In the Matter of an Ex Parte Application of Deenei Poraikali [2022] PGNC 295; N9800 (29 June 2022)

N9800

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 82 OF 2022

IN THE MATTER OF AN APPLICATION FOR DISPENSATION OF THE REQUIREMENTS AND FOR EXTENSION OF TIME TO APPEAL OUT OF TIME PURSUANT TO SECTION 142(1)(B) AND (2) OF THE LAND ACT AND SECTION 155(4) OF THE CONSTITUTION

AND
IN THE MATTER OF AN EX PARTE APPLICATION OF
DEENEI PORAIKALI

-Plaintiff/Applicant-

Waigani: Tamade, AJ
2022 : 27^th & 29^th June

LANDS ACT 1996 – Section 142 (1) – appeal to National Court – appeals to the National Court on the forfeiture of a State Lease – appeal shall be made within 28 days of the matter complained of – forfeiture of state lease occurred in 2015 – plaintiff is outside the 28 days from the forfeiture of the state lease.

FRAUDS & LIMITATIONS – Section 16(1)(a) – time limitations of actions in contract or tort – an action founded on contract or tort shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

Cases Cited

Nil

Legislation:

Land Act 1996
Land Registration Act 1981
Frauds and Limitations Act 1988

Counsel:

Mr Mundua Kua, for the Plaintiff

29^th June, 2022

1. TAMADE AJ: The Plaintiff has filed these proceedings as a proceeding to be heard in the absence of the other parties citing section 142 of the Land Act and section 155(4) of the Constitution basically seeking leave of Court to permit him to appeal a decision of the Minister for Lands for forfeiting a State Lease that he claims was registered to him.
   
2. The subject land the Plaintiff claims an interest over is described as Section 40 Allotment 8 Wabag, Enga Province contained in State Lease Volume 9 Folio 58. The Plaintiff claims that he is the registered proprietor of the land adjacent to this land being Section 40 Allotment 7, Wabag, Enga Province wherein Bank South Pacific Limited was leasing that property to him. The bank, therefore, assisted the Plaintiff and he applied for and was granted the subject property and used it as a car park for the bank’s customers as BSP was leasing the adjacent property.
   
3. The Plaintiff claims that he has been using the subject property as a car park since 1998 until on or about 8 March 2021, it came to the knowledge of the Plaintiff that the subject land was before the Land Board for determination. The Plaintiff conducted a search on the Lands Department file and found out that the subject property was forfeited to the State in 2015 and again in 2020. The Plaintiff claims that the Lands Department proceeded to forfeit the land on the premise that it was vacant land however the Plaintiff says he was in occupation of the land using it as a car park.
   
4. The Plaintiff claims that when the land was before the Land Board for deliberation, Dr. Lino Tom and Mr. Kenneth Kopyato were the interested parties to the land. The land was granted to Dr. Lino Tom by the Land Board and Mr. Kopyato unsuccessfully appealed to the Minister and has filed a judicial review proceedings styled OS (JR) 173 of 2021 (IECMS). The judicial review proceedings are pending a determination before the National Court.
   
5. The Plaintiff claims in his affidavit that there are anomalies in the documents on the subject land title as held by the Department of Lands and alleges fraud on the officers of the Lands Department and others in the forfeiture of the State Lease that was held in his name
   
6. The Plaintiff has made submissions that he cannot join the judicial review proceedings because his right is that of an appeal under section 142(1)(b)(2) of the Land Act and that if he is granted leave to appeal the decision of the Minister in the National Court, the appeal can be heard together with the judicial review proceedings as though it concerns the same subject land, the causes of actions are different. The Plaintiff also asserts that his right of appeal is first in time at least that is what I can see from his argument and that the right of the parties in the judicial review proceedings are later in time and he submits that he cannot risk losing the judicial review proceeding if one of the other parties fails as in his submission “it has to ensure a merged hearing with himself assuming ownership of the land”. He also states that he was not an applicant at the Land Board hearing with the other two parties. He is also seeking a definition of “car park” in a commercial lease area in regard to land.
   
7. The Plaintiff has not made submissions as to why this matter should be heard ex parte in the absence of all other interested parties including the Lands Department however he only relies on section 142 of the Land Act and the Court’s powers under section 155(4) of the Constitution.
   
8. Section 142 of the Land Act is in the following terms with the relevant parts underlined:
   

142. APPEAL TO NATIONAL COURT.

(1) An interested person may appeal to the National Court on–

(a) a re-appraisal of imposition of rent, or a variation or imposition of royalty, under Section 100(5); or
(b) the forfeiture of a lease.

(2) An appeal under Subsection (1) shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows.

(3) Where an appeal is made under Subsection (1), the matter complained of has no effect until–

(a) the National Court has decided the appeal; or
(b) where no further appeal is made to the Supreme Court–the period prescribed for making an appeal has expired; or
(c) where a further appeal is made to the Supreme Court–the Supreme Court has decided the appeal,

and, subject to Subsection (4), a lessee may in the meantime continue lawfully to occupy the land the subject of the appeal and to exercise his rights, and shall fulfil his obligations, under the lease.

