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Estate of the Late Jimmy Varika v Paonga [2021] PGNC 331; N8994 (2 August 2021)

N8994

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 293 OF 2019


BETWEEN:
THE ESTATE OF THE LATE JIMMY VARIKA
Appellant


AND:
KUTT C. PAONGA ACTING CHIEF COMMISSIONER SITTING AS LAND TITLES COMMISSION AT WAIGANI NCD
First Respondent


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent


AND:
SCOTT MORATA
Third Respondent


AND:
JOHN EDIKEN BIGE
Fourth Respondent


Waigani: Miviri J
2021: 03rd March, 2nd August


PRACTICE & PROCEDURE – Judicial Review & Appeals – Appeal – Land (Tenure Conversion) Act – Motion to dismiss – Order 4 Rule 36 NCR Want of Prosecution – Order 12 Rule 40 Frivolous & Vexatious – Material Relied sufficient – Fruits of Judgment delayed Unnecessarily – Procrastination – Balance discharged – Appeal dismissed – cost in the cause.


Cases Cited:

Salub v Luedi [2016] PGNC 319; N6519

Pruaitch v Manek [2019] PGSC 123; SC1884

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906

Blasius Tirupia v The Administration (Re Japlik & Vunapalading No.2 [1973] PNGLR 34.
Counsel:


