Tomausi v Telikom PNG Ltd [2003] PGNC 11; N2494 (7 July 2003)

N2494

PAPUA NEW GUINEA
[In the National Court of Justice]

BETWEEN

Patrick Tomausi
-Plaintiff-

AND:

Telikom PNG Ltd
-First Defendant-

AND:

National Housing Corporation
-Second Defendant-

AND:

The Department of Lands
-Third Defendant-

AND:

The Independent State of Papua New Guinea
-Fourth Defendant-

WAIGANI: GAVARA – NANU, J
2003: 31st March & 07th July

REAL PROPERTY – Ownership – Property owned by a statutory body - Such property is excluded from Government’s Home Ownership Scheme – An employee ceasing to be employed by statutory body – Such employee has no right to continue occupying property owned by the statutory body – National Housing Corporation has no control over properties owned by a statutory body – Indefeasibility of a registered proprietor’s title to property.

Cases cited:
Mudge and Mudge -v- Secretary for Lands & Ors [1985] PNGLR 387.
Administration of TPNG -v- Blasius Tirupia & Ors [1971–72] PNGLR 229.

Counsel:
R . Uware for the plaintiff
T. Anis for the respondents.

GAVARA-NANU J: The plaintiff is seeking review of the Land Tenders Board decision made on 9th September, 1993, to grant the title on the property described as Section 42, Lot 62 Boroko, to the first defendant. The plaintiff is also asking this Court to quash that decision.

The plaintiff also seeks declaration that he was denied natural justice, and is asking the Court to order the Department of Lands and Physical Planning to disclose the Land Tenders Board’s reasons for granting the title on the property to the first defendant.

The plaintiff was a former employee of the first defendant. He commenced his employment with the first defendant in 1965, as a postal officer, when the first defendant was known as the Department of Post and Telegraph. The plaintiff held various positions in the Department and reached the position of First Assistant Secretary. By then, he was the head of Papua New Guinea Postal Administration.

In 1981, while still being employed by the first defendant, the plaintiff enrolled at the University of Papua New Guinea as an undergraduate in Bachelor of Arts. In 1985, he graduated with a Bachelor of Arts degree.

From 1986 to 1987, the plaintiff was the Senior Finance Co-ordinator in the Finance Division of the then Post and Telecommunication Corporation (hereinafter referred to as ‘the PTC’).

In 1981, the then Department of Post and Telegraph was corporatised and became known as ‘the Post and Telecommunication Corporation’. The first defendant thus became an entity by virtue of s. 3 of the Post and Telecommunication Corporation Act, Chapter No. 394. It was an entity separate from the State.

The National Executive Council, (hereinafter referred to as ‘the NEC’) in its Decision No. 166 of 1981, approved the transfer of all leasehold land formerly held by the Department of Post and Telegraph to the newly established corporation. The NEC also approved that, Certificates of Occupancy be issued to PTC over all those properties.

The plaintiff says the Certificates of Occupancy were never issued to PTC for those properties.
It is noted that, upon the establishment of PTC, all former employees of the Department of Post and Telegraph, including the plaintiff automatically became employees of the new corporation. It appears that they continued to occupy or reside in the houses they previously occupied as employees of the Department of Post and Telegraph, irrespective of whether the new entity had the Certificates of Occupancy for them or not.

The plaintiff continued to be employed by the first defendant until his retrenchment in early 1987.

After his retrenchment, the plaintiff continued to reside in the property until sometime in 1999, when he was evicted by the first defendant.

Mr Peter Yasbi in his affidavit, sworn 17th June, 2003, says the purpose of the eviction was to allocate the property to one of the employees of the first defendant.

The plaintiff says he had applied to the National Housing Corporation (hereinafter referred to as ‘the NHC’) to buy the property and paid all the relevant fees for his application. It is noted that the application was made under the Home Ownership Scheme introduced by the Government pursuant to the NEC Decision No. 19 of 1986. In that Decision, it was decided that the Government would sell its houses to the existing tenants.

The plaintiff has also challenged the Tender application made by the first defendant for the subject property, arguing that the application was improper because it was signed by a Lands Officer.

As noted, s. 3 of the Post and Telecommunication Corporation Act, provided for the establishment of the corporation. And under s. 3 (2), the corporation was established with perpetual succession and had a seal of its own and could acquire, hold and dispose properties and could sue and be sued in its corporate name. Thus the corporation by virtue of this section could own properties as an entity separate from the State.

