N10209

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 457 OF 2019

BETWEEN:
JV PNG INVESTMENT CONSTRUCTIONS LIMITED
Plaintiff

AND:
BENJAMIN SAMSON, REGISTRAR OF TITLES, DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND:
OSWALD TOLOPA, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
POLRAVEN NO. 48 LIMITED as to one half share and SANAMO CONSTRUCTION LIMITED as to one half share both trading as HOTEL PACIFIC INN LIMITED
Fourth Defendant

AND:
POLRAVEN NO. 48 LIMITED
Fifth Defendant

AND:
SANAMO CONSTRUCTION LIMITED
Sixth Defendant

AND:
HOTEL PACIFIC INN LIMITED
Seventh Defendant

AND:
BANK OF PAPUA NEW GUINEA
Eight Defendant

Waigani:   Dingake J
2023:    20th February, 09th March

MOTION – application by defendants for orders seeking, among others, vacant possession of land subject of proceedings – plaintiff initially had title to land but lost it through NEC decision cancelling all titles to land granted by NHEL, an entity created by the government to manage government housing but abolished as it did not serve its intended purpose – land title granted to eight defendant – whether plaintiff had standing to bring proceedings -  whether title Plaintiff claims to have is void ab initio on account of the 2022, NEC decision -   plaintiff has standing – defendants cannot seek substantive relief in an interlocutory proceeding – issue of NEC decision should be best raised in the substantive hearing – defendants application is dismissed 

Counsel:

Mr. Naithan Pilamb, for the Plaintiff
Mr. Philip Wariniki, for the Fourth, Fifth, Sixth & Seventh Defendants
Mr. Willson Miniga, for the Eight Defendant

09th March, 2023

1.	DINGAKE J:	This is my ruling with respect to the opposed application by the Fourth, Fifth, Sixth and Seventh Defendants in which they moved the Court, to grant, inter alia, the following orders:

a)	Pursuant to Order 16(13) (13(1) and (2)(a) of the National Court Judicial Review (Amendment) Rules 2005, the proceeding herein be summarily determined on competency grounds in that the Plaintiff lost its title through NEC Decision No. 96.2022 and, hence, its standing to continue to do judicial review.

b)	A declaration that the Fourth, Fifth, Sixth and Seventh Defendants is unaffected by NEC Decision No. 96/2022 and therefore they hold title free of any or of such encumbrances.

c)	All illegal occupants of the property must give up vacant possession within 48 hours from the date of service of the order.

d)	The Plaintiff reimburses the Defendants the cost of fencing and associated costs.

e)	Costs be in favour of the Fourth, Fifth, Sixth and Seventh Defendants.

2.	The application was filed with this Court on the 5th of July, 2022.

3.	The application enjoys the support of the Eighth Defendant which contends that events have overtaken the utility of maintaining the proceeding as the Plaintiff has lost standing to continue with the judicial review.

4.	At the heart of the substantive dispute between the parties is a piece of land – Allotment 3, Section 35, Boroko, NCD, contained in State Lease Volume 45, Folio 224.

5.	It is common cause that in 2014, the Plaintiff had title to the above piece of land, but its title was cancelled and on the 24th of September 2018, