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Tumba (trading as Kamkumung Bakery) v Samson [2020] PGNC 468; N8721 (30 September 2020)

N8721

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 234 OF 2015

BETWEEN:
TITUS TUMBA trading as KAMKUMUNG BAKERY
Plaintiff/Applicant

AND
BENJAMIN SAMSON, Registrar of Titles, Department of Lands & Physical Planning
First Respondent/ Defendant

AND
MOROBE PROVINCIAL GOVERNMENT
Second Respondent/ Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent /Defendant

Lae: Dowa AJ
2020: 16^th June & -----30^th September

JUDICIAL REVIEW – review of decision made by Registrar of Titles cancelling the Plaintiff’s title over a property - title to property restored back to the original owner who is the Second Respondent on allegations of fraud – plaintiff seeks orders in the nature of certiorari to bring into court and quash decision of first respondent in cancelling the title to land and restoring back to the second respondent – respondent oppose plaintiff’s application on the basis that the alleged contract of sale was fraudulent orchestrated by the plaintiff, the second Defendant did not enter into any contract for the Sale and Transfer of the property to the Plaintiff, the First Defendant followed due process in cancelling the registration of transfer - whether plaintiff has standing to institute proceedings – whether plaintiff is entitled to judicial review and the reliefs sought in the notice of motion

CONTRACT – doctrine of privity of contract – whether plaintiff has standing to bring the proceedings - as he was not a party to the initial agreement – plaintiff cannot enforce contract as he is not a privy to the contract – second defendant’s application is upheld and plaintiff’s proceedings are dismissed for lack of standing

EQUITY – maxim that “ he who seeks equity must come with clean hands” – Court should not readily give relief to a person who seeks enforcement of a right, a protection of an interest or a claim for a property which right or interest he has in the first place obtained or acquired through some illegal, fraudulent or improper means - A person should not be allowed to benefit from his misdemeanours - plaintiff has not come with clean hands - orders sought by the Plaintiff in the proceedings is refused

COSTS - costs follow event – plaintiff to pay costs of the defendants to be taxed if not agreed

Cases Cited:

Ace Guard Sentry Services v Lailai (2004) SC757
Beno Maoko v Kevin Ling & Ors (2017) N6976
Christian Life Centre v Associated Mission Churches of PNG (2002) N2261
Kekedo v Burns Philp (1988-89) PNGLR1227
Komit Kunai & Sunam Komit v Finance Corporation Ltd (2016) N6581
Mao Zeming v The State (2006) N2998
Obudsman Commission v Yama (2004) SC747
PNGBC v Barna Amevo and Bari Investments (1998) N1726
Raina No.1 Ltd v Elisah (2015) N6051
Sabako v Commissioner for Police (2006) N2975
Tau Kamahuta v Sode (2006) N3067

Counsel:

L. Dos, for the Plaintiff
D. Poka, for the Second Defendant
S. Maliaki, for the First and Third Defendants

DECISION

30^th September, 2020

1. DOWA AJ: The Plaintiff applies for Judicial Review of a decision made by the Registrar of Titles, cancelling the Plaintiff’s title over a property described as Allotment 9 Section 362, Lae, Morobe Province and issued a new official copy of the title to the Morobe Provincial Government, the Second Defendant.
   

FACTS

2. The Plaintiff, Titus Tumba, trading as Kamkumung Bakery alleges, he is the current owner of a property described as Section 362, Allotment 9, Lae, Morobe Province, under State Lease Volume 12, Folio 127.
   
3. The Second Defendant, Morobe Provincial Government is the original registered owner of the land described as Section 362, Allotment 9, Lae, Morobe Province, State Lease Volume 12 Folio 127.
   
4. The Plaintiff alleges he purchased the property from Morobe Provincial Government, the Second Respondent on or about 26^th September 2004. On 4^th November 2004, the transfer of title of the property was registered in the name of the Plaintiff.
   
5. On 16^th May 2011, the Plaintiff’s title to the property was cancelled by the First Defendant. The title to the property was restored back to the original owner, Morobe Provincial Government, the Second Respondent.
   
6. The title was cancelled by the First Defendant on complaint by the Morobe Provincial Government that the property was then illegally transferred.
   
7. The Plaintiff alleges, the First Respondent did not comply with the statutory requirements and procedures under sections 160,161 and 162 of the Land Registration Act, when he made those decisions in cancelling the Plaintiffs title issuing a title to the Second Respondent.
   
8. The Plaintiff seeks an order in the nature of Certiorari, pursuant to Order 16(1) Rule 3 of the National Court Rules to move into this Court and quash the decisions of the First Respondent made on 16^th May 2011:- by way of entry:-
   
   1. No. N.17659 cancelling entry No. V10908 made on 1^st November 2004 registering the Applicant as the owner of the Property, and
      
   2. No. N.17660 issued an office copy of the State Lease of the said property to Morobe Province Provincial Government.
      
9. The Respondents oppose the application for the following reasons:
   
   1. The alleged Contract for Sale and transfer was executed by fraud, orchestrated by the Plaintiff.
   2. The Second Defendant did not enter into any contract for the Sale and Transfer of the property to the Plaintiff.
   100. The First Defendant followed due process in cancelling the registration of transfer.
   4. The Plaintiff, Titus Tumba has no standing to institute the proceedings
   5. Kamkumung Bakery Ltd has no legal capacity to contract.
      

Issues

10. (1) Whether the Plaintiff has standing to institute the proceedings.

(2) Whether the Plaintiff is entitled to Judicial Review, and the reliefs sought in the Notice of Motion.

EVIDENCE

11. The Plaintiff relies on the following documents in support of the Application.
    
1. Originating summons filed 01/05/2015
2. Notice of Motion filed 1/05/2015
3. Statement Pursuant to Order 16 Rule (3)
4. Affidavit of Titus Tumba filed 01/05/2015
5. Affidavit of Titus Tumba filed 23/11/2015
   
12. The First and Third Defendants have filed and rely on the following affidavits:
    
    1. Affidavit of Jacinta Napal filed 28/09/2015
    2. Affidavit of Benjamin Samson filed 28/09/2015
    100. Affidavit of Sonja Hoa filed 30/010/2015
         
13. The Second Defendant rely on the following documents:
    

a) Affidavit of Jonah Suvi filed 30/10/2015

b) Affidavit of David Poka filed 5^th March 2020

c) Notice of Motion filed 13^th February 2020.

14. The Parties have relied on written submissions, as well as oral submissions.
    

Part one: Preliminary Issue. Does the Plaintiff have standing to bring these proceedings?

15. At the commencement of hearing, the Second Respondent raised a preliminary issue on competency of the proceedings. By Notice of Motion, the Second Respondent applied for the dismissal of the proceedings for want of locus standi in that the Plaintiff has no standing to bring these proceedings.
    
16. The Application is made under Order 16, Rule 13(13)(2)(a) and (b) of the National Court Rules. I set out the relevant sub rule below:
    

“(2) Summary disposal

(a) Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.

(b) The Court may summarily determine a matter:

(i) On application by a party; or
(ii) On the Court’s own initiative; or
(iii) Upon referral by the Registrar in accordance with the procedure set out in (c) below.“

17. The sub rule gives the jurisdictional basis to the Second Defendant to bring this application by way of Notice of Motion, on the basis of competency. At the hearing of the application for substantive judicial review, I granted leave to the Second Defendant to raise the issue of locus standi as a preliminary matter. In my view it was open for the Second Defendant to raise it on the basis that the Second Defendant did not have the opportunity at the leave stage. This view was also expressed in Gabi v Nate (2006) PGNC178; N4020 where Injia J (as he then was) said this at paragraphs 6 and 7 of the judgment:
    

“6. I deal with competency issues first.

7. Issues No. 1 and 3 are normally dealt with at the leave stage but because the respondents were not heard, I granted to them leave to make those arguments, on the basis that the competency issues remain open to be addressed by the Court until final disposition”

Submissions of Counsel for Defendants

18. Mr Poka, Counsel for the Second Defendant submits that the Plaintiff, Titus Tumba trading as Kamkumung Bakery does not have standing. Mr Poka submits that the initial Contract for Sale of the subject Land was executed by parties other than the Plaintiff. The names on the Contract for Sale and Transfer Instrument were Morobe Provincial Government as vendor and one Kamkumung Bakery Ltd as purchaser. Mr Poka submits that the transferee, registered at the Titles office is Kamkumg Bakeries Ltd, a company. In the circumstances, Mr Poka argues that Titus Tumba trading as Kamkumung Bakery is a stranger to the transaction.
    
19. Ms. Maliaki, counsel for the First and Third Defendants support the application by the Second Defendant for the same reasons.
    
20. To better understand this line of submission, let me set out the details shown on the Contract for Sale, the Transfer Instrument, and entries at the Titles office.
    
21. Terms of Contract for Sale
    

22. The name of Purchaser, Kamkumung Bakery Limited appears three times in the Contract for Sale, at cover page, pages 1 and the execution page. There is no doubt, the name of the purchaser in the contract for sale is Kamkumung Bakery Limited.
    
23. Following are details shown on the Transfer Instrument.
    

TERMS IN TRANSFER INSTRUMENT, as executed by parties.

24. There is no doubt, the purchaser or transferee is Kamkumung Bakery Ltd, a company.
    
25. Details of Entry Shown on Title Deed at the Titles Office; Lands Department are:
    

26. The entries shown at the Office of Registrar of Titles are:
    

27. There is no doubt, the name of the entity which purchased the property is Kamkumung Bakery Ltd, a company. The name registered in the State Lease at the Land Titles Office is Kamkumg Bakeries Ltd, also a company.
    

Submissions by counsel for Plaintiff

28. The Plaintiff alleges, that the entry made at the office of Registrar of Titles was a mistake. He sought an amendment under section 153 of the Land Registration Act in 2013 and the owner’s copy was amended, by crossing the words “Kamkumg Bakeries Ltd” and inserting with “Kamkumung Bakery”.
    
29. In respect of the alleged amendment, Mr Poka submits, the amendment was not done in accordance with Section 153(1) and (2) of the Land Registration Act 1996 in that, the amendment:
    
    • (a) is not in relation to the description of the boundaries, area or portion of land (the Property) in the Certificate of Title: or
      
    • (b) is not in relation to a description which is erroneous or imperfect on the face of the Certificate of Title; or
      
    • (c) is not in relation to land, part of which, by reason of an error in survey or mis-description actually occupied in good faith by another person.
      
30. Section 153(1) and (2) of the Land Registration Act provides and I quote:

“ (1) Where–

(a) the description of the boundaries, area or position of land in a certificate of title differs from the boundaries, area or position of land–

(i) actually occupied in good faith by the proprietor named in the certificate of title; and

(ii) purporting to be so occupied under the title in respect of which the certificate issued; or

(b) the certificate of title of a proprietor contains a description which is erroneous or imperfect on the face of it,

the proprietor may apply in the approved form for amendment of the certificate of title.

(2) Where the certificate of title of a person relates to land–

(a) part of which, by reason of an error in survey or mis-description is actually occupied in good faith by another person (in this subsection called “the occupant”) together with the land described in the occupant’s certificate of title; and

(b) the title to the land so occupied has not been determined against the occupant in a contested proceeding in which the right to that land was in question,

the occupant may apply in the approved form for amendment of the certificate of title.“

Reasons for Decision

31. I agree with Mr Poka’s submission. In my view, the amendment done is not for any one of the purposes prescribed under Section 153(1) and (2) of the Land Registration Act. The amendment was for a change of name of proprietor. The alleged amendment was done, in 2013, almost two years after the cancellation of transfer of Title. I note, there is no corresponding amendment done on the official copy of the Title Deed. The Plaintiff did not explain how the mistake was made and who was responsible for the incorrect entries. In my view the amendment is improper, dubious and illegal.
    
32. For the foregoing reasons, I conclude, up to the date of filing these proceedings, the parties to the Contract of Sale remains Kamkumung Bakery Ltd and the name of transferee registered on the Title Deed was Kamkumg Bakeries Ltd.
    
33. The Plaintiff in the current proceedings is a stranger to the parties involved in the conveyance, and the registration of title. He is not a privy to the contract for sale executed on 26^th September 2004. He is clearly not registered as proprietor of the subject property shown on the Register of Titles.
    

Case Law

34. What then is the consequence of someone who is not a party to a contract seeking to enforce or rely on it. There is a string of cases that settled the law in this jurisdiction in respect of privy of contract; that a person who is not a party to a contract which he seeks to enforce, is precluded from enforcing it by the doctrine of Privy of Contract. See PNGBC v Barna Amevo and Bari Investments (1998) N1726; Christian Life Centre v Associated Mission Churches of PNG (2002) N2261, Beno Maoko v Kevin Ling & Ors (2017) N6976, Komit Kunai & Sunam Komit v Finance Corporation Ltd (2016) N6581; and others.
    
35. In PNGBC v Amevo (supra), Sevua J, (as he then was) said this at page 3 of his Judgment.
    

“The Second Defendant is not a party to that contract. The doctrine of privity of contract is that, as a general rule, a contract cannot confer rights or impose obligations arising under it on any person except the parties to it. The scope of the doctrine means only that a person cannot acquire rights, or be subjected to liabilities, arising under a contract to which he is not a party.”

36. In Christian Life Centre v Associated Missions Churches, His Honour, Lenalia J (as he then was) said this at page 8 of his Judgment:
    

“In the law of contract, a contract creates rights and obligations only between the parties to it. A contract does not confer rights on a stranger nor does it impose any obligations on the same. It is a fundamental principle of common law, that no person can sue or be sued on a contract unless he or she is a party to it: Dunlop Pneumatic Tyre Co. Lt. v Selfridge & Co. Ltd [1915] UKHL 1; [1915] A.C 847. The doctrine of privity means a contract cannot as a general rule confer rights or impose obligations arising under it on any person except the parties.”

37. Applying the above principles, I find the Plaintiff, Titus Tumba, either personally or trading as Kamkumung Bakery was not a party to the contract for sale and the subsequent registration of transfer of Title. He is a complete stranger. The alleged contract of sale was between Morobe Provincial Government and Kamkumung Bakery Ltd. Kamkumung Bakery Ltd held itself out as a company. The documents were executed under a company seal in the presence of company director, one Lindsay Gedion. It is not open for Mr Titus Tumba to claim he was a silent party and he participated behind the scenes or that the name of the purchaser was a mistake. The alleged contract for sale involved a prime commercial property and therefore it appears to be a serious commercial transaction. The correct identities of contracting parties are a necessity for a valid and legally binding contract.
    
38. For these reasons I uphold the application by the Second Defendant and dismiss the Plaintiffs entire proceedings for lack of standing.

Lack of Capacity: Nullity

39. The second leg of the application relates to lack of legal capacity of party creating legal rights and obligations.
    
40. According to the Affidavit of Sonja Hoa filed, 30^th October 2010, a search at the Office of Investment Promotion Authority reveal that there are no records of Kamkumung Bakery Limited and Kamkumg Bakeries Limited, being registered as companies with the Registrar of Companies. They were both unregistered and not existent. This fact is not disputed.
    
41. The inference and conclusions open to be drawn from the undisputed facts are: at the time, when Kamkumung Bakery Limited entered into a Contract for Sale with the Morobe Provincial Government, it had no capacity as a legal entity. The transfer instrument executed to transfer title of property to Kamkumung Bakery Ltd was a nullity as the later lacked capacity as a legal entity. Consequently, a subsequent Registration of Transfer of Title from Morobe Provincial Government to Kamkumung Bakery Ltd or Kamkumg Bakeries Ltd, was a nullity.
    
42. One of the necessary elements of a legally binding contract is that a party must have legal capacity to contract. In the present case, it is clear the Purchaser, Kamkumung Bakery Ltd, did not have capacity to contract due to the legal entity being non-existent. Consequently, no enforceable rights were created which can now be enforced.
    
43. The law on this issue is settled in this jurisdiction. The case on point is Ace Guard Dog Security Services Ltd v Lailai (2004) SC757. The Supreme Court said at page 7 of the judgment and I quote:
    

“For these reasons, the Appellant is not an incorporated company and therefore without any legal personality. The law in this regard is clear. Counsel for the Respondent submits that consequence of the non-existence of the Appellant is fatal to the appeal. He relied on passage from Halsbury, 4th Edition, Vol 37, para 241:

"A corporation, whether incorporated by charter, statute or registration, or a company, whether incorporated by special statute or registered under the Companies Act, must sue or be sued in its corporate title or registered name,, as the case may be. A corporation which has ceased to have any juristic existence cannot sue or be sued"

Counsel for the Respondents further rely upon the proposition that under its inherent jurisdiction a superior court of record has power to order the stay of proceedings in circumstances where the proceedings are instituted or continued without lawful authority by the plaintiff and in particular where the action was brought in the name of a non-existent company (Larzard Bros & Co v Midland Bank Limited [1933] AC 289)

We find that the Appellant is not incorporated as a company and therefore has no legal standing. It is therefore incompetent to institute the appeal.”

44. The Supreme Court decision is followed and applied in many other cases including the case of Kalan Constructions v Cheqq (2014) N5665.
    
45. Applying the principles in the present case, the proceedings can be dismissed for this reason.
    

Substantive Application for Judicial Review

46. Even though, I dismissed the proceedings on technical and competency issues, I intend to also make a ruling on the substantive application for judicial review. In the substantive proceedings, the Plaintiff, alleges the procedures and processes under sections 160, 161 and 162 of the Land Registration Act were not complied with, when the First Defendant cancelled the Plaintiffs title, and issued a replacement title to the Morobe Provincial Government.
    

Issues

47. The relevant issues for consideration are:
    
    1. Whether or not the First Respondent followed the procedures under:
       
    1. Section 160 and 161 of the Land Registration Act, when he made a decision to cancel the Transfer of Title of the said property, and
    2. Section 162 of the Land Registration Act to issue an official copy of the Title Deed to the Morobe Provincial Government.
       
    2. Whether or not Natural Justice and procedural fairness was accorded to the Plaintiff by the First Respondent, when he made a decision on 16^th May 2011 to cancel the Title held by the Plaintiff and the issuance of a Title Deed to the Morobe Provincial Government.
       
    100. Whether or not the First Defendant acted ultra vires or beyond his powers imposed under section 160 to 162 of the Land Registration Act.
         
    4. Whether or not the decision was unreasonable.
       
    5. Whether or not Judicial Review can be granted in terms sought by the Plaintiff.
       

LAW

48. The application for judicial review is made pursuant to Order 16 of the National Court Rules. The law on application for judicial review is settled. Judicial review is concerned with the decision- making process. The circumstances in which judicial review is available are where the decision- making authority exceeds its powers, commits an error of law, commits a breach of natural justice, makes a decision that is so unreasonable or is an abuse of power. See: Kekedo v Burns Philp (1988-89) PNGLR122. A favourable finding on the grounds for review does not automatically entitle the applicant to the orders he seeks. The Court has a discretion and can refuse the relief on equitable grounds. Mao Zeming v The State (2006) N2998 and Tau Kamahuta v Sode (2006) N3067
    
49. In the present case, the Land Registration Act is applicable. The relevant provisions are sections 160, 161, 162 and 33, parts of which read and I quote:
    
    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......”

