Kepon v Kom [2023] PGNC 259; N10332 (13 June 2023)

N10332

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 414 OF 2019

GOLDEN KEPON & VERA KEPON
Plaintiffs

V
SANNY KOM & MARY KOM
First Defendants

And
BENJAMIN SAMSON IN HIS CAPACITY AS THE REGISTRAR OF TITLES DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

And
LUTHER SIPISON SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

And
HON. JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
Fifth Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2023: 07^th June

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 5 (1) & (9) NCR – Declaration & Certiorari – Application For – Order 16 Rule 13 (7) Review Book – Materials sufficient – First Respondent Not part of Initial Decision – Review Upheld – Orders granted – Declaration – Certiorari – Cost Follow Event Against All defendants.

Cases cited:

PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Fallscheer v Okuk and The State [1980] PNGLR 101
Sikani v Luga [2005] PGSC 9; SC807
Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192
Dupnai v Weke [2016] PGSC 43; SC1525
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:

A. Benny, for Plaintiff
J. Napu, for First Defendants

DECISION

13^th June 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s substantive notice of motion of the 02^nd November 2019 pursuant to Order 16 Rule 5 (1) of the National Court Rules for:
   
   • (a) Declaration that the second defendant had no jurisdiction or authority under sections 161 and 33 (1) (g) of the Land Registration Act 1981.
     
   • (b) Declaration that even if the second defendant had jurisdiction or authority to cancel the plaintiff’s title over the subject property section 33 (1) (g) of the Land Registration Act does not apply to the Plaintiffs and the second defendant’s decision under section 161 of the Land Registration Act on the 07^th November 2018 in cancelling the title of the plaintiffs in the property section 140 Allotment 16 Volume 33 Folio 3243 Hohola, NCD is null and void and of no effect.
     
   • (c) An Order quashing the decision of the second Defendant made on the 07^th of November 2018 and cancel all illegal entries made on the Plaintiff’s title on the property section 140 allotment 16 volume 13 Folio 3243 Hohola, NCD forthwith.
     
   • (d) The plaintiff’s title over the property described as section 140 allotment 16 volume 13 Folio 3243 Hohola, NCD be reinstated or restored forthwith in within 7 days from the date of the Court Order.
     
   • (e) An Order declaring that the plaintiff is the Legal proprietor of the property section 140 allotment 16 volume 13 Folio 3243 Hohola, NCD and therefore have indefeasible title and protected under section 33 (1) of the Land Registration Act 1981.
     
   • (f) An Order for the second, third, fourth, fifth and sixth defendants to pay the costs of this proceedings on a Solicitor Client basis including any damages and loss of business the plaintiffs suffered since the year 2019 as a result of the Court proceedings including interests from the date of the filing the first originating summons of Court proceeding.
     
   • (g) Any other orders as discretion by the Court.
     
2. The plaintiff moves the application based on the review book filed in accordance with Order 16 Rule 13 (6) (a) to (d) of the National Court Rules which was the subject of a decision made. The determination on the issues raised is contained in that review book. And the first defendant has made no replies, nor has he responded to it despite the orders issued by the Court Monday 17^th April 2023 for this hearing to take place Wednesday 07^th June 2023 at 9.30am. Filing and exchange of submission would have been done by or before Friday 29^th May 2023. And in this regard the first defendant has not complied with the orders of this Court. Nor has it sought variation of the orders following PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). It has simply come into court without compliance of the Court orders and sought reliance on a notice to rely on affidavits which itself is not in substitution of the orders that were initially made. Yes, there is a right to be heard, but the law is clear that reliance on materials here must be by the process of a variation of the initial orders that were made. And without which there is simply no basis for the court to consider the material that is sought to be relied upon.
   
3. The Audi alteram partem” rule - Right to be heard” Fallscheer v Okuk and The State [1980] PNGLR 101, is not the subject here as the challenge is not to the actions of the first defendant, but that of the second defendant to the six defendants. This is not a termination of employment as in that case. Here is title to land that has been the subject of the actions by the second to the six respondents which has derailed the plaintiff from the subject land. It is judicial review proceedings and is all to do with the process of the decision that was taken. And the application of sections 161 and 33 (1) (g) of the Land Registration Act 1981. It is not an error to proceed to hear the review that has been raised by the plaintiff. That is not denying the first defendant the right to be heard per se. He was given an opportunity to by the orders of this Court that he has of his own volition chosen not to comply. It means without any application for variation he is not before the court. Defiance and noncompliance of court orders is not a light matter: Sikani v Luga [2005] PGSC 9; SC807 (22 September 2005). Here it is not a simple matter of by passing the orders of the Court to hear the first defendant. He has no materials before the Court to proceed to hear him. The determination will be based on the review book that has been filed in compliance of the Court orders issued by this Court.
   
4. Accordingly, I now proceed to determine that review book and in particular the provision of section 160, 161 and section 33 of the Land Registration Act. And section 160 of the Land Registration Act is in the following terms:
   

“160. PRODUCTION OF INSTRUMENTS WRONGLY ISSUED, ETC.

(1) Where it appears to the satisfaction of the Registrar that–

(a) an instrument has been–

(i) issued to a person in error; or
(ii) fraudulently or wrongly obtained by a person; or

(b) an instrument is fraudulently or wrongly retained by a person; or
(c) an instrument held by a person contains a misdescription of the boundaries, area or position of land; or
(d) an instrument held by a person contains an entry or endorsement–

(i) made in error; or
(ii) fraudulently or wrongly obtained; or

(e) an instrument of title is held by a party to an ejectment action whose right to the land has been determined,

he may summon that person to deliver up the instrument.

(2) Where a person refuses or neglects to comply with a summons under Subsection (1), or cannot be found, the Registrar may apply to the Court to issue a summons for that person to appear before the Court and show cause why the instrument should not be delivered up.

(3) Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.

(4) On the appearance before the Court of a person summoned under Subsection (2), or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.

(5) Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.

(6) Where a person–

(a) has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or
(b) has refused or neglected to comply with an order under Subsection (4),

the Registrar shall, if the circumstances of the case so require–

(c) issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and
(d) enter in the Register–

(i) notice of the issue of an instrument and the circumstances under which it was issued; and
(ii) such other particulars as he thinks necessary.”

5. The determination of this section together with section 161 were considered on appeal to the Supreme Court in the case of Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 (28 January 2022), where the determination of this Court was overruled in that a summons had to be applied by the Registrar to be produced in the National Court for the appearance of the registered proprietor to be heard as to why his title should not be cancelled by the Registrar. Here there is no evidence that the registered proprietor was issued a summons at the application of the registrar before the National Court to compel appearance before cancellation forfeiture and reissuance of that title, subsections (2) (3) of section 160 must be complied with before the title is cancelled or forfeited. It would be erroneous for the Registrar to simply cancel and reissue. Here also there is no material filed by the Registrar as to why he has chosen to act as he did. Counsel for all State Parties including primarily the Registrar has filed no material, nor are there instructions to oppose the review sought by the plaintiff. But the position on the law has been submitted as set out above.
   
6. That being the law it must be complied with against that decision taken in 2019, which is now into four years since. The decision no doubt was made by the State entities in favour of the first defendants that is being challenged. It means the process that was followed to come out with the award to the first defendants, not whether that decision was right or wrong is judicial review. It is therefore not necessary for the first defendants to file affidavits as this is not about determining whether they were right or wrong. What is before the court is the process taken by the state entities and that is clear by Order 16 Rule 13 (6) and (7) (6) (a) in particular. Because the review book must be filed within 7 days before the date fixed for the Prehearing conference. Here this matter is outstanding since 2019 now running four years. It cannot be allowed to get that long bearing that Judicial review is time conscious: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). Order 16 rule 4 and that the notice of motion must be filed within 21 days after grant of leave, Order 16 Rule 5 (4) of the Rules.
   
7. Therefore, what is sought out by the plaintiff falls into place as he was not afforded what the Supreme Court set out in Jaro Investment Ltd (supra). He was not summoned on the application by the Registrar to the National Court after failure of the summons to appear and to deliver up his registered title. The next step by the interpretation of the Supreme Court was for the Registrar to apply for a summons to be issued by the National Court for the appearance of the Registered proprietor the plaintiff to explain why the title should not be cancelled and forfeited and reissued a new. That has not happened. It is an error on the part of the Registrar without hearing the registered proprietor in these terms set out above. The process and procedure have not be accorded and completed to reissue a new. It means that the registered proprietor remains as he is unaffected until that process has been heeded by the registrar.
   
