Martin v Wange [2023] PGNC 82; N10194 (17 February 2023)

N10194

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 218 OF 2014

BETWEEN:

ROBIN MARTIN

- Plaintiff

AND:

SAM WANGE AS CHAIRMAN OF THE PNG LAND BOARD

-First Defendant-

AND:

ROMILY KILAPAT AS SECREATRY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING

-Second Defendant-

AND:

BENJAMIN SAMSON AS REGISTRAR OF TITLES, DEPARTMENT OF LANDS & PHYSICAL PLANNING

-Third Defendant-

AND:

HON. BENNY ALLAN (MP) AS MINISTER FOR LANDS & PHYSICAL PLANNING

-Fourth Defendant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fifth Defendant-

AND:

JOHNNY JACKSON

-Sixth Defendant-

Waigani: Tamade AJ

2022 : 2^nd September;

2023 : 17^th February

LAND – state lease – two titles to one property – who has legitimate title

FRAUD – fraudulent letter written by student – failure of officers in Lands Department to question the validity of letter – actual fraud committed by sixth defendant – Land Registration Act – Section 33 – actual and constructive fraud – internal investigation based on documents present and not on current land status – constructive fraud committed by officers of Lands Department-

Cases Cited:

Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd[1985] PGSC 13; [1985] PNGLR 387
Timothy and Ors v Timothy [2022] PGSC 82
Tagau v Selon Ltd [2018] PGSC 97; SC1755
Port Moresby Gun Club Inc. v Allan [2016] PGNC 299; N6500
Agen v Dege [2020] PGSC 100; SC2020
Port Moresby Gun Club Inc. v Allan [2016] PGNC 299; N6500
Maria Unde v Benjamin Samson & Ors (Unreported and Unnumbered) 13 May 2020; OS (JR) No. 108 of 2015
Unagi v U & M Stonecraft Ltd [2016] PGNC 106; N6279

Legislation:

Land Registration Act

Counsel:

Mr Joppo Simbala, for the Plaintiff

Mr Robbie Kebaya, for the First, Second, Third, Fourth and Fifth Defendants

Mr Johnny Jackson, Sixth Defendant In Person

17^th February, 2023

1. TAMADE, AJ: The trial of this matter was heard on 2 September 2022 and this is a decision on the matter.
   
2. These proceedings commenced as an Originating Summons and was subsequently converted into pleadings by Orders of the Court.
   
3. In this matter, there are two titles in existence to State Land in which the Plaintiff and the Sixth Defendant say that it is over the same portion of land at five-mile, National Capital District.
   
4. The Plaintiff claims that he has a State Lease granted to him first in time on 17 December 2003 whilst the Sixth Defendant claims that he was given a title on 7 February 2005 over the same subject land.
   
5. It is the Plaintiff’s claim that the conduct of the other Defendants amounted to constructive fraud whilst the Sixth Defendant’s conduct amounted to actual fraud in the issuance of the second title to the same subject property. The land in question is described as Section 116, Allotment 10, Volume 28, Folio 81 which is located at Gordon Ridge, 5 Mile in the National Capital District as claimed by the Plaintiff.
   

Issue to be determined

6. The pertinent issue to be determined in this case is who has legitimate title to this State land?
   

The Plaintiff’s case

7. There are various affidavit evidence filed and relied on by the Plaintiff and other witnesses. In the Plaintiff’s Affidavit referred to as Exhibit P6, there is a copy of a State Lease for Allotment 110 Section 116, Boroko, NCD which was initially granted to a K. King and dated 17 December 2003. The subject State Lease was also transferred to the Plaintiff, Mr Robin Martin on 17 December 2003. From this copy of the State Lease, it is said to be for a period of 99 years to commence on 29 June 1995 for residential purposes.
   
8. In the Plaintiff’s Affidavit tendered as Exhibit P9, the Plaintiff states that he initially came on to his property in 1992 when his sister invited him on to the property and then left the property. The Plaintiff continued to stay on the property until 1996 when he got married and raised his kids all whilst living on this property. He constructed two houses and built a trade store and continued developing the land thinking that it was settlement land as all around, people were building shanty homes.
   
