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Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 (28 January 2022)

SC2192

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NO 28 OF 2021


JARO INVESTMENT LIMITED
Appellant


V


ALA ANE, ACTING REGISTRAR OF TITLES
First Respondent


BENJAMIN SAMSON, ACTING SECRETARY,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent


YAN GUI PING
Fourth Respondent


On The Papers: Cannings J, Makail J, Collier J
2021: 23rd November
2022: 28th January


LAND – State Leases – power of Registrar of Titles to summon registered proprietor to deliver up original copy of State Lease – cancellation and correction of instruments and entries – replacement of instruments of title – Land Registration Act, ss 160, 161, 162.


JUDICIAL REVIEW – of decisions of Registrar of Titles to issue summons under s 160(1), to cancel a State Lease under s 161, to replace a State Lease under s 162 – appeal against refusal of judicial review.


Facts


On 15 August 2018 the Registrar of Titles (first and second respondents) summoned the registered proprietor of a State Lease (the appellant) to deliver up its original owner’s copy of the State Lease so that it could be cancelled, on the ground that the appellant’s lease had been registered in error as there was another registered proprietor (the fourth respondent) claiming the same land under a prior instrument of title. The Registrar issued the summons under s 160(1) of the Land Registration Act. The appellant refused to comply with the summons but the Registrar proceeded on 13 December 2018 to issue a replacement State Lease to the fourth respondent, the effect being to cancel the appellant’s title. The appellant’s application to the National Court for judicial review of the Registrar’s decision of 13 December 2018 was refused. The primary Judge found that the Registrar had power under ss 160 to 162 of the Land Registration Act to summon, cancel and restore titles and the appellant had failed to prove any error of law in the exercise of those powers. The appellant appealed against refusal of judicial review.


Held:


(1) If a registered proprietor fails to comply with a summons issued by the Registrar under s 160(1) of the Land Registration Act to deliver up an instrument such as a State Lease, the Registrar must, before deciding to cancel the instrument under s 161 of the Act, follow the procedure in ss 160(2) to (6), including applying to the National Court for a summons for the registered proprietor to appear before the Court and show cause why the instrument should not be delivered up.

(2) The Registrar may only replace an instrument of title under s 162 of the Act if it has been lost, destroyed or replaced and the registered proprietor applies under s 162(1) for a replacement instrument of title and procedures set out in s162(2) are followed.

(3) The Registrar’s decision of 13 December 2018, which purported to rely on s161 and s 162, was made contrary to the procedure in ss 160(2) to (6) and contrary to the requirements of s 162, and involved numerous errors of law.

(4) The appellant relied on those errors of law in its application for judicial review and the primary Judge fell into error in not engaging adequately with the issues raised by the alleged errors.

(5) The appeal was upheld and the Supreme Court, invoking its power under s 16 of the Supreme Court Act to give such judgment as ought to have been given in the first instance, granted the primary relief sought by the appellant in the National Court: an order in the nature of certiorari, quashing the decision of the Registrar of 13 December 2018 to issue a replacement instrument of title to the fourth respondent and register him as transferee on the State Lease. Costs followed the event.

Cases Cited:
Papua New Guinea Cases


The following cases are cited in the judgment:


Aipa v Samson (2012) N4777
Jaro Investment Ltd v Acting Registrar of Titles & 3 Others (2021) N8827
Mudge v Secretary for Lands [1985] PNGLR 387
Peyape v Waiya (2021) SC2109
Raina No 1 Ltd v Elisha (2015) N6051
Raumai No 18 Ltd v Country Motors Ltd (2018) N7952
Tagau v Selon Ltd (2018) SC1755


Overseas Cases


Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223


Counsel


I Molloy & H J Leahy, for the Appellant
K Kipongi, for the First, Second & Third Respondents
S Gor, for the Fourth Respondent


28th January, 2022


  1. BY THE COURT: This is an appeal by notice of motion filed on 27 June 2021 from orders of a Judge of the National Court made on 21 May 2021 in OS (JR) No 790 of 2019 (Jaro Investment Ltd v Acting Registrar of Titles & 3 Others (2021) N8827). In the decision at first instance the primary Judge refused the appellant’s application for judicial review of a decision of the Registrar of Titles to cancel entries in the register in favour of the appellant.

BACKGROUND

  1. The background facts are confusing. Instruments of title in respect of land were at various points issued, and conflicting contracts entered in respect of the same land, for which no explanation has emerged in evidence before the Court. To the extent that we understand relevant background facts, they appear to be as follows.
  2. The proceedings relate to real property, being an area of approximately 0.1380 hectares, being Section 02 Allotment 07, Vanimo Top Town West Sepik Province (the Land).
  3. For unknown reasons, two separate State Leases have been issued over the same Land. They are:
  4. Insofar as concerns the interactions between the NHC and the appellant, we note correspondence from the NHC to the appellant dated 1 June 2018, wherein the NHC gave the appellant the first right of refusal to purchase Section 02 Allotment 07 following the appellant’s expression of interest letter dated 25 May 2018. In its correspondence the NHC stated that the sale price for the Land totalled K505,312.50, with conditions (including payment of a deposit and legal fees in the amount of K51,531.75) to be satisfied within 14 days, and the balance of the purchase price payable within 14 days from the date the appellant received notification of the statutory approval of the agreement. These conditions were included in a Contract for Sale Agreement between the parties dated 6 June 2018.
  5. The evidence before the primary Judge was that the appellant paid the NHC the deposit and legal fees in the amount of K51,531.75 by cheque dated 4 June 2018, thus satisfying the relevant conditions.
  6. It appears however that, at some unknown time, the NHC had also entered a sale agreement with the fourth respondent in respect of the Land. That this is so appears from a letter from the NHC to the fourth respondent dated 4 June 2018. In that letter the Acting General Manager of the NHC wrote to the General Manager of the fourth respondent in the following terms:
RE : RESCINDING OF CONTRACT OF SALE OVER PROPERTY – SECTION 02, ALLOTMENT 07, VANIMO, WEST SEPIK PROVINCE
This letter serves to inform you that the Offer Letter and Contract of Sale entered into between your company and the National Housing Corporation for the purchase of the above property is hereby rescinded.
This is due to the fact that the property was undervalued and we were not made fully aware of the nature surrounding this transaction. As such we are formally notifying you of our intentions.
Moreover your deposit of Three Hundred Thousand Kina [K300,000.00] will be reimbursed to you.
We will notify the Registrar of Titles to cancel and recall the Title that was issued to you which we believe was obtained outside of normal procedures and may have been fraudulently obtained.
The National Housing Corporation will recall the Title and issue it to a new and approved purchaser.

