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Roman Catholic Archdiocese of Rabaul v Sam [2019] PGNC 427; N8145 (29 November 2019)

N8145

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO.269 OF 2018

BETWEEN:
ROMAN CATHOLIC ARCHDIOCESE OF RABAUL
First Plaintiff

AND:
3A COMPOSITES PNG LIMITED
Second Plaintiff

AND:
BENJAMIN SAM in his capacity as REGISTRAR OF TITLES
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
MALI IMMER KILIGIA INCORPORATED LAND GROUP
Third Defendant

AND:
PACIFIC REGION DEVELOPMENT LIMITED
Fourth Defendant

Kokopo: Dingake J
2019: 29^th November

JUDICIAL REVIEW - state lease – indefeasibility of title – grounds of review – consideration of - grounds raised by the Applicants are not strong enough to grant the relief sought and are in fact completely overshadowed by principle of indefeasibility - in the absence of fraud and other grounds contemplated by Section 33(1) of the Land Registration Act cannot defeat the indefeasibility of title that accrued to the Third Defendant - application is without merit and is dismissed with costs

Cases Cited

Director of District Administration v Methodist Overseas Mission Trust Association In Re: Vunagamata (1971) PGSC 12
The Papua Club Inc v Nusam Holdings Ltd (No 2) (2004) N2630
Peter O’Neil – Prime Minister, in his capacity as the Chairman of the National Executive Council v Taies Sansan – Acting Secretary for Department of Personnel Management & Orders (OS JR) No. 482 of 2018, N8125

Counsel:

Ms S. Samantha Kiene, for the Plaintiffs
Ms. E. Takoboy, for the First and Second Defendants
Mr. Epita Paisat, for the Third Defendant
Ms. Jacinta Naphal, for the Fourth Defendant

29 November, 2019

1. DINGAKE J: In this judicial review proceedings, the Plaintiffs seek to be reviewed and quashed the decision of the First defendant, taken on the 20^th of December, 2017, to issue and or register title to the Third Defendant, with respect to a piece of land, being Portion 808C, Volume 37, Folio 147, Milinch, Kokopo, Fourmil of Rabaul.
   
2. The First Plaintiff alleges proprietorship of the above piece of land. The Second Plaintiff is a party to these proceedings on account of being a party to a lease agreement, concerning the land, the subject matter of this litigation, with the First Plaintiff
   
3. Leave to institute review proceedings against the First Defendant was issued on the 28^th of May, 2018.
   

4. Strangely, although Leave was granted on the 28^th May 2018, the record (Review Book) shows that the Notice of Motion contemplated by Order 16, Rule 5(1) was filed on the 30^th April, 2018 (pages:90-94 of the Review Book and Item 8 of the Index to the Review Book).

5. In view of what I have said in paragraph 4 above, and its possible implications, I recalled the parties after reserving judgment, to address the Court on the implications of the Notice of Motion in the substantive review application being filed earlier than the granting of leave.

6. It was the view of the Plaintiffs that filing a Notice of Motion in the substantive review application earlier than the granting of leave is not fatal to the application. The Respondents contended to the contrary.
7. Order 16 Rule 5(1) of the National Court Rules provides that:

“5. Mode of applying for judicial review

(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court”.

8. Order 16 Rule 5(1) is clear that the Notice of Motion in the substantive judicial review application can only be filed after the granting of leave. The application for leave and a Notice of Motion under Order 16 Rule 5(1) are different processes, seeking different reliefs. In my mind as a general rule, it would be an abuse of Court process to file a Notice of Motion application for judicial review before leave is granted. Such conduct is generally inexcusable and fatal to the application. As every lawyer well knows every case turns on its own pivot or circumstances. The circumstances of this case may well be different in the context of compliance with Order 16 Rule 5(1), having regard to the holding of this Court per Anis J, discussed briefly below.

