National Superannuation Fund Ltd v Yawenaik Holding Ltd [2017] PGNC 200; N6865 (12 September 2017)

N6865
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 789 OF 2015

BETWEEN
NATIONAL SUPERANNUATION FUND LTD
Plaintiff

AND
YAWENAIK HOLDING LTD also known as YAWENAIK HOLDINGS LTD
First Defendant

AND
CHRIS MANDA, SURVEYOR-GENERAL
Second Defendant

AND
ROMILLY KILA PAT, SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND
HON. BENNY ALLAN, MINISTER OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND
HON. POWES PARKOP, CHAIRMAN & OTHER MEMBERS OF THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Fifth Defendant

AND
BENJAMIN SAMSON, REGISTRAR OF TITLES
Sixth Defendant

AND

THE INDEPENDENT STATE OF APPUA NEW GUINEA
Seventh Defendant

AND
SANAMO GROUP LTD
Eighth Defendant

&

OS (JR) NO. 682 OF 2013

BETWEEN
NATIONAL SUPERANNUATION FUND LIMITED
Plaintiff

AND
HON. BENNY ALLAN, MINISTER OF LANDS & PHYSICAL PLANNING
First Defendant

AND
ROMILLY KILA PAT, A DELEGATE OF THE MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND

KEITH LAHUI, CHAIRMAN & OTHER MEMBERS OF THE PAPUA NEW GUINEA LAND BOARD
Third Defendant

AND
HENRY WASA, REGISTRAR OF TITLES
Fourth Defendant

AND
THE INDEPENDENT STATE OF APPUA NEW GUINEA
Fifth Defendant

AND
DELTA CORPORATION LIMITED
Sixth Defendant

AND

ALLAN BANIYAMAI
Seventh Defendant

AND
BARRICK SOMI TEMERI
Eighth Defendant

AND
SANAMO GROUP LIMITED
Ninth Defendant

Waigani: Makail, J
2016: 11^th October & 2017: 12^th September

PRACTICE & PROCEDURE – Application for leave to amend Notice of Motion for substantive relief – Amendment sought necessary to resolve issues in contention – Clarity of relief sought – Orders sought to quash title based on fraud – National Court Rules – Order 8, rule 50 (1) – Order 16, rules 5 & 6

PRACTICE & PROCEDURE – Application for interim injunction – Injunction sought to stop further dealings on land in dispute – Dispute over portion of land – Whether proceedings raised serious issues – Issues raised in relation to acquisition of State lease – Procedural breach and impropriety – Balance of convenience – Damages being an adequate remedy – Land Act – Section 58, 75 & 76

PRACTICE & PROCEDURE – Removal of party – Unnecessary or inconvenient party – Procedural breach and impropriety alleged against party – No relief being sought against party – National Court Rules – Order 5, rule 9

Cases cited:

Papua Club v. Nusaum Holdings Ltd (No. 2) (2004) N2603

Counsel:

Mr. A. Mana with Mr. M. Tumul, for Plaintiff
Mr. P. Waraniki, for Ninth Defendant in OS (JR) No 682 of 2013
& First and Eighth Defendants in OS (JR) No 789 of 2015
Mr. S. Ranewa, for First, Second, Third & Fourth Defendants in OS (JR) No
682 of 2013 & Second, Third, Fourth and Sixth Defendants in OS (JR) No 789 of 2015
Ms. C. Manua, for Fifth Defendant in OS (JR) No 789 of 2015
Ms. A. Nasu, for Fifth Defendant in OS (JR) No 682 of 2013
& Seventh Defendant in OS (JR) No 789 of 2015

RULING

12^th September, 2017

1. MAKAIL, J: The task given to the Court to decide the various interlocutory applications has not been made easy by the long and convoluted history of this case. As will be seen later, many events took place since the Plaintiff’s State lease over the disputed piece of land expired in 1999 and time was needed to examine and identify the facts pertaining to the dispute and the real issues in contention between the parties to resolve the dispute. This has considerably delayed the delivery of the decision.

Pending Motions

2. These proceedings commenced by the Plaintiff, National Superannuation Fund Limited (“Nasfund”) are related as they arise from a dispute concerning a portion of land located at 9 Mile in the city of Port Moresby. It is a State land. In proceedings OS (JR) No. 789 of 2015, there are several interlocutory applications for ruling. They are:

(a) Nasfund’s notice of motion filed on 9^th December 2015 seeking interim injunction;

(b) Nasfund’s notice of motion filed on 29^th June 2016 seeking leave to amend Notice of Motion for substantive relief;

(c) The First & Eighth Defendants’ notice of motion filed on 2^nd May 2016 seeking dismissal of the proceedings; and

(d) The Fifth Defendant’s notice of motion filed on 13^th July 2016 seeking its removal from the proceedings.

3. There are none in proceedings OS (JR) No. 682 of 2013. At the hearing the First Defendant (“Yawenaik) and Eighth Defendant (“Sanamo”) withdrew their notice of motion seeking dismissal of the proceedings. That being the case, it is only necessary to decide whether leave should be granted to Nasfund to amend the Notice of Motion for substantive relief, interim injunction and removal of the Fifth Defendant (“NCD Physical Planning Board”) from the proceedings OS (JR) No. 789 of 2015.

Background Facts

4. The undisputed facts are, the dispute is in relation to a portion of land described as Portion 2123. It is between Nasfund and Sanamo. Nasfund claims it is the registered proprietor and Sanamo also claims the same interest.

5. Nasfund alleges that its predecessor National Provident Fund Board of Trustees was the registered proprietor of the State lease over Portion 2123. Its lease expired in 1996. On 5^th May 1998, it applied for its renewal. On 17^th May 1999 the Land Board recommended that the lease be granted to it. On 17^th May 1999, the Land Board’s decision was published in the National Gazette No. G75.

6. In spite of firstly, the decision of the Land Board secondly, the publication in the National Gazette of the renewal of the lease over Portion 2123 and thirdly, despite numerous follow up made by the Nasfund, the responsible officers of the Department of Lands and Physical Planning failed to forward a Letter of Grant in accordance with Section 75(1) of the Land Act to Nasfund to complete and return with a duly signed Lease Acceptance Form.

7. As a consequence, the Minister for Lands and Physical Planning (“Minister”) did not execute three copies of the State lease and forward the original and duplicate to the Registrar of Titles for registration as required by Section 76 of the Land Act.

8. After almost 13 years later, on 5^th April 2012 the Land Board published in the National Gazette No. G119 a list of items to be heard at a “special Papua New Guinea Land Board Meeting No. 01/2012” on 16^th to 20^th April 2012. The Gazettal Notice also gave notice that there was one other applicant for renewal of the lease over Portion 2123. It was the Sixth Defendant (“Delta Corporation Limited”) in OS (JR) No. 682 of 2013.

9. On 2^nd May 2012, Nasfund was notified by the Land Board that its application for renewal was refused and that Delta Corporation’s application was successful.

10. On 22^nd May 2012, Nasfund appealed to the Minister against the decision of the Land Board to grant the renewal of the lease to Delta Corporation.

11. On 7^th May 2013, in a Gazettal Notice No. G182 the Nasfund was advised that its appeal was dismissed although no reasons were given.

12. On 20^th September 2013, the Nasfund commenced proceedings OS (JR) No. 682 of 2013 to review the decisions of the Land Board to reject its application for renewal of its lease and of the Minister to dismiss its appeal.

13. On 29^th July 2015, Sanamo filed a motion seeking leave to be joined as a party to the proceedings. It was then that the Nasfund became aware of the interest of Sanamo.

14. Unbeknown to Nasfund, the following events took place to reclassify Portion 2123 into another Portion known as Portion 3162 (State Lease Volume 55 Folio 171, Grandville, Fourmil of Moresby, NCD):

(a) On 7^th May 2013, the First Defendant, Yawenaik Holding Ltd (“Yawenaik”) in proceedings OS (JR) No. 789 of 2015 was granted a lease over Portion 1568. This portion was the land adjourning Portion 2123.

(b) On 1^st August 2013, the Second Defendant, Surveyor-General approved and registered a Survey Plan in Catalogued No. 49/3130 which was spearheaded by Yawenaik.

(c) That Survey Plan reclassified Portions 1568 and 2123 into Portions 3162 and 3163 respectively. It is alleged that it resulted in the encroachment of 46.55 ha of land in Portion 2123 thereby increasing the land size of Portion 3162 by 46.55 ha and decreasing Portion 3163 by 46.55 ha.