  1. On 15 June 2018 the Office of the Principal Legal Officer of the NHC wrote again to the General Manager of the fourth respondent in the following terms:
Subject: Rescinding of Sale Section 02 allotment 07 Vanimo WSP to your Company
We refer to the above and to our Managing Director’s letter to you dated 04 June 2018.
Our due diligent checks have revealed that the purported State Lease (Title) obtained by your Company is fake and does not hold out to be genuine. Furthermore, the property has been undervalued and therefore the NHC in its absolute discretion has rescinded the sale, thus the fake Title cannot hold out as genuine. You are to immediately cease to do any transactions over the property Section 02 Allotment 07 Vanimo, WSP.
The National Housing Corporation will now exercise its discretion to allocate another property within Vanimo town to the value of the amount Yan Gui Ping Ltd paid to the National Housing Corporation.
This letter is copied to the Secretary DLPP and the Registrar of Titles at the Lands Dept and you are now requested to contact me for further clarification...
I await your response in due course.
  1. However, by letter dated 9 July 2018 from the fourth respondent to the Acting Managing Director of the NHC, the fourth respondent wrote as follows:
Dear Mr Cooke,
SUBJECT: FINAL PAYMENT OF K100,000 BANK CHEQUE NO: FOR THE VANIMO PROPERTY DESCRIBED AS SECTION 07 ALLOTMENT 02 VOLUME 25 FOLIO 29 VALUED AT K500,000 (ALL INCLUSIVE)
We refer to your letter of 06th June 2018 and hereby enclosed a Bank Cheque of K100,000-00 issued by the Kina Bank in favour of the National Housing Corporation. These were three instalment as follows,
  1. First payment of K300,000-00 Kina Bank Cheque No: ... & Receipt No:.....
  2. Second payment of K100,000-00 Kina Bank Cheque No: ... & Receipt No:....
  3. Third and final payment of K100,000-00 Kina Bank Cheque
This now brings to the final payment of K500,000-00 as agreed in our earlier discussion in respect of the above property.
We understand that your office has taken necessary steps to recall the title issued to Jaro Investment by your Officers due to administrative oversight.
We do not wish to embark on these issues any further since your office has taken corrective measures to address these issues as directed by the office of the Minister responsible for housing.
Upon our initial enquire with the Office of the Registrar of Titles, they have advised us that your Office will formerly write to Jaro Investment Limited and request them to recall the original Title which you have already done in your letter of 18th June 2018.
At the same time, your office will write to the office of the Registrar of title and request him to recall the same Title issued to Jaro Investment Limited by way of a 14 days’ Notice consistent with the Land Registration Act. Should Jaro Investment Limited failed to comply with a lawful directives issued by the Office of the Registrar of Titles within 14 days, the Registrar will then cancel the title. This will be followed by a contract of sale, payment of stamp duty and formal; transfer of Title to Yan Ping Gui that will now bring the sale to its conclusion.
Finally, we wish to remind your office that this is purely a commercial arrangement and we expect your office to immediately take appropriate actions in line with the Minister’s directives by executing the lawful and proper transfer of genuine titles over the Vanimo property without any unnecessary delay.
For your appropriate action.
  1. The letter of 6 June 2018 to which this correspondence refers does not appear to be before the Court.
  2. By letter to the appellant dated 15 August 2018, Mr Benjamin Samson, Registrar of Titles, wrote to the appellant as follows:
RE: SUMMONS FOR PRODUCTION OF INSTRUMENT (ORIGINAL OWNER'S COPY) OF STATE LEASE TITLE VOLUME 25 FOLIO 99 FOR ALLOTMENT 7 SECTION 2 VANIMO, WEST SEPIK PROVINCE
Take Note that I, Benjamin Samson, Registrar of Titles of PO Box 5665 Boroko, by virtue of the powers conferred by Section 160(1) of the Land Registration Act 1981 (Chapter 191) and all other powers there unto enabling HEREBY summon you to produce to me the Original Owner's Copy of State Lease Title Volume 25 Folio 99 for Allotment 7 Section 2 Vanimo, West Sepik Province held by your firm, Jaro Investment Limited after it was transferred by the National Housing Corporation which was registered by this office as Entry/Memorial Number N.22269 on 15/06/2018.
The summons for delivering up of the Original Owner's Copy of the State Lease Title is that the transfer entry to Jaro Investment Limited cannot be protected under Section 33 of the Land Registration Act 1981 and hence has to be cancelled/deregistered. The reasons for the entry to be cancelled and removed from the Journal is as follows:
  1. The National Housing Corporation has made representation to this office stating that the releasing of the original owner's of state lease title by its officers to agents of Jaro Investment Limited was in error and improper;
  2. There was already a first in time purchaser of the subject property and hence it was not a vacant property when the National Housing Corporation sold and transferred it to Jaro Investment Limited. Therefore, the transfer to Jaro Investment Limited cannot be protected as per Section 33(1)(c) of the Land Registration Act 1981 and
  3. The transfer to Jaro Investment Limited was not approved by the Minister for Lands as this dealing/transfer is a Controlled Dealing under Section 128 of the Land Act 1996. Accordingly, the registration of transfer of the state lease to Jaro Investment Limited as contravened Section 128 of the Land Act 1996 and again the transfer cannot be protected under Section 33 of the Land Registration Act 1981.
Having stated the aforesaid, the transfer entry (N.22269) to your firm, Jaro Investment Limited over state lease volume 25 folio 99 for allotment 7 section 2 Vanimo, West Sepik Province cannot be protected as per Section 33(1)(c)(g) of the Land Registration Act 1981.
Accordingly, you are given 14 days from the date of this notice to deliver up the Original Owner's Copy of the State Lease Title Volume 25 Folio 99 for Allotment 7 Section 2 Vanimo, West Sepik Province for the purpose of cancellation of Entry Number; N.22269 (Transfer to Jaro Investment Limited) endorsement on the subject state lease title.
Take further notice that failure to comply with this summons will result in appropriate actions taken under the Land Registration Act 1981 (Chapter 191).
Dated this 15th day of August 2018.
[errors in original]

