NCD Water & Sewerage Ltd (trading as Eda Ranu) v Tolopa [2021] PGNC 370; N9087 (22 July 2021)

N9087

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 709 OF 2018

BETWEEN:
NCD WATER & SEWERAGE LIMITED TRADING AS EDA RANU
Plaintiff

AND:
OSWALD TOLOPA ACTING SECRETARY FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING & DELEGATE OF THE MINISTER FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING.
First Defendant

AND:
SAM WANGE, GODFREY SEETO, ARUTU BAKE, SKERRY PALANGAT, GORDON MANUB & KAPEN KIPAKALI CONSTITUTING THE LAND BOARD.
Second Defendant

AND:
HON. JUSTIN TKATCHENHKO, MP THE MINISTER FOR THE DEPARTMENT OF LANDS &PHYSICAL PLANNING.
Third Defendant

AND:
BENJAMIN SAMSON THE REGISTRAR OF TITLES
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:
PAUL KAIMA
Sixth Defendant

Waigani: Miviri J
2021: 23^rd June, 22^nd July

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Order 16 Rule 1 (1) NCR – Certiorari – Error of Law – Declaration – Plaintiff No Title evidence of – Succession by Law Section 3 National Capital district (Transfer of Assets, etc) Act 1996 – No Evidence pre-existing Title in law succession from –Sixth Defendant first Title in Law – Section 33 Land Registration Act – Indefeasibility of Title – No evidence of Fraud– No error in obtaining – Balance not discharged – Judicial Review refused – cost follow event.

Cases Cited:

Roman Catholic Archdiocese of Rabaul v Sam [2019] PGNC 427; N8145

Peyape v Waiya [2021] PGSC 32; SC2109

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Counsel:

N. Assimba, for Plaintiff
J. Bakaman, for First to Fifth Defendants
S. Dadada, for Sixth Defendant

RULING

22^nd July 2021.

1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion for judicial review of the 18^th November 2019 seeking to review and nullify the following:
   
   • (i) The decision of Romilly Kila Pat as the Secretary of the Department of Lands and Physical Planning and also as delegate of the Minister for Lands and Physical Planning granting exemption pursuant to section 69 (2) (d) of the Land Act 1996 on the 12^th August 2011 to exempt the land described as section 120 Allotment 40, Granville, National Capital District from being advertised pursuant to section 68 of the Land Act 1996; and
     
   • (ii) The decision of the Papua New Guinea Land Board in their meeting number 01/2012 Item No. 115 to recommend to the Minister for lands and Physical Planning to grant residential lease pursuant to section 92 of the Land Act 1996 to the sixth Defendant; and
     
   • (iii) The decision of the Minister and or his delegate to accept the recommendation of the Land Board in the Meeting No. 01/2012 Item No. 115 to grant residential Lease pursuant to section 9 of the Land Act 1996 to the Sixth Defendant.
     
2. The grounds set out in the Statement in support are that of error of Law, Breach of procedure and Ultra Vires. And he pleads by his notice of motion for the following orders:
   
   • (a) An order in the nature of certiorari quashing each of the decisions and notices purporting to transfer and registering the title of the land known as Section 120, Allotment 40, Granville in the National Capital District in the Sixth Defendant’s name.
     
   • (b) Further or alternatively, a declaration that the decisions and notices purporting to transfer and registering the title of the land in the Sixth Defendant’s name, are of no force or effect.
     
   • (c) A permanent injunction against the sixth Defendant, his servants and agents restraining them from issuing threats, any dealings, trespassing, obstructing, or preventing access to and from the land or whatsoever concerning or relating to the land.
     
   • (d) Order directing the Second, Third, Fourth and the Fifth defendants to immediately cancel the title of the land issued to the sixth Defendant’s name.
     
   • (e) Order directing the second, third, fourth, and the fifth defendants to issue a title of the land in registerable form in the Plaintiff’s name within 21 days from the date of the order.
     
   • (f) And order that the sixth defendant pay costs of and incidental of the plaintiff.
     
