Rei v Arutu Tatana Incorporated Land Group Inc [2019] PGNC 394; N8150 (5 December 2019)

N8150

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 146 OF 2018

BETWEEN
GAUDI REI FOR HIMSELF AND ON BEHALF OF THE TANOMOTU CLAN OF BARUNI VILLAGE
Plaintiff

AND
ARUTU TATANA INCORPORATED LAND GROUP INC
First Defendant

AND
ARUTU BARUNI INCORPORATED LAND GROUP INC
Second Defendant

AND
ANDY MALO, DIRECTOR OF CUSTOMARY LAND REGISTRATION, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant

AND
HENRY WASA, REGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

AND
OSWALD TOLOPA, ACTING SECRETARY, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fifth Defendant

AND
JUSTIN TKATCHENKO, THE MINISTER FOR LANDS AND PHYSCIAL PLANNING
Sixth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Thompson J
2019: 6^th September, 5^th December

JUDICIAL REVIEW – registration process under S34 E-J of Land Registration Act – whether procedural irregularity – whether irregularity sufficient to amount to fraud – fraud must be by registered proprietor

Counsel:

Mr A. Serowa, for the Plaintiff
Mr Z. Gelu, for First and Second Defendant
Mr M. Tukulia, with Mr. H. White, for the Third – Seventh Defendant

5^th December, 2019

1. THOMPSON J: The Plaintiffs are seeking to judicially review decisions made by the Director of Customary Land Registration, the 3^rd Defendant, and the 4^th - 7^th Defendants whereby Certificates of Title were issued to the 1^st and 2^nd Defendants over land described as Portion 4040 C on Volume 1 Folio 60 and Portion 4041C Volume 1 Folio 61 Granville, on 20 February 2018. The basis of the application is that the Defendants erred in following the procedures prescribed by 34E-J of the Land Registration Act (“LRA”), and thereby also acted ultra vires, and denied them natural justice.

Facts

2. An area of customary land had been the subject of numerous proceedings, including in the Local Land Court (“LLC”). Following a decision of the LLC which gave ownership of the land to the 1^st and 2^nd Defendants, on 25 May 2015 they submitted an application to the 3^rd Defendant for registration of the two portions of land then described as Portions 3327C and 3328C.

3. On or about 23 September 2015, the 3^rd – 7^th Defendants advertised Notice of their Intention to conduct a survey of those two portions of land on a sketch survey plan, and invited any objections to be lodged within 90 days. The Plaintiffs did not lodge an objection. Various procedures under S34 E - J of the LRA were carried out including verification of the survey plan, verification of the applicant ILG’s membership, inspection of the land to verify the boundary, the preparation of land investigation reports, and a recommendation for registration.

4. On or about 7 October 2016, the 3^rd – 7^th Defendants advertised their Notice of Registered Survey Plan 49/3309 for Portions 3327C and 3328C, and invited objections within 30 days.

5. On or about 12 October 2016 the Plaintiffs objected, on the basis that the boundary determined in the LLC decision did not include an area of land which they claimed, and which was therefore incorrectly shown on the Survey Plan as being within the boundary.

6. On 15 October 2016 an objection was also lodged by the Chairman of the Tanomotu ILG, but he withdrew this on 4 November 2016.

7. On or about 23 November 2016, after noting the LLC decision, the Surveyor - General cancelled the Survey Plan 49/3309.

8. Following an Appeal, on 27 October 2017 the LLC order was set aside, and the disputed area of land was determined to be within the boundary of the 1^st and 2^nd Defendants’ land.

9. After being notified of this LLC Appeal decision, on or about 17 November 2017 the 3^rd – 7^th Defendants reinstated the cancelled survey plan, and said that as it had been cancelled, it was given a new survey plan number and new portion numbers.

10. On 24 November 2017 the Plaintiffs lodged an appeal against the LLC decision. That appeal has not been heard, and there was no evidence of the status of the Appeal.

11. On 20 February 2018 the 3^rd – 7^th Defendants issued Certificates of Title to the 1^st and 2^nd Defendants for Volume 1 Folio 60 Portion 4040C and Volume 1 Folio 61 Portion 4041C, on Survey Plan 49/3763. The Survey Plan showed that Portions 4040C and 4041C were the same portions previously described as Portions 3327C and 3329C.

12. The Plaintiffs then issued these proceedings seeking to set aside the two certificates of title. The Grounds were essentially that the 3^rd - 7^th Defendants had not followed the procedures prescribed under S34 E - J of the LRA, because after the Survey Plan had been initially cancelled and then reinstated with a new plan number, the 3^rd – 7^th Defendants were required to start the whole process again, including again advertising the survey plan but with the new number, and giving them another opportunity to object.

Findings

13. There is nothing in the relevant provisions of the LRA to indicate that a fresh application for registration was required in those circumstances. The registration process was of the same land for which all the requirements had earlier been carried out. After those requirements had been carried out, the Plaintiffs made an objection based on an LLC order, the 3^rd – 7^th Defendants acted on that objection by cancelling the Survey Plan, but when the LLC order was overturned and there was no longer any basis for the Plaintiff’s objection, the registration process continued.

