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Jaro Investment Ltd v Ane [2021] PGNC 76; N8827 (21 May 2021)

N8827

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 790 OF 2019

JARO INVESTMENT LIMITED
Plaintiff

AND:
ALA ANE IN HIS CAPACITY AS THE ACTING REGISTRAR OF TITLES
First Defendant

AND:
BENJAMIN SAMSON IN HIS CAPACITY AS THE ACTING SECRETARY FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
YAN GUI PING
Fourth Defendant

Waigani: Miviri J
2021: 12^th May

PRACTICE & PROCEDURE – Judicial Review & appeals – Amended notice of Motion – Procedural Impropriety Section 160 (2) & Section 161 (a) (b) Land Registration Act – Error of Law Section 162 (1) (2) (3) Land Registration Act – Issue of Replacement Title – Procedure for – material relied insufficient – Motion denied – cost follow event.

Cases Cited:

TST Holdings Ltd v Wavik [2020] PGNC 106; N8298
Wiring v Muingnepe [2012] PGNC 247; N4889
Fragili v Karup [2011] PGNC 306; N4200
Raumai No.18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952

Counsel:

H. Leahy, for all Plaintiff
S Gor, for Fourth Defendants
K. Kipongi, for First, Second & Third Defendants

RULING

21^st May, 2021

1. MIVIRI, J: This is the Ruling on the Plaintiff’s amended notice of motion of the 10^th November 2020 seeking:
   
   • (a) Issue of a replacement State Lease Volume 25 Folio 99; and
     
   • (b) Transfer of the State Lease volume 25 Folio 99 to the Fourth Defendant Yan Gui Ping,
     
   • (c) Costs.
     
2. He relies on the affidavit of Herman Joseph Leahy of the 1^st February 2021. There are four volumes of this affidavit. What comes out of this evidence is that this is the third National Court proceedings relating to this matter. Plainly the plaintiff seeks that the decision of the Registrar made on the 13^th December 2018 to issue Mr Yan Gui Ping an official copy of a State Lease Volume 25 Folio 99 in respect of the same land that was granted to the Plaintiff be brought before the Court quashed.
   
3. The subject property is allotment 7 Section 2 Vanimo Top Town West Sepik Province. And within it there are two different State Leases, the first is Volume 25 Folio 32 dated 25^th July 2017. It is a business or commercial lease. It was initially granted to the National Housing Corporation (NHC). Who transferred it to the Plaintiff on 15^th June 2018.
   
4. And the second is State Lease volume 25 Folio 99 dated the 14^th June 2018. It is a residential Lease initially granted to the National Housing Corporation which was transferred by them to the fourth defendant Yan Gui Ping on the 13^th December 2018.
   
5. On the 15^th August 2018, the Registrar of Titles summoned the Plaintiff to produce the original owners copy of the State Lease volume 25 folio 99 in order to cancel the transfer of the State Lease from the National Housing Corporation (NHC) citing various grounds including fraud. It was refused by Jaro by letter of the 24^th August 2018. Jaro had possession of State Lease volume 25 Folio 32 but did not have possession of State Lease volume 25 Folio 99. On the 09^th November 2018 publication was made in the National Gazette by the Registrar of Titles his intention to issue a replacement State Lease volume 25 Folio 99 after lapse of 14 days. On the 13^th December 2018, a replacement State Lease volume 25 Folio 99 was issued and it was transferred to Yan Gui Ping.
   
6. The plaintiff argues that the issuing of the State Lease volume 25 Folio 99 and transfer to Yan Gui Ping was procedurally improper pursuant to section 160 (2) and 161 (a) (b) of the Land Registration Act. There was error in his application of section 162 (1)(2)(3) of the Land Registration Act. And Ultra vires section 160 (2) of the Land Registration Act.
   
7. Section 160, 161, and 162 of the Land Registration Act is in the following terms,

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.

(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)[100] 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.

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)[101] 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)[102] 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.

162. 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.

8. That is the law applicable here given the facts set out above. And in this regard the original registered proprietor is the National Housing Corporation. Of the State Lease volume 25 Folio 99. And this becomes clear in the affidavit of Benjamin Samson the current Secretary of the Department of Lands & Physical Planning. Relevantly filed 26^th May 2020 he deposes and annexures the current land file for the property State Lease Volume 25 Folio 99 contained in the review book volume 3 page 539. In there he annexures the application for a replacement title made by the NHC as the original registered proprietor of the State Lease Volume 25 Folio 99. He annexures the receipt issued by the Department of Lands to the NHC for the payment made of K500 for its application. It is at volume 3 of the review book at page 533. Then he annexures a copy of the National Gazette notice G735 of the 09^th November 2018 advertising the intentions of the Registrar of titles to issue an official copy of the State Lease volume 25 Folio 99 after the expiration of 14 days. This is at page 532 of the review book filed. Further he annexures a copy of the advertisement in one of the daily newspapers at page 534 of the review book. He then annexures a copy of the State Lease volume 25 folio 99 as of the 13^th December 2018 the Registrar of Titles issued the official copy of the State Lease.
   
9. In my view these relevant facts establish that the first defendant has complied with the requirements of the sections of the Land Registration Act set out above. He has complied with the relevant requirements of these sections set out in the way he has carried out his duties: TST Holdings Ltd v Wavik [2020] PGNC 106; N8298 (28 April 2020). There is no error as argued by the plaintiff. Because transfer requirements have been made out in the transfer a valid one in the approved form has been made out. It means that the NHC has transferred by the instrument dated the 13^th July 2018 executed at page 523 of the Review book. There is consideration for the transfer shown it is executed and stamped. And that is clear from the affidavit of Ala Ane of the 26^th May 2020 in the review book 571 to 575. Ministerial approval fee K300 evidence this part settled in the affidavit of Benjamin Samson in the review book page 530.
   
10. It need not be further than these to show that there was valid transfer from the National Housing Corporation to Yan Gui Ping. There is no error as contended by the plaintiff in the actions of the Registrar of Titles. The facts circumstance set out above do not par with Wiring v Muingnepe [2012] PGNC 247; N4889 (26 July 2012). And the situation seen in Fragili v Karup [2011] PGNC 306; N4200 (18 January 2011).
    
11. It is clear that the registrar of titles has powers under section 160, 161, and 162 to summon, cancel and restore titles and which powers he has exercised here without any error known to law apparent and identifiable: Raumai No.18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952 (28 September 2018). The plaintiff has not demonstrated otherwise. His argument on fraud are without the pleading and therefore will not be considered. The effect aggregate is that in accordance with Order 16 Rule 5 (1) the notice of motion is incompetent and has no merit either in fact or law and fails. Judicial review is refused and is dismissed forthwith with Costs to follow the event.
    
12. The formal orders of the Court are;
    
    • (i) Judicial review is refused.
    • (ii) Notice of motion is incompetent and dismissed.
    • (iii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Pacific Legal Group Lawyers: Lawyer for the Plaintiff/Applicant

Fiocco Nutley Lawyers: Lawyer for the Fourth Defendants

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