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University of Papua New Guinea v Kulunga [2021] PGNC 322; N9064 (16 August 2021)

N9064

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 809 OF 2017

BETWEEN:
THE UNIVERSITY OF PAPUA NEW GUINEA
Plaintiff

AND:
DR ALLAN KULUNGA
First Defendant

AND:
TIRI WANGA ACTING SECRETARY FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:
HON. JUSTIN TKATCHENKO
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 04^th & 16^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Motion to dismiss – Order 8 Rule 27 & Order 12 Rule 40 both NCR – Title Bona fide in dispute – Two Titles to property – First Set aside confirmed Supreme Court Appeal – Second title Procedure Attaining – Motion refused – cost follow event.

Cases Cited:

Boateng v The State [1990] PNGLR 342

Tagau v Selon Ltd [2018] PGSC 97; SC1755

Emas Estate Development Pty Ltd v Mea, Swokin, and The State [1993] PNGLR 215

Agiru v Electoral Commission [2002] PGSC 5; SC687

Counsel:

D. Kamen, for Plaintiff
P. Kopunye, for First Defendant.
E. Bua, for all remaining Defendants

RULING

16^th August, 2021

1. MIVIRI, J: This is the ruling on the notice of motion of the first defendant of the 25^th May 2020 pleading pursuant to order 8 Rule 27 and Order 12 Rule 40 both of the National Court Rules for dismissal of the proceedings for being frivolous, vexatious and an abuse of the process of Court.
   
2. Further that the proceedings are statute barred with reference to the Statute of Frauds and Limitation Act section 16 (3) & (5). Six years has lapsed and the action cannot be instituted because the allegation arose on 14^th August 1998. And the review of the action by Judicial review cannot take place now by operation of Order 16 Rule 4 of the Rules. It is inordinately before the court and must be dismissed. That pursuant to section 33 of the Land Registration Act the first defendant has indefeasibility of the subject title. Further the second and third defendants be removed as parties by operation of Order 5 Rule 9 of the Rules because the Minister who made the decision is Late Hon Viviso Seravo MP. And that pursuant to order 15 (2) (c) of the Rules the proceedings be summarily dismissed for non-compliance of court directions.
   
3. Leave be granted to the First Defendant to withdraw his notice of motion filed the 08^th December 2017 for being stale. And costs be borne by the plaintiff of the first defendant on a solicitor Client basis. Any other orders as discretion by the Court.
   
4. Counsel for the plaintiff raised a preliminary point that I dealt with a prior matter involving the University that I disqualify myself in the hearing of the present matter. There is no proof except the assertions from the bar table without any proof of the allegation. And is at the minimum in the light of Boateng v The State [1990] PNGLR 342 not in line there. I will not disqualify myself as I do not know what it is that is alleged against my hearing of the matter. There is simply nothing to press.
   
5. In pushing his cause, the first defendant relies on the affidavit of Mrs Nakanat Kote sworn of the 18^th October 2017 filed of the 18^th October 2017. She is employed by the University of Papua New Guinea as Acting Registrar and has possession of all records of the University. And from this the Western Highlands Provincial Government entered into an agreement on the 24^th January 1991 for the establishment of the Mt Hagen University Centre. That is annexure “NKI” of her affidavit. It has been renewed and was resigned for renewal on the 16^th March 2012. The subject building was altered and renovated by the plaintiff at his own costs. That is evidenced by Nuigini Builders agreement with the Plaintiff “NK3”
   
6. The subject property has two titles one is annexure “NK6” of the affidavit of Nakanat Kote of the 18^th October 2017. It is State Lease registered of the 20^th August 1998. The leasee is Dr Allan Kuluga and it is registered from 06^th May 1998 to 05^th May 2097. It is a 99-year lease. The subject property is Portion 7 section 04 Mt Hagen Western Highlands containing 0.2041 hectares and catalogued as 11/587.
   
7. That lease was before the National Court in Mt Hagen in the proceedings titled OS No. 369 of 1999 (M) Western Highlands Provincial Government & Mt Hagen Urban Local Level Government v Dr Allan Kulunga & Honourable Viviso Seravo, MP & Minister for Land and Physical Planning & Morris Alaluku Secretary for the Department of Lands & Physical Planning & The Registrar of Titles and the Independent State of Papua New Guinea. Annexure “NK7”. This is an order from the Court in that proceeding. It is ordered as follows; “ The decision of the Minister made on 24^th August 1998 to grant a 99-year lease to the First Defendant in respect of the property described as Section 4 Allotment 7, Mt Hagen, Western Highlands Province, being State Lease and registered in the Register of Titles as Volume 9 Folio 23 is quashed. The State said Lease granted by the Minister is cancelled and surrendered to the State. Costs are awarded to the plaintiff.” And it was ordered of the 07^th March 2002 and entered 28^th August 2002.
   
8. That decision means that the subject has no title in law effecting by section 33 of the Land Registration Act so that holder of the subject land is in law holder in law of that subject land. This is because the appeal that was instituted by Dr. Allan Kulunga in the Supreme Court on the 1^st December 2006 was dismissed by the Supreme Court so that the National Court of the 06^th March 2002 stood firm against the assertion of Dr Allan Kulunga that he was the title holder in law. It is clear that the former continues to claim rentals and eviction on the subject land against University of Papua New Guinea in 2017. In law there can be only one title valid in law. Here challenge has been mounted that the title that the first defendant holds is not valid in law because it has not been obtained by due process of law. It is important for public policy that this is settled in the face of the claim that this matter is an outstanding matter of 19 years. That maybe so but given that the University of Papua New Guinea is Statutory Authority that serves the People of Papua New Guinea in the services that it provides as a learning Institution, here for the People of the Western Highlands, it is necessary to settle this issue once and for all in law. The first defendant is a private citizen who is vying that he owns the subject land in law, and rental is due from the University who has occupied without payment now outstanding with since 1^st January 1999 to 31^st July 2021 of K 508, 200.00 per the letter of the first defendant annexure “PP1” of the affidavit dated 20^th July 2021 filed by Dr. Peter Petsul Registrar of the Plaintiff. That annexure extends to a letter under hand of Kopunye Lawyers acting for the first defendant in similar terms also with the subject invoice attached.
   
9. It is necessary to determine in the light of this as to the position on the titles because it is clear that the first defendant relies on the title issued under section 92 of the Land Act. Which was unknown to the University of Papua New Guinea or any others in the proceedings conducted in 2017. As to why it was disclosed and how it was attained by the first Defendant is not clear. But relevantly any dispute to the title be it that which was set aside by the Court this title was relevant evidence that ought to have been set in the face of that proceeding. Its position determined there and then because here the first defendant insists in every respect that it may have been set aside by Law enforced in the National and Supreme Court, but it still continued to hold in law because of title it held and continues to under section 92 of the Land Act. The title under section 99 of the Land Act may have been set aside by law but the title under section 92 was valid and was the basis in law of the first defendant insisting and praying for this motion.
   
10. It is not clear on the part of the first Defendant why go to the trouble of the National and Supreme Court on that title knowing the consequences to simply draw it to the University and the other parties there, that one was not granted in law but the other was and stood in law. Given these underlying facts there is very good reasons to hear and to determine this matter than to simply dismiss it by the Notice of motion that has been filed by the first defendant. The authorities in law to pursue this matter by the University is clear as the evidence by the Vice Chancellor and the Registrar are clear that there is ample authority in law to pursue this matter before this Court. I accept that fact which is distinguished from my earlier decision in OS (JR) 499 of 2016 University of Papua New Guinea v Luther Sipison Acting Secretary of the Department of Lands & Physical Planning & 9 ors. Here the affidavits of Dr Peter Petsul of the 20^th July 2021 and that of Professor Frank Griffin are clear that authority is there to pursue this proceeding by Kamen Lawyers. This ground contended by the first defendant is not made out and dismissed.
    
11. These evidence show an agreement entered into by the University on the 24^th January 1999 annexure “PP2” of the affidavit of Dr Peter Petsul of the 20^th July 2021. That was for the establishment of a University Centre now in existence on the subject land. It begs as to why enter into an agreement enforceable at law from which it is build on that subject land money time resources to set it up following from an agreement to be told that the land does not belong to the other party to the agreement that it belongs to Dr Allan Kulunga. Why was this fact disclosed there and then on 24^th January 1999, so as to set aside or vary the agreement to include the title holder to the subject land. And if this was the case, why did it not sustain in favour of the first defendant in the institution in favour of the first defendant in the first proceedings in the National Court to the Supreme Court that was not in favour of the First Defendant.
    
12. Further an agreement was entered into by the Plaintiff and Niugini Builders contractor that carried out works to the subject property for the Plaintiff. That was discharged and consideration exchanged hands for its completion. It means that the Plaintiff has an interest that cannot be swept aside with a notice of motion for dismissal at the behest of the first defendant. Justice would not be served considering. Further fact that is set out is subject was intended for the mass of Western Highlands to be served by that University Centre. Prejudice outweighs and damages would not equate what is pleaded. There ought to be a proper hearing to determine the issue as to who is the legal title holder in law of the subject property.
    
13. It is not a frivolous and vexatious proceeding as there is merit in the grounds urged for proper hearing, particulars set out above. And cannot fall within Order 12 Rule 40 for dismissal on both grounds. The facts, circumstances and evidence set out above do not foretell that fact and so it is without merit and consequentially fails and will not be granted.
    
14. The argument on indefeasibility of title is not conclusive given the facts set out above. It must be properly settled in a proper hearing from both sides. Because there were two titles issued to the same property. That is not the law because one has been declared illegal but that does not mean the latter is the perfect title in law and must not be challenged. The allegation of fraud is to be properly examined in a hearing seeing out the process taken to award it Tagau v Selon Ltd [2018] PGSC 97; SC1755 (19 December 2018). And it is not the first time that Judicial review has been sought in like proceedings, Emas Estate Development Pty Ltd v Mea, Swokin, and The State [1993] PNGLR 215. It would offend to dismiss the proceedings holding that it is only by a writ of summons. Procedure is primarily what it is in Judicial review and that would be the test against the title held out by the first defendant. And the evidence relied on of the affidavit of Peter Kopunye of the 25^th May 2020, affidavit of Nakanat Kote particulars set out above, including the answering affidavit of Dr. Allan Kulunga do not advance that the motion be granted the first defendant.
    
15. The second title given all the discussion set out above must be examined at length to determine its veracity. It would not be an abuse within the terms of Agiru v Electoral Commission [2002] PGSC 5; SC687 (24 June 2002). Because the facts and circumstance here do not warrant as with that case. Rather there is a genuine cause of concern in law to settle the issue on the title to the subject property. This is not a case by its facts and circumstances warranting dismissal as moved. It is more to determine the process in the obtaining of the title by the first defendant which is genuine. And there are very prudent reasons as to why it must be given its day in court which are set out above. These are very well particularized in the affidavit of Nakanat Kote and which I set out in detail relevant in the issue posed here.
    
16. “The subject land was divided into three parts with three different buildings and is currently occupied by the Plaintiff, the first defendant, and the Mt Hagen Urban Local Level Government. The subject land in fact has a long history. Annexure “ NK4” is a true copy of a letter from Kunai & Co Lawyers which gives some background of the protracted legal battle between the First Defendant, Dr. Allan Kulunga, and the Western Highlands Provincial Government. The subject land was initially occupied by the Western Highlands Provincial Government under a certificate of occupancy. It housed the then Division of Education. When the Provincial Government relocated its office to the new Kapal Haus the Provincial Government allowed for the Plaintiff, the First Defendant and the Mt Hagen Urban Local Level Government to share the subject land to operate but using the three different buildings.”
    
17. Annexure “NK4” is a true copy of a letter from Kunai & Co Lawyers is in the following terms, “Prior to 1989 the Finance Division (BMS) of the Department of Western Highlands occupied the subject land under a certificate of occupancy. Around 1989 the Department of Western Highlands surrendered the Certificate of Occupancy to the State through the lands Department when BMS offices were moved to the new Kapal House. Dr. Kulunga was then allowed to enter the land to operate his clinic using part of the Old BMS Building. The arrangement was that the building would be demolished as it was already condemned by the Building Board and the land would be rezoned to (3) allotments to be allocated to Mount Hagen City Authority, Dr Kulunga and the Provincial Government to set up the University Centre. The current Uni Centre used to be the materials store for the División of Education here. Knowing this being the arrangement the Provincial Government and the University of PNG entered into an agreement to set up the Western Highlands University Centre.”
    
18. It is evident and clear by these that there is no merit in the notice of motion to dismiss. There are meritorious grounds set out above against the dismissal application made. Substantial cause has been demonstrated by the plaintiff against the motion; the first defendant has not tilted the balance warranting dismissal of the proceedings. Accordingly, his motion fails and is dismissed with costs forthwith. The matter will be called at the next directions date of this court on the Monday 06^th September 2021 at 9.30am for further directions to hear the substantive motion for Judicial review.
    
19. The formal orders of the court are:
    
    • (1) The notice of motion of the first Defendant is without merit. It is dismissed forthwith.
    • (2) Costs of the proceedings will follow the event.

Orders Accordingly.

__________________________________________________________________

Kamen Lawyers: Lawyer for the Plaintiff/Applicant

Kopunye Lawyers: Lawyer for the First Defendant

Office of the Solicitor General: Lawyer for Second, Third and Fourth Defendants