55. Section161 reads and I quote:

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.

1. 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.”

The Plaintiffs Submissions

50. The Plaintiff submits that the procedures under sections 160 and 161 were not followed before the First Respondent made a decision on 16^th May 2011 to cancel the registration of the Plaintiff as proprietor of the property. The Plaintiff submits, he was the registered proprietor since 2004 when he purchased the property from the Second Defendant through their agent one Mr Kupe Mape who had a registered Power of Attorney. The Plaintiff submits, the contract entered between the Plaintiff and Mr Mape on behalf of the Morobe Provincial Government was binding on all parties for all purposes.
    
51. The Plaintiff submits that at all material times the title deed was with him. The defendants did not ask him or send a letter or a summons to his known postal address to show cause why they were considering cancellation of the title deed. He was not given an opportunity to respond. He was not advised of the decision by the First Defendant. He was surprised when he found out some years later that the transfer of title to him was cancelled and a new title deed was issued in the name of the Morobe Provincial Government.
    
52. Mr Dos, counsel for the Plaintiff submitted the First Defendant should have but did not take the following steps before cancelling the title held by the Plaintiff:
    

(1) Issue a summons to the Plaintiff to deliver up the title deed

(2) If step 1 not complied, apply to the National Court to summons the Plaintiff to appear in Court to show cause why the instrument should not be delivered, and to take further steps in ensuring compliance.

(3) And thereafter, Cancel the Title after taking steps 1 and 2.

53. Mr. Dos submits that natural justice and procedural fairness was not accorded to the Plaintiff by the First Respondent, when he made a decision on 16^th May 2011 to cancel the Title held by the Plaintiff and the issuance of a Title Deed to the Morobe Provincial Government.
    
54. The Plaintiff submits further that the First Defendant acted ultra vires or beyond his powers imposed under section 160 to 162 of the Land Registration Act.
    
55. The Plaintiff submits that the first Defendants’ decision was unreasonable
    
56. The Plaintiff therefore submits that Judicial Review be granted in terms sought in the application.
    

The First Defendants Submissions

57. Ms Maliaki, Counsel for First Defendant opposes the Plaintiffs Application. She relies on the evidence of Mr. Benjamin Samson, the First Defendant. Mr. Samson deposes in his affidavit filed 28/10/2015 that on 21^st September 2004, a State Lease over the subject property was issued to Morobe Provincial Government. On 26^th September 2004, the property was sold to Kamkumung Bakery Ltd. On 4^th November 2004, the transfer was registered under the name Kamkumg Bakeries Ltd. On 26^th March 2007, the Registrar of Titles then issued a Registrar’s Caveat after receiving complaints from Morobe Provincial Government that the property was fraudulently sold to Kamkumung Bakery Ltd, without their knowledge and consent. On 4^th August 2010, their office received a written complaint from Morobe Provincial Government requesting cancellation of the illegal transfer of title.
    
58. On 12^th November 2010, the then Deputy Registrar wrote a letter to Kamkumg Bakery Ltd to deliver up the Title within 14 days. The letter contained a warning that if the title was not delivered within the said 14 days the Title would be cancelled and a new title would be issued to Morobe Provincial Government. The Plaintiff did not deliver up the Title. After receiving no response, he assessed the contract and transfer documents and formed the view that this was a fraudulent dealing. He deposes, there was no proper signatures on the execution pages. There was no evidence of Power of Attorney. The purchase price of K700.00 was too low for a prime commercial land. He was satisfied that the deal fell under section 33(1)(a) of the Land Registration Act where the title was fraudulently transferred. On 16^th May 2011, the transfer to the Plaintiff was cancelled and thereafter, an official copy was issued to the Morobe Provincial Government. He deposes that the title which the Plaintiff claims to have was illegal and not legitimate.
    
59. Based on the evidence of Mr. Samson and also of the Plaintiff, Titus Tumba, Ms. Maliaki submitted that the First Defendant properly exercised his powers to cancel the title under sections 160, 161 and 162 of the Land Registration Act due to the fraudulent transfer of title. This was done after issuing a summons by a letter dated 12^th November 2010 to the Title holder warning of the actions he was contemplating. Ms Maliaki submitted the plaintiff was not a legitimate and indefeasible title holder under section 33 of the Land Registration Act. The title was defective and invalid due to it being transferred by fraud. Ms Maliaki submitted that the Morobe Provincial Government did not sell the property. The Administrator did not sign the contract for sale and the transfer. There was no evidence of a properly executed Power of Attorney in place at the relevant time and that Mr Kupo Mape was not a public servant and not a properly delegated Officer of the Second defendant. The purchase price of K700.00 was far too low for a big prime land. It is unbelievable and too good to be true. Ms Maliaki submits further that the State Lease was issued on 21st September 2004 and was sold 26^th September 2004, just five days after grant of State Lease is dubious. Finally, she submits that the purchaser, Kamkumung Bakery Ltd, was at that time not registered and had no legal capacity to enter into a contract.
    