  1. By letter of 27 August 2018 Mr Ben Pena for the appellant wrote to the Registrar in the following terms:
RE: RESPONSE TO SUMMONS ISSUED OVER ALLOTMENT 02 SECTIONS 07, TOWNSHIP OF VANIMO, WSP
Find attached here with a response over above subject property which summons were issued to Jaro Investment Limited summoning to return state leases volume 25 folio 99.
Our response is therefore here attached for year [sic] noting.
The matter is now before the national court and the company appointed Young and Williams’s law firm, Gred [sic] Sheppard who is acting for the company. You are advised not to execute any cancellation of this state lease.
For your record.
  1. Annexed to that letter was a further letter, dated 24 August 2018, signed by Robert Yong, Director of the appellant, and addressed to the Registrar of Titles, as follows:
I write in response to your Letter dated 15th August 2018 summoning me to produce the Origonal [sic] Owner’s Copy of the State Lease Title volume 25, Folio 99 for Allotment 07, Section 02, Vanimo, West Sepik.
Sir I wish to inform you that I will NOT return the Original Owner’s Copy of the State Lease Title Volume 25, Folio 99 for Allotment 07, Section 02, Vanimo, WSP because this matter is going through the National Court with National Housing Corporation and Yan Gui Ping. According to my knowledge the Title was obtained from National Housing Corporation through the right process and I insist not to return the Original Owners Copy of the Title to your office on the grounds that:
  1. On the 4th of June 2018 the Acting Managing Director wrote to Yan Gui Ping and informed him that the Contract of Sale over the said property was rescinded and Title of the property would be granted to a new and approved purchaser because:
(a) the property was undervalued
(b) the nature of the transaction involved was not proper through National Housing Corporation;
(c) the grant of the First Title was fraudulently obtained; and
(d) the First Title was granted outside of the normal procedures.
  1. On the 15 June 2018 the Principal Legal Officer of National Housing Corporation wrote to Yan Gui Ping again and informed him that due diligence checks over the circumstances of the First Title, revealed that the property was undervalued, the First Title obtained by Yan Gui Ping was a fake and the sale was therefore rescinded.
  2. On 9 July 2018 the Acting Managing Director of National Housing Corporation wrote to the Secretary of the Department of Lands and Physical Planning seeking confirmation that the purported signature of the acting Deputy Secretary on the First title granted to the Yan Gui Ping was not genuine.
  3. On 9 July 2018 the acting Deputy Secretary of the Department of Lands and Physical Planning responded by confirming the signature on the First Title granted to Yan Gui Ping was not genuine.
  4. A search was conducted through IPA to confirm the legality of Yan Gui Ping if it was a registered entity through IPA, and was found that this respective name was not registered with IPA. Incorrectly referring to Yan Gui Ping Limited, in all correspondence, as having purchased the property where the First Title and the Transfer document dated 13 August 2017 referred only to Yah Gui Ping as a business name and not such company exists. Meaning why do the Government allow a foreign company to do business in this country without being registered?
  5. When the cancellation of the first offer was done by the acting Managing Director (MD) and Principal Legal Officer (PLO) of the National Housing Corporation, a new Offer was given to us (Jaro Investment Limited) based on the decision done by the top management of National Housing Corporation and can’t reversed back again.
  6. Basing on fraud, the grant of the First Title top Yan Gui Ping means is of no affect which are pleaded above so an Offer was given to Jaro Investment Limited, and all necessary Documents like Contract of Sale and Transfers were [illegible] rightfully and signed by the acting Managing Director (MD) and Principal Legal Officer (PLO) to have the Title Transferred to Jaro Investment Limited.
We thank you for your understanding and we apologise for any inconvenience caused and hope this letter would serve its purpose while awaiting court decision to justify in a near future.

  1. By an Application for a Replacement Title dated 13 December 2018 the NHC applied to the Department of Lands for the issue of an Official Copy, being a replacement title for the land described to the owner as recorded in the Register and subject to the encumbrances as recorded. The Application for a Replacement Title described the relevant land as Lot 07 Section/Milinch 02, Vanimo, WSP. The Circumstances of Loss were declared by the Acting Managing Director of the NHC, Mr Kenneth B Cooke, as follows:
CIRCUMSTANCES OF LOSS
The applicant solemnly and sincerely declare that:-
The lost title has not been deposited as security for a loan other than that already recorded in the Register.
A search for the lost title was carried out:
with the Registrar of Titles (including last known delivery details) and
with the bankers/accountants/lawyers of the owner, and
with previous owner or his agent.
The title was destroyed/LOST AT NHC OFFICE.

