N9057
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 158 OF 2018

BETWEEN:
LAE TOWN TRADING LIMITED
Plaintiff

AND:
BENJAMIN SAMSON REGISTRAR OF TITLES
First Defendant

AND: 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND: 
TULGA CONSULTANTS & INVESTMENTS LIMITED
Third Defendant

Waigani: Miviri J
2021: 16th July, 9th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Trial – Breaches of Section 162 Land Registration Act – Application in Support For substitute Title document – No Material in support  – Reissuance without – Breach of Procedure – Land Registration Act Section 33 – Indefeasibility of Title – Fraud – Judicial review granted – Certiorari Granted –Both Decisions Quashed of Registrar of Titles – cost follow event.

Cases Cited:

Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2011] PGSC 22; SC1120 
Peyape v Waiya [2021] PGSC 32; SC2109
National Council of Young Mens Christian Association of Papua New Guinea (Inc) v Firms Services Ltd [2017] PGSC 20; SC1596
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 
Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603 

Counsel:

I. Shepperd, for the Plaintiff
M. Tukuliya, for First & Second Defendants
M. Paiya, for Third Defendant.
					RULING 
 09th August, 2021
1.	MIVIRI, J: This is the ruling on the substantive Notice of Motion of the Plaintiff seeking pursuant to Order 16 Rule 1 of the National Court Rules (NCR), certiorari to quash the decision of the First Defendant to register an official copy of the State Lease Volume 95 folio 204, Instrument No. 20810 on 08th April 2016.

2.	And further pursuant to the same Order 16 Rule 1 certiorari further to quash the decision of the First Defendant to register a transfer, Instrument No. 22040 on State Lease volume 95 Folio 204 and official Copy of State Lease Volume 95 Folio 204 to the third Defendant on 02nd February 2018.

3.	Any other orders discretion by the Court.

4.	He relies on three affidavits Firstly of Pepe Gotaha of the 14th March 2018 filed 19th March 2018; Secondly of one Jerome Kadamongariga of the 06th April 2018 filed that same day, and also of Benjamin Samson the first defendant of the 26th September 2018 filed that same day. 

5.	The affidavit of Pepe Gotaha is in the following terms, he is the director of the Plaintiff Company. He verifies the Statement filed pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules. He verifies it as true and correct record. Including annexure “B” copy of the title deed State Lease Volume 95 Folio 204. Further annexure “C” IPA Company Extract for Lae Town Trading Limited. And further annexure “D” Copy of letter Tulga Investments & Consultants Limited dated 27th February 2018 to Blue Coastline Limited.

6.	In the Statement the plaintiff pleads pursuant to section 162 of the Land Registration Act that the first defendant is required on receipt of an application for an official copy of an instrument of title lost, destroyed or defaced, from the registered proprietor may, if he considers it necessary, make an official copy of the instrument of title by first giving 14 days’ notice of his intention to do so by advertisement in the National Gazette and at least one newspaper circulating in Papua New Guinea (PNG).

7.	And there must be evidence to convince that indeed the instrument of title has been lost, it has been genuinely defaced, or destroyed before he resorts to advertisement. It is a legal document on the records kept by him evidencing according rights in law pursuant to section 33 of the Land Registration Act to the holder in law. Unless these preliminary are observed can the advertisement that follows be in order and compliance of law section 162 (2) that the application for replacement title is supported by evidence. These include any other interest or encumbrances on the land including mortgages charges or other matters.

8.	It is genuinely established the replacement is sought to the title held, firstly it is not by any other person other than the registered title holder, who is properly identified that indeed he is the named in person as detailed by the record and no other, or if he is dead by a person duly appointed in compliance of law to act and does act in that capacity. That indeed the title has been genuinely defaced, or if lost there is evidence as to how it got lost, usually it would not be wrong to insist or be accompanied by details of where it was lost, if report made to the Police evidence of that fact. It is not an attempt to lure by false pretence to get a title by fraud, but a genuine cause that the title has indeed been lost and so the need to replace.

9.	Or if it is destroyed evidence as to how it was destroyed either in a fire or natural disaster or accident at sea, and the list is long and extended in this regard, but the evidence must independently verify, because of the rights in law that flow from the title to the holder must be properly confirmed before a replacement is granted. A driving licence is not reissued without proof that there is indeed an old licence in place but expired before a new one is issued. The same is so of a registration of a vehicle. It is no different in the case of the land title. A failure in this procedure means the issue replacing is not by a process of law. Because the reissuance is not properly executed so that what comes out complies giving effect to what it does in law to the holder. Because there is no continuity from the original to the new.