14. After the LLC decision went against the Plaintiffs on 27 October 2017, the proper procedure would have been for them to have applied to the National Court for a Stay of the 1^st and 2^nd Defendants’ application for registration of the titles, pending the outcome of their appeal. However, they did not do this, and nor is there any evidence that they took steps to speedily prosecute their appeal. Indeed, there is no evidence that they have taken any step at all since lodging the appeal in 2017 to date in 2019.

15. As a result, there was nothing to prevent the Defendants from continuing to process the application for registration. The only objection which the Plaintiffs had made earlier, in 2016, was based on an LLC decision. Once that decision was overturned on Appeal, the 3^rd – 7^th Defendants were obliged to take judicial notice of the court order, and to act in compliance with it. A court order remains valid unless and until such time as it may be set aside on appeal. Here the court order has never been set aside, and the Defendants were obliged to act in accordance with it.

16. The 1^st and 2^nd Defendants have been the registered proprietors since February 2018. Pursuant to S33 of the LRA, their indefeasible title can only been challenged if one of the prescribed exceptions can be shown.

17. The Plaintiffs made a suggestion of fraud in their submissions, which is an exception under S33 (1) (a) of the LRA, but this had not been pleaded in the Statement or substantive Motion, and so could not be accepted. An allegation of fraud has to be distinctly pleaded with particularity (see John Soto v Our Real Estate Ltd (2018) PGSC55), and no such allegation was pleaded at all.

18. The evidence produced by the Plaintiffs indicated that their Review could have been based on the exception in S33 (1) (e) of the LRA, relating to the wrong description of a boundary, although this was not actually pleaded.

19. In order to come within S33 (1) (e), the Plaintiffs had to show that the boundary was wrongly described, by including their land in it. They did not, and could not, show this. On the contrary, there was a valid LLC order which had found that it was not the Plaintiff’s land, and the boundary of the 1^st and 2^nd Defendants’ land correctly included that area.

20. The Plaintiffs have alleged procedural irregularities in the process of issuing the titles. Their argument was based on an allegation that some of the requirements were not properly carried out, and that after the initial survey plan and portion numbers had been cancelled, the 3^rd – 7^th Defendants could not simply proceed to issue a new survey plan number or portion numbers, without repeating the entire registration process, including all the advertisements.

21. There was nothing in the relevant sections of the LRA which specifically required this. No useful purpose could have been served by repeating the process, because the Plaintiffs had already made their objection in 2016. It was based solely on the finding of the LLC in their favor. If their objection was able to be made again in November 2017, it would have had to be rejected, because by then the LLC finding had been overturned.

22. In any event, procedural irregularities are not one of the grounds specified in S33 (1) of the LRA as a ground to set aside the indefeasible title. At best, any such irregularity would have to be sufficiently serious to amount to fraud within the meaning of S33 (1) (a), and that fraud would have to be by the registered proprietor (see Paga No. 36 Ltd v Ealedona (2018) PGSC17 and John Soto v Our Real Estate Ltd supra). The Plaintiffs have not pleaded any such fraud. The sole basis of their claim that the area of land is outside the 1^st and 2^nd Defendants’ boundary, is that the LLC court order in favor of the 1^st and 2^nd Defendants is wrong. That is neither a procedural irregularity nor a fraud by the registered proprietor.

Conclusion

23. I am not satisfied that the Plaintiffs have shown that there were procedural irregularities by the 3^rd – 7^th Defendants in the grant of the certificates of title.

24. Even if the failure to repeat the registration process requirements was a procedural irregularity, neither it nor the other matters were sufficiently serious to amount to fraud, either by the registered proprietors, or at all.

25. The Plaintiffs have neither pleaded nor proven fraud against the 1^st and 2^nd Defendants, who are the registered proprietors.

26. Unless and until the Plaintiffs are successful in their appeal lodged on 24 November 2017 against the LLC decision, that decision remains valid, and the boundaries in the Survey Plan correctly show the area owned by the 1^st and 2^nd Defendants.

27. If the Plaintiffs’ appeal is ultimately upheld, they will be in the position of being able to make a fresh application by way of judicial review to set aside the certificates of title, presumably pursuant to S33 (1) (e) of the LRA. The uncertainty associated with such an application would have been avoided if the Plaintiffs had taken the appropriate steps to protect their position after the LLC decision of 27 October 2017, instead of waiting until after the certificates of title had already been issued.

28. As the Plaintiffs have failed to make out their Grounds for Review. I make the following orders:

(a) The Plaintiffs’ application to quash the decisions of the 3^rd - 7^th Defendants to grant certificates of title for Volume 1 Folio 60 Portion 4040C and Volume 1 Folio 61 Portion 4041C Granville, to the 1^st and 2^nd Defendants, is refused.

(b) The Plaintiffs are to pay the Defendants’ costs on a party/party basis, to be agreed or taxed.

___________________________________________________________
Jema Lawyers: Lawyers for the Applicants
Gelu Lawyers: Lawyers for the First and Second Defendants
The Solicitor General: Lawyers for the Third – Seventh Defendants