N8762
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 923 OF 2017

BETWEEN:
THOMAS NORI
Plaintiff

AND:
LUTHER SIPISON In his Capacity as the Secretary for The Department of Lands and Physical Planning
First Defendant

AND:
HON.BENNY ALLAN, MP in his Capacity as the Minister for Lands and Physical Planning
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
LAPLEN MANDA also Known as MACK LAWAI
Fourth Defendant

AND:
GREEN LIVING ESTATE LIMITED
Fifth Defendant

Waigani: Miviri J
2020: 03rd December
2021: 12th February

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of motion – Procedural Ultra Vires – Substantive Ultra vires in Law – Evidence to the Contrary – All Lease holders in law Plaintiff  – Fourth and Fifth defendants inclusive – Fault of Surveyors – Overlapping survey plans – Administrative correction off – no Procedural Ultra Vires – No Substantive Ultra vires – Evidence insufficient to sustain – Administrative corrective measures by Department of Lands– Judicial review does not lie – cost follow event.

Cases Cited:

Kalem v Yumi Yet Trading [2016] PGNC 278; N6458 
Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387 
Hi Lift Pty Ltd v Setae [2000] PGNC 71; N2004 
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 
Counsel:

W. Mapiso, for Plaintiff
R. Uware, for First, Second, Third Defendant
S. Kati, for Fourth & Fifth Defendants
 
					RULING 
12th February, 2021
1.	MIVIRI, J: This is the ruling on the substantive notice of motion dated the 13th April 2018 of the plaintiff pursuant to Order 16 Rule 5(1) of the National Court Rules. He seeks review against the decision of the Minister for Lands and Physical Planning dated the 10th August 2016 wherein an Urban Development Lease (UDL) was granted to the fourth defendant over an undeveloped portion of vacant government land at 8 mile next to the Malolo Estate, Port Moresby National Capital District.

2.	He raises the following issues at the outset: 

(i)	Whether the Defendants followed the processes for the grant of UDL under sections 104, 105, 106 and 107 of the Land Act 1996?
(ii)	Whether the plaintiff’s registered lease should take precedents over the fourth defendant’s UDL pursuant to section 33 (1) (a) of the Land Registration Act 1981?
(iii)	Whether there was a breach of natural justice upon the plaintiff?
(iv)	Whether the decision was unreasonable within Wednesbury sense?

3.	It begs whether this pleading will sustain in the light of the Statement of Agreed and Disputed Facts and Issues for trial dated 09th October 2019, that have been endorsed by all parties to this proceeding. In particular the agreed facts.

4.	The plaintiff is the Registered proprietor of a parcel of land described as Portion 2990, Milinch Granville, Fourmil of Port Moresby, contained in State Lease (Residence purpose), Volume 70 Folio 03, Allotment 33 8 mile, NCD which comprises of 1.88 hectares.

5.	The Fourth defendant is the registered proprietor of a parcel of Land described as Portion 3187, Milinch of Granville, Fourmil of Port Moresby, 8 mile, National Capital District subject of State Lease (Urban Development Lease or UDL) Volume 72, Folio 01, NCD which comprises of 2.014 hectares.

6.	The fifth Defendant is the registered proprietor of various parcels of land described as Section 179, Allotment 1-21, Section 181 Allotment 3, Section 182 Allotment 1-5 section 183, Allotment 26 Boroko, NCD.

7.	On the 04th February 2013, the Plaintiff’s survey plan numbered 49/3054 which comprises land area of 1.88 hectares was registered. On the 11th August 2013, the plaintiff was granted residence lease against registered survey plan number 49/3054 for a term of 99 years which commenced on 23rd March 2016 and will expire on 23rd March 2115. 

8.	On the 10th August 2016, the fourth defendant was granted the UDL against registered survey plan number 49/3140 for a term of five (5) years commencing on the 1st July 2016 and will expire 30th June 2021. The survey plan under which grant was made to the fourth and fifth defendants were each registered at different times by the Surveyor General. Due to failure or negligence of office of the Surveyor General, the respective survey plans which formed part of the respective State Leases granted to the Plaintiff, the fourth and fifth defendants were registered in isolation. There is therefore overlap of 0.443 hectares of land between the plaintiff the fourth defendant and the fifth defendants’ respective titles.

