company and because John Wano & Siwi Kuni Investment Limited was not yet registered.

•	on 6th October 2011 the third defendant replied to the letter 04th October 2011 and informed that the land would not be sold, and a valuation be done.  On 4th January 2012 a letter of offer was given.

•	a contract of sale was prepared.  

•	on 17th April 2012 the third defendant executed the contract of sale with John Wano & Siwi Kuni Investment Limited as purchasers and the second defendant signed as director of John Wano & Siwi Kuni Investment Limited.

•	on the same day, 17th April 2012 the third defendant signed a memorandum of exercise of powers under Sections 372 and 373 of the Companies Act, 1997.

•	also, on 17th April 2012 the directors and shareholders of the first defendant signed an Indemnity Agreement.

•	on 3rd May 2012 Mr Rema hand delivered an application comprising of a contract of sale, memorandum of exercise of power, indemnity agreement, transfer instrument from Mai Trading Pty Ltd to the Registrar of Companies and transfer instrument from Registrar of Companies to the John Wano & Siwi Kuni Investment Limited to have the title of the land transferred from the plaintiff to John Wano & Siwi Kuni Investment Limited to the fourth defendant.

•	the fourth defendant queried whether the title had passed to John Wano & Siwi Kuni Investment Limited and based on the information he had received from his officers, formed a view that the title of the land had not passed but was vested in the plaintiff.  

•	on 8th August 2012 the fourth defendant’s deputy issued a notice of intention to issue an official copy of the State Lease of the land to the plaintiff after expiration of fourteen days and published the notice in the newspaper.   

•	while the first defendant was awaiting the transfer and registration of title to it, on 9th November 2012 the plaintiff was reinstated on the Company Register.

•	on 30th November 2012 Mr Rema paid the registration fee form the transfer of title in the sum of K100.00.

•	the plaintiff was granted an order for eviction at the Port Moresby District Court to have occupants of the land evicted but that order was set aside, and the proceeding dismissed in its entirety on the ground that the plaintiff had no title.

•	on 26th June 2013 the fourth defendant’s deputy cancelled the title of Mai Trading Limited. 

Question for Determination

7.	Although not clearly expressed in the relief sought and in the written submissions of the learned counsel, the plaintiff relies on a certificate of title to assert its right as the registered title holder of the land and that the title of the same piece of land held by the first defendant is defective and unsustainable at law on the following grounds:

(a)	the first defendant was not a registered company with the Investment Promotion Authority and lacked the legal capacity to enter into a contract of sale of land. 
(b)	the first defendant was not privy to the contract of sale.

(c)	the second defendant Mokonda Reina Rema lacked standing to enter into the contract of sale.

(d)	undervaluation of the property and purchase price of the land by the first defendant.  

8.	The learned counsel for the plaintiff filed an extensive and comprehensive written submissions in support of these grounds and I have spent time reading it over and over again together with the affidavits to identify the correct question for determination and it is clear to me that the plaintiff has overlooked the fact that the title of Mai Trading Limited has been cancelled by the fourth defendant’s deputy on 26th June 2013.  

9.	This being the case the correct question which falls for determination is not whether the first and second defendants procured the title of the land by fraud, but whether the title of the land has been restored to the plaintiff following the cancellation of the title of Mai Trading Limited or conversely had passed to the first defendant.  It is necessary to determine this question because of two reasons, first, there is no record of any entry by the fourth defendant on the certificate of title restoring the title to the plaintiff after Mai Trading Limited’s title was cancelled on 26th June 2013.  Secondly, there is no record of any entry by the fourth defendant on the certificate of title transferring the title to the first defendant.

Proof of Parties’ Title to Land 

10.	 While the Court’s findings show that during the period when the plaintiff was de-registered and the land was under the care of the third defendant under Section 373 of the Companies Act, Mr Rema and the first defendant moved to have the title of the land transferred to the first defendant by organising with the third defendant to sell the land to the first defendant pursuant to a contract of sale and transfer of title to the first defendant, the transfer and registration of the title from the plaintiff to the third defendant and from the third defendant to the first defendant did not take place, although Mr Rema did deliver the relevant documents to the office of the fourth defendant for processing on 3rd May 2012.  Consequently, I find that no title passed to the first defendant.

11.	I come to this conclusion because we have adopted a Torrens Titles system of land registration and land transfer where registration of title on the Register of Titles per the certificate of title is conclusive evidence of title.  A registered proprietor’s title can be set aside if fraud is proven under Section 33(1)(a) of the Land Registration Act.  It was, therefore, necessary for the first defendant to have the title of the plaintiff transferred to it before it becomes a registered title holder of the land.  In the absence of such title, there is no legal basis for the plaintiff to maintain these proceedings against the defendants.  These proceedings are unnecessary and misconceived.

12.	As to the plaintiff’s claim that it is the registered title holder of the land, it too suffers from the same defect.  There is no evidence that after it was re-registered as a company and after the cancellation of Mai Trading Limited’s title, its original title was restored to it. In the absence of a clear title, the plaintiff has failed to prove that it is the registered title holder of the land and entitled to the orders it seeks. 

Conclusion

13.	The whole proceedings are an abuse of process and are dismissed with each party to bear their own costs of the proceedings.

Order

14.	The Court orders that:

	1.	The proceedings are dismissed.

	2.	Each party shall pay their own costs of the proceedings.

________________________________________________________________
Lawyers for plaintiff: Waira Lawyers			
Lawyers for second defendant: Francis Kuvi & Associates
Lawyer for third, fourth & fifth defendants: Acting Solicitor General