D. Bidar, for Appellant

R. Uware, for Respondent

RULING

02nd August, 2021

  1. MIVIRI, J: This is an appeal against five conversion orders and decision of the First Respondent relating to the parcel of land described as Portion 2369C Ikuru Maku a freehold land registered to the appellant having been vested on 02nd October 1996 after a hearing by the Land Titles Commission.
  2. That certificate is per pages 44 to 46 of the appeal book volume 1 pages 334 to 344 of the appeal book volume 2.
  3. The dispute arises over the fact that on or about December 2017 the fourth Respondent supported by the third applied to the Land Titles Commission for five portions of that land Portion 2369C Ikuru Maku. Objections to which were raised by the Appellant on 20th December 2017 and on 2nd March 2018. He evidenced particulars of the objection with evidence supporting.
  4. Which comprised the affidavit of Neil Marcus Daniel executor and trustee of the estate of late Jimmy Varika. He was granted probate for that estate by the National Court on the 02nd February 2016. Prior to that and before the death of late Jimmy Varika he was appointed under the will of late Jimmy Varika as executor and trustee of his estate before he passed on 11th March 2015 after a short illness. And so, he was at all material times in possession of the title to the subject land Portion 2369C Ikuru Maku. Which title was forcefully taken off him from his Lawyers office by Policemen. Scott Morata conspired with Henry Wasa former Registrar of Titles to cancel it under Jimmy Varika’s name on the 19th October 2017. And that is evidenced by annexure “C” the worksheet at the Registrar of Titles Office for Portion 2369C with its cancellation on the 19th October 2017.
  5. It prompted lawyers of the appellant to write, annexure “D” to the Minister for Lands & Physical Planning demanding investigations into the dealings of the subject land. And also, the related portion of “Dere Kone” Portion 2370C. Complaint was also made to the Police through the office of the Metropolitan Superintendent annexure “E”. Related proceedings to this matter include WS 36 of 2014 in the Estate of Late Jimmy Varika v Mendikwae Limited & Pam Logistic Limited trial was conducted with decision yet to be handed down. Secondly OS (JR) No. 393 of 2016 Steven Mabata Viri & ors v Neil Marcus Daniel as Executor of the Etate of the Late Jimmy Varika & ors. This is judicial review against grant to late Jimmy Varika of the subject land by Enehako Clan was refused by late Justice Nablu because of inordinate delay over the grant and the bringing of the action.
  6. The decision of the Land Title Commission annexure “A” to the affidavit of Neil Marcus Daniel is clear that the application for conversion order was before it on the 15th April 1996 before Commissioner Clement Malaisa. And it was declared that Jimmy Varika was the owner in estate in fee simple in respect of all that piece of land known as “Ikuri Maku” having an area of 208 hectares approximately situated in the Milinch of Granville National Capital District delineated and shown edged red on the Conversion Plan annexed hereto marked with the letter “A” subject to the encumbrances (if any) notified hereunder. And the registrar to titles has declared that fact. That was evidenced by a notice under section 14 of the Land Tenure Conversion Act declaring that fact that the appellant was now the owner in fee simple of that land situated at Dogura East of Port Moresby along the Magi Highway Portion 2369 C known as Ikuru Maku. This notice is dated the 2nd November 1996 signed by the Commissioner Clement Malaisa. There are no other interests in law apart from that fact in law. This is evidenced further by John Painap Secretary Department of Lands & Physical Planning pursuant to section 24 (1) of the Land (Tenure Conversion) Act 1963. It is dated the 21st August 1990. And importantly it bears an owner’s copy of the Certificate of Title and bears the name Jimmy Varika of Boroko as the proprietor of the subject land.
  7. There is no evidence of the processes under section 34 application for review of the Land Titles Commission Act 1962 by any other respondents here, immediately after the decision by Commissioner Clement Malaisa. So that heed is given in compliance of the 90 days within which to lodge review. That is not the evidence of the respondents. Nor is there any process under Division 3 of that Act. What has happened is that annexure “C” to the affidavit of Neil Marcus Daniel has taken place of Cancellation of Registration of certificate of Title dated the 19th October 2017 regarding Volume 33 Folio 42.
  8. The reasons are; “It having been shown to my satisfaction that the within certificate of title was issued in error and the registered proprietor for the purposes of cancellation, I hereby cancel the registration of this title under section 161 of the Land Registration Act.” That has been set aside on the 12th March 2018 by the Registrar of Titles Benjamin Samson administratively by revoking the cancellation by former Registrar Henry Wasa as illegal and no effect, restoring the registration to the appellant Certificate of Title to the subject land to him. Annexure “K” pages 611 of the appeal book is Department of Lands & Physical Planning office of the Registrar of Titles to this effect signed by Benjamin Samson as Registrar of Titles. The letter is copied to Hon Justin KThatchenko Minister for Lands & Physical Planning, Oswald Tolopa Acting Secretary of the Department of Lands and Physical Planning, Chief Commissioner Land Titles Commission, Ms Sheila Sukwianomb Director Policy & Legal of the Department of Lands & Physical Planning and Mr Perou N’drou NCD Metropolitan Superintendent.
  9. This evidence confirms that section 34 application for review of the Land Titles Commission Act 1962, or any process under Division 3 of that Act has not being undertaken by any of the parties now before this proceedings. It means any action now would be inordinate and late to challenge. Because that decision by Commissioner Clement Malaisa was made 2nd November 1996. There is nothing on record nor has evidence been presented here pertaining to sway. It is important to consider that this emanates from the last will of a deceased person appointing an executor and trustee who has carried the will of the person deceased into being. The dead cannot come back to execute what is theirs, their intent is by a will that they leave. It ought to be and must be respected for obvious reasons underlying. Unless the process by law set out above are followed title to the subject has not changed hands, it remains where it has been accorded in law. This is administratively recognized by the lands Department officials prime to task on the 12th March 2018 by the Registrar of Titles Benjamin Samson administratively revoking and confirming the appellant in law. It in my view defeats what is set out in annexure “LI” which cannot stand in law.
  10. Annexure “L1” of the affidavit of Neil Marcus Daniel is letter dated the 31st October 2018 written to the Registrar of Titles by Acting Chief Commissioner Kutt C. Paonga. The subject is “Decision Conversion Orders- John E. Bige- Portions 3653C-3656C [Inclusive] Milinch Granville Fourmil Moresby. I refer to the above and advice that these applications by the applicant, John E, Bige came before the Commission after the Statutory processes were completed and heard. Due Considerations were given to the objections and in due course the objections were overruled. In due course, Orders were granted in favour of the applicant.