9. It was until 2001 when he was approached by a person by the name of K.King who produced to him copies of a Notice of Grant of Lease issued to K. King and a Lease Acceptance Form both dated 11 July 1995. The Plaintiff conducted searches at the Lands Department and found out that K. King was only given a Notice of Grant but was yet to be given an actual State Lease as he did not complete some of the payment associated with the grant. The Plaintiff offered to K.King to pay for the improvements he had done on the land if he wanted the land however because K.King did not have any money to purchase the improvements, the Plaintiff and K. King agreed that K. King would transfer the State Lease to the Plaintiff for the sum of K5 000.
   
10. The Plaintiff states in evidence that a Contract of Sale and Transfer Instrument were executed on 16 June 2003. There is a copy of a Transfer Instrument dated 16 June 2003 between Mr K. King as seller and Mr Robin Martin as buyer witnessed by a Dair Gabara.
    
11. The Plaintiff goes on to state that with all the payments made for the grant of the State Lease and the registration of the transfer of interest from Mr K. King to Mr Robin Martin, a State Lease over the subject land was finally issued to Mr K. King and transferred to Mr Robin Martin on 17 December 2003. This can be seen from the title deed held by the Plaintiff.
    
12. The Plaintiff then on receipt of the title deed and on ascertaining the full boundary of his property, he identified that some settlers were squatting or encroaching on parts of his land and therefore he took action to write to them to vacate the land and subsequently he filed proceedings in the District Court for eviction against these settlers. This was then that the Plaintiff became aware of the Sixth Defendant, Johnny Jackson filing an application in those eviction proceedings in 2011seeking to be joined to those proceedings on the basis that Johnny Jackson also has a title to the same subject land.
    
13. The Plaintiff gives elaborate evidence that to his knowledge, Johnny Jackson had moved into a shanty house behind the Plaintiff’s property. Johnny Jackson then blocked off and fenced an access road at the back of the Plaintiff’s home leading to a dead end or a cul-de-sac at the end of Allotment 70 and set up a trade store which housed a living quarter at the back and in doing so, the Plaintiff states that the Sixth Defendant was squatting on an access road or the cul-de-sac by building improvements which obstructed access into Allotment 70 and Allotment 71 in the same section however the Plaintiff states that Johnny Jackson never resided on his land.
    
14. On 24 June 2009, an incident occurred at 5 mile where a Policeman’s son was killed during the State of Origin games and a police raid was conducted at the area which saw one of the Plaintiff’s houses with his trade store being completely destroyed. The Plaintiff then pursued a claim against the State in WS No. 855 of 2010 in which a decision is still pending from the Court. The Plaintiff states that this shows that he was always residing on this land and not the Sixth Defendant.
    
15. The Plaintiff also states that Johnny Jackson later built a church of worship at the dead-end road and that was where he was residing and not on the Plaintiff’s land. As to the eviction proceedings in the District Court filed by the Plaintiff with the Sixth Defendant intervening in proceedings DC 184 of 2011, the District Court denied jurisdiction to deal with the matter as there were in existence two titles over the same subject land held by both the Plaintiff and the Sixth Defendant, parties were told to take the matter to the National Court and the eviction proceedings were struck out.
    
16. The Plaintiff started taking steps to ascertain the title claimed to be held by Johnny Jackson over the same land at the Lands Department but was informed that the Lands file over his property was missing.
    
17. There was a meeting held at the Lands Department over the existence of two land titles over the exact same land between Lands Department Officials and the Plaintiff and the Sixth Defendant and it was suggested by the Registrar of Titles that either the Plaintiff or the Sixth Defendant should surrender their title in order for the other to have clear title and the Department of Lands & Physical Planning would allocate a new land to the person surrendering their title. The Plaintiff refused to surrender his title as he states that he had taken considerable steps in improving his land and has lived on the land for a considerable time.
    
18. Whilst waiting for the Department of Lands & Physical Planning to sort out the issue of the two titles, the Plaintiff states that the Sixth Defendant took steps to evict the Plaintiff by filing eviction proceedings in the District Court and getting the police involved to forcefully evict the Plaintiff thereby causing destruction to his property. This prompted the Plaintiff to take steps to institute these proceedings.
    
19. From the Plaintiff’s evidence, he also states that he applied for and was granted restraining orders against the Sixth Defendant from stopping him to frustrate and disrupt his peace and quiet enjoyment of the property however the Sixth Defendant and his family and agents have tried to push the Plaintiff out of the property by stopping the flow of water to the subject property as he tempers with the supply taps or pipes from the main taps which is located at the cul-de-sac , throwing stones on the Plaintiff’s house, polluting his property and harassing the Plaintiff’s family and residents.
    
20. The other evidence by the Plaintiff’s witnesses including his wife Cathy Martin, his cousin Lina Kalo, and long-time residents Mr Jan Betanjo who is a community leader in the area, Mr Poxy Tengen, Mr Balu Lapum who all reside in the same area all confirm and corroborate the Plaintiff’s evidence of him occupying the subject land for years and what is of interest is that they testify in their evidence that the Sixth Defendant is not residing on Section 116, Allotment 10, Volume 28, Folio 81 Boroko, all the Plaintiff’s witnesses state that the Sixth Defendant is residing on the dead end road or the cul-de-sac and these witnesses also state in their evidence that the Sixth Defendant’s evidence put before the Court is of different houses on neighbouring Allotments and not his house.
    
21. The Plaintiff has also engaged a Consultant who states that he specialises in land matters by the name of Ross Miva and from his evidence, he states that he was formerly employed with the Department of Lands & Physical Planning for about ten years and according to his investigations on the matter, he is of the view that the Plaintiff has a legitimate title to the land and that the Sixth Defendant’s title is tainted with alleged fraud as due legal processes were not followed in the grant to the Sixth Defendant and that the Sixth Defendant is alleged to have given false information to National Housing Corporation that he had built improvements on the land and was residing on the land and therefore based on this, he was granted a title under the NHC Self Help Housing Scheme. Mr Miva states in evidence that it was the Sixth Defendant who misled the Lands Department stating that a grant over the subject land to a Mr K. King was never finalised which prompted actions by the Second Defendant to extinguish the title granted to K. King when the State Lease was already finalised and granted to K.King and transferred to the Plaintiff. Mr Miva also states that there are defects with the title held by the Sixth Defendant has his lease is granted as being for a Residential and a Business Lease however this is contrary to the zoning requirements for that area contrary to the NCD Urban Development Plan in addition to the statement that the claim by the Sixth Defendant that the subject land was under the authority of NHC was incorrect to begin with as the NHC had no authority over the subject land.
    

The Defendants evidence

22. In the Affidavit of Mr Romily Kilapat tendered as Exhibit D1, Mr Kilapat is named as the Second Defendant and the Secretary for the Department of Lands & Physical Planning.
    
23. He states that the Sixth Defendant Mr Johnny Jackson applied for the subject land on 28 May 2004 by lodging an informal application with supporting documents from the National Housing Commission under their self-help housing scheme. He goes to state that an informal application is an application for land by an interested applicant that has not yet been put on tender by the Department. In the annexure marked “A1” there is a letter dated 27 May 2004 by a Walter Kapty, the Acting Managing Director for NHC however it was signed by a Kenneth Wuriam, A Social Work, Practice (A) Student at the University of Papua New Guinea. The Application or Tender Form for Johnny Jackson states that he was a storeman and driver of the Department of Health. The application indicated that Johnny Jackson had done improvement on the subject land by constructing a three-bedroom house to the value of K40 000.
    
24. Mr Kilapat goes on to state that upon facilitating the due process for Johnny Jackson’s application, it was discovered that there was a grant over the same land to a K.King made in 1995 however the grant was never executed. Mr Kilapat states that as the standard 28 days for execution had since passed, steps were taken to extinguish the grant and the land was reallocated to Johnny Jackson. The land was brought to the attention of the Land Board and Johnny Jackson was successful in his application noting that the land was exempted from tender.
    
25. There was however a delay in the registration of the Lease to Johny Jackson in 2005 until 2010 as it came to the attention of the Department of the existence of the title to Robin Martin. An internal investigation was conducted in the Department and it was the conclusion of the Department that Robin Martin could not have obtained a legitimate title and he was requested to deliver up his title for cancellation.
    
26. There is another affidavit of Mr Benjamin Samson tendered by the State as Exhibit D2. Mr Samson was the Deputy Registrar of Titles. His evidence essentially supports the evidence of Mr Kilapat but he admits that he had registered the title to the Sixth Defendant on 22 December 2010 in good faith having no knowledge that a prior title was granted to Robin Martin. He also states that the Lands files for both the title held by Johnny Jackson and the one held by Robin Martin cannot be located.
    
27. Mr Simbala had objected to the Sixth Defendant relying on any evidence as he had not given any notice pursuant to section 35 of the Evidence Act, however I have accepted the affidavit of the Sixth Defendant filed on 17 September 2015 and tendered as Exhibit D3 in order to weigh out the claims by the parties and come to an informed decision on the matter. There is also an Affidavit of Johnny Jackson filed on 7 July 2014.
    