  1. On 13 December 2018 the first and second respondents reinstated the fourth respondent as title-holder of the property.
  2. On 24 June 2019 the appellant filed a proceeding in WS No 85 of 2018 challenging the fourth respondent’s title, and subsequently in WS No 692 of 2019 against the NHC seeking specific performance over a contract of sale regarding the relevant property.
  3. On 16 October 2019 the appellant was successful in obtaining default judgment in the National Court against the NHC for specific performance of its contract with the NHC. On 8 November 2019 however Anis J ordered that the fourth respondent be joined as a party, and that the default judgment in favour of the appellant be set aside pursuant to Order 12 rule 35 of the National Court Rules. In the course of judgment Anis J noted that the appellant had sought orders for judicial review of the decision of the Registrar.
  4. The appellant’s proceedings in WS No 692 of 2019 against the NHC were subsequently discontinued.
  5. On 20 November 2019 the appellant was given leave to proceed by way of judicial review against the first respondent’s decisions of 1 October 2018 and 13 December 2018.

DECISION OF THE PRIMARY JUDGE


  1. On 10 November 2020 the appellant filed an amended notice of motion pursuant to Order 16 rule 5(1) of the National Court Rules seeking judicial review of the decision of the Registrar of 13 December 2018, being:
(a) in respect of the land described in the Schedule to the State Lease as, all that piece or parcel of land known as Allotment/Portion 7 Section/Milinch 2, Town/Fourmil, Vanimo in West Sepik Province containing an area of 0.1733 hectares or thereabout as delineated on registered survey plan, class Urban Class One (1) catalogued No 1/21 in the Department, Waigani, NCD, to issue a replacement instrument of title or official copy of it (referenced state lease vol. 25 folio 99) (the “State Lease”); and

(b) to transfer the State Lease to Yan Gui Ping.
  1. The appellant did not press judicial review of any decision on the part of the Registrar of 1 October 2018.
  2. Further, the appellant sought an order in the nature of certiorari to quash the decisions of the Registrar made on 13 December 2018 to:
  1. Finally the appellant sought costs against the respondents.
  2. Materially, the appellant filed a Further Amended Statement under Order 16 Rule 3 (2)(a) of the National Court Rules pleading facts on which it relied.
  3. As his Honour observed at [2], the essence of the appellant’s claim was that the decision of the Registrar made on 13 December 2018 to issue the fourth respondent an official copy of a State Lease Volume 25 Folio 99 in respect of the same land that was granted to the appellant should be quashed, for reasons including that:
  1. After setting out the relevant legislation the primary Judge found as follows:
    1. That is the law applicable here given the facts set out above. And in this regard the original registered proprietor is the National Housing Corporation. Of the State Lease volume 25 Folio 99. And this becomes clear in the affidavit of Benjamin Samson the current Secretary of the Department of Lands & Physical Planning. Relevantly filed 26th May 2020 he deposes and annexures the current land file for the property State Lease Volume 25 Folio 99 contained in the review book volume 3 page 539. In there he annexures the application for a replacement title made by the NHC as the original registered proprietor of the State Lease Volume 25 Folio 99. He annexures the receipt issued by the Department of Lands to the NHC for the payment made of K500 for its application. It is at volume 3 of the review book at page 533. Then he annexures a copy of the National Gazette notice G735 of the 09th November 2018 advertising the intentions of the Registrar of titles to issue an official copy of the State Lease volume 25 Folio 99 after the expiration of 14 days. This is at page 532 of the review book filed. Further he annexures a copy of the advertisement in one of the daily newspapers at page 534 of the review book. He then annexures a copy of the State Lease volume 25 folio 99 as of the 13th December 2018 the Registrar of Titles issued the official copy of the State Lease.
    2. In my view these relevant facts establish that the first defendant has complied with the requirements of the sections of the Land Registration Act set out above. He has complied with the relevant requirements of these sections set out in the way he has carried out his duties: TST Holdings Ltd v Wavik [2020] PGNC 106; N8298 (28 April 2020). There is no error as argued by the plaintiff. Because transfer requirements have been made out in the transfer a valid one in the approved form has been made out. It means that the NHC has transferred by the instrument dated the 13th July 2018 executed at page 523 of the Review book. There is consideration for the transfer shown it is executed and stamped. And that is clear from the affidavit of Ala Ane of the 26th May 2020 in the review book 571 to 575. Ministerial approval fee K300 evidence this part settled in the affidavit of Benjamin Samson in the review book page 530.
    3. It need not be further than these to show that there was valid transfer from the National Housing Corporation to Yan Gui Ping. There is no error as contended by the plaintiff in the actions of the Registrar of Titles. The facts circumstance set out above do not par with Wiring v Muingnepe [2012] PGNC 247; N4889 (26 July 2012). And the situation seen in Fragili v Karup [2011] PGNC 306; N4200 (18 January 2011).
    4. It is clear that the Registrar of Titles has powers under section 160, 161, and 162 to summon, cancel and restore titles and which powers he has exercised here without any error known to law apparent and identifiable: Raumai No 18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952 (28 September 2018). The plaintiff has not demonstrated otherwise. His argument on fraud are without the pleading and therefore will not be considered. The effect aggregate is that in accordance with Order 16 Rule 5(1) the notice of motion is incompetent and has no merit either in fact or law and fails. Judicial review is refused and is dismissed forthwith with Costs to follow the event.
    5. The formal orders of the Court are:
(i) Judicial review is refused.
(ii) Notice of motion is incompetent and dismissed.
(iii) Costs will follow the event forthwith.


