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Tupou v Tolopa [2020] PGNC 486; N9088 (5 November 2020)

N9088

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 790 OF 2018


BETWEEN:
SAMUEL OFEINA’HELOTU TUPOU
Plaintiff


AND:
OSWALD TOLOPA, Acting Secretary of the Department of Lands and Physical Planning
First Defendant


AND
BENJAMIN SAMSON, Acting Registrar of Titles of the Department of Lands and Physical Planning
Second Defendant


AND
SIMON MALU
Third Defendant


AND
HON. JUSTIN TKATCHENKO Minister of Lands and Physical Planning
Fourth Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant


Waigani: Miviri J
2020: 15th September


PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Application for Dismissal – Frivolous & vexatious – Order 16 Rule 8, Order 12 Rule 1, Order 12 rule 40, NCR – Section 122 Land Act – forfeiture State Lease grounds for – Consequence of failure adhere land Act – Materials sufficient – balance discharged – proceedings dismissed – cost in the cause.


Cases Cited:


Mango v Chow Po Khoon [2005] PGNC 68; N2907

Karl Paul & Aruai Kispe and the Regional Manager PNG forest Authority Lae and PNG forest Authority (2001) N2085

Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 43; N3144
Counsel:


A. Koisen, for Plaintiff
A. Kimbu, for Third Defendant
K. Kipongi, for First, Second, Fourth, Fifth Defendants


RULING

05th November, 2020


  1. MIVIRI, J: This is the Ruling on the notice of motion of the 3rd Defendant filed 26th November 2019 under Order 16 Rule 8 (2) for dismissal of the entire proceedings under Order 12 Rule 40 for being frivolous and vexatious and for being an abuse of the process of court.
  2. Order 12 rule 40 is as follows, “(1) where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

(2) The court may receive evidence on the hearing of an application for an order under sub-rule (1).”


  1. That motion is supported by the affidavit sworn 22nd March 2019 of the third defendant filed 25th March 2019 who is also the registered lease holder of the subject land in the proceedings Allotment 1 Section 522. Annexure “A” to his affidavit is the State lease issued to him dated the 06th July 2016. It is a 99-year residential lease from 1st July 2016 expiring on the 30th June 2115. In that affidavit he deposes that there are two portions of land, the first of which is portion 885 granted as an Urban Development Lease to SPT Project Limited for a term of 5 years in which the Plaintiff was a director. The lease of portion 885 commenced on the 23rd of December 1999 and lapsed on the 22nd December 2004.
  2. The second land is subject of the court proceedings allotment 1 Section 522 its lease commenced after the subdivision of Portion 885 done by SPT projects Limited. It commenced on the 20th October 2003 and transferred to the Plaintiff, Samuel Ofeina’Helotu Tupou on the 22nd March 2010. SPT Projects Limited is registered under the Companies Act 1997 and the plaintiff is a director so that there are two different persons at law. Both can be sued and sue. SPT Projects Limited was granted the UDL on the 23rd December 1999 over portion 885. Plaintiff was transferred State Lease Section 522 allotment 1 Hohola on the 31st March 2010. From subdivision of Portion 885 per terms and conditions of the UDL granted to SPT Projects section 522 and 21 came about. The former has 8 allotments and section 21 has 10 allotments, a total of 18 allotments. They were all produced in the name of SPT projects Pty Ltd by the first defendant and then transferred by SPT Projects Pty Ltd to other individuals and organizations including the Plaintiff himself.
  3. He was originally leasee to State Lease Section 522 Allotment 1 but failed to erect or construct improvements being buildings for residential purposes to a minimum of K50, 000.00 on the land within 5 years from the date of transfer of the Lease from SPT Projects Pty Ltd evidenced by his State Lease annexure “B” of the affidavit of Simon Malu. Since transfer on the 31st March 2010 to the expiry five years later on the 31st March 2015 there was no improvement to the value of K50, 000.00 on the land section 522 allotment 1.
  4. It was acquired by Simon Malu as a result of Forfeiture process commenced after 8 months when it lapsed. On the 26th November 2015 it was advertised in Gazette G777 dated 26th November 2015 confirming forfeiture. Simon Malu applied and followed all due process and was granted the State lease over section 522 allotment 1. Even to the extent of waiving advertising at the discretion of his boss the Secretary for Lands.
  5. The registry clerk within the Corporate services division there Raymond Lavaki declared by Statutory declaration and also an affidavit dated the 28th March 2019 that he did post to Samuel Ofeina’helotu Tupou notice to show cause and forfeiture notices in respect of allotment 1 section 522 Hohola NCD pursuant to section 122 subsection 4 of the Land Act 1996 by post on the 2nd December 2015 with other persons also in the same one David Raim of section 58 allotment 5 Madang MP. He also attached the Post PNG EMS individual consignment numbers of each item sent by post Dc: 00000100752 for David Raim and 11 others in that same postage including West New Britain for one lease holder and Dc: 00000100302 for Samuel Ofeina’helotu Tupou. Further he attaches K61.60 as the payment of the postage paid.
  6. The Notice to show cause dated the 30th March 2015 signed by Romilly Kila Pat delegate of the Minister for Lands is also attached to his affidavit as annexure “A1” where it is addressed to the Plaintiff putting to him why the lease Allotment 1 Section 522 Hohola National Capital District being all the land contained in State lease Volume 36 Folio 82 in the Department of Lands and Physical Planning Land File DC/522/001 should not be forfeited on the grounds that:

If sufficient cause is not shown within one (1) month, from the date of this notice, the lease shall be declared forfeited.