60. For these reasons Ms Maliaki submitted that the decision made by the First Defendant was not unreasonable. There was nothing unfair or procedurally wrong.
    

The Second Defendant’s Submissions

61. Mr Poka, Counsel for the second Respondent relies on the evidence of Jona Suvi. Mr.Suvi is the Provincial Program Advisor for Morobe Provincial Administration. He deposes that the Contract for Sale executed between Kamkumung Bakery Ltd and Morobe Provincial Government was fraudulent. The Morobe Provincial Government did not sell the land to Kamkumung Bakery or the Plaintiff. The Morobe Provincial Administration did not authorise anyone including Kupo Mape to sell and transfer the land to anyone. Mr Suvi deposes that the Morobe Provincial Government did not execute a Power of Attorney to Kupo Mape. He deposes that the Contract for Sale and Transfer were not signed and executed by Mr Kemas Tomala, who was the Provincial Administrator at the material time. The Provincial Administrator is the only authorised officer who executes instruments on behalf of the Provincial Government under section 74 of the Organic Law on Provincial and Local Level Government.

62. Mr Suvi deposes that upon realising the fraudulent transaction, the Morobe Provincial Government requested the Minister for Lands and the Department of Lands to cancel the transfer of Title. He deposes that the transfer was cancelled, and a new Title was issued to the Morobe Provincial Government.

63. Mr Poka of counsel for the Second Defendant made similar and identical submissions to that of the First defendant.

Reasons for Decisions

64. As I stated earlier, the law on application for judicial review is settled. The question of whether the First Defendants decision ought to be quashed by way of judicial review of certiorari for non-compliance of procedures under section 160-162 of the Land Registration Act is discretionary. See: Mao Zeming v Hinchiffe (2006) N2998, Tau Mavaru Kamuta v David Sode (2006) N3067. Sabako v Commissioner for Police (2006) N2975, Ombudsman Commission v Yama (2004) SC 747.
    
65. In Mao Zeming, Injia DCJ (as he then was) said at page 12 of his Judgment.
    

“At the same time, the question of whether the tribunals decision ought to be quashed by way of judicial review of certiorari for this fundamental breach of procedure is discretionary. This discretion is exercised with caution and in appropriate cases, taking into account the sum effect of all relevant considerations. In relation to application for judicial review of decisions of leadership tribunals on grounds of breach of prescribed procedure designed to afford natural justice to parties, the decision should not be readily quashed unless the procedural manner in which the entire proceedings were conducted by the tribunal resulted in some real and substantive injustice caused to the Plaintiff in terms of denying natural justice.

66. In Taumata Kamuta v Sode (2006) N3067, Injia DCJ (as he then was) again at paragraph 35 of his judgment said:
    

“35. The answer to the second part of the question depends on what one considers to be good reason(s) for decision. The public authority has wide discretion in formulating the reasons for its decision which it considers relevant and appropriate to the case before it. There is an element of subjective assessment on the part of the public authority in forming a judgment as to what constitutes sufficient reasons for a decision in the case before it. The nature and extent of reasons given for a decision will depend on the nature and scope of the discretionary power vested by law in the public authority and its application to the facts of the case. The facts of each case are always different and it is difficult to lay down any general principles applicable to every case. Generally speaking, in my view, a good reason(s) is one which is acceptable as being logically sound, relevant to the subject at hand, constructive, rational, sensible and above all, one which is proper and reasonably sufficient having regard to the nature and scope of the discretionary power vested in the decision-making authority and a proper application of that power to the relevant circumstances of the case before it, in a fair and objective manner. The rationality or reasonableness of the reasons given for a decision traditionally falls under the common law principle of unreasonableness laid down in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 (Wednesbury principles) which has been adopted and applied in many cases in this jurisdiction.

67. His Honour then referred to the case of Ombudsman Commission v Peter Yama (2004) SC747 where the Supreme Court summarized the Wednesbury principles at page 15 of the judgement:
    

1. It must be a real exercise of the discretion;

2. The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
3. It must ignore irrelevant considerations;
4. It must not operate on the basis of bad faith or dishonesty;
5. It must direct itself properly in law; and

6. It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

68. His honour continues at paragraph 36 and 37 of his judgment:
    

“36. The sixth and last sub-principle best sums up the Wednesbury principle. The decision is so unreasonable and absurd and one which no reasonable decision-maker could have made in the circumstances: Paul Saboko v Commissioner for Police (2006) N2975, per Cannings J. The test of reasonableness under the Wednesbury principle is a high and restrictive one, for several reasons:

