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Koim v Apin [2021] PGNC 536; N9342 (30 November 2021)

N9342

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 647 OF 2016


JACKLYN KOIM AS EXCUTRIX TO THE ESTATE OF LATE JOE KOIM
Plaintiff


V
YANJOL APIN ACTING REGISTRAR OF TITLES
First Defendant


AND
LUTHER SIPISON ACTING SECRETARY OF THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


AND
TSC INDUSTRIES LIMITED
Fourth Defendant


Waigani: Miviri J
2021: 19th, 29th & 30th November


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 1 (2) NCR – Production of Instruments Wrongly Issued Section 160 Land Registration Act – Section 161 Cancellation & Correction of Instruments & Entries Land Registration Act – Replacement Title Section 162 Land Registration Act – Powers of Registrar – Whether executed according to & by Law – Ultra Vires – Error of Law – Unreasonableness – Whether Declaration appropriate – Whether Certiorari appropriate – Evidence Noncompliance procedure – Balance Discharged – Judicial Review Granted –cost follow event.


Cases Cited:


TSC Industries Ltd v Koim [2021] PGSC 12; SC2078

Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603

Koitachi Ltd v Zhang [2007] PGSC 11; SC870

Niugini Building Supplies Ltd v National Housing Estate Ltd [2020] PGSC 90; SC1985

Tiden v Tokavanamur [1967-68] PNGLR 231

University of Papua New Guinea v Kulunga [2021] PGNC 322; N9064

Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122

Koima v Independent State of Papua New Guinea [2014] PGNC 48; N5568

Smith v Minister for Lands [2009] PGSC 60; SC973

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797


Overseas Cases


Associated Provincial Picture houses Limited v Wednesbury Corporations [1947] CA 1KB 223


Counsel:


D.Mel, for Plaintiff
S. Japson standing for N Tame, for Fourth Defendant
No appearance 1st 2nd 3rd Defendants


DECISION

30th November, 2021


  1. MIVIRI, J: This is the decision on the Plaintiff’s substantive notice of motion filed of the 1st November 2016. He seeks declaration pursuant to Order 16 Rule 1 (2) of the National Court Rules against the First Defendant’s decision of the 09th December 2014, made under section 162 of the Land Registration Act 1981 which was published in the National Gazette No. G604 of the 15th December 2014 giving notice of its intention that after the expiration of 14 clear days from the date of publication of the Notice, it would issue an official copy of the State Lease over land formally described as Allotment 14, Section 34, being all that land contained in State Lease Volume 34, Folio 124 to TSC Industries Limited, the fourth Defendant (first Decision) is:
  2. Secondly, he seeks declaration pursuant to Order 16 Rule 2 of the National Court Rules that the First Defendant’s decision made of the 30th January 2015 under section 161 of the Land Registration Act 1981:

And are therefore illegal and void ab initio.


  1. Thirdly he seeks declaration pursuant to Order 16 Rule 1 (2) of the National Court Rules that the First Defendant’s decision made 09th February 2015 under section 162 (3) (a) of the Land Registration Act 1981 to issue/register replacement title over the land to the fourth defendant (the third decision) is:

And therefore, illegal, and void ab initio.