RELEVANT LEGISLATION


  1. Before turning to the grounds of appeal before the Court it is convenient to set out the relevant legislation:
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.
...
161. CANCELLATION AND CORRECTION OF INSTRUMENTS AND ENTRIES.
(1) Subject to Subsection (2), the Registrar may–
(a) cancel or correct an instrument delivered up under Section 160; and
(b) in any other case, on such evidence as appears to him sufficient, correct errors or omissions in–
(i) the Register or an entry in the Register; or
(ii) the other duplicate certificate of title or an entry on that duplicate.
(2) Where a correction is made under Subsection (1)–
(a) the Registrar–
(i) shall not erase or render illegible any words; and
(ii) shall affix the date on which the correction was made together with his initials; and
(b) the Register or other duplicate certificate of title so corrected has the same validity and effect as if the error had not been made except as regards an entry made in the Register before the time of correcting the error.
(3) Where the Registrar is satisfied that a matter in a certificate of title does not affect the land to which the certificate relates he may record on the title the cancellation of that matter in such manner as he considers proper.

162. REPLACEMENT OF INSTRUMENT OF TITLE.
(1) Where an instrument of title has been lost, destroyed or defaced, the registered proprietor or, if he is dead, his legal personal representative, may apply to the Registrar for a replacement instrument of title or official copy.
(2) An application under Subsection (1) shall be accompanied by–
(a) such evidence as the Registrar considers sufficient of the loss, destruction or defacing; and
(b) particulars of all mortgages, charges or other matters affecting the land or the title to the land.
(3) The Registrar may–
(a) on receipt of an application made in accordance with Subsections (1) and (2), together with the prescribed fee; or
(b) on his own volition,
if he considers it necessary, replace an instrument of title by making a new instrument of title or official copy, as the circumstances require.
(4) When an application under this section relates to a lost or destroyed instrument of title the Registrar shall give at least 14 days’ notice of his intention to make a new instrument of title or official copy by advertisement in the National Gazette and in at least one newspaper circulating in the country.
(5) A new certificate of title or official copy made under this section shall be–
(a) endorsed with a memorial stating the circumstances under which it is made; and
(b) available for all purposes and uses for which the original instrument of title would have been available and be as valid for all purposes as the original.


GROUNDS OF APPEAL


  1. The appellant appeals the decision of the primary Judge on the following grounds:
(i) The National Court erred in law or mixed fact and law when his Honour failed to find that the First Respondent failed to follow the procedures laid down in sections 160 and 162 of the Land Registration Act Ch No 191 (the “Act”) in that when a title holder refuses or neglects to comply with a summons from the Registrar of Titles under section 160(1) of the Act, the Registrar’s recourse is to apply to the Court under section 160(2) of the Act for that person to appear before the National Court and to show cause why the instrument should not be delivered up.
(ii) The National Court erred in law or mixed fact and law when his Honour did not follow the decisions of the National Court (especially Raumai No 18 Limited v Country Motors Limited [2018] PGNC 592; N7952 and Aipa v Samson [2012] PGNC 185; N4777) which clarify that there are two general powers of the Registrar of Titles under sections 161(a) and (b) of the Act, and that those powers and their exercise are subject to the inherent safeguards in procedure laid down in section 160 of the Act which in the end depend on the delivering up of the instrument of title.
(iii) The National Court erred in law or mixed fact and law in so far as his Honour found that the Registrar had replaced an instrument of title under section 162 of the Land Registration Act Ch No 191, instead of finding that there had been no valid application under section 162 (1) of the Act because the supposed applicant was the National Housing Commission and not “the registered proprietor” as required under that provision.
(iv) The National Court erred in law or mixed fact and law in that his Honour should have found non-compliance with section 162 of the Land Registration Act in that there was insufficient evidence accompanying any application under section 162(1) of the Act (and the Registrar could not have been sufficiently satisfied) that the instrument of title has been lost, destroyed or defaced.
(v) The National Court erred in law or mixed fact and law in that his Honour should have found that section 162 of the Land Registration Act had no relevance, and the Registrar had erred in not dealing with the issue under section 160 and 161 of the Act, when there was at all material times an instrument of title in existence over the subject land, namely State Lease Volume 25 Folio 32 issued on 25 July 2017, transferred to the Appellant on 15 June 2018.
(vi) The National Court erred in law or mixed fact and law when his Honour failed to recognise that section 162 of the Land Registration Act Ch No 191 prescribes that an applicant for a replacement instrument of title must first make an application for a replacement instrument of title or official copy and that, what was before the National Court was an incorrect sequence of events in that the Registrar of Titles had advertised his intention to make a new instrument of title or official copy before an application for a replacement or official copy was made to him.
(vii) The National Court erred in law or mixed fact and law in that his Honour failed to take into account the evidence, found in the annexures to the affidavit of Benjamin Samson, as to errors on the part of the First Respondent, including that:
(a) the Registrar of Titles advertised his intention purportedly under section 162(4) of the Land Registration Act, before an application for replacement title was made by the applicant, the National Housing Corporation (NHC); and/or
(b) the applicant, the NHC was not at any time relevant to the supposed application under section 162(1) of the Act, the registered proprietor of the land; and/or
(c) without complying with the processes under section 162 (1) and section 162(4) of the Land Registration Act Ch No 191, the NHC’s application for a replacement instrument of title and the issuance of the replacement title over the land all occurred on the same day – 13 December 2018 – including the transfer of the land to the Respondent, Yan Gui Ping.
(viii) The National Court erred in law or mixed fact and law in that his Honour should have found that the First Respondent, the Registrar of Titles, denied the Appellant natural justice in that the Appellant was not given a reasonable opportunity to be heard including in contravention of section 59 of the Constitution.
(ix) The National Court erred in law or mixed fact and law in that his Honour should have found that the First Respondent failed to take into account relevant facts and circumstances in arriving at the decisions the subject of the application for judicial review, namely, that the Appellant was at all material times the registered proprietor of the subject land pursuant to an existing State Lease.
(x) The National Court erred in law or mixed fact and law in that his Honour should have found that the First Respondent in making the decisions the subject of the application for judicial review acted under the dictation of the Minister for Housing and Urbanization.
(xi) The National Court erred in law or mixed fact and law in that his Honour should have found that the First Respondent’s decisions were in all the circumstances so erroneous as to be Wednesbury unreasonable.
  1. We note that the appellant did not press ground of appeal (x).
  2. The appellant sought the following orders:
(a) The appeal is allowed
(b) The Orders of the National Court made on 21 May 2021 at Waigani, in proceedings OS (JR) No 790 of 2019 are quashed.
(c) In lieu thereof:
(i) An order that the Appellant’s application for judicial review in the National Court is upheld.
(ii) Orders in the nature of certiorari quashing the decisions of the First Respondent made on 13 December 2018 to:
Issue to the Fourth Respondent a replacement instrument of title or official copy identified and referenced State Lease Volume 25 Folio 99 in respect of land known as Allotment 7 Section 2 Vanimo, West Sepik Province;
Register Yan Gui Ping as transferee on the said State Lease.
(d) Alternatively, the Appellant’s application for judicial review by [sic] remitted to the National Court (differently constituted) for rehearing.
(e) The Respondents pay the Appellant’s costs of and incidental to this appeal and in the National Court.
(f) Such further or other orders as the Court considers appropriate.


SUBMISSIONS OF THE PARTIES

  1. In summary the appellant submitted:
  1. In summary the fourth respondent submitted:
  1. In summary the first, second and third respondents submitted:


CONSIDERATION


  1. While the appellant relies on multiple grounds of appeal, in short the issues raised by those grounds are:
  2. The primary Judge refused judicial review, and dismissed the amended notice of motion before the National Court as incompetent.
  3. Turning to the primary judgment we make the following observations.
  4. First, and contrary to the submissions of the first, second and third respondents, at [11] the primary Judge found that the Registrar had exercised powers under ss 160, 161 and 162 of the Land Registration Act 1981 to summon, cancel and restore titles in accordance with the decision of Gavara-Nanu J in the National Court in Raumai No 18 Ltd v Country Motors Ltd (2018) N7952. We do not accept that the primary Judge found that the Registrar had only exercised powers under s 162 of the Land Registration Act 1981. This is clear from a plain reading of the reasons of the primary Judge.
  5. Second, the decisions of Gavara-Nanu J in Raumai No 18 and Cannings J in Aipa v Samson (2012) N4777 are in our view consistent with the position advanced by the appellant in the present case.
  6. In Raumai No 18 a plaintiff sought review of the decision of the Registrar of Titles to cancel numerous entries on a duplicate certificate of title to land being that contained in a State Lease, and restoration of those entries. The decision of the Registrar followed a dispute between the plaintiff and the first defendant, and a letter from the Registrar demanding that it deliver up its title within 14 days because of a claim that fraud was involved in the transfer of the land to the plaintiff. The Registrar treated his letter of demand as a “summons” to the plaintiff under s 160 of the Land Registration Act 1981 to deliver up its title, which the plaintiff failed to do, and the Registrar proceeded to cancel the plaintiff’s title.
  7. The plaintiff argued that there was a process which the Registrar failed to follow before cancelling the plaintiff’s title, and further the Registrar breached principles of natural justice.
  8. Justice Gavara-Nanu observed that the determinative issue before the Court was whether the cancellation of the plaintiff’s title was legal. After setting out the relevant legislation his Honour continued:
    1. Mr Molloy argued that the word ‘may’ in s 160(1) relates to the decision the Registrar may make to issue a summons to a title holder to deliver up his title, either for cancellation or to correct an error. It was submitted that the word connotes the exercise of discretion by the Registrar whether to issue a summons or not. For example, a decision the Registrar has to make on whether to issue a summons after it is shown that the title is prima facie free from alleged errors or anomalies.
    2. Mr Molloy submitted that in this instance the second defendant exercised the substantive power under s 161(1)(a) in cancelling the plaintiff’s title, thus depriving the plaintiff the right to hold title. It was argued that the second defendant should have followed the procedure set out under s 160(2) so that if the plaintiff neglected or refused to deliver up its title, he could then take the next step which was to make an application to the National Court to seek orders for the plaintiff to show cause.
    3. It was submitted that the second defendant acted ultra vires in cancelling the plaintiff’s title without making an application to the National Court to seek orders for the plaintiff to show cause. Thus, it was claimed that the plaintiff was not given an opportunity to be heard on claims of fraud made against it before its title was cancelled. The plaintiff relied on Aipa v Samson, Deputy Registrar of Titles (2012) N4777. In that case, the National Court held that in a case of this kind, cancellation of an instrument such as a State Lease should be preceded by a summons being issued for the title holder to deliver up his title. That case did not address the issue regarding the need for the Registrar to make an application to the National Court for orders that the title holder show cause.
    4. Mr Yano, counsel for the State argued that once the second defendant was satisfied that fraud was involved in the transfer of the land to the plaintiff, the second defendant had discretion pursuant to the word "may" in s 161 whether to cancel the title or to apply to the National Court under s 160(2) for an order that the plaintiff show cause. He argued that the second defendant properly exercised his discretion in taking the first option to cancel the plaintiff's title. He relied on Raga Kavana, Registrar of Titles, Department of Lands and Physical Planning v Colin Edwin Hunter (2007) N3208.
    5. I find that this case is distinguishable from Raga Kavana, Registrar of Titles, Department of Lands and Physical Planning v Colin Edwin Hunter (supra). In that case, the plaintiffs applied to the National Court seeking orders for the defendants to show cause after they failed to deliver up their title despite being issued with a summons by the Registrar. This case did not go that far, viz no application was made by the Registrar to the National Court to seek orders that the plaintiff show cause.
    6. Notably, the defendants do not dispute that the second defendant did not give the plaintiff an opportunity to be heard before cancelling its title. To my mind, this was a fundamental error resulting from wrong exercise of discretion by the second defendant. The fact that the second defendant may have thought that fraud was involved in the transfer of the land to the plaintiff is irrelevant. What is relevant is how he exercised his discretion in cancelling the plaintiff’s title.
    7. I accept Mr Molloy’s argument that s 161(a) and (b) confer two general powers on the Registrar. I also accept his argument that any one of the two powers can only be validly exercised after a summons or a direction had been issued to a title holder to deliver up his title and that the title had been delivered up.
    8. If the summons or direction issued under s 160(1) is not heeded, then an application should be made to the National Court under s 160(2) for a summons or an order to be issued to the title-holder to show cause.
  9. In referring to the caution with which an application to the National Court should be made, his Honour continued:
    1. ... Such cautious approach in my view harmonises with the discretionary power conferred by s 160(2) on the Registrar to decide whether to seek appropriate remedy in the National Court. It is critically important to appreciate the legislative intent in s 160(2), which is to give a title-holder or a registered proprietor who holds an indefeasible title ample opportunity to be heard. This process protects the title-holder from suffering possible penalties including six months gaol term under s 160(5) if he did not comply with the Court orders.
  10. Justice Gavara-Nanu further distinguished between the powers of the Registrar to issue a “summons” under s 160(1) and the power of the Court to issue a “summons” under s 160(2). As his Honour explained:
    1. A “summons” issued by the Register under s 160(1) may be treated as a “direction”. Whereas a “summons” issued by the National Court under s 160(2) may be treated as an “order”. Thus, in this instance the letter by the second defendant demanding or directing the plaintiff to deliver up its title had been appropriately and properly treated as a “summons” for the purposes of s 160(1).
  11. His Honour then explained the proper process as follows:
    1. As to the word “may” in s 160(1), I accept Mr Molloy’s submission that it relates to the exercise of discretion by the Registrar whether to issue a summons for the title-holder to deliver up his title or not. As to the word "may" in s 161(1), in my opinion it relates to the power the Registrar may exercise, viz whether to cancel the title or to correct it, depending on the type of error or anomaly in the title or instrument after it is delivered up.
    2. Generally, once an error or an anomaly is raised against a title under s 160(1) the matter then becomes subject to the processes set out under ss 160 and 161. This process begins with a summons being issued under s 160 (1). It is obligatory for the Registrar to state clearly in the summons or direction, the reasons or grounds upon which the summons or direction is issued. This will inform the title-holder why he is required to deliver up his title and safeguard his right to be heard. Cancellation and or restoration of a title following a court order in a case would be subject to this process.
    3. In this case, when the second defendant did not receive a response to his letter of demand for the plaintiff to deliver up its title, he went ahead and cancelled the plaintiff’s title without giving the plaintiff an opportunity to be heard. The second defendant could have as I said earlier, instead of cancelling the title, made further inquiries as to the reasons for the plaintiff’s purported failure to deliver up its title.
    4. The second defendant could have applied to the National Court and sought orders for the plaintiff to show cause, if it was shown that the plaintiff neglected or refused to deliver up its title. Such a course would have given the plaintiff a further opportunity to be heard. The failure by the second defendant to avail such opportunity to the plaintiff was a fundamental breach of the plaintiff’s right to be heard as prescribed under s 160(1) and (2).
    5. The right to be heard or the audi alteram partem rule which is also a key principle of natural justice is accorded to every individual or entity that is affected by a decision of a public body or authority. The right to be heard is embodied in our Constitution. Thus, pursuant to Schedule 2.2 of the Constitution, the audi alteram partem rule or the right to be heard (as a principle of natural justice) is a fundamental part of the underlying law. The terms of Schedule 2.2 are notably very general.
  12. In Raumai No 18 Gavara-Nanu J also referred to the earlier National Court decision of Aipa v Samson (2012) N4777, where the Deputy Registrar of Titles had cancelled one of two titles over the same parcel of land. The plaintiff in that case was the holder of the cancelled title, and sought judicial review of the decision of the Deputy Registrar on the basis inter alia that procedures for cancellation of title had not been followed. Justice Cannings observed:
    1. I agree with Mr Geita that the Registrar of Titles has a discretion as to whether he issues a summons or applies to the Court to issue a summons (the procedure employed in Kavana v Hunter (2007) N3208). However, that is no answer to the plaintiffs' proposition that that exercise of the power under s 160 is a precondition to exercise of the power of cancellation under s 161. I uphold the plaintiffs' proposition as I am satisfied that s 161(1) draws a distinction between on the one hand cancelling or correcting an instrument and on the other hand correcting an error or omission in the Register or an entry in the Register. The power to "cancel" an instrument under s 161(1)(a) can only be exercised in relation to an instrument delivered up under s 160. Cancellation of an instrument must be preceded by the issuance of a summons and a delivering up of the instrument.
    2. In the present case the Deputy Registrar failed to issue a summons or apply to the Court for issuance of a summons before deciding to cancel the instrument (the State Lease granted to Waltece Service Station in 2000). He erred in law in the manner contended for by the plaintiffs. This ground of review is upheld.
  13. We respectfully adopt the analyses of Gavara-Nanu J and Cannings J of the proper procedure to be followed by the Registrar of Titles in cancelling entries. In particular we agree that the rationale for the proper procedure being followed is to give a title-holder or registered proprietor who holds an indefeasible title ample opportunity to be heard before that title is affected by action of the Registrar.
  14. Applying these principles, it is plain on the material before the Court that the process in s 160(1) of the Land Registration Act 1981 was not followed in respect of the title of the appellant to State Lease Volume 25 Folio 32, in that:
  15. The reasons of the primary Judge did not engage with these principles, or have regard to them in respect of the decision of the first respondent. In failing to do so we consider his Honour erred. In our view grounds of appeal (i), (ii), (v), (viii), (ix) are substantiated.
  16. Third as the Supreme Court recently reiterated in Peyape v Waiya (2021) SC2109 at [45], a replacement instrument of title or official copy can be made by the Registrar of Titles pursuant to s 162(1) of the Land Registration Act 1981, on the application of the registered proprietor, in only three situations, namely where the instrument of title is lost, destroyed or defaced. The decision of the Registrar of 13 December 2018 appears to have been made following the application for a Replacement Title dated 13 December 2018 by the NHC, which described the relevant land as Lot 07 Section/Milinch 02, Vanimo, WSP, and claimed that the Circumstances of Loss were that the certificate of title was “lost at NHC office”.
  17. Evidence before his Honour was that the NHC had no standing pursuant to s162 of the Land Registration Act 1981 to seek replacement of the relevant instrument of title relating to State Lease Volume 25 Folio 99, because at the time of the application it was not the registered proprietor. His Honour found at [8] that the NHC was the original registered proprietor of State Lease Volume 25 Folio 99, however the fact that the NHC had at one time been the registered proprietor of that State Lease was entirely irrelevant to the operation of s 162 of the Land Registration Act 1981.
  18. Grounds of appeal (iii) and (vii) are substantiated.
  19. Fourth, having regard to material before his Honour and this Court, it is difficult to coherently reconcile:
  20. In this respect there is a serious question arising as to whether there was “such evidence as the Registrar consider[ed] sufficient of the loss” of the instrument of title within the meaning of s 162(2) of the Land Registration Act 1981.
  21. To the extent that the primary Judge failed to engage with this issue, ground of appeal (iv) is substantiated.
  22. Fifth, s 162(4)(d) of the Land Registration Act 1981 provides that when an application under s 162 relates to a lost instrument of title, the Registrar is required to give at least 14 days’ notice of his intention to make a new instrument by advertisement in the National Gazette and in at least one newspaper. The evidence before the Court was that the application for replacement of the instrument of title was made by the NHC on 13 December 2018, however there was no advertisement in the National Gazette in accordance with s 162(4)(d). Rather – and inexplicably – a purportedly relevant gazettal notice was dated 8 November 2018 (National Gazette No G735).
  23. Ground of appeal (vi) is substantiated.
  24. Sixth, in the circumstances it is unnecessary for us to consider whether his Honour ought to have found that the decision of the Registrar was unreasonable in the sense originally explained by the Court of Appeal of England in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223.