9. I am reinforced and fortified in the view I hold, articulated above, by the very pointed remarks by my brother Gavara Nanu J in the case of Peter O’Neil – Prime Minister, in his capacity as the Chairman of the National Executive Council v Taies Sansan – Acting Secretary for Department of Personnel Management & Orders (OS JR) No. 482 of 2018) N8125.

10. I therefore hold that, generally, and not for the purpose of this case, that it is impermissible to file a Notice of Motion contemplated by Order 6 Rule 5(1) earlier than the granting of the leave application.

11. For the purposes of this case my attention has been drawn to the ruling of my brother Anis J delivered on the 21/08/2018, holding in effect that the filing of the substantive Notice of Motion earlier than the granting of leave, in the circumstances of this case was proper. This was in response to an application by the 3^rd Defendant to dismiss the proceedings, for, inter alia, failure to comply with Order 16 Rule 5(1) of the National Court Rules. I will therefore assume, without deciding, on this point only, that this Court has already pronounced itself on the point and there is no need to revisit the point.

12. I turn now to consider the grounds of review of the Plaintiffs.

13. The grounds upon which the relief is sought are as follows:

(a) The First Defendant issued the Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL to the Third Defendant, Mali Immer Kiligia Incorporated Land Group over land described as Portion 808 on the 20 December 2017, after the purported decision of the Land Titles Commission on 11 November 2017 well within the 90 days period allowed for appeal under Section 34(1) of the Land Titles Commission Act 1962, which in effect removed the First Plaintiff’s right of appeal contrary to Section 38(1AA) of the Lands Titles Commission Act 1962.

(b) The First Defendant issued the Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL to the Third Defendant, Mali Immer Kiligia Incorporated Land Group over land described as Portion 808 on the 20 December 2017, after the purported decision of the Land Titles Commission on 11 November 2017 well within the 90 days period allowed for appeal contrary to Section 15(2)(b) of the Land Titles Commission Act 1962.

(c) The First Defendant issued the Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL to the Third Defendant, Mali Immer Kiligia Incorporated Land Group over land described as Portion 808, and in doing so failed to have due regard to the previous title registered to the First Plaintiff contrary to section 16 of the Land Titles Commission Act 1962.

(d) The First Defendant issued the Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL to the Third Defendant without a Conversion Order and conversion plan endorsed by the Land Titles Commission contrary to Section 15 of the Land (Tenure Commission) Act 1963.

(e) The First Defendant issued the Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL to the Third Defendant without an adjudication record endorsed by the Land Titles Commission contrary to Section 25 of the Land (Tenure Conversion) Act 1963.

14. Although the combined affidavit material of all the parties hereto are voluminous the material and dispositive facts of this application are common cause and turn on a very narrow compass.

15. It is common cause that on the 20^th of December, 2017, the First Defendant, the Registrar of Titles, granted a Certificate of Title to the Third Defendant over the portion of land described as Portion 808C Volume 37, Folio 147, Milinch of Kokopo, Fourmil of Rabaul.

16. It is not in dispute that the aforesaid piece of land is commonly known as Putput Mill Site or Putput Mill Sites.

17. The Plaintiffs particularly, the First Plaintiff, are aggrieved by the decision of the First Defendant of registering title of the aforesaid piece of land in the name of the Third Defendant, because it has interest in the land and that in so registering the aforesaid piece of land, the First Defendant did not comply with a number of legislative provisions, captured in paragraph thirteen (13) above.

18. In plain English the Plaintiff’s aver and or argue that the registration of title in the names of the Third Defendant was illegal, which is a recognised ground of judicial review.

19. It is not in dispute that the Land Titles Commission is the authority that processed the application for Certificate of Title to the Third Defendant and that the First Defendant simply registered that title.

20. The Plaintiffs notwithstanding claiming proprietorship of Putput Mill Site did not consider it appropriate to site the Land Titles Commission (LTC) so that they may respond to those aspects of this matter that has a bearing on what they did or failed to do with respect to the land in question.