  1. Fourthly he seeks Certiorari pursuant to Order 16 Rule 1 (1) of the National Court Rules that the first, the second, and the third decisions be brought into Court and Quashed.
  2. Fifthly he seeks mandamus pursuant to Order 16 Rule 1 (1) of the National Court Rules that the fourth defendant is to forthwith and by no later than 7 days from date of orders deliver up to the registrar of titles the replacement state lease title document granted to it pursuant to the third decision and upon receipt of the State lease, the registrar of titles shall forthwith and by no later than 7 days from receipt of such replacement state lease, cause it to be cancelled.
  3. Sixthly he seeks declaration the Plaintiff’s instrument of title over the land is at all material times, the proper and valid instrument of title and the transactions undertaken on it by the plaintiff are proper and valid for all purposes and the Defendants are to undertake any such action to give effect to this.
  4. Costs of the proceedings to be paid by the Defendants.
  5. Time for entry of the orders be abridged to the date of settlement which shall take place forthwith. And any other orders as discretion by the Court appropriate.
  6. This is a 2016 matter where leave for Judicial Review was granted on the 20th October 2016 by the Court presided by Late Justice Nablu. Much of the Material in the matter is in two volumes of Review Books document 46 and 47 filed 08th October 2021. And these materials are relied on in this application. It must also be pointed out that the State defendants have made no appearance nor have they placed any material to the contrary before the Court.
  7. Preliminary also is the fact that the substantive notice of motion has been delayed because TSC Industries Limited filed an application 04th August 2017 seeking Stay of the proceedings pending determination of WS No. 699 of 2017. Which it had instituted alleging fraud in the passage of title and praying for declarations pursuant. On the 26th October 2017 this proceedings were Stayed pending the the determination of WS No 699 of 2017 granted by this Court presided by Justice Nablu per tab 18 of the Review Book (RB).
  8. WS No. 699 of 2017 was commenced on the 31st July 2017 seeking a number of declarations particularly alleging fraud in the transfer of the State Lease over the subject property from TSC to Mr Koim, per RB page 335. But the proceedings were dismissed with costs by this Court presided by Justice Hartshorn on the 11th February 2019, page 396 RB. From which TSC appealed to the Supreme Court in TSC Industries Ltd v Koim [2021] PGSC 12; SC2078 (25 February 2021). Alleging that the National Court had erred in dismissing the appellant’s case. The issue before the Supreme Court was whether cause of action founded on fraud was made out? Secondly upon specialty in Contract and whether there was power of attorney in the Contract executed effecting sale of the subject property. The Court held that fraud under section 16 of the Fraud and Limitations Act was time barred six years being the allowed period to institute which wasn’t the case here. As to specialty in contract that was not discharged because, “Pursuant to s 16(3) of the Frauds and Limitations Act, an action upon a specialty shall not be brought after the expiration of twelve years commencing on the date on when the cause of action accrued. Not only did the claim fail to expressly plead a cause of action in speciality in this case, but its terms also both expressly and in substance made it clear that the appellant did not seek to rely on the terms of the power of attorney in any way, rather it claimed that the power of attorney was fraudulently made and was thus “unlawful, illegal, null and void ab initio”. Moreover, the power of attorney, on the appellant’s own case, was not its own to enforce.

Furthermore, as his Honour correctly pointed out at [20]:

“Even if the transfer of the property was occasioned by the fraudulent act of the defendant based upon the power of attorney, and I make no comment on that, a cause of action founded on that fraudulent act must be brought within six years of the date that the cause of action accrued. That the power of attorney in the form a Deed may be sued upon within 12 years and not six years does not detract from the requirements in s. 16(1)(a) Frauds and Limitations Act.”