  11. The decisions, copies of the approved Survey Plans demarcating the parcels of land and Notices of the decisions are attached hereto for your information and records. Pursuant to section 11 of the Land (Tenure Conversion) Act, you are directed to register the decisions in your register book as provided under the Land Registration Act. Once these decisions are registered, please contact this Commission to collect the titles. We will then update our files and furnish the Owners copy to the owner. Yours faithfully, signed Kutt C. Paonga Acting Chief Commissioner.”
  12. The decision conversion order is ordered 22nd March 2018, entered 24th March 2018. That decision does not emanate from a review pursuant to section 34 application for review of the Land Titles Commission Act 1962 or any process under Division 3 of that Act. It is over a title that has been settled in law pursuant to the decision initially by Commissioner Clement Malaisa made 2nd November 1996. That was affirmed by Benjamin Samson on the 12th March 2018 when he administratively revoked what was affected by former Registrar of Titles Henry Wasa as illegal and no effect of the 12th March 2018. The decision of the 22nd March 2018 is not binding in law. It does not derive from section 34 of the Land Titles Commission Act. It is not an appeal pursuant to division 3 of that Act. The title there stands in law to Jimmy Varika as the owner in estate in fee simple in respect of all that piece of land known as “Ikuri Maku” having an area of 208 hectares approximately situated in the Milinch of Granville National Capital District. It is the same land before the Commission presided by Kutt C Paonga on the 22nd March 2018.
  13. And that is clear from the transcript of the proceedings, “Daniel Bidar of O’Brien Lawyers presented that his client is the executor to the Will of late Jimmy Varike of Hula who had a title over portion 2369C which covers also portion 3656C. However, the Commission noted that this Title was cancelled on the 27th October 2017. This meant that effectively, by operation of law, the land was reverted to its original status as customary land. This action enabled the landowners and the applicant, who had purchased rights and interests in the land, to apply for conversion and be granted freehold titles. This cancellation was not challenged in the Courts of competent jurisdiction. It was presented that there is a pending land dispute case with Palm Logistics over another parcel of land. It was noted that this action does not constitute an action over this land as well. This parcel of land is registered as Portion 3656C Milinch of Granville Fourmil of Moresby and is captured in Catalogue No. 49/3314. This parcel of land is also within the area of land known as “Ikuru Maku.”
  14. The commission consulted the Survey Plan and noted that the parcel of land described as Portion 3656C which the applicant, John Endiken Bige applied for, is a customary land after the title, Volume 33, Folio 42 was cancelled by the Registrar of Titles on 29th October 2017. The Land has an area of 21.31 hectares or thereabouts. The objections by O’Brien Lawyers were overruled by the Commission.”
  15. The cancellation of the title on the 17th October 2017 was not by a duly executed process of law because the title was seized from the office of the lawyers for the appellant. And the seizure was not by process of law that led to a search warrant. The search warrant was not a result of a review process against the decision of Commissioner Clement Malaisa of the 2nd November 1996. It did not originate from that process that the title could not stand as issued. And because of the reluctance of the appellant to hand up pursuant it was necessary to obtain a search warrant to obtain. The search warrant was in this respect not stemming from execution of the processes under the Land Titles Act. Time had expired and lapsed in the review process under section 34 of the Land Titles Commission Act. Ninety (90) days had since expired from 2nd November 1996 when the decision awarding title to Late Jimmy Varika. And the process of instituting appeal against pursuant to Division 3 of that Act had not been carried out so that the search warrant from the District Court presided by his worship (as He then was) Kaumi was a resultant of that process.
  16. The seizure of the title from the lawyers of the appellant by Scott Morata was not in fulfilment, or the end product of a due process of law under the Land Titles Commission Act, or any other law or regulation. It did not make it lawful that it was seized by a search warrant. And the use to which it was put with Henry Wasa did not accord that there was cancellation by process of law standing it in law against the whole world. It did not have the legs because there was no heed to the law set out above. What was reagitated in the hearings before the Commission presided by Kutt C Paonga on the 22nd March 2018 could not go past requirements of the land Titles Act set out above. It could not be poured out before the same Commission yet again who had already determined the matter. And lapse of time allowed had given bar for it to be resurrected as was done here. What was done was ultra vires and void ab initio of no legal effect and remains so here henceforth.
  17. The aggregate is that the appeal is upheld as in the notice of appeal because it has not been shown that the Commission decision was against the weight of the evidence before Commissioner Clement Malaisa on the 2nd November 1996, Salub v Luedi [2016] PGNC 319; N6519 (11 November 2016). It cannot be relied that the Commission determined the matter yet again before Kutt C Paonga on the 22nd March 2018 because that is amounting to an abuse of process by Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). Which has always been maintained Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008).
  18. The initial decision was not challenged within the Land Title Commission Act and it remains at law binding which means the appeal is upheld. It is therefore determined and ordered that the first respondent exceeded his powers under section 9 of the Land (Tenure Conversion) Act. The subject land Ikuru Maku effectively is restored to the appellant at law for all intent and purposes. And that is affirmed by section 16 of the Land Titles Commission Act. The previous decision of the commission by Clement Malaisa on the 2nd November 1996 confirmed title of the appellant. That is the position in law and remains. It means for the purposes of section 4 of the Land (Tenure Conversion) Act the fourth defendant is not a citizen within the meaning there. Even if it where he has not come into the realm of law so as to be a title holder of the subject land because he was never a party in the initial proceeding now lapsed in oblivion by time. It is time barred action and cannot purport to accord what is not there in law initially emanating from it, Blasius Tirupia v The Administration (Re Japlik & Vunapalading No.2 [1973] PNGLR 34.
  19. The effect in law is that the decision of Commission presided by Kutt C Paonga on the 22nd March 2018 could not go past requirements of the Land Titles Act set out above. It simply is not a decision in law and any consequences from it are void ab initio. They are not there in the first place nor can they displace the decision of Commissioner Clement Malaisa initially on the 2nd November 1996 confirmed title of the appellant. That is the decision that stands in law. Therefore, the appeal is upheld in all its entirety.
  20. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Goodwin Bidar Nutley Lawyers: Lawyer for the Appellant

Office of the Solicitor General: Lawyer for the Respondent

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