Section 30 of the Act, deals with ‘Transfer of Assets’ etc, to PTC, and it provides:

All assets (other than land held by the State) which immediately before the commencement date were occupied or held by the Post and Telecommunication Service and all obligations and liabilities of Postal and telecommunication Services immediately before that date are on that date, transferred to the Corporation. (my underlining).

Section 2 of the Act, is the interpretation provision, and it provides that that commencement date was 1st July, 1982, which was the date when the Post and Telecommunication Corporation Act, 1982, came into force.

So the subject property, being once owned by the then Department of Post and Telegraph automatically became the property of the first defendant as at 1st July, 1982, by virtue of s.30 of the Act.

So s. 30 gave effect to the NEC Decision of 166 of 1981, by effecting the transfer of assets from the then Department of Post and Telegraph to PTC.

The NEC Decision No. 19 of 1986, which related to the Government’s National Housing Policy was made when the ownership of the property in question was already vested in PTC. It is therefore clear that the NEC Decision No. 19 of 1986, did not relate or apply to the subject property, because the property was already owned by PTC, which was a separate entity from the State. This is made very clear by s. 30, which provides that the transfer of assets from the then Department of Post and Telegraph did not include the properties owned by the State. Thus the section makes a clear distinction between the properties owned by the State and those owned by PTC.

Thus the plaintiff could not as a matter of law apply to buy the property, because it was not owned by the State.

There is another significant point. The plaintiff was retrenched in early 1987, so he could not be eligible to purchase the property from the first defendant either, even under the PTC Home Ownership Scheme, if there was such a scheme, because he was no longer an employee of the first defendant after his retrenchment.

The plaintiff’s applications which were made to the NHC to buy the house were clearly based on the misconception by the plaintiff that the property in question was owned by the State and therefore he could purchase it as its occupant, under the Government’s Home Ownership Scheme pursuant to the NEC Decision No. 19 of 1986.

As I said, the plaintiff has also challenged the validity of the Tender application for the property saying it was improper because it was signed by a Lands Officer. But, I am of the view that the Tender application was to formalize the ownership of the property by a statutory body in order to give effect to the NEC Decision No. 166 of 1981 and s. 30 of the Post and Telecommunication Corporation Act. I therefore see nothing wrong in the Tender application being signed by a Lands Officer. In my view, it was done because PTC was a statutory body.

I also note from Annexure ‘N’ to the plaintiff’s affidavit sworn 19th February, 2002, which is a letter dated 15th July, 1985, by the A/Principal Lands Officer to the Secretary, Department of Housing, advised that, PTC had applied for certain properties including the property in question. And the letter asked whether the properties were reserved for PTC and if so, whether the Department of Lands should proceed to allocate them to PTC and issue titles to PTC.

I have two comments regarding that letter. Firstly, it confirms that the property in question was not owned by the NHC. Secondly, it explains the reason why the Lands Officer signed the Tender application for the property on behalf of the first defendant.

According to that letter, the subject property was not sold. This means the ownership of the property was transferred to PTC upon its establishment from the Department of Post and Telegraph, by virtue of the NEC Decision No. 166 of 1981, and s. 30 of the Post and Telecommunications Act. Thus the subsequent issuance of the title to PTC on the property was only a formality.

It is not in dispute that the first defendant now holds title to the property in question.

In that regard, it is the established principle that a registered proprietor of a property has indefeasible title, unless the title is secured by means of fraud, see s. 33 (1) (a) of the Land Registration Act, Chapter No. 191. The case law authorities on this point is overwhelming, for instance, see Mudge and Mudge -v- Secretary for Lands & Ors [1985] PNGLR 387, and Administration of TPNG -v- Blasius Tirupia & Ors. [1971-72] PNGLR 229.

In the premises, the plaintiff has not shown to the Court that the first defendant has obtained the title on the subject property by means of fraud or some other illegal means. The first defendant therefore has valid and an indefeasible title over the subject property.

For these reasons, the plaintiff’s application is refused.

The plaintiff will pay the defendants’ costs.

Lawyer for the plaintiff : Public Solicitor.
Lawyer for the first defendant : Blake Dawson Waldron.