Note: Replies are to be addressed to the Secretary, Department of lands & Physical Planning, P. O. Box 5665 BOROKO National Capital District or fax 3013299.


  1. This evidence is coupled with that of the affidavit of one Edward Reipi compliance officer Alienated Land Division, Department of Lands and Physical Planning who is responsible for carrying out the forfeiture of State leases and therefore conducted physical site inspection of Allotment 1 Section 522 Hohola, NCD on the 19th February 2015 and found out that the subject allotment was undeveloped and physically vacant. That there were no residential improvements conditioned by the terms of the Lease. It was barren with grass and shrubs covering the land. And on or around 11th March 2015 he searched through the land and files of the subject land to establish the ownership status of it. Upon so searching he uncovered that the subject land was transferred to Samuel Ofeinahelotu Tupou on the 31st March 2010 by a Company known as SPT Projects Pty Ltd. Which company he Samuel Ofeina’helotu Tupou was the Managing Director of.
  2. By the terms and conditions of the Lease there was to have been development for residential purposes to a minimum of K 50, 000.00 within five (5) year period that was not done by Samuel Ofeinahelotu Tupou. So a notice to show cause was prepared and sent in fulfilment of section 122 (1) (2) (3) of the Land Act 1996 addressed to Samuel Ofeina’helotu Tupou, P. O. Box 1786, Port Moresby, National Capital District because that was the last known postal address registered in the Department. On 30th March 2015 the then Secretary Romilly Kila Pat as the delegate of the Minister signed the Notice to show cause giving effect to section122 (1) (2) (3) of the Land Act 1996 and given to the mail officer Raymond Lavaki who sent it via Registered mail EMS pursuant to section 169 of the Land Act 1996. One month later there was no response after sending that registered mail to that address and so a forfeiture notice was prepared signed by the Minister Benny Allan on the 20th October 2015 and published in the National Gazette number 777-26th November 2015.
  3. These material facts are further strengthened in similar terms by the Acting Secretary of the Department of Lands and Physical Planning Oswald Tolopa in his affidavit sworn the 19th November 2018 that the plaintiff had failed in keeping his land rentals to order and in the records of the Department had K3, 700.00 copy of the Lagis printout annexure “C” outstanding at the time of the forfeiture. Which is evidenced independently from the records of the Department by annexure “A” & “B” State lease imprinted with forfeiture on it and title deed showing transfer transaction and registration details. And it was affected after notice was given him. Including obtaining of an inspection report attached as annexure “D” under hand of Edward Reipi Compliance officer.
  4. This is evidence from the Departmental head of Lands & Physical Planning who independently confirms what the Department has played out by individual staff whose evidence is in court on file set out above. They show cogent and credible account to independently verify as to what the Department did in respect of the file allotment 1 Section 522 Hohola National Capital District land file DC/522/001. In my view that is official business records in accordance with section 61 of the Evidence Act and the officers have come giving evidence of the roles and responsibilities they individual performed to the outcome in this matter. There is no evidence apparent or identifiable as to cohesion or fraud in their evidence. Nor is there anything adverse to derail their evidence either in law or fact. I hold them to be telling what they witnessed.
  5. That is not the same for the affidavit of the plaintiff deposed to of the 30th November 2018 his evidence in all material particulars is self serving. He has not discharged independently to tilt the balance that indeed there has been development on the subject land at the relevant time in question set out by the Notice to show cause covered. For instances the photographs depicting improvement with fencing shown if taken by an independent person who has no interest in the land, or the outcome of this proceeding would have corroborated his account that indeed there were developments taking place. Better still by a registered surveyor with a plan of the immediate area in question showing out the development taking place.
  6. The photographs of the machine excavating are also not independently corroborated by the payment receipts from that company who were responsible for the works. Invoices from Zion Development are not to say that payment has taken place. Even so if done 31st May 2011 even four years before the forfeiture where is the corresponding receipt paid so that there is substance that indeed development has taken place. The invoices are K178, 873.50 dated the 31st May 2011 second dated the 22nd June 2011 for the sum of K69, 648.00 and third dated the 7th July 2011 for the sum of K23, 070.00 but there is no corresponding receipt issued by Zion Developments Limited that they have received that money for the works carried out on section 522 allotment 1 Hohola. The total sum of the invoices is K271, 591.50 and there are no corresponding receipts from Zion Development of that amount confirming payment of these receipts from the plaintiff. Given that figure the developments taking place in 2011 would be visible from that location at Edward Reipi Compliance officer who made the site inspection in 2015 four years later culminating in the report attached to the affidavit of Oswald Tolopa as the Acting Secretary of the Department.
