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Lus v Kapera [2017] PGNC 13; N6597 (24 January 2017)

N6597

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 843 OF 2013

JACK LUS AND MARIA LUS
Plaintiffs

V

MEMAFU KAPERA, MANAGING DIRECTOR,
NATIONAL BROADCASTING CORPORATION
First Defendant

NATIONAL BROADCASTING CORPORATION
Second Defendant

Waigani: Cannings J
2015:18^th & 25^th November And
2017: 24^th January

LAND – government land in town area – identification of registered proprietor – whether registered proprietor’s failure to pay land rent and maintain property over long period rendered its title obsolete – whether long-term occupiers of property covered by State Lease can acquire title due to registered proprietor’s failure to maintain property and pay land rent.

The plaintiffs were long-term officers of the second defendant, a statutory corporation, until their retrenchment in 2002 and 2008 respectively. As a condition of employment they occupied a residential property controlled by the second defendant. They remained in occupation of the property after they ceased employment. In 2009 the second defendant asked the plaintiffs to vacate the property, but they declined and commenced proceedings in the National Court (prior to the current proceedings), claiming refund of rent that they had paid on the ground that the second defendant had not maintained the property and had not paid rent as required by the conditions of its State Lease over the property. Judgment was given in their favour in the sum of K11,756.00 in 2009. Further attempts by the second defendant to evict the plaintiffs led the plaintiffs to commence fresh proceedings (the current proceedings) against it, seeking declarations that the plaintiffs own the property, that the prior proceedings determined that the second defendant does not own it and in the alternative that a decision of the second defendant’s board in 1990 allowing retrenched officers to purchase the houses they were living in, applied to them. They also sought a permanent injunction to restrain the second defendant from evicting them or threatening to do so. The second defendant, together with its managing director (the first defendant) opposed all relief sought, and the matter proceeded to trial.

Held:

(1) All relief sought in the originating summons was refused, as: (a) the second defendant was the registered proprietor and had indefeasible title to the property subject only to the exceptions in Section 33(1) of the Land Registration Act, none of which applied; (b) the second defendant’s title had not been rendered obsolete for any of the reasons propounded by the plaintiffs, in that: (i) the second defendant’s failure to maintain the property and (ii) the second defendant’s failure to pay rent over a long period, had no effect on its title and (iii) the previous court proceedings had no effect on the second defendant’s title; (c) the 1990 decision of the second defendant’s board created only an eligibility to purchase the property and it was a matter of discretion for the second defendant to decide whether it wanted to offer the property to the plaintiffs, it was not an entitlement.

(2) The proceedings were dismissed. The National Court order staying eviction of the plaintiffs was dissolved and replaced by a fresh order allowing the plaintiffs a reasonable time to vacate the property and clarifying the procedure in the event that they do not vacate.

Cases cited:
The following case is cited in the judgment:

Mudge v Secretary for Lands [1985] PNGLR 387

ORIGINATING SUMMONS

This was an application for declarations and orders regarding government land within a town area.

Counsel:
B Takin, for the Plaintiffs
C Kup-Ogut, for the Defendants

24^th January, 2017

1. CANNINGS J: The plaintiffs, Jack Lus and Maria Lus, apply for declarations and orders concerning government land in Boroko, National Capital District, which they have occupied for more than 20 years. The property is Section 66, Allotment 52, Maragi Place. The registered proprietor of the property is the second defendant, the National Broadcasting Corporation.
   
2. The plaintiffs were long-term officers of the Corporation, until their retrenchment in 2002 and 2008 respectively. As a condition of employment they occupied a residential property controlled by the Corporation. They remained in occupation of the property after they ceased employment. In 2009 the Corporation asked the plaintiffs to vacate the property, but they declined.
   
3. The plaintiffs commenced proceedings against the Corporation in the National Court (prior to the current proceedings), WS No 550 of 2009, claiming refund of rent that they had paid over many years on the ground that the Corporation had not maintained the property and had not paid rent as required by the conditions of its State Lease over the property. Judgment was given in the plaintiffs’ favour in the liquidated sum of K11,756.00 on 9 December 2009.
   
4. Further attempts by the Corporation to evict the plaintiffs led the plaintiffs to commencing the current proceedings against the Corporation and its Managing Director, Memafu Kapera (the first defendant), seeking various declarations and orders. On 31 December 2013 this Court granted an interim injunction restraining the defendants from evicting the plaintiffs until further order of the court. The injunction remains in place. The defendants oppose all relief sought, and the matter has proceeded to trial.
   

RELIEF SOUGHT

5. The plaintiffs seek declarations that:
   
   • they own the property;
     
   • the prior proceedings determined that the second defendant does not own the property;
     
   • in the alternative, a decision of the Corporation’s board in 1990 allowing retrenched officers to purchase the houses they were living in, applied to them.
     
6. The plaintiffs also seek:
   
   • a permanent injunction restraining the defendants from evicting them.
     