21. It is common cause that the Plaintiffs, more particularly the First Plaintiff, has no registered title to the piece of land referred to earlier; and there is no Court Order confirming alleged proprietorship of Putput Mill site by the First Plaintiff.

22. From the evidence filed of record it seems plain that Sacred Heart Property Trust, from whom the Plaintiff claims to have inherited the land, once had historical connection or dealings with the land, but all this assertion comes to naught if regard is had to the decision of Land Titles Commission (LTC) taken on the 21^st April 1965, that Sacred Heart Property Trust did not have “restorable interest” in the land known as Putput Mill Site. (page 240 of the Review Book).

23. On the evidence, it seems incontrovertible that following the decision of the LTC of 21^st April, 1965, a conversion Order was issued on the 20^th of October 2016; certified together with the conversion plan on the 3^rd of November 2016, and a notice under Section 14 of the Land (Tenure Conversion) Act was issued on the 12^th of July, 2017, calling upon any person(s) who may be aggrieved by the Conversion Order and wishes to appeal it, to do so by requesting a review of the Land Titles Commission or lodging an appeal with the National Court, within 90 days of the date shown on the Order (Pages 329 -3331 of the Review Book).

24. On the evidence it is clear that the Land Titles Commission was issued on the 20^th of December, 2016, and not on the 11^th of November, 2017, as contended by the First Plaintiff. It therefore seems plain to me that the title was registered on 20^th December 2017, well after the 90 day appeal period under Section 34(1) of the Land Titles Commission of 1962.

26. Section 15 2(b) of the Land Titles Commission Act of 1962 has been complied with. It simply requires the First Defendant, upon receipt of the decision of the LTC, to make such entries in the Registers kept by him in order to give effect to the decision of the Commission.

27. The Registrar of Titles mandate in this regard seems to me to be of a clerical nature as he simply makes necessary entries in the Register once he has received a copy of the decision of the Commission. This is what the First Defendant did in this case.

28. The First Defendant is not the relevant authority to contest any title of land conferred on any person by the LTC. The relevant authority is the LTC. (The Director of District Administration v Methodist Overseas Mission Trust Association In Re: Vunagamata 1971 PGSC 12).

29. Related to the above, it may be appropriate, at this juncture, to say that all the applicant’s complaints relating to whatever the LTC Commission did or did not do, such as failure to inform the Plaintiff of its proceedings; whether LTC made a conversion order and when, are matters which must be directed at the LTC and not the First Defendant. However, as indicated earlier, the Plaintiff failed to cite the LTC, in this proceedings.

30. It is the position of the law that once title has been registered in favour of any person, the owner maintains indefeasibility of title which cannot be invalidated by any unregistered interest (The Papua Club Inc v Nusam Holdings Ltd (No 2) (2004) N2630).

31. The facts and circumstances of this case do not at all bring this case within the exceptions contemplated by Section 33(1) of the Land Registration Act. It appears to me that the applicant’s averment or assertion that the land in question, Portion 808, was acquired by the Gilmores in 1949 and sold to the First Plaintiff in 1951, would not confer any superior title, if any, to the one conferred on the Third Defendant by LTC.

32. The overall view I take is that the grounds raised by the Applicants are not strong enough to grant the relief sought and are in fact completely overshadowed by the principle of indefeasibility alluded to earlier.

33. Put differently, I am clear in my mind that even if I were to find in favour of the applicants that the registration process was fundamentally flawed, in law, (which is not the case), such registration, in the absence of fraud and other grounds contemplated by Section 33(1) of the Land Registration Act cannot defeat the indefeasibility of title that accrued to the Third Defendant.

34. In the result the application is without merit and it is dismissed with costs.
___________________________________________________________
Pacific Legal Services: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the First & Second Defendants
Donald & Company Lawyers: Lawyers for the Third Defendant
Bradshaw Lawyers: Lawyers for the Fourth Defendant