10.	The pleading in the statement is that 14 days prior to the 08th April 2016 the First Defendant accepted an application made pursuant to section 162 of the Land Registration Act for an official copy of the Title and on 08th April 2016 he issued an official copy of the Title on which he endorsed a memorial stating that, inter alia, he was satisfied that the proprietor’s copy of the Title had been lost.

11.	But this assertion does not stand when considered in the light of the affidavit of Jerome Kadamongariga of the 06th April 2018 who is a lawyer employed with the firm Ashurst PNG lawyers for the Plaintiff. On instruction from partner of the firm he prepared and lodged a caveat over the subject State Lease volume 95 Folio 204 property particulars allotment 27 section 27 Lae, Morobe Province on 02nd March 2018. It was registered Instrument No. 22083 on the 06th March 2018. And annexure “A” is true copy of that fact with the original State Lease annexure “B” showing the original title issued 08th April 2016. Fundamentally there are and were no other entries recorded apart from the caveat entered 12th March 2018.

12.	And the transcript of the Titles Office worksheet annexure “C” discloses that the Official copy of the subject State Lease was delivered to a person named as Sampson Kimisopa on the 08th April 2016.

13.	Important excepts, of the caveat is that “The Caveator was the Registered proprietor of the Land until the transfer in favour of Tulga Investments & Consultants Limited (Tulga) was registered on 22nd February 2018 without the knowledge and consent of the Caveator. The Caveator did not execute any transfer in favour of Tulga, the transfer was recorded on the official copy of the State Lease of land is held as security by the Indosuez Niugini Bank Limited (now the Australia and New Zealand Banking Group (PNG) Limited as the registered mortgagee of journal entry No. 58481. The Caveator wishes to prohibit any further dealings relating to the Land.

14.	It is clear by this caveat that unless and until there is a transfer executed in favour of Tulga by the Caveator, the plaintiff and registration made of that fact on the official copy of the State Lease, not without. Furthermore, the Subject State Lease is held as security by the Indosuez Niugini Bank Limited as mortgagee in the journal set out above. It cannot be registered with that fact in law settle between the named in law. As it is to ignore and to register is to breach the relationship at law not sanctioned by the law. Because there is privity in the relationship, it does not extend to Tulga.

15.	It is clear that there is no evidence to establish loss or destruction of the title from because the registration made by Pepe Gotaha as sole director remains when granted the subject State Lease on the 14th May 1985, which was mortgaged to the Indosuez Bank Limited in 1987. There is no evidence of the application that was made because the original has always been held by the Plaintiff and has never been lost or destroyed. Hence the reissuing of that title on the 08th April 2016 is not the Plaintiff. So that the registration of the subject title on the 22nd February 2018 by the First Defendant of a transfer to the third Defendant was without the knowledge or consent of the Plaintiff. He was unaware of it until advised by Aurther Strachan Limited in Lae that demand was made for rental payments be directed to the third defendant.

16.	The affidavit of Benjamin Samson, Registrar of Titles, Department of Lands & Physical Planning of the 26th September 2018 relating relevantly deposes, “I noted that this proceeding concerns a parcel of land described as State Lease Volume 95 Folio 24 being for Allotment 27, Section 27, Town of Lae, Morobe Province (herein referred to as the subject land) and I understand that this matter was instituted because of a replacement of title or issuance of an official copy of title to an unknown person claiming to be the Director of the plaintiff Company and further a registration of transfer of title from that same unknown person to the third defendant……. Further perusal of the Title file also revealed that there is no documentary evidence therein showing that the process and procedures stipulated under section 162 of the land Registration Act 1981 in relation to the Replacement of title was duly complied with prior to the issuance of an Official Copy of State Lease to the Unknown person mentioned herein. 

17.	In addition, I acknowledge that the current sole Director of the Plaintiff Company (Lae Town Trading Limited) is Mr Pepe Gotaha as per a company extract extracted from the Papua New Guinea Investment Promotion Authority (PNGIPA) website as part of our own due diligence checks. On that same note, also based on my perusal of the Title File, it is revealed that the unknown person who personally picked up the Owners Copy of Title at the Office of the Registrar of Titles here in Port Moresby (Department Headquarters) on the 08th April 2016 after it was being replaced was the former Director of the Plaintiff Company (when it was formally known as Lae Town Trading Pty Limited) Mr Samson Kimisopa (whose appointment ceased on the 21st October 2011).

18.	That all registration in Lae Morobe Province were the responsibility of Registrar of Titles for Momase and Southern Region Mr Ala Ane. “Having said that, instead of the Deputy Registrar of Titles for Momase & Southern Region Mr Ala Ane registering the purported transfer of title lodgement of the transfer documents with the office of the Registrar of Titles, I noted on the title deed that Mr. Moudogegila Mogiyauma (who was the then Acting Deputy Registrar of Titles for National Capital District) was the officer who registered this transaction even though he was only responsible for registration of land dealings within Port Moresby, National Capital District alone. Additionally, the registration of this particular transaction was affected on a photocopied official/file Copy of title. The foregoing is to the best of my knowledge.”