(4) When an appeal is made under Subsection (1)(a) the decision of the National Court or of the Supreme Court shall be deemed to operate as from the date of the matter complained of.

9. The Plaintiff, therefore, claims that under section 142(1)(b) of the Land Act, he may appeal to the National Court on the forfeiture of the subject lease or land and that under section 142 (2) of the Land Act, as he is outside of the 28 days from forfeiture of the subject land which occurred sometime in 2015 and again in 2020, he is allowed to apply to the National Court to grant him leave to appeal the decision of the forfeiture of his State Lease accordingly.
   
10. I am also drawn to section 142 (3) and (4) of the Land Act that when an appeal is lodged at the National Court, the decision of the Court shall be deemed to operate as from the date of the matter complained of which to my mind will be sometime in 2015 as to the first forfeiture which occurred first in time.
    
11. The Plaintiff’s evidence in his Affidavit shows that he was granted a State Lease over the subject land from 27 July 1998, the State Lease is dated 2 October 1998. The first forfeiture of the subject land occurred on 2 April 2015 which was published in the National Gazette No. G230 for reasons that the improvement covenants were not fulfilled, the land rentals remained due and unpaid for a period of more than six months and that the Lessee had failed to comply with a Notice to Show cause.
    
12. The National Court’s decision therefore on appeal from the Plaintiff under section 142 of the Land would operate from 2 April 2015 which is the first forfeiture that would affect any subsequent event including the rights, if any of Dr. Lino Tom and Mr. Kenneth Kopyato who had applied for the land later in time and would affect any court proceedings that they may have instituted.
    
13. The Plaintiff’s case is that he alleges that he was not given any notice to show cause under section 122(2)(a) of the Land Act prior to the subject land being forfeited.
    
14. The Plaintiff also alleges fraud in the forfeiture of the subject land as well as the subsequent events of the interest of Dr. Lino Tom and Mr. Kenneth Kopyato as applicants to the subject land.
    
15. Currently the land is awarded to Dr. Lino Tom with Mr. Kenneth Kopyato challenging the title through the judicial review process. Unless the judicial review process overturns the decision to grant the title to Dr. Lino Tom, a title holder to a State Lease holds it free of all other encumbrances except for fraud and other limited exceptions under section 33 of the Land Registration Act.
    
16. If the Plaintiff is therefore seeking an appeal under section 142(2) of the Land Act, when does his cause of action arise? I am of the view that his cause of action would arise after the 28 days from the first forfeiture of the subject land which was forfeited on 2 April 2015 and the 28 days is the period of any appeal on the forfeiture. Twenty-eight days after 2 April 2015 would be from or about 30 April 2015. If the Plaintiff was to challenge the forfeiture of the State Lease previously held by him, the cause of action would therefore be from the date the forfeiture happened which is on 2 April 2015.
    
17. Are these proceedings therefore time-barred in seeking an extension for the time to appeal under section 142(2) of the Land Act? Section 16 of the Frauds & Limitations Act states that:
    

16.LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC.

(1) Subject to Sections 17 and 18, an action–

(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

(3) Subject to Subsection (4), an action upon a specialty shall not be brought after the expiration of 12 years commencing on the date when the cause of action accrued.

(4)[1] [2]Nothing contained in Subsection (3) shall be construed as affecting any action for which a period of limitation is specified by any other Act, and that subsection shall be read and construed accordingly.

(5) An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgement became enforceable.

(6) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years commencing on the date when the interest became due.

(7) Subject to Subsection (8), an action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years commencing on the date when the cause of action accrued.

(8) For the purpose of Subsection (7) the word “penalty” does not include a fine to which any person is liable on conviction of a criminal offence.

18. I am of the view that the Plaintiff’s claims on the fraudulent circumstances resulting in the forfeiture of the State Lease held by him then is subject to section 16 of the Frauds and Limitations Act. His cause of action would therefore start from 30 April 2015 to seek extension of time to appeal or from 2 April 2015 as the date of the forfeiture of the State Lease held by him when he should have applied to Court to seek an extension of time to appeal the Minister’s decision as to forfeiture of the subject land on or about 30 April 2021, six years as is stipulated pursuant to section 16 of the Frauds and Limitations Act. These proceedings are therefore out of time.
    
19. It is also a consideration that these proceedings should be dismissed as events have overtaken the Plaintiff’s right of appeal, the subject property has been allocated by the Land Board to Dr Lino Tom and is the subject of a judicial review proceeding as well as the considerations of section 33 of the Land Registration Act. Be that as it is, if the Plaintiff had come to Court earlier, his right of appeal would still exist as it would be within the six-year time period however I am of the view that the Plaintiff has come outside the six years time period.
    
20. I, therefore, make the following orders:
    
    1. these proceedings are time-barred pursuant to section 16 of the Frauds and Limitations Act and are dismissed accordingly.
       

Orders accordingly.

Peri Lawyers: Lawyers for the Plaintiff