  1. Even if it is argued that what is raised as to the decision of the Registrar was not the subject of that decision as is the case here, it remains within Order 16 Rule 4, that a minimum of four months after the subject decision is put to challenge that decision in Judicial review. The decision here was made between 04th December 2014 and finally on the 09th February 2015. Judicial review was filed 18th October 2016, substantive Notice of motion was filed 01st November 2016. But it was stayed because of the WS 699 of 2017 on the 26th October 2017. And both the National Court and the Supreme Court have come out with the decision set out above that fraud is time barred. That decision would have built for the success of this judicial review proceedings for TSC. As it is fraud was not examined with the evidence there.
  2. But Fraud must be proved beyond the civil balance but not beyond the criminal to vitiate the title. There must be actual fraud demonstrated not constructive fraud, “unless it can be shown that the title was acquired through fraud or through seriously and grossly irregular means,” Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603 (3 September 2004), affirmed in Koitachi Ltd v Zhang [2007] PGSC 11; SC870 (11 September 2007).
  3. The material relied relates to a property formally described as Section 32 Allotment 14, contained in State Lease Volume 34 Folio 124 at 6-mile, Port Moresby, National Capital District. It was purchased by Mr Koim from the Fourth Defendant TSC Industries Limited (TSC) on the 24th November 2010. It was registered with the transfer to Mr Koim on 15th December 2010. He mortgaged it to Fincorp Finance Limited (Fincorp), which mortgage was registered on the 26th October 2011.
  4. Two years later following by letter dated the 28th October 2013 the Acting Registrar of Titles, Mr Benjamin Samson summoned Mr Koim to produce to him the original title to the property, “for the purpose of deregistration of transfer” to Mr Koim. And the reason he gave was that the title had been fraudulently obtained from TSC. To which Mr Koim replied by letter dated 05th November 2013 denying any impropriety in the transfer.
  5. It is important to set out relevant particulars of that letter at page 43 of the Review book document number 46 filed of the 08th October 2021. “Take note that I, Benjamin Samson, Acting Registrar of Titles of P. O. Box 5665 Boroko, by virtue of the Powers conferred by Section 160 (1) of the Land Registration Act 1981 (Chapter 191) and all other powers there unto enabling hereby summon you to produce to me the Original Owner’s Copy of State Lease Volume 34 Folio 124 held by you in respect of Allotment 14 Section 32 Boroko (six mile), National Capital District for cancellation of transfer registration done in your favour.
  6. The reason for the summons for delivering up of the Original Owners copy of the State Lease/ Title is that you have wrongly obtained the title from TSC Industries Limited and is wrongly retaining that title.
  7. Representation had been made to this Office by the Shareholders and Directors of TSC Industries Limited that the Transfer of ownership to you of the subject Property, Allotment 14 Section 32 (Six Mile) Boroko being State Lease Volume 34 Folio 124 was done improperly without their consent and authorization.
  8. Accordingly, you are given 14 days from the date of this notice to deliver up the Original Owners copy of the State Lease title Volume 34 Folio 124 over Allotment 14 Section 32 Boroko, NCD for the purpose of deregistration of transfer to you.
  9. Failure to comply with this summons will result in appropriate actions taken under the land Registration Act 1981 (Chapter 191). Dated this 28th day of October 2013. Signed Benjamin Samson Acting Registrar of Titles.”
  10. But by Letter dated 11th August 2014 the Acting Registrar Samson replied and again requesting the owners copy of the title to be delivered to him, failing which appropriate action will be taken under the Land Registration Act (LRA). He followed with a letter dated the 24th September 2014 to Fincorp to deliver the owners copy of the title to him for cancellation, copy of which was copied to Mr Koim, RB page 51. Fincorp replied to Mr. Samson and stated given the seriousness of the allegation it must be proved in Court of law. To which Samson replied 27th November 2014 that he had invoked his powers under section 161 of the Land Registration Act to cancel the transfer to Mr. Koim, RB page 61.
  11. By the decision of the 09th December 2014, Mr Samson gave notice of his intention to issue official copy of the State Lease to TSC under section 162 of the Land Registration Act. The basis of which was that the owners copy of the title had been lost or destroyed. It was gazetted page 1 of the National Gazette G604 on Monday 15th December 2014, RB page 66. It was however not published in the daily newspapers.
  12. He advised Fincorp and copied to Mr Koim by letter dated the 09th February 2015 of his decision of the 30th January 2015 to cancel transfer to Mr Koim and the mortgage to Fincorp and to reissue a replacement title to TSC, page 68 RB. He enclosed the replacement State Lease as issued to TSC, RB pages 70 & 71. Then he cancelled the title to Mr Koim and his subsequent mortgage to Fincorp of the 30th January 2015, and official copy of the State Lease was handed to TSC on the 09th February 2015.