8. Because the affidavit of the plaintiffs at Tab 5 of the Review book sworn of the 13^th June 2019 and filed of the 18^th June 2019 specifically sets annexure “A” Contract for the sale of the subject land. It is endorsed by all parties to the contract including the plaintiffs. That is followed by annexure “B” transfer dated the 14^th September 2015, that was executed following. And then there the Residence Lease under section 61 in respect of the subject transfer of the 09^th September 2015 speaks of it being so transferred and registered. By that fact it is indefeasible pursuant to section 33 of the Act. And annexure “C” letter dated 13^th December 2016 to the Commander NCD, who also directs the Metropolitan Superintendent, minute dated 06^th March 2017 to carry out the ejectment of the occupant of the subject land. This is evidence to enforce and remove the first defendants off that land pursuant. It is from one Tiri Wanga, Caretaker Secretary Department of Lands & Physical Planning. Which is followed by annexure “E & F” a letter dated 16^th May 2018 under hand of lawyers for the plaintiff placing all these facts to the Registrar who opted to do what he did the cause of this action. Then there is letter by the Registrar to the Plaintiffs alleging their fraudulent conduct warranting his action to do what he did. He asked for the title to be returned but did not go onto the Court as set out by the law above.
   
9. That is a breach of procedure and error of law warranting his decision to be the subject of a certiorari pleaded here. It will be granted as there is no material in reply by the State defendants. Who made that decision to eject the plaintiff off the subject land. And the evidence annexure “H” goes further to establish that there was no hearing in accordance with Jaro Investment Ltd (supra). There is nothing apparent or identifiable other than to grant as motioned by the plaintiff.
   
10. The first defendants are not the decision maker whose decision is challenged. They do not have standing to challenge by that fact. They may have been affected but have chosen not to come within the orders of the Court nor seek variation of the Court order in accordance with the law set out above. Judicial review is not for the world at large to flock into: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014) but restricted and confined by specific requirements of the rules that must be complied with to satisfy. The first defendants have shown ignorance and defiance in compliance. He does not come with clean hands as a consequence and equity does not see him. Because he does not follow the law but defies the law and the orders of the court. He will bear that consequence by law. There are no facts either apparent or identifiable in the material before me, nor has he taken the trouble to enlightened. He has come at the eleventh hour with defiance of the orders of this Court and the law. He will bear what is due given.
    
11. Accordingly, the Orders sought in the review by the substantive notice of motion are granted in full as pleaded. And the formal orders of the court are:
    
    • (1) Declaration is granted that the Registrar, the second defendant had no jurisdiction or authority under sections 160, 161 and 33 (1) (g) of the Land Registration Act 1981 to cancel and to reissue the title anew.
      
    • (2) The decision of the Registrar, second defendant of the 07^th of November 2018 to cancel all subject entries made on the Plaintiff’s title on the property section 140 allotment 16 volume 13 Folio 3243 Hohola, NCD is quashed and set aside forthwith.
      
    • (3) Further declaration lies that the second defendant had no jurisdiction or authority to cancel the plaintiff’s title over the subject property pursuant to section 33 (1) (g) of the Land Registration Act, and the second defendant’s decision under section 161 of the Land Registration Act of the 07^th November 2018 in cancelling the title of the plaintiff’s in the property section 140 Allotment 16 Volume 33 Folio 3243 Hohola, NCD is null and void and of no effect.
      
    • (4) Consequently, it is ordered that the registered proprietor of the subject land the plaintiff remains the Legal proprietor of the property section 140 allotment 16 volume 13 Folio 3243 Hohola, NCD and therefore have indefeasible title and protected under section 33 (1) of the Land Registration Act 1981.
      
    • (5) He will be given vacant possession of the subject property by who so ever is on the subject property as of the date of this order forthwith.
      
    • (6) And costs of the proceedings will follow the event against the all Defendants named forthwith.
      

Orders Accordingly.

__________________________________________________________________

Niuage Lawyers: Lawyers for the Plaintiff/Applicant

Napu & Company Lawyers: Lawyers for the First Defendants