(d) On 16^th August 2013, the Third Defendant, Secretary of the Department of Lands and Physical Planning (“Secretary”) approved Yawenaik’s application to consolidate Portion 1568 with Portion 3162 inclusive of 46.55 ha as surveyed and registered under Survey Plan Catalogued No. 49/3130.

(e) On 16^th August 2013, the Secretary accepted Yawenaik’s surrender of its lease over Portion 1568.

(f) On 19^th August 2013, the Secretary granted a lease over Portion 3162 to Yawenaik.

(g) On 20^th August 2013, Portion 3162 was transferred from Yawenaik to Sanamo and on 2^nd September 2013, a State lease was registered in the name of Sanamo.

(h) Sanamo subsequently sub-divided Portion 3162 into 393 Residenital (High Covenant) Leases.

Removal of Party

15. It is necessary that the application for removal as a party (Fifth Defendant) by the Chairman and Members of the NCD Physical Planning Board in proceedings OS (JR) No. 789 of 2015 is dealt with first because it will determine whether the NCDC Physical Planning Board will remain as a Defendant or not in the proceedings.

16. The NCDC Physical Planning Board argues that first, it was not involved in the decision making process to forfeit Nasfund’s lease over Portion 2123 including change of ownership of the lease and registering of the title. Secondly, no direct allegations have been made against it. Finally, no relief has been sought against it.

17. Nasfund concedes that no relief has been sought against the NCDC Physical Planning Board but submits that first, under Section 72 of the Physical Planning Act, a person who intends to apply for subdivision or consolidation of land under Sections 130 and 131 of the Land Act must first obtain planning permission. In this case, the land is in NCD thus, planning permission must be obtained from the NCDC Physical Planning Board.

18. Secondly, on 3^rd September 2013, the NCDC Physical Planning Board erroneously approved Yawenaik’s application for Planning Permission to sub-divide Portion 1568, in that, under Section 77 (3) (e) (i) of the Physical Planning Act, an applicant for planning permission must be the owner of the land the subject of the application. In this case Yawenaik was not the owner of Portion 2123.

19. Finally, the NCDC Physical Planning Board approved Yawenaik’s application for planning permission to sub-divide Portion 1568. However, the size of the land in the General Layout Plan attached as annexure “C” to the affidavit of Joseph Kopol filed on 30^th May 2016 relates to Portion 3162 which is the sub-divided land and not Portion 1568.

20. While Nasfund concedes that it has not sought any relief against the NCDC Physical Planning Board, I am not persuaded that it is the case. It maybe that Nasfund has not sought any specific relief against the NCDC Physical Planning Board, but at para. 4 (b) (ii) of the Statement pursuant to Order 16, rule 3 (2) (a) of the National Court Rules, under the hearing ‘Relief sought’, it is quite clear that it seeks “A Declaration that the decisions of the Third and Sixth Defendants referred to above in paragraph 3.2 to 3.5 ......... breached procedures by the Land Act and the Physical Planning Act 1989 ......... and therefore invalid and of no effect.”

21. If one goes back to paras. 3.2 to 3.5 of the Statement, it can be seen that Nasfund seeks to review decisions of the Surveyor-General to approve and register the Survey Plan, the approval given by the Secretary to consolidate the two Portions of land and subsequent grant of a new State lease over the new Portion to Yawenaik and its registration by the Registrar of Titles.

22. And if one goes further back to para. 2.11 (iii) of the Statement, it is alleged that the consolidation was in breach of one of the requirements of Section 130 of the Land Act. Section 130 provides for consolidation of leases and that requirement is that the application for consolidation must be made by the lessee. In this case, Yawenaik was not the lessee at the time it applied for consolidation.

23. The other is that the Survey Plan is flawed because the size of the land depicted in it is bigger than the original plan and as a result it has encroached on the adjoining Portion of land.

24. Overall, Nasfund alleges that the consolidation of the two Portions of land, grant of a new State lease over the new Portion and its subsequent registration in the name of Sanamo was in breach of the procedures set out under the Land Act and the Physical Planning Act.

25. The submissions by Nasfund reaffirm its claim of procedural breaches and impropriety in the acquisition of title by Sanamo and establish that the NCD Physical Planning Board is part and parcel of the decision-making process.

26. For these reasons, I am not satisfied that it is an inconvenient and unnecessary party but rather its inclusion will enable it to respond to the allegation in relation to the breaches of statutory approvals under its jurisdiction, if it intends to do so. In terms of relief, it may wish to oppose the declaration sought by Nasfund. That is “......the decisions of the Third and Sixth Defendants ............ breached procedures by the Land Act and the Physical Planning Act 1989 ......... and therefore invalid and of no effect.”

27. For these reasons, the application to remove it as Fifth Defendant from the proceedings OS (JR) No. 789 of 2015 is refused. It shall pay Nasfund’s costs of the application.

Amendment of Pleadings

28. The next application to deal with is the one by Nasfund to amend pleadings in the Order 16, rule 5 Notice of Motion. According to the notice of motion, Nasfund invokes the Court’s discretionary power under Order “12”, rule 50 (1) of the National Court Rules.

29. Relying on Papua Club v. Nusaum Holdings Ltd (No. 2) (2004) N2603, it argues that an amendment can be made at any stage of the proceedings so long as the proposed amendment is necessary to address all the issues raised in the proceedings, its inclusion will be of no prejudice to the other parties, it is made bona fide, not to delay the proceedings, no wrong conduct by the applicant, it is a proper amendment and the other party can be compensated by costs.

30. In this case, it refers to a draft amended Order 16, rule 5 Notice of Motion and submits that the amendments sought are necessary to address all the issues it raises in this proceedings. Leave is being sought at this stage of the proceedings because it was not aware of Yawenaik and Sanamos’ interests until the joinder application by Sanamo on 29^th July 2015. Secondly, attempts were made to settle the dispute, particularly, in relation to the alleged encroachment or overlapping of land boundary with the adjoining Portion of land but were unsuccessful, hence the delay.

31. Yawenaik and Sanamo oppose the application and argue that Nasfund is precluded from amending the Order 16, rule 5 Notice of Motion because the application is made after leave to apply for judicial review was granted. The only way to bring those new matters raised in the proposed amendment is to withdraw the proceedings and recommence it. This time, it must plead them in the Notice of Motion once leave is granted.

32. The Surveyor-General, Secretary, Minister and Registrar of Titles support the submissions by Yawenaik and Sanamo.

33. The State objects to the application on the grounds that the reference to Order “12” rule 50 (1) of the National Court Rules in the notice of motion as the Court’s jurisdictional basis is incorrect. This alone should be sufficient to dismiss the application as being incompetent.

34. While I agree that the reference to the Court’s jurisdiction under Order “12”, rule 50 (1) is incorrect, I am not convinced that it is a sufficient reason to dismiss the application. I am certain that this is a slip and Nasfund was relying on Order 8, rule 50 (1) of the National Court Rules to seek leave to amend the relevant document. This rule confers jurisdiction on the Court to amend “any document” at any stage of any proceeding.

35. If there is any lingering doubt, it can be put to rest by the fact that there is no such rule as Order “12”, rule 50 (1) in the National Court Rules. For these reasons, I am satisfied that it was a slip and the defence has not shown if it has been adversely prejudiced by this slip. The slip can be remedied by invoking the correct rule, which is, Order 8, rule 50 (1) to expedite the application. Accordingly, the State’s submission must fail and the objection must be dismissed.

36. As to the submission that Nasfund is precluded from amending the Order 16, rule 5 Notice of Motion, it is misconceived because there is no provision in Order 16 of the National Court Rules that expressly prohibits amending of the subject document after grant of leave. Contrast that to amendment of Order 16, rule 3 (2) (a) Statement under Order 16, rule 6 (1). In addition, Order 8, rule 50 (1) confers a wide discretion on the Court to order an amendment at any stage of the proceedings. The discretion must be exercised judicially based on proper principles. The principles have been identified by Nasfund at [29] above which I adopt.

37. I am satisfied that the proposed amendments set out in the draft Order 16, rule 5 Notice of Motion annexed as letter “A ” to the affidavit in support of Seno Wekina sworn 28^th June 2016 are relevant and necessary to cover all the issues raised in the proceedings. These amendments seek to clarify the type of relief sought and it will be alleged that the registered proprietor’s title should be quashed because it was obtained by fraud.

38. Secondly, their inclusion will not prejudice the Defendants, they are made bona fide, not to delay the proceedings and through no fault of Nasfund because it was not aware of the events after it commenced proceedings OS (JR) No 682 of 2013 to review the decision of the Land Board to refuse to renew its State lease and the Minister’s decision to refuse its appeal against the Land Board’s decision respectively.

39. Significantly, it was awaiting the State’s officers, particular the Surveyor-General to settle the issue of encroachment or overlapping of boundary of the Portions but that failed, hence the delay. Finally, they are proper amendments and the Defendants can be compensated by costs.

40. The application for leave to amend is upheld. Leave is granted to Nasfund to file and serve an amended Order 16, rule 5 Notice of Motion in terms of the draft annexed as letter “A” to the affidavit in support of Seno Wekina sworn 28^th June 2016 within seven days of this Order.

41. As to costs, due to Nasfund not being informed by the Defendants of the subsequent events after its failed bid to renew its State lease failed and that it has filed proceedings OS (JR) No. 682 of 2013 to challenge those decisions, costs of the application will be borne by each party.

Interim Injunction

42. In relation to the final application, the onus is on the Applicant, Nasfund to establish that there is a serious issue to be tried, that the balance of convenience favour the grant of an interim injunction and damages would not be an adequate remedy. Finally, it is in the interests of justice that an interim injunction should be granted.

43. From what I have read and heard, there is no doubt in my mind that there are serious issues raised in these proceedings in relation to the procedure for grant of a State lease and ultimately, acquisition of title by Yawenaik and later, Sanamo. Amongst them is the original decision by the Land Board to grant Nasfund’s application for renewal of its State lease on 17^th May 1999 after its lease expired. It is the centre of the dispute in proceedings OS (JR) No. 682 of 2013.

44. After almost 13 years later, that decision was apparently reversed by a Land Board decision of 2^nd May 2012 and Delta Corporation was the successful applicant. How was that possible and what was the hold up for not offering the State lease to it? Quite obviously, there are two conflicting Land Board decisions? Which one is the valid one?

45. The other issue is in relation the consolidation of the two Portions of land; whether relevant statutory approvals were sought and granted from relevant State authorities. Finally, there is the issue of encroachment or overlapping of land boundary. It is noted here that the State contends that it has been resolved while the other Defendants disagree. This fortifies Nasfund’s arguments that it is one of the issues for further consideration at trial. These are the issues brought up in proceedings OS (JR) No. 789 of 2015.

46. All in all, these are not trivial, vexatious or frivolous issues but serious to warrant further consideration at trial and an injunction should lie.

47. As to balance of convenience, in my view, it favours both sides. If it were to be granted, the Defendants, particular, Sanamo as the registered proprietor will be prejudiced because it will be restrained from further developing the land in terms of preparing it for sale and to sell those identified sub-divided blocks or allotments. Even if it has sold them, those who have purchased them will be restrained from further dealing with them. If no injunction were to lie, the opposite will occur.
48. Damages may be an adequate remedy for Nasfund. It may sue the State and its officers for any loss suffered as a result of being deprived of the land. But to my mind, it comes down to where the interest of justice lies. To my mind, given the serious issues highlighted above and worthy of no repetition, and to preserve the status quo until all these issues are fully determined, an interim injunction is appropriate. Its grant will also cause the parties to expedite these proceedings to an early trial.

49. The application for interim injunction is granted. Costs of the application will be in cause.

Conclusion

50. The proceedings will progress to either directions hearing or, pre-trial hearing or, listings, on a date and time to be fixed, in consultation with the parties.

Ruling and orders accordingly.
__________________________________________-______________________
Allens : Lawyers for Plaintiff

Wariniki Lawyers: Lawyers for 1^st & 8^th Defendants (OS (JR) No. 789 of 2015)

Kawat Lawyers: Lawyers for 2^nd, 3^rd, 4^th & 6^th Defendants (OS (JR) No. 789 of 2015)

In-house Lawyers: Lawyers for 5^th Defendant (OS (JR) No. 789 of 2015)

Solicitor-General: Lawyers for 7^th Defendant (OS (JR) No. 789 of 2015)

Wariniki Lawyers: Lawyers for 9^th Defendant (OS (JR) No. 682 of 2013)

Kawat Lawyers: Lawyers for 1^st, 2^nd, 3^rd& 4^thDefendants (OS (JR) No. 682 of 2013)

Solicitor-General: Lawyers for 5^th Defendant (OS (JR) No. 682 of 2015)