  13. At page 064 of the Review Book is copy of Issue of Official Copy of State Lease. The document is relevantly as follows; “Notice is hereby given that after the expiration of fourteen clear days from the date of publication of this Notice, it is my intention to issue an Official Copy of State Lease title referred to in the Schedule below under section 162 of the Land Registration Act (Chapter 191), it having been shown to my satisfaction that the registered proprietor’s copy has been lost or destroyed.”
  14. There is no evidence in the material relied that indeed the registered proprietor’s copy has been lost or destroyed.” The subject property was sold to Joe Koim entry number S. 56253 dated the 15th December 2010, who has mortgaged it to Fincorp Finance Limited entry number S.58969 of the 26th October 2011. That is why the evidence is that the Registrar has written to both Joe Koim and Fincorp for the owners copy of the title/Lease. It is not lost or destroyed as set in the notice by the Registrar above. That is a notice that is misleading and without any basis under the Land Registration Act section 162, because there is no evidence it was lost, destroyed or defaced making the act of the Registrar lawful to issue a new title to the subject State Lease in favour of TSC. That new title to the subject State Lease by the Registrar is in defiance of the law. It is void ab initio and does not have any force in law.
  15. What has happened with TSC as a corporate Individual is a matter within that Company according to its books and records maintained. It is not the individual director or shareholders who are the Company. Both are different persons at law. The company is a corporate entity separate from its directors and shareholders: Niugini Building Supplies Ltd v National Housing Estate Ltd [2020] PGSC 90; SC1985 (31 July 2020). Just because there were government Ministers as directors on the defendant’s board it did not make it any different from any other Company registered under the Companies’ Act. All were the same by law and where accordingly dealt with by that Act. Whatever matter effecting the company is on the record of the Company by its books and held in by the Companies’ Act 1997. If there was a feud within it by and amongst the Directors and shareholders of TSC Limited, it was a matter for them to iron out and bring that record to the office of the Registrar by the records of the Company.
  16. As it is there is no evidence to this effect justifying the actions of the Registrar in law here pursuant to the Land Registration Act to call back the title and the lease two years after lapse and conclusion of the sale to Joe Koim. He was a bona fide purchaser: Tiden v Tokavanamur [1967-68] PNGLR 231. The appellant believed the coconuts that he collected and sold were within his boundary to the subject adjourning that of the respondent. He was convicted by the Rabaul District Court. The conviction was overturned because he had a reasonable and bona fide belief that what he was taking and selling was his within section 22 of the Act. The converse is the facts here Joe Koim believed that the Sale he had executed and from which he later lodged the title deed with Fincorp Finance Limited was a genuine document in law. He had rights in law by it so sought the mortgage, which was registered and entries made. He was open and transparent; he could not have the slightest doubt that it was by fraud in any manner. And this is not a case where there were two titles to the same property: University of Papua New Guinea v Kulunga [2021] PGNC 322; N9064 (16 August 2021). So that the Plaintiff would have doubted what was presented by TSC Limited.
  17. It is not a basis in law for the Registrar to act as he did. In my view these facts do not show out clearly as to what is the fraud prompting the Registrar to do what he did. The evidence depicts nothing unlawful in the sale by TSC initially to Mr Koim for him to exchange hands for the subject property. What was the consideration accorded in exchange for the subject property, whether a contract was signed for the purchase, if so, how much was accorded in exchange? TSC has not provided the material that the Plaintiff had acted fraudulently to entice provision of the title to him. The allegation of fraud made by TSC to lure the Registrar to take off the title off the plaintiff has not been provided.
  18. What is deduced is that no reasonable person given the position of TSC would have acted as it did to wait until the period to bring the cause of action had lapsed in law. Time had barred and effectively limited the action against the Plaintiff. Could it still be the basis upon which the Registrar was empowered to act as he did here, cancel and reissue a new title in favour of TSC. The problem with this fact is there is no evidence justifying the registrar to assert fraud, and to cancel and take the title off the Plaintiff. It begs as to how it applies with the law sections 160, 161, and 162 of the Land Registration Act.
  19. Section 160. PRODUCTION OF INSTRUMENTS WRONGLY ISSUED, ETC is as follows;