9.	And in that process the Plaintiff states that he has been affected by that decision in that his pre-existing registered 99 year residential lease part of it has been covered by the decision of the Minister in that grant to the fourth defendant. He sets out three grounds as basis upon which there lies judicial review in his favour against what the Minister did. These are: (1) Error of Law; (2) breach of Natural Justice and (3) decision unreasonable in the Wednesbury sense

10.	The following evidence are material to the determination of these three issues posed firstly the affidavit of Oswald Tolopa Acting Secretary of the Department of Lands and Physical Planning sworn of the 18th September 2019 in the Review Book 305 to 318. He confirms from the records kept by the Department that the Plaintiff is the registered proprietor for the land described as Portion 2990 M/L Granville F/M Moresby, NCD which comprises 1.88 hectares and annexures “B” true copy of the residential lease of that property with annexure “ C” the registered survey plan.

11.	He also confirms that the fourth defendant is the registered proprietor of the land Portion 3187 M/L Granville, F/M Moresby, NCD, Portion 3187 comprises 2.014 hectares whilst the Fifth Defendant is the proprietor of various parcels of land described as Section 179 Allotment 1-21, Section 181 Allotment 3, Section 182 Allotment 1 to 5, Section 183 Allotment 26 Boroko, NCD. And annexure “D” is true copy of the Urban Development Lease (UDL) registered in favour of the Fourth Defendant and annexure “E” is the registered survey plan of that portion of land.

12.	Further he confirms from their records that the subject parcels of land Portion 3187 Section 179 Allotment 1 to 21, Section 181 Allotment 3, Section 182 Allotment 1 to 5, Section 183 Allotment 26 Boroko, NCD, prior to their Allocation to the Fourth and Fifth Defendants were vacant and unallocated State Land with no registered proprietors.

13.	That the fourth and Fifth Defendants mistakenly bought these Land from purported Customary Owners and enquired with the officers from the Department of Lands and Physical Planning who advised that the land were vacant State Leases and were both granted State Leases.

14.	And he advises that the Plaintiff, the Fourth Defendant, and the Fifth Defendant have their respective State Leases Titles registered under their names and therefore have legal rights over their respective land. What has happened is that there is encroachment over one of the party’s land by the survey plans overlapping each other. Which can be resolved administratively by all parties allowing to adjust the overlapping areas and have it corrected through an adjusted and amended survey plan by the Department through the office of the Surveyor General. That the plaintiff’s land comprised 1.88 hectares under the survey plan 49/3054 whilst the Fourth Defendant comprised 2.014 hectares on survey plan numbered 49/3140. And it was established by the office of the Surveyor General that there was overlap of 0.443 hectares only which they intended to resolve administratively by the Department with each of the parties on a give and take basis. And that the problem of overlapping on the survey plan was created by the Department who stood ready to correct it administratively with the consent of the owners.

15.	This evidence is confirmed in all its particulars by the affidavit of Chris Manda sworn 18th September 2019. He is the Surveyor General of the Department of Lands and Physical Planning. He understands that there have been encroachments of the State Lease Titles which were registered by the Department under the Plaintiffs name and the Fourth Defendants name and that of the Fifth Defendant. And he also confirms that the Plaintiff’s land comprises 1.88 hectares under survey plan number 49/3054 registered with that office on 04th February 2013 whilst the Fourth Defendant’s land comprise 2.014 hectares on survey plan 49/3140. And he attaches annexure “A” true copies of the registered survey plans in each case.

16.	Transposing these plans over each other and to assist the overlapped plans together establishing that there is overlap of 0.443 hectares annexure “B” which is a true compile plan showing the overlap. And that both Plaintiff and defendants are registered proprietors of their respective land. There is overlap over a small Portion of 2990 and Portion 3187 is 0.397 hectares (3,970 square meters), Allotment 182 of 0.046 hectares 460 square meters only. And this encroachment can be resolved through a give and take arrangement where the survey plans would be amended to remove the overlap.

