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North Fly Development Corporation Ltd v New Century Investment Ltd [2023] PGNC 291; N10447 (21 August 2023)

N10447

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 109 OF 2022

NORTH FLY DEVELOPMENT CORPORATION LTD
Plaintiff

V

NEW CENTURY INVESTMENT LTD
First Defendant

AND
JOHN ROSSO MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND
BENJAMIN SAMSON SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND
REGISTRAR OF TITLES
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2023: 20^th July, 21^st August

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave to apply for Judicial review Order 16 Rule 3 NCR – Registration of Transfer Instrument by Registrar of Titles – Decision to Made 17^th August 2016 – Locus Standi– Undue Delay – Arguable Case – Internal Administrative Avenues – Balance Not Discharged – Leave Refused– cost follow event.

Cases Cited:

Dupnai v Weke [2016] PGSC 43; SC1525
Innovest ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122
Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459

Counsel:

J. Lome, for Plaintiff
N. Yano, for Defendants

RULING

21^st August 2023

1. MIVIRI, J: This is the ruling on the Originating summons of the applicant dated the 21^st October 2022 seeking leave for Judicial Review of the decision of the fourth Defendant made on the 17^th August 2016 to accept and register the entry of State Lease described as Section 2, Allotment 55, Kiunga, Western Province to the First Defendant. It is claiming that it is the registered proprietor of that property in Western Province which was the subject of a mortgage to the Bank of South Pacific Limited. And that mortgage was discharged in 2016. It contends that it only recently discovered that one James Donald unilaterally executed a transfer instrument and contract of Sale transferring the subject property to the First Defendant. Which transfer Instrument was registered by the Fourth Defendant. The plaintiff is seeking leave to review that decision and to quash it.
   
2. Primarily it is a public office with a public official the Registrar, fourth defendant as head of that office. His role is not of his own volition as he pleases but comes into play because the public at large call for his services by the various forms they lodge within to invoke his official duties to register. Those forms are the prerogative of the public seeking the services of the registrar to fill and lodge. The registrar will have to make sure they are in order to fulfill requirements of registration. If he has done that it is not ultra vires the powers granted. Here a transfer instrument was purportedly registered using his powers.
   
3. That duty is called upon his office the fourth Defendant in the registration of property by section 42 of the Land Registration Act 1981. And that section places it incumbent upon the proprietor to execute the transfer in the approved form. It is not any other form but a form duly prescribed by that law, not without. So, it is not upon the fourth Defendant, but the public who are seeking his services to make sure they are in order to register the subject, here the transfer instrument. It is in the approved form and the registrar makes sure of that fact to register. And the relevant consideration specified in that form to accompany. If it is not money the nature of the consideration should be stated concisely. It is an offence not to correctly state the consideration. A transfer shall be lodged for registration as a single original document.
   
4. Here it would seem all was in satisfaction of the law set out above, hence the registration of the transfer. And by that fact the following now have taken place that subject to sections 13 and 162 on completion of registration the Registrar shall:
   
   • (a) In the case of a transfer which relates to the whole of the land in a certificate of title-issue to the transferee the duplicate of the certificate of title lodged with the transfer; and
   • (b) In the case of a transfer which relates to a part of the land in a certificate of title-reissue to the transferor his duplicate of the certificate of title cancelled as to the part transferred and issue in respect of the transferee a new certificate of title in his own name as to the part transferred.
     
5. So, for there to be arguable basis to advance the case to a grant of leave, it must be demonstrated prima facie that this Statute, particularly the provisions set out above have been breached or not complied with to arrive at the registration of the subject instrument to that property. That is the evidence per se that the applicant has to demonstrate prima facie arguable. That because of that breach he has been affected as the proprietor of the subject property at law. And the exercise of discretion by the fourth defendant the Registrar has been wrongly exercised and discharged. It should not stand in law. The registration has not followed process of law to be properly registered. And the role invoked by the law upon the registrar has been breached in the way he sought to register the subject transfer instrument relating to that subject property. If that is the case here by the affidavit material relied on than leave will be granted. The pleading drives the cause of action for leave here it is not viable to grant because it is not there: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
6. Because it is arguable per se. And the applicant is affected by that decision. There are no procedures administratively within to settle that matter. It must come to court in this way now pleaded. And there is no delay to coming as it is now. But it is a different matter and thing where the allegation is against the person who purportedly sought to register the subject property. The person who sought and registered the subject property in the way it has done, here is James Donald. He is alleged to have done that unilaterally, executed a transfer instrument and contract of Sale transferring the subject property to the First Defendant. Which transfer Instrument was registered by the Fourth Defendant. Prima facie an allegation of fraud arises. He is not registering with the authority of all including the applicant. That is not an allegation against the registrar. So, leave cannot be obtained where the registrar has done nothing against the Statute empowering him to do what he did.
   
