Kenamu v Samson [2022] PGNC 73; N9482 (14 March 2022)

N9482

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 505 OF 2019

BETWEEN:
ANDY KENAMU & LIM SENG as Tenants in Common
Plaintiff/Applicant

AND:
BENJAMIN SAMSON, Registrar of Titles
First Defendant/Respondent

AND:
LUTHER SIPISON, Secretary for
Department of Lands & Physical Planning
Second Defendant/Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Respondent

Waigani: Dingake J
2022: 16^th February, 14^th March

JUDICIAL REVIEW – review of decision of first defendant to issue new official copy of State Lease for the subject land pursuant to Section 162 of the Land Registration Act, (LRA) cancelling the Plaintiff’s title to the land pursuant to Section 161 of the Land Registration Act, Chapter 191 – whether first defendant followed the process under the Land Registration Act - whether the First Defendant’s decisions are liable to be quashed or set aside for want of compliance with Sections 160, 161, 162 (1) and 162 (4) of the LRA – first defendant concedes to facts stated by plaintiffs - the impugned decisions of the First Defendant sought to be reviewed and set aside were made contrary to the provisions of Section 160, 162 (1) and 162 (4) of the LRA - decisions of the First Defendant are null and void and of no force and effect - Order in the nature of mandamus to compel the First Defendant to immediately reinstate the registration of the Title to the land back to the Plaintiffs – costs follow event

Case Cited:

Jaro Investment Ltd v Ala Ane, Ors. & The State [2022] PGSC 5; SC 2192.

Counsel:

Mr. Hebrew Babe, for the Plaintiff
Mr. Harrison White, for the First Defendant

14^th March, 2022

1. DINGAKE J: INTRODUCTION: This is an application for judicial review. The Plaintiff has approached this Court to review the decision of the First Defendant in respect of land described as Volume 122, Folio 105, Portion 965 “Bomana”, Granville, Port Moresby, located between 9 Mile and Bomana and comprising a land area of 3.671 hectares.
   
2. The First Defendant does not oppose the relief sought.
   

It is common cause that the Plaintiff was aggrieved by the First Defendant’s decision to issue a new official copy of a State Lease for the subject land pursuant to Section 162 of the Land Registration Act, (LRA) cancelling the Plaintiff’s title to the land pursuant to Section 161 of the Land Registration Act, Chapter 191; transmission of title to the Public Curator pursuant to Letters of Administration dated 5^th of February, 2014, and produced on the 13^th December, 2016, and transfer of the title to the subject land to Hama Tabila of Boroko.

Issue

3. The crisp issue before me is whether the First Defendant’s decisions recited earlier are liable to be quashed or set aside for want of compliance with Sections 160, 161, 162 (1) and 162 (4) of the LRA.

Background and Facts

4. The background to this matter and the chronology of critical events is set out clearly in the Affidavit of Andy Kenamu sworn on the 10^th of July, 2019, Doc 17, filed of record.
   
5. It is not necessary to reproduce the entire factual averments set out in the said Affidavit for the purposes of this judgment. It is sufficient only to set out the dispositive facts.
   
6. From the uncontradicted averments of Mr. Andy Kenamu, the land the subject matter of this application, was originally granted to Tabila Undialu as an Agriculture Lease on the 22^nd October, 1990.
7. The foresaid Tabila Undialu passed on, on the 18^th of October, 1998. This Court granted Letters of Administration on the 11^th November, 2010 and thereafter the title to the land was transmitted to Habia Babe on the 9^th of March, 2021.
   
8. It is common cause that the Plaintiff’s and Habia Babe executed a Contract of Sale and Transfer Instrument for sale of the land for a purchase price of Six Hundred and Fifty Housand Kina (K650,000.00).
   
9. The evidence that establishes the above facts is derived from the Affidavits of Andy Kenamu sworn on the 10^th of July, 2019 (Document No. 7 and one sworn on the 6^th of July, 2021 (Document 17). The contents of these Affidavits have not been disputed, and the Court accepts same as truthful.
   
10. Essentially, the Plaintiff prays to Court that the decision of First Defendant, particularized earlier, be quashed because it offends Sections 160, 161 and 162 of the LRA, Chapter No. 191 (LRA) in that the First Defendant failed to comply with Section 161 (a) of the LRA to ensure the delivering up of the owner’s copy of the title.
    
11. The Plaintiff further contends that the issuance of a new official copy of the State Lease by the First Defendant on the 14^th of December, 2016 was in breach of Section 162(1) of the LRA as the Plaintiff’s did not apply as the registered proprietors and are still in possession of their original owner’s copy of the Title.
    
12. It is further argued by the Plaintiff that the First Defendant failed to give notice of his intention to issue replacement title by publication in the National Gazette and daily newspaper and was therefore in breach of Section 162 (4) of the LRA.
    
13. Significantly, the First Defendant does not dispute that it is in contravention of the above Sections and does not oppose the relief sought.

Consideration

14. Based on the undisputed evidence of the Plaintiff referred to earlier, I am satisfied that the impugned decisions of the First Defendant sought to be reviewed and set aside were made contrary to the provisions of Section 160, 162 (1) and 162 (4) of the LRA, as this much is uncontested.
    
15. The Supreme Court has recently clarified that if a registered proprietor fails to comply with a summons issued by the Registrar under s.160(1) of the LRA to deliver up an Instrument such as a State Lease, the Registrar must before deciding to cancel the Instrument under Section 161 of the Act follow procedure in Section 160(2) to (6), among other things. (Jaro Investment Ltd v Ala Ane, Ors. & State [2022] PGSC 5; SC 2192).

Conclusion

16. In all the circumstances of this case, the Plaintiff is entitled to succeed in the relief they seek.

Order

17. The following Orders are hereby issued:
    1. A Declaration that the said decisions of the First Defendant are null and void and of no force and effect.
    2. An Order in the nature of mandamus to compel the First Defendant to immediately reinstate the registration of the Title to the land back to the Plaintiffs.
    100. The First Defendant shall pay the costs of this Application.
    4. That time for the entry of this Order be abridged to the date of settlement which shall take place before the Registrar forthwith.

_______________________________________________________________

Hebrew Babe Lawyers: Lawyers for the Appellant
Office of the Solicitor General’s: Lawyers for the Respondents