28. The Sixth Defendant states in his evidence that he applied for the subject land through a formal process through the Land Board. The Sixth Defendant’s evidence is somewhat identical to the evidence of Mr Romily Kilapat in regard to how the Plaintiff’s title was supposedly extinguished, and a new title issued to the Sixth Defendant and that the Sixth Defendant maintains that his title is the legitimate title.
    

The Law

29. Section 33 of the Land Registration Act is in the following terms with the relevant section underlined:
    

33. PROTECTION OF REGISTERED PROPRIETOR.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud; and
(b)[30] the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e) in case of the wrong description of the land or of its boundaries; and
(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(g) as provided in Section 28; and
(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

30. The principle of indefeasibility of title ensures that a registered title holder to a land holds it free from any encumbrances except as to fraud and the exceptions enumerated in section 33 of the Land Registration Act. In Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd[1], the Supreme Court considered the principle of indefeasibility of title and affirmed that upon registration of a title pursuant to the provisions of the Land Registration Act, the title vest indefeasible to a registered proprietor unless in the instance of fraud or any of the exceptions in section 33 of the Land Registration Act.

31. Fraud therefore can be actual or constructive fraud in terms of section 33 of the Land Registration Act however there has been a divergent view in the Supreme Court on this. In Timothy and Ors v Timothy^[2], the Supreme Court held with the majority that in relation to fraud as per section 33 of the Land Registration Act, fraud has to be actual fraud contrary to the dissent by Justice Anis who said that:
    

“The meaning of the term “fraud” under s 33(1)(a) of the Land Registration Act 1981 has been answered two-fold. There is a narrow view or traditional view is that “fraud” means actual fraud. The wider view is that “fraud” includes constructive fraud and proof of actual fraud is not required..”

32. In Tagau v Selon Ltd^[3], the Supreme Court considered a long line of cases that deal with constructive fraud. The Supreme Court said this:
    

“Second, we note that the many case authorities that have applied the principle of constructive fraud since the Emas case mostly concern non-compliance with the statutory provisions relating to the process and procedures in respect of the grant of state leases, such that the circumstances of the grant of the State Lease are “so unsatisfactory and irregular that it is tantamount to fraud”. Some of the cases were cited by the primary Judge:

• Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215

State lease was forfeited and granted to a new lessor in dubious circumstances involving breaches of the Land Act 1996.

• Steamships Trading Company Ltd v Garamut Enterprises Ltd (2000) N1959

Errors and breaches of the Physical Planning Act 1989 in the rezoning of the disputed land and in the issue of a state lease under the Land Act 1996.

• Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80

Irregularities and breaches of statutory provisions in the issue of a business/state lease previously zoned public institution.

• Yakananda Business Group Inc v Minister for Lands (2001) N2159

The state lease was unlawfully forfeited contrary to the mandatory requirements of the Land Act 1996.

• Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

The state lease was unlawfully forfeited and then granted to another party contrary to the Land Act 1996.

• Ramu Nickel Ltd v Temu (2007) N3252

A State Agriculture & Business Lease (SABL) was issued in respect of land over which a special mining lease already existed.

• Elizabeth Kanari v Augustine Wiakar (2009) N3589

Irregularities and breaches of statutory procedures in the transfer and registration of the title.

• West New Britain Provincial Government v Kimas (2009) N3834

Land was unlawfully exempted from advertisement under Section 69(2) Land Act 1996.

• Mosoro v Kingswell Ltd (2011) N4450

Land was unlawfully exempted from advertisement under Section 69(2) Land Act 1996.

• Kapiura Trading Ltd v Bullen (2012) N4903

Appeal from the Land Board was decided in breach of the principles of natural justice and the state lease was irregularly and unlawfully granted to a non-legal entity.

• Open Bay Timber Ltd v Minister for Lands & Physical Planning (2013) N5109

The state lease was granted contrary to the Forestry Act 1991 and in breach of the Land Act 1996 and the Land Registration Act (Chapter 191).

• Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120

Title was issued following flagrant abuse and breaches of the relevant mandatory procedures set out in the Land Act 1996.”

33. In the Supreme Court case of Agen v Dege^[4] the Supreme Court said:
    

“Fraud cannot be mere suspicion or innuendo. There must be evidence of gross breaches of the procedures and processes for registration of the title tantamount to fraud, or actual fraud.”