3. What is evident from the pleadings is that the Plaintiff has no title to the subject land Section 120, Allotment 40, Granville in the National Capital District. Title is held by the sixth defendant. And by section 33 of the Land Registration Act 1981 he must enjoy indefeasibility of that title per se. Unless of course the plaintiff proves fraud in the way it has been attained by the sixth defendant: Roman Catholic Archdiocese of Rabaul v Sam [2019] PGNC 427; N8145 (29 November 2019). Because if it is evident and overshadowed by fraud, then the coast is clear for the plaintiff. The evidence and the contention of the plaintiff is that he is challenging the process of the sixth defendant attaining the title to the property. And he fundamentally relies on section 3 of the National Capital District (Transfer of Assets, Etc) Act 1996 from the National Capital District Commission which transfer was affected without the need for conveyance, assignment, or transfer by virtue of section 3 of the Act.
   
4. But there is very serious lack that undermines his action is so maintaining because he must produce the title in law, the State Lease that he held over the subject land as the National Capital District Commission then before he became Eda Ranu. The ambit of that section is effective if title to the subject land was held by the former National Capital District Commission, which simply was conveyed over to the new entity the Plaintiff. The plaintiff need only produce that title and the sixth defendant would not be in a position to question it. In other words that is the law, but where is the title the evidence to hold out that law, if indeed held by National Capital District Commission now by section 3 in the hands of the plaintiff for which and against whom exemption was made in the advertisement of the subject property, and therefore a case for certiorari and declaration made out.
   
5. In other word the Plaintiff was derailed of his title without recourse to law by the defendants. The law is without feet to walk if the evidence is not the feet. Because reliance on the affidavit of Michael Yagro sworn of the 28^th September 2018 filed of the 16^th October 2018, Exhibit P1. Further affidavit of the same Michael Yagro sworn and filed of the 16^th October 2020, Exhibit P2, will have to show this essential fundamental fact that indeed the National Capital District Commission had title, the State Lease bearing its name to that property which was conveyed over by operation of section 3 of the Act above so that it was not with the plaintiff as its land. The affidavit of Oswald Tolopa Exhibit D1 Acting Secretary of the Department of lands & Physical Planning states, “I confirm from our records that subject land, prior to its allocation to the Sixth Defendant, was a vacant and unallocated State Land with no registered proprietors. Even the Plaintiffs did not own this parcel of land. Even site inspection conducted at that time on 25^th May 2011 also showed that the land was vacant without any form of development. Its correct zoning was that of residential. And was unallocated state Land that the sixth defendant and others interested lodged their application for unsolicited and titles were issued pertaining. They were listed before the land board hearings and granted. Exemption was accorded the plaintiff and another. But that fact did not stop the Plaintiffs from lodging their application. In fact, the plaintiffs failed to lodge their application.
   
6. The grant to the sixth defendant was not without a dispute. An appeal was lodged by Star Stone Investments Limited against the sixth defendant who were unsuccessful in their appeal and the land was accorded the sixth defendant. The plaintiff is a busy body who did not immediately lodge because the allocation process was completed almost seven years ago. The interest of the plaintiff is only allotment 01 section 120 where the water reservoir is. This is the operation of succession by section 3 of the Act set out above. And this is clear from the records maintained within the registry. And allotment 40 section 120 is zoned as residential and must be allocated for that purpose only. What the plaintiff is about is a special purpose lease which is not the case here. The plaintiff has accessed to go to the water reservoir. It is only in 2018 that the plaintiff has challenged the process allocating the subject land. It did not in 2014 when the land was accorded then to the sixth defendant. It slept over until now. This is essentially the evidence material to the cause by Oswald Tolopa. And the State Lease annexure “L” imprints Paul Kaima as the holder of that residential lease over Portion 40 Section Milinch 120 Granville NCD.
   
7. In the case of the first, second, third, fourth, and fifth defendants they rely on the following exhibits D1, affidavit of Oswald Tolopa sworn and filed on the 20^th February 2019, Exhibit D2, affidavit of Benjamin Samson sworn and filed of the 1^st July 2020, Exhibit D3, affidavit of Paul Kaima filed on the 06^th May 2021 and also Exhibit P1 affidavit verifying Statement by Michael Yagro filed of the 10^th October 2018.
   