(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.

(3) Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.

(4) On the appearance before the Court of a person summoned under Subsection (2) or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.

(5) Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.

(6) Where a person–

(a) has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or
(b) has refused or neglected to comply with an order under Subsection (4),

the Registrar shall if the circumstances of the case so require–

(c) issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and
(d) enter in the Register–

(i) notice of the issue of an instrument and the circumstances under which it was issued; and
(ii) such other particulars as he thinks necessary.

And Section 161 CANCELLATION AND CORRECTION OF INSTRUMENTS AND ENTRIES is as follows;

(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.

And Section 162. REPLACEMENT OF INSTRUMENT OF TITLE, is as follows:

(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.

  1. What will and ought to have happened is that section 160 (2) comes into play. The Registrar will apply in Court for a summons to issue for that person to appear before the Court and show cause why the instrument should not be delivered up. If he has not appeared than the next phase by section 160 (3) is to apply for a warrant to bring him in. And if he has been brought in, he will be examined to give up the title or instrument. If he has not delivered up the instrument, he may be committed to a Corrective Institution for a period not exceeding six months: section 160 (5) of the Act. And if that does not attain the instrument the Registrar is permitted under section 160 (6) to issue a new title as if the original was lost or destroyed.
  2. There is no evidence that the defendants have accorded the plaintiff the benefit of these procedures by section 160 of the Act. It has not been exhausted which is a breach of procedure. It is in favour of the plaintiff because section 160 is read with section 161 (1) that the Registrar delivers up instrument in accordance with section 160. Both sections have not been heeded to by the acts of the Registrar here. Replacement of instrument cannot take place by section 162 because it only comes in if there is compliance of the procedures set out by both sections 160 and 161. All are read together and give out a process that must and ought to be followed to make lawful the actions of the Registrar. In the present case it is clear that the Registrar has not heeded. And in so doing has acted illegally.
  3. Where process and procedure by law has not been followed the court has granted Judicial review, because it is not the substance but the process that is examined: Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. And particularly so “where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.” That is evident in the conduct of the Registrar here. He has not heeded the procedure by section 160, 161, and 162 of the Act. He has exceeded his authority. In so doing he has committed errors with respect to each section particulars set out above.
  4. And the decision that he has made is evident that no reasonable Registrar given his position would have made: Koima v Independent State of Papua New Guinea [2014] PGNC 48; N5568 (14 April 2014), there damages would have been accorded the Plaintiffs but it was not a case of breach of section 41 of the Constitution. Because the State owned the land and took it back to construct the flyover at Erima. True the plaintiffs were now moved off but had damages open in their cause.
  5. The plaintiff exchanged with the TSC for the subject property. An exchange of consideration for the subject property between the plaintiff and TSC. The latter has not voiced immediate of fraud there and then to set aside what was concluded but has allowed life to continue two years over and past the period for instituting proceedings for fraud. And here it has not fronted up with that material prompting. It is clear this action by the Registrar and TSC cannot be said to be reasonable within Associated Provincial Picture houses Limited v Wednesbury Corporations [1947] CA 1KB 223. It is unfair and unreasonable to hold out until two years has lapsed including the period for allegation of fraud to be raised and raise it here without any evidence of that fact against the plaintiff. Then to deny him his title to that land without giving him an opportunity to be heard and following the procedures set out by sections 160, 161 and 162 of the Land Registration Act on the part of the Registrar. The plaintiff sustains on the pleadings that he has made out against the defendants: Smith v Minister for Lands [2009] PGSC 60; SC973 (1 June 2009).
  6. Firstly, it is primary by law section 59 of the Constitution that before the title is cancelled by the powers under the Land Registration Act sections 160, 161, and 162, the plaintiff must be accorded details of the fraud that he is supposed to have committed in getting title against TSC. From which the latter will respond to defend what is on his hands. That will constitute material that is determined by the registrar to act as he did here, to cancel and reissue the title to TSC. It is not and entails Judicial review in favour of the Plaintiff. He has made out a case for Judicial review: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005).
  7. Secondly, he has made out a case for the remedies that he seeks in respect and as he has pleaded by this notice of motion and by Asiki (supra).
  8. The formal orders of the court are;

Orders Accordingly.

__________________________________________________________________

Mel & Henry Lawyers : Lawyer for the Plaintiff/Applicant

Nicholas Tame Lawyers : Lawyer for Fourth Defendant

Office of the Solicitor General : Lawyer for First, Second, & Third Defendants

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