34. Mr Simbala of the Plaintiff has argued that the Court should find that the title issued first in time usually prevails over the subsequent or duplicate title unless fraud is proven against the title holder first in time referring to the cases of Port Moresby Gun Club Inc. v Allan[5] and Maria Unde v Benjamin Samson & Ors (Unreported and Unnumbered) 13 May 2020[6].

Findings of the Court in relation to the evidence

35. It is an established fact that there exist two title deeds to the same subject land, one held by Robin Martin which was registered first in time on 17 December 2003 and one registered to Johnny Jackson on 22 December 2010.
    
36. In assessing these two titles, to my mind, the following is a summation of the Court’s findings:
    
    1. the first factor as to legitimacy or validity of the title is the origin of how the title holder came to be registered. In my view, every other allegation of procedural illegality in the grant of title to either Robin Martin or Johnny Jackson originate from how they applied for the subject land. I am of the view that Robin Martin’s evidence is corroborated by a handful of witnesses who say that he has been living on this land and has built improvements and I have no hesitation in believing his evidence and his witnesses’ statements that Robin Martin was the occupier of this land and had made improvements on the land and remains the occupier of this land to date.
       
    2. Robin Martin’s evidence regarding the transfer of title from a K.King to himself corresponds with the evidence in the Affidavit of Mr Romily Kilapat. Mr Kilapat had stated in his Affidavit that when the Department of Lands & Physical Planning was processing the application by Johnny Jackson, documentary evidence retrieved from within the Department revealed that there was an unexecuted grant to one K. King which was made in 1995. There is a Minute by Sharon Kila dated 5 May 2005 and annexed to the Affidavit of Mr Kilapat as Annexure J1 that confirms that Robin Martin on 16 December 2003 paid for the fees under Section 35 and 36 of the Land Act on behalf of K.King in order to facilitate the transaction to him for the title deed and the subject title was transferred to Robin Martin on 17 December 2003. On the one hand, the same Department of Lands & Physical Planning accepted the payments by Robin Martin, issued the State Lease to K. King and registered the transfer of the lease to Robin Martin.
       
    100. In regard to the Title held by Johnny Jackson, the application he lodged as per the evidence in his Affidavit filed on 7 July 2014, he stated that he applied for the subject land through the formal and set process with the Land Board. I find that the said letter dated 27 May 2004 purportedly from the Acting Managing Director of the National Housing Commission was signed by a Kenneth Wuriam who was a Social Work Practise (A) Student of the University of Papua New Guinea. Any reasonable person employed by the Department of Lands & Physical Planning including Mr Kilapat, Mr Samson and or any of their officers and lawyers could have raised an alarm that the letter screamed fraud as it is inexplicable that a University Student would sign a letter on behalf of the Managing Director of National Housing Commission and for good measure, put his name and his title there. Kenneth Wuriam as a UPNG student, on the face of it is not an employee of National Housing Commission and has no authority to sign such a letter in my opinion. The Department of Lands could have done their due diligence to verify this letter with the National Housing Commission however they blindly accepted this letter. Nowhere in the evidence of the Defendants did they give supporting evidence that this subject land fell within the Self Help Housing Scheme of the National Housing Commission. Johny Jackson himself has no evidence to corroborate or support the proposition that this land fell within the domain of the National Housing Commission. I find that this letter dated 27 May 2004 is fraudulent and it can be reasonably concluded that it was concocted up by Johnny Jackson himself and the so called UPNG Student Kenneth Wuriam. Every other process along the way for the grant of the title to Johnny Jackson emanated from this letter and therefore having found that this letter is fraudulent, the entire process engaged by the officers of the Department of Lands & Physical Planning for the duplicate State Lease to Johnny Jackson was in error and unlawful.
         
    4. The overwhelming evidence by Robin Martin and his witnesses also all go to implicate Johnny Jackson that he never lived on the subject property. Johnny Jackson consciously lied that he lived on the subject land in his Affidavit evidence. He even did worse than lying, he took photographs of other properties and presented it to look like it was his property and he wrote it down in his application that he had developed the subject land to a value of over K40 000 when he applied for the land. This is committing fraud. This is a man who built a church and led people in worship however the church and other buildings that Johnny Jackson claims he owns is not on the subject land of Section 116, Allotment 10, Volume 28, Folio 81 which is located at Gordon Ridge, 5 Mile in the National Capital District. The church and any other structures Johnny Jackson built, I find from the evidence of Robin Martin and his witnesses, is that these are built on the cul-de-sac near Section 116, Allotment 10. Johnny Jackson has clearly committed actual fraud in lying in his application to the Department of Lands and Physical Planning and concocting a document as if it was written and signed by the Managing Director of the National Housing Commission when there is also no evidence placing this land under the authority of the National Housing Commission.
       