DEFENDANTS’ POSITION

7. The defendants say that the Corporation is the registered proprietor and has been since 1976 when a 99-year State Lease was granted to the then National Broadcasting Commission. It says that the plaintiffs have continued to resist the Corporation’s reasonable attempts over many years to get them to leave the property, so that it can be used by the Corporation to provide accommodation to its current employees. The plaintiffs have commenced proceedings in the District Court, which were dismissed, commenced the earlier National Court proceedings, WS No 550 of 2009, which gave them a victory, of sorts, but had no bearing on the Corporation’s title, and managed by some irregular means to have an unregistered transfer to the first plaintiff, Mr Lus, published in the National Gazette No G234 of 21 June 2012, which, however, due to the Corporation’s lawful intervention, has never been registered.
   

CONSIDERATION

8. After consideration of all the evidence and the submissions of Mr Takin for the plaintiffs and Mr Kup-Ogut for the defendants, I have come to the view that this is, actually, despite the long period that the dispute has been in and out of the courts, a clear-cut case. I refuse all relief sought in the originating summons for the following reasons:
   
   • (a) The Corporation is and has been since 1976 the registered proprietor.
     

The Corporation holds indefeasible title to the property subject only to the exceptions in Section 33(1) of the Land Registration Act, none of which apply or have been argued to apply (Mudge v Secretary for Lands [1985] PNGLR 387). The State Lease was granted to the National Broadcasting Commission on 5 February 1976. The Commission’s name was changed to the National Broadcasting Corporation by the Broadcasting Commission (Change of Name and Corporate Structure) Act 1995. That Act introduced new provisions into the Broadcasting Act 1973, which ensured that State Leases and other instruments in the name of the National Broadcasting Commission continued with the same force and effect as if they were expressed in the name of the National Broadcasting Corporation. For example, Section 32 (transfer of assets etc to the Corporation) states:

(1) All assets occupied or held by the Commission and all obligations and liabilities of the Commission immediately before the coming into operation of the Broadcasting Commission (Change of Name and Corporate Structure) Act 1995 are, on that coming into operation, transferred to the Corporation.

(2) Where any property vested in the Commission is land registered under the Land Registration Act (Chapter 191), the Registrar of Titles shall, without formal transfer and without fee, on application in that behalf by the Corporation, enter on register the Corporation in the Register Book and, on entry or registration, grant a certificate of title, lease or other instrument evidencing title of the land, as the owner of the land within that Act.

(b) The Corporation’s title has not been rendered “obsolete”.

9. None of the reasons propounded by the plaintiffs make the Corporation’s title obsolete. As a matter of law, there is no such thing as an obsolete title. In any event:
   
   • (i) the Corporation’s failure to maintain the property, had no effect on its title,
     
   • (ii) the Corporation’s failure to pay rent over a long period, had no effect on its title, and
     
   • (iii) the previous court proceedings, WS No 550 of 2009, had no effect on the Corporation’s title, as title was not an issue in the proceedings and the order of the Court, ordering the Corporation to pay a liquidated sum to the plaintiffs, said nothing about title.
     

(c) The 1990 decision of the National Broadcasting Commission board did not give a right to purchase.

10. That decision created only an eligibility to purchase the property. It was always a matter of discretion for the Commission, later known as the Corporation, to decide whether it wanted to offer the property to the plaintiffs. It was not an entitlement.
    

CONCLUSION

11. The proceedings will be dismissed. As to costs, I note that in the previous proceedings, WS No 550 of 2009, in which the plaintiffs were successful, there appears to have no order for costs. In view of that history and the circumstances of this long-running dispute, it is appropriate that the parties bear their own costs. The National Court order staying eviction of the plaintiffs will be dissolved and replaced by a fresh order allowing the plaintiffs a reasonable time to vacate the property and clarifying the procedure in the event that they do not vacate. The terms of the order represent an exercise of the Court’s discretion under Section 155(4) of the Constitution to make such orders as are necessary to do justice in the circumstances of this particular case.

ORDER

(1) All relief sought in the originating summons is refused and the proceedings are dismissed.

(2) The order of 31 December 2013 in these proceedings is dissolved and replaced by this order.

(3) The plaintiffs and all other persons in occupation of the subject land, Section 11, Allotment 28, Maragi Place, Boroko, shall, at their own cost, vacate the land, removing all their properties and possessions, by 12 noon on 24 February 2017, leaving the land and its improvements, including all buildings on it, in good order and condition.

(4) If the plaintiffs and other persons in occupation of the subject land fail to comply with order (3), the defendants and the Police are authorised, from 12 noon on 24 February 2017, to take all reasonable steps necessary to remove the plaintiffs and other persons in occupation of the subject land, from the land, including the use of reasonable force, and to seize and destroy their properties and possessions, provided that such steps are taken under the supervision and control of the most senior member of the Police Force available at that time in the vicinity of the subject land.

(5) The parties will bear their own costs.

(6) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

_______________________________________________________________
BT Gobu & Associates Lawyers: Lawyers for the Plaintiffs
Ninai Lawyers : Lawyers for the Defendants