(1) Judicial review is an equitable remedy and very much discretionary. The exercise of this jurisdiction is guided by principles of equity adopted under Schedule 2.2 of the Constitution. Two of those principles of equity which I consider to be relevant in the instant case are that equity follows the law and he who seeks equity must come with clean hands: see Mainland Holdings v Paul Stobbs & Ors (2003) N 2522;

(2) Judicial review is not available to examine the reasoning of the authority which is empowered to make the decision, with a view to substituting the court's own decision but it is concerned with the decision-making process: Burns Philp v Rose Kekedo [1988-89] PNGLR 122;

(3) The decision is largely an administrative one and the administrative decision-maker is in a good position to form a judgment on matters of an administrative nature. The Court must pay greater deference to the reasons for decision given by the decision-maker and more reluctant to interfere with the reasons given except in special cases which call for the exercise of judicial discretion; and

(4) The court must be reluctant to interfere with the administrative decision which is supported by reasons except where the reasons given for the decision are so untenable, so unreasonable and so absurd that they amount to an abuse of power and offend established principles on proper exercise of statutory power and public interest in good administration. In other words, the reasons given are so unthinkable and absurd that "no sensible person could ever dream that it lay within the powers of the authority": Wednesbury's case, per Lord Green. In Peter Peipul v Justice Sheen & Others, (2002) SC706, Kapi DCJ (as he then was), after referring to Lord Green's statement in Wednesbury's case adopted and applied the principles in R v Hillington London Borough Council [1986] UKHL 1; [1986] AC 484 at 518 as follows:

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity (for example, breach of natural justice), or unreasonableness in the Wednesbury sense - unreasonableness verging on absurdity...Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and the fact involves a broad spectrum ranging from the obvious to the debatable to the conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely".

37. These principles underpin the fundamental principle of public administration that the Court should not interfere in the day to day running of a public body unless it is clearly wrong and the decision for the reasons given should not be allowed to stand in the public interest in good administration and in the interest of justice.”

69. I adopt and apply the principles discussed and applied in the above cases to the present case. The First Defendant made an administrative decision to cancel the registration of Transfer of title and issue a new title to the Second Defendant. In his assessment the transfer was done fraudulently. He had the benefit of studying the contract for Sale and Transfer in the light of complaints being raised by the Morobe Provincial Government. He arrived at the conclusion that the Title held or kept by the Plaintiff was defective and tainted with fraud under section 33 of the Land Registration Act.
    
70. Before he made the decision to cancel the Title, the Defendants office issued a letter to the registered title holder to deliver up the Title to the Registrar of Titles in accordance with section 160 of the Land Registration Act. The Title holder did not deliver the Title. Thereafter the First Defendant proceeded to cancel the Title and issued a new Title to Morobe Provincial Government under sections 161 and 162 of the Land Registration Act. The Plaintiff asserts that he is the Title holder and him being the Title holder denied receiving the letter. It is not clear whether the letter reached the Title holder. What is clear though is the letter was sent to Kamkumung Bakery limited, the registered title holder. And the Plaintiff, Titus Tumba, is not the registered proprietor as such.
    
71. The letter clearly spelt out the reasons that the transfer registered on the Title was a fraud and that the title be surrendered within 14 days failing which will result in the cancellation of the title and the issuance of an official title to Morobe Provincial Government, the legitimate owner of the property. The Plaintiff argues that when the title was not delivered, the first defendant should have taken the next step of summonsing the Plaintiff to produce the title in Court under section 160 (2) of the Land Registration Act. In my view the first defendant would in a better position to make a judgment on the procedure adopted. In my view the decision to issue a summons to a person to appear in Court is optional. That appears to be the view expressed by his Honour Makail J, in Raina No.1 Ltd v Elisha (2015) N6051. Even if I am wrong about this, I do not think it is proper to impose an obligation that would unnecessarily curtail the use of discretion by a decision maker unless it is clearly wrong causing injustice to the Plaintiff.
    
72. Nevertheless, the questions that come to mind are: Did the First Defendant fail to exercise his discretion properly. Did he disregard the procedural requirements under sections 160-162 of the Land Registration Act? Was his decision affected by irrelevant considerations? Was his decision made in bad faith and dishonesty? Did he fail to apply his mind properly in law? Was the decision so unreasonable and absurd and one which no reasonable decision-maker could have made in the circumstances.
    
73. The answers to these questions depend largely on the complaints raised, the conduct of parties and the evidence placed before the first Defendant when he first made the decision and also the factual circumstances surrounding the execution of the Contract for Sale and the transfer of title. The Morobe Provincial Government maintained they did not sell their property to the Plaintiff. The Plaintiff said, he purchased the property from the Morobe Provincial Government through one Kupo Mape by a Power of Attorney. A closure examination at the Contract for Sale, the Transfer and the Power of Attorney show the entire transaction was a fraud. This was the conclusion arrived at by the first Defendant. I am of the same view from evidence provided by both the Plaintiff and the defendants in these proceedings.
    
74. The evidence shows the parties named in the contract for sale lacked legal capacity to create a binding contract for sale. The vendor, Morobe Provincial Government, though named as vendor, was not aware, that a stranger by the name Kupo Mape signed a contract without its knowledge and consent for the transfer of its prime property. There is no evidence of express authority given by the Morobe Provincial Government. The evidence is clear that all Provincial Government Contracts are signed by the Administrator as part of his administrative duties under section 74 of the Organic Law on Provincial and Local Level Government. Kupo Mape is a stranger and fraudster according to the evidence of Jonah Suvi. Whilst the Plaintiff alleges Mr Mape had a power of Attorney, that power of Attorney was dated 7^th October 2004, signed 11 days after execution of the contract for sale. It was not signed by the Provincial Administrator, the only authorised officer and, conveniently, witnessed by one Lindsay Gedeon, the Director of Kamkumung Bakery Ltd.
    
75. The Purchaser, likewise, as shown, held itself out as a limited company. It had a company seal. It had a director by the name of Lindsay Gideon. The contract was signed under seal executed by a company official, Lindsay Gideon. On the surface the Purchaser looked genuine. In fact, it had no legal personality. The Purchaser, Kamkumung Bakery Ltd was not registered with the Registrar of Companies and the Investment Promotion Authority. Kamkumung Bakery Ltd, therefore did not have legal capacity to contract. It is particularly interesting to note, the current Plaintiff, Titus Tumba, did not feature in any way in this transaction.
    
76. There is no evidence of intention to contract by parties. There is no evidence of correspondence or meeting resolutions on the part of the Provincial Government to sell the property to the Plaintiff. There is no letter of offer and acceptance. Who were the negotiating parties and how did they arrive at the decision for the sale and purchase of the property? It is interesting to note that the Title Deed was issued on 21^st September 2004. The Contract for Sale was signed on 26^th September 2004, only five (5) days after the issuance of the State Lease. The transfer was then registered at the Office of the Registrar of Titles on 4^th November 2004.The speed at which the transaction was concluded from the date of issuance of State Lease to the date of registration of Transfer of Title leaves a lot to be desired.
    
77. The purchase price is K700.00. Is K700.00 valid consideration? Mr Benjamin states in his evidence K700.00 is far too low a price for a prime commercial land. I note that the improvement covenant or condition of the subject property is fixed at K181,500.00 to be developed within three (3) years. The purchase price of K700.00 is ridiculously below the value of the improvement covenant of the State Lease. It can be only a gift which the second defendant denies.
    
78. My findings lead me to the conclusion that the Contract for Sale was a fraudulent dealing between Kupo Mape, and Kamkumung Bakery Ltd, its officers, employees and the Plaintiff, Titus Tumba. I am of the view that the decision and actions taken by the First Respondent is reasonable under the circumstances. I find the First Respondent exercised his discretion properly. His decision was not affected by any irrelevant considerations nor made in bad faith. I find the First Respondent did not substantially disregard any of the procedural requirements of the Land Registration Act. The First Defendant based his decision on section 33 of the Land Registration Act and generally complied with sections 160,161 and 162 of the Land Registration Act. Even if I am wrong about this, I do not find the First Respondent’s decision unreasonable or absurd in any way under the Wednesbury principles.
    
79. Judicial Review is an equitable remedy and is granted in the exercise of discretion. One of the principles of equity is that he who seeks equity must come with clean hands. Refer: Mainland Holdings v Paul Stobbs (2003) N2522. The Court should not readily give relief to a person who seeks enforcement of a right, a protection of an interest or a claim for a property which right or interest he has in the first place obtained or acquired through some illegal, fraudulent or improper means. A person should not be allowed to benefit from his misdemeanours. The Plaintiff in the present case has not come with clean hands. For the reasons given, I refuse to grant the orders sought by the Plaintiff in the proceedings.
    

Conclusion

80. In conclusion, the Plaintiff’s proceedings are dismissed for three reasons:
    
    1. The Plaintiff Titus Tumba has no standing to bring these proceedings.
    2. The Registered proprietor, Kamkumung Bakery Ltd did not have legal capacity to contract and to be registered owner of property in the first place
    3. On the substantive proceedings, the decision of the First Respondent was not unreasonable in the circumstances and should not quashed.
       

Orders

81. The Court orders that:

1. The Plaintiff’s proceedings are dismissed.
2. The Plaintiff shall pay the Defendants cost of the proceedings to be taxed, if not agreed.
3. Time be abridged.
   

Jema Lawyers : Lawyers for the Plaintiff
Niugini Lawyers : Lawyers for the Second Defendant
Solicitor General Lawyers: Lawyers for the First and Third Defendants