8. In the case of the sixth defendant, he relies on the affidavits Exhibit P1 and P2. He also relies on Exhibit D1, D2 and D3 in the pursuit of his defence.
   
9. What is common to all this evidence is that the sixth Defendant is the current registered proprietor of State Lease described as Allotment 40 Section 120 National Capital District. The observation relating to section 33 of the Land Registration Act are material to his cause. And the Plaintiff can only succeed if he climbs that steep with the evidence of title or fraud. Because title first in time stands, Peyape v Waiya [2021] PGSC 32; SC2109 (21 May 2021). The claim of the Plaintiff to have ownership or legal Interest in that property is not founded on a State Lease passed by succession over the particular portion. That he acquired it by process of law under section 3 of the National Capital District (Transfer of Assets, etc) Act 1996 from the National Capital District Commission which transfer was affected without the need for conveyance, assignment, or transfer by virtue of section 3 of the Act.
   
10. As it is it is even yet to be converted into registrable form from the Department of Lands & Physical Planning. He applied for planning permission and rezoning 2007 which was approved in 2008. On the 12^th March 2018 he confirmed that the sixth Defendant held indefeasible title to the land after conducting its own inquiry. It was issued to the sixth defendant on the 25^th August 2014 by the Registrar of Titles. Which the plaintiff contends was transferred and registered without his consent of knowledge resulting in devaluation of his current asset value.
    
11. In Exhibit P2 there is no evidence of a title held by the plaintiff. What is deposed to in that affidavit of Michael Yagro, Scientist of NCD Water & Sewerage Limited trading as Eda Ranu Plant Manager of that company, is that he does not disclose that the Plaintiff has title to the subject property. The plaintiff was in the process of instituting various processes to acquire State Lease on the property. This included engaging surveyors Polume Surveyors Limited to prepare survey Plans for the water reservoirs at Koki, NBC 5 mile, Waigani and Murray Barracks. There was proposition to have the land zoned. And applications were lodged with the Lands Department even to the extent of presenting submission to the Minister then Honourable Benny Allan for direct grant of the title to the plaintiff. “I say the lands Department is fully aware of the Plaintiff’s dealings and interest in the land to date but for reasons known to them, the lands Department has yet to issue the title of the land in registerable form to the Plaintiff.”
    
12. Instituting processes does not equal title in law and cannot defeat that the sixth defendant has acquired through a process of law evidenced by the Acting Secretary of the Department of Lands & Physical Planning Oswald Tolopa set out above. He is the custodian of all records pertaining to land how it is maintained, how the public citizens corporate or individuals attain in law. He has deposed to that fact corroborating independently the account of the sixth Defendant in all material particulars. The other evidence set out above relied also support the course set by the sixth Defendant that all was in order by the law title was secured to Allotment 40 Section 120 Granville National Capital District following due process of law set out by the Land Act. There is no fraud evidence that the Plaintiff has placed shifting the burden he has, pointing adversely at the sixth defendant as breaching that process so that title attained is not by due process, Peyape (supra).
    
13. I am not satisfied that the plaintiff has discharged the burden the balance of preponderance that there is fraud in the title that was attained, or that the process by the land Act was not followed to secure by the sixth defendant given. And therefore, a case for Judicial review to see out the process taken, Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). And calling in certiorari to bring forth that decision and to quash it. The status of the evidence by the Plaintiff is not to that level and would leave a lot outstanding. The balance in total is that Judicial review has not been made out by the Plaintiff and this notice of motion is not granted as pleaded with Costs forthwith.
    
14. The formal orders of the court are:
    
    • (1) judicial review is refused.
    • (2) Costs in those proceedings will follow the event.

Orders Accordingly.

__________________________________________________________________

Oceania Lawyers : Lawyers for the Plaintiff/Applicant

Kumbari & Associate Lawyers: Lawyers for the Sixth Defendant

Office of the Solicitor General: Lawyers for the First to Fifth Defendants