  7. The approvals for planning permission ought to have had Edward Reipi see the fence that was built back in 2011 visible to him 19th February 2015 when he made the site inspection. So, section 84 Certificate Deemed Planning Permission by Sebastine Isu of the 20th April 2011 does not have any independent bearing to strengthen the evidence of the Plaintiff in his case that there were developments taking place on section 522 Allotment 1 Hohola. The photographs purportedly with inscription development by Zion are not from that company by an official from that company so that it is confirmed and also if it is on section 522 allotment 1 Hohola. It does not go a long way in the case of the plaintiff. Even the approval to develop is signed by Honourable Powes Parkop MP that a section 81 agreement is entered into by the applicant before the application is determined by the NCD Physical Planning Board and secondly that the subdivision design standards must comply with the subdivision code and engineering standards and specification to the satisfaction of the Deputy City Manager NCDC Engineering dated the 17th December 2014. By this date it is clear there is no development taking place because it is subject to conditions pre-empting on the part of the applicant/plaintiff to satisfy. Clearly therefore there was no visible development when Edward Reipi Compliance officer made the site inspection on 19th February 2015.
  8. This is clear by the letter dated the 9th December 2014 under hand of the plaintiff that there was no developments because of the steep terrain and there were illegal squatters who the plaintiff pleaded for the, NCD, its agents and State agents are to apply the full force of the law in relation to lawful eviction of illegal squatters from the developments and to cooperate with us in a full and timely manner as required from time to time in fulfilment of this agreement. And that agreement is not even complete and signed after he signed as Sam Tupou Executive Director. And it is clear that there were no developments physically on section 522 allotment 7 and 8 because letter dated 26th January 2011 addressed to KR Development PNG Limited P. O. Box 1354 Boroko NCD were approached by the vendor of the land Sam Tupou to provide clarification regarding clauses (c) and (d) on the State lease titles for Allotments 7 & 8 section 522 Hohola National Capital District by the Lands Department sets this out clear. It is section 7 and 8 but these conditions would have been the same upon section 1 adjoining.
  9. To confirm that there are squatters on the land is a Court order in DC 800 of 2012 parties Samuel Tupou v Maria Sandu & others and the order is from the District Court in Port Moresby dated the 26th February 2013 entered 18th March 2013. Which is accompanied by a warrant to member of the Police force to enter and give possession signed and dated the 4th April 2013 by the Port Moresby District Court Magistrate. So, there is really no developments there and the plaintiff’s own admission corroborated by this support what the defendants contend and therefore would not advance the case of the plaintiff.
  10. The valuation of property relied on by the plaintiff in his annexure “N” is of Allotment 11 and 12 of section 21 Hohola city of Port Moresby is state Residence lease of Avia Tupou volume 31 Folio 7539 is a fully fenced 6 bedroom residence certainly it is not section 522 Allotment 1 and therefore would not advance the case of the plaintiff beyond the balance to refute what is asserted to by the defendants.
  11. In my view materially these facts fall square with what the first, second fourth and fifth defendants were obligated to do in law by section122 (1) (2) (3) of the Land Act 1996 notice was accorded in accordance and forfeiture was made in compliance of the law. There is no error demonstrated they were obligated as they did and committed no error. On the part of the plaintiff the same cannot be said as borne out by his evidence particulars which are set out above. He has not made out a case on the balance and is clearly an abuse of process as in Mango v Chow Po Khoon [2005] PGNC 68; N2907 (14 October 2005). That the proceedings here given all set out above is frivolous it is so obviously untenable cannot possibly succeed given and he is bound to fail if the matter went to trial. By the same it is vexatious because it amounts to harassment of the defendants. They have been put to trouble and expense of defending this proceeding which cannot possibly succeed.
  12. The fundamental applicable given the facts and circumstances here are what was set out by Justice Injia (as he then was) in Paul v Kispe [2001] PGNC 132; N2085 (17 April 2001), "The Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case."
  13. It would not be an error to follow suit given the facts here and also in reliance upon Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 43; N3144 (5 July 2007).
  14. In the totality the motion of the third defendant is granted as pleaded. The orders of the court are:

Orders Accordingly.


__________________________________________________________________

Koisen Lawyers : Lawyers for the Plaintiff/Applicant

Kimbu & Associate Lawyers : Lawyer for the Third Defendants

Office of the Solicitor General : Lawyers for all other Defendants

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