REMARKS


  1. As a general proposition, under the Torrens system of land registration as encapsulated by the Land Registration Act 1981, a registered proprietor holds an indefeasible title: Mudge v Secretary for Lands [1985] PNGLR 387, Tagau v Selon Ltd (2018) SC1755. The Registrar has powers to correct the register, however those powers are subject to strict processes set out in the legislation, and which critically give the holder of a title under the Act the opportunity to be put on notice of any proposed correction, and to be heard. Absent the Registrar following those processes, the powers conferred by the legislation to correct the register simply cannot be exercised. In this case it is plain that the Registrar did not follow the processes in ss 160, 161 and 162 of the Land Registration Act 1981.

CONCLUSION


  1. We consider that the appeal should be allowed and the decision of the primary Judge ought be set aside. As to the precise orders we should make, we note that the appellant has in the notice of appeal sought amongst other things, the relief sought in the National Court.
  2. We refer to s 16 (decision etc, on appeal) of the Supreme Court Act, which states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—


(a) adjourn the hearing from time to time; or


(b) affirm, reverse or modify the judgment; or


(c) give such judgment as ought to have been given in the first instance; or


(d) remit the case in whole or in part for further hearing; or


(e) order a new trial.


61. It is unnecessary to remit the case to the National Court. We will invoke the power in s16(c) to give such judgment as ought to have been given in the first instance. We will grant the primary relief sought by the appellant in the National Court: an order in the nature of certiorari, quashing the decision of the Registrar of 13 December 2018 to issue a replacement instrument of title to the fourth respondent and register him as transferee on the State Lease. Costs will follow the event.


ORDER


  1. The appeal is allowed.
  2. The order of the National Court of 12 May 2021 in OS (JR) No 790 of 2019 is set aside.
  3. The decision of the first respondent of 13 December 2018 to issue to the fourth respondent a replacement instrument of title or official copy identified and referenced State Lease Volume 25 Folio 99 in respect of land known as Allotment 7 Section 2 Vanimo, West Sepik Province and register Yan Gui Ping as transferee on the said State Lease, is quashed.
  4. The respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

__________________________________________________________________
Pacific Legal Group Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the First, Second & Third Respondents
Fiocco & Nutley Lawyers: Lawyers for the Fourth Respondent


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