19.	It is clear by this evidence, that firstly the person, who has come forward with intent to register the subject State Lease, is not the person whose details and names appear as the sole director of the plaintiff company on the records of the title’s registry. He is not Mr Pepe Gotaha and therefore would not have the authority in law to act as set out by the company extract obtained from PNGIPA set out above. That means effectively it is without authority at law. Because even former Director of the Plaintiff Company (when it was formally known as Lae Town Trading Pty Limited) Mr Samson Kimisopa (whose appointment ceased on the 21st October 2011) cannot come with authority in law to register. The Plaintiff company is a separate entity in law and will only heed in law persons designated by the records of the company current not without. So that when he comes to make the registration purportedly on the basis that he is authorized, he is not by virtue of the fact that he is no longer a director of the plaintiff and cannot act in that capacity. Any transaction he conducts on the register is without authority. It will not stand in law against the whole world on that basis. And that is what befalls the action he has taken to alter the records of the subject property in the register.

20.	Also, fundamentally, it is without the accompanying evidence as a basis upon which it is now sought to apply for the reissuing of a new document of that same title. Here it is a photocopy of that document and not the original. And no reasons are disclosed as to why a photocopy of that document which enfolds with it rights in law pursuant. Nor as to why it is issued without any accompanying documents to reason why reissue. Further it is not by the designated Officer Deputy Registrar of Titles Momase and Southern Region Ala Ane but Acting Deputy Registrar of Titles for National Capital District whose responsibility is clear by that fact, and therefore did not have authority to register as he did here. The title does not arise from compliance with procedure it will not stand in law: Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2011] PGSC 22; SC1120 (2 September 2011).

21.	The totality of these facts is that there was clear breach of section 162 Land Registration Act in the reissuing of the title to the subject land State Lease Volume 95 folio 204, Instrument No. 20810 by the Deputy Register of Titles. It means a procedural error has been demonstrated by the facts set out above. The effect is that that registration and the entry made do not stand in law to give title to the person holding in law. It is void ab initio and certiorari is made out given. The plea for which is accorded in favour of the plaintiff: Peyape v Waiya [2021] PGSC 32; SC2109 (21 May 2021).

22.	Similarly, these facts also seal that there was clear breach of section 162 of the Land Registration Act in the Decision of the First Defendant to register a transfer, instrument No. 22040 on State Lease Volume 95 Folio 204 and on official copy of State Lease Volume 95 Folio 2014 to the Third defendant on 02nd February 2018. It follows that once again that entry has breached procedure particulars that are set out above. Accordingly, certiorari is granted the plaintiff against that decision. It is brought into court and quashed forthwith. Because fundamentally judicial review is about procedure: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) There is clear violation of procedure here section 162 of the Land Registration Act that warrants grant of certiorari as pleaded by the notice of motion filed.

23.	The plaintiff has alleged impropriety in the allocation of title because it holds title first in time 14th May 1985 whereas the copy was issued 08th April 2016. There cannot be two titles to the same property. Coupled with the facts set out above plaintiff has discharged the balance in his favour to sway that the title he holds is firm in view of the breaches set out to arrive. He has title first in time and his title prevail over the latter in law: National Council of Young Mens Christian Association of Papua New Guinea (Inc) v Firms Services Ltd [2017] PGSC 20; SC1596 (13 June 2017). He not only holds title first in time but that as demonstrated in Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603 (3 September 2004) the facts circumstances and evidence support fraud that he be granted certiorari in both cases as pleaded to bring both decisions in court and quash them both. The aggregate is the property reverts back to it original settings in the records of that registry in his favour.

24.	The formal orders of the court are: 

(1)	Judicial Review is granted.

(2)	Certiorari is granted the plaintiff pursuant to Order 16 Rule 1 of the National Court Rules to remove into Court and quash the decision of the First Defendant of the 08th April 2016 to register an official copy of the State Lease Volume 95 folio 204, Instrument No. 20810.

(3)	Certiorari is further granted the plaintiff pursuant to Order 16 Rule 1 of the National Court Rules to remove into Court and to Quash the Decision of the First Defendant to register a transfer, instrument No. 22040 on State Lease Volume 95 Folio 204 and on official copy of State Lease Volume 95 Folio 204 to the Third defendant on 02nd February 2018.

(4)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Ashurst PNG                              : Lawyers for the Plaintiff /Applicant		
Paiya Lawyers                            : Lawyers for Third Defendants
Office of the Solicitor General	: Lawyers for First & Second Defendant