17.	Both these affidavits are supported further by that of Jack Yakutung Bakus Regional Surveyor of the Office of the Surveyor General Department of Lands & Physical Planning sworn of 11th September 2019. He is familiar with Portion 2990, 3187, and Allotment 182, 8-mile National Capital District and the issue of encroachment arising out of these lands. He investigated noting that the problem was caused by our Officers failing to ascertain whether surveys were conducted and plans of each area registered. Because normally the updating of the noting sheets is made after the survey plans are registered. Here in this case they were executed in isolation by different registered surveyors and there was no updating made on the noting sheets. And updating was done after the encroachment was revealed. And this is between Portions 2990 and 3187 of 0.397 hectares or 3,970 square meters and the area of encroachment between Portion 2990 and Allotment 182 is 0.046 hectares or 460 square meters. I sent out a note to whom it may concern of that fact. And these are annexures, “A” and “B” of my affidavit.

18.	All three affidavits are supported in all material particulars by that sworn of the plaintiff 1st October 2019 and filed 2nd October 2019. There in my view is no cause for alarm that there is procedural and substantive ultra vires coupled by this evidence. This is not the situation posed by Kalem v Yumi Yet Trading [2016] PGNC 278; N6458 (9 September 2016) in the facts and the evidence. What is there is not applicable here because the circumstances do not warrant.

19.	Because it is clear that the Plaintiff, the fourth and Fifth Defendants are not wrong in any way at all. They are all registered proprietors in their own rights and all have valid leases to their respect lands. There is no evidence apparent or identifiable that each has obtained title by fraudulent or devious means to defeat the processes and procedures of law set out by Part X Division 10, Sections 103 to 110 of the Land Act 1996. Here sections 104, 105, and 106 are pleaded posed. Anything to invalidate are covered by section 33 of the Land Registration Act that is fraud. There is no evidence apparent identifiable of breach of procedure, or fraud or hint of fraud to deviate. All in all, the onus is on the person who alleges. Here it is apparent there is no evidence of fraud. Mere Allegation will not sustain: Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PGSC 13; [1985] PNGLR 387 (6 December 1985).

20.	. There are three grounds which are set out above by the Plaintiff he has not backed with the appropriate evidence to sustain on the balance of probabilities: Hi Lift Pty Ltd v Setae [2000] PGNC 71; N2004 (17 November 2000), fraud must be more than fraud. There is encroachment which the Lands Department has admitted is its fault and has taken responsibility by the evidence set out above. It is willing to reconcile and will settle here. That in my view is warranted and I determine as the way in this proceeding. 

21.	Because these facts by the evidence set out above show no fault over and above as pleaded to justify judicial review in the terms pleaded. This is a matter that ought and must be settled by what is set out by the evidence of the lands officials by administrative measures to take arrangements where the survey plans would be amended to remove the overlap. In this regard the plaintiff the fourth and fifth defendants must cooperate give effect to remedy this administrative fault in that manner. Equity demands by the evidence posed in this matter to do equity. Because remedies are not automatic but by judicial discretion exercised based on material justifying. This is really a question posed with reference to the circumstance of each individual case: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). Here given this is the way it will be determined as to the remedies called.

22.	Costs will follow the event in view of all set out above.

23.	The formal orders of the Court are:

(i)	Judicial review is not made out and refused.

(ii)	The Surveyor General and its officers are hereby ordered to remedy the encroachment and overlap of Portions 2990 and 3187 of 0.397 hectares or 3,970 square meters by amendment to remove the overlap and any other administrative means in their discretion to ensure the encroachments are removed.

(iii)	And it is further ordered that the Surveyor General and its officers are to remedy the encroachment and overlap of Portions 2990 and Allotment 182 of 0.046 hectares or 460 square meters by amendment to remove the overlap and any other administrative means in their discretion to ensure the encroachments are removed.

(iv)	Costs will follow the event.
Orders Accordingly.
__________________________________________________________________
Guardian Legal Services: Lawyers for the Plaintiff/Applicant	
Office of the Solicitor General: Lawyers for the First, Second & Third Defendants
Kandawalyn Lawyers: Lawyers for Fourth & Fifth Defendants