    5. The absurdity of the title held by Johnny Jackson is that it came about through the officers in the Department of Lands and Physical Planning failing to do their due diligence in verifying the letter dated 27 May 2004 purportedly from the National Housing Commission and even failing to actually attend at the land in question to verify Johnny Jackson’s claims. All the internal investigations by the Department of Lands & Physical Planning were only confined to their paper files. No one bothered to take a car ride to the land in question and see for themselves, this is tantamount to fraud to aide Johnny Jackson as their investigations recommended that Robin Martin’s title be revoked. This is gross negligence and incompetence on the part of the Lands Department Officers involved in my opinion.
       
    6. Mr Kebeya of the State has argued that based on the case of Unagi v U & M Stonecraft Ltd^[7], the Plaintiff’s title was properly extinguished pursuant to section 77 of the Land Act as a Mr K. King on the grant of a lease to him in 1995 failed to sign and return the Lease Acceptance form together with the fees which was to be done in 28 days however this was not done until 2003. I find that even though a Notice of Extinguishment was published in the National Gazette dated 12 August 2004 by the Department, it was done without the knowledge of that same Department, the Department of Lands & Physical Planning who issued a valid title to K. King in 2003 accepting the signed Lease Acceptance Form with the fees and granting the State Lease to K. King and registering the transfer to Robin Martin. The left hand of the Department of Lands & Physical Planning did not know what its right hand did and therefore the argument by the State must fail as it is untenable.
       

Conclusion

37. I therefore find that in this matter, upon the findings of the Court above, Robin Martin has legitimate title to the subject land.
    
38. I also find that there is constructive fraud committed by the officers of the Department of Lands & Physical Planning and that their conduct is tantamount to fraud by failing to do their due diligence to ascertain whether Johny Jackson was actually living on the subject land as he insists and or whether he was building and residing on a cul-de-sac which is illegal.
    
39. I will therefore grant the Orders sought by the Plaintiff in his Statement of Claim filed on 12 July 2018.
    
40. The Court therefore makes the following orders:
    
    1. The State Lease registered to Robin Martin on 17 December 2003 for the property described as Section 116 Allotment 110, Boroko, NCD, contained in State Lease Volume 28 Folio is legitimate and for all purposes, the Plaintiff is the lawful and duly registered proprietor of the subject property.
       
    2. The new duplicate State Lease registered and held by Johnny Jackson over Section 116 Allotment 110, Boroko, NCD, contained in a new land file in Volume 42, Folio 169 was facilitated through negligence, illegality and fraud and is therefore illegal, null and void.
       
    3. Johnny Jackson shall immediately surrender and deliver up the duplicate State Lease under his name for Section 116 Allotment 110, Boroko, NCD within 21 days from the date of these orders to the Registrar of Titles who shall cancel the State Lease accordingly.
       
    4. The Registrar of Titles and the Secretary for the Department of Lands & Physical Planning and their officers shall take all steps to rectify their records to confirm the Plaintiff as being the lawful and registered proprietor of the subject property.
       
    5. The Plaintiff’s claim for damages and interests shall be listed for a hearing on assessment of damages to be determined by the Court at a later time.
       
    6. The Defendants shall meet the Plaintiff’s costs of these proceedings on a solicitor client basis for their conduct discussed in this decision.
       
    7. Time is abridged to the date of these Orders to take effect forthwith.
       

Orders accordingly.
______________________________________________________________
Vijay & Co Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the First, Second, Third, Fourth and Fifth Defendants
Mr Johnny Jackson: Sixth Defendant In Person

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[1] [1985] PGSC 13; [1985] PNGLR 387 (6 December 1985)

^[2] [2022] PGSC 82

^[3] [2018] PGSC 97; SC1755 (19 December 2018)

[4] [2020] PGSC 100; SC2020 (30 October 2020)
[5] [2016] PGNC 299; N6500 (20 October 2016)

^[6] OS (JR) No. 108 of 2015
^[7] [2016] PGNC 106; N6279 (11 May 2016)