7. Further the subject property was held by the plaintiff company. And its transfer was unilateral without the Company having its say through its directors to deal with in the way it was done. In this way it is no business nor duty of the fourth defendant as to how the Plaintiff company operates its affairs and deals with its property as is the case here. It is not in his hands as registrar. Rightly it is a matter within the plaintiff its board of Directors and its chairman. Judicial review would not be the forum and therefore leave would not lie prima facie. Alternatively, if it was argued against the fourth defendant, has he exceeded his powers to register the subject transfer instrument? And in so doing has he committed an error of law, or committed a breach of natural justice, that the decision to register the transfer instrument was in breach of law. These should be the evidence of the applicant to sustain the originating summons for leave. It is the arguable basis where the decision-making power of the fourth defendant to register has breached the empowering Statute or subordinate legislation in the registration of that transfer to the First Defendant.
   
8. If these are answered in the affirmative, then leave lies for the applicant. And the two affidavits, both of the Chairman of the Plaintiff Company Ronald Dmonai, firstly sworn of the 20^th December 2022, filed of the 26^th January 2023, sets out the registration of the plaintiff with IPA. It is the business arm of the North Fly District Local Level Government. Annexure “A” is the copy of the company extract and certificate from IPA. The subject property was mortgaged to the Bank of South Pacific released with the Discharge of General Security Interest for all Mortgaged Properties when on the 27^th October 2016 the plaintiff’s loan with the Bank of South Pacific was fully completed and repaid. Annexure “L” is copy of the account statement from 2016 to 2017 indicating the loans were fully repaid by the 27^th October 2016. And Annexure “M” is true copy of the subject discharged referred above.
   
9. Relevantly at paragraph 22 the subject affidavit states: “On the 16^th April 2019 the titles of the other six (6) properties were discharged. However, the title of the subject property described as Section 2, Allotment 55 Kiunga Western Province was not discharged. Annexure “N1”to “N6” are true copies of the Discharged forms of the other six (6) titles issued by the Department of Lands & Physical Planning.
   
10. At paragraph 23: “On the 10^th August, 2016, one James Donald, purportedly made an illegal changes to the Plaintiff Company’s record at Investment Promotion Authority (IPA) by appointing himself as Director and Secretary without the knowledge, consent, authority or a meeting resolution from the Board of Directors of the Plaintiff Company. Attached as annexure “O” is the copy of the Company Extract as 11^th August 2016 from IPA.
    
11. At paragraph 24: On 15^th August 2016, one James Donald unilaterally executed a Transfer Instrument and a Contract of Sale with the First Defendant and the Officers of the Department of Lands & Physical Planning, illegally acting as one of the Directors of the Plaintiff Company. Attached as annexure “P1” and “P2” are copies of the transfer instrument & contract of sale executed by one James Donald with the First Defendant.
    
12. From Paragraph 25 to 31 of the affidavit are details of the actions undertaken to register the subject transfer instrument finalising it on the record of the register. Enquiries with the Bank as to how the title ended up with the Registrar of Titles, is clear the authority was instruction from James Donald to do what the bank did with the registrar of titles. It is not the doing of the Registrar.
    
13. In my view this evidence does not endorse the argument I have set out above making the plea of the applicant viable to Judicial review. Because it is a general rule that, “judicial review is used where a public body is relying for its decision-making power on a statute or subordinate legislation made under statute or subordinate legislation. Judicial review is a remedy when the action of a public authority is to be challenged, Ragi and State Services & Statutory Authorities Superannuation Fund Board v Maingu [1994] PGSC 3; SC459 (29 June 1994). Here the plaintiff as a company does not involve the world at large. Those who are associated with the Company have rights and obligations that flow by that relationship in law. James Donald if he was a director of that Company had duties that were within to those who also were members, directors of that company with its shareholders.
    
14. Because “Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.

Public Law prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be whereas stated above, the public authority is acting under a statute or subordinate legislation.
In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit; Ragi (supra). That is not our case here at all so Leave for Judicial review cannot lie.

15. What has happened within the closed doors of the Company, the plaintiff remains within and cannot be the subject of Judicial review and leave will not lie, because it is not arguable per se. And when it is glossed further in the perimeters of the second affidavit sworn by Ronald Dmonai of the 10^th February 2023 filed 12^th February 2023, it does not open the door for Judicial review, because it is barred by the arguments set out above. In any case what would be attained explaining the delay to file this application when it is not arguable within the terms set out above. It is not in the right forum here. The Company and its Board of Directors. Shareholders are not prone to Judicial review as to how it is run and dealings in its properties is really its business. It is not in the public domain. The fourth defendant has not breached laws to register a transfer Instrument that has been produced prima facie by an official of that Company to invoke his role. Even if the delay is successfully explained the case is not arguable per se.
    
16. The plaintiff complains about the actions of the fourth defendant of the 17^th August 2016 when the transfer was registered. His complaint is now 6 years old having instituted on 21^st October 2022. If it is genuinely his property he does not explain satisfactorily as to why these proceedings took 6 years from the act complained off. And the second affidavit specifically to address this fact does not bring it back. It is really an inordinate delay particularly bearing in mind that the subject property was mortgaged and checking the payment of the loan no doubt would have also meant checking the status of the subject property. This is an inordinate delay that cannot be cured by the material on file. It does not discharge this ground to bring leave into focus: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016).
    
17. The formal orders of the court are:
    
    • (1) Leave is Refused.
      
    • (2) Costs will follow the event.
      

Orders Accordingly.

__________________________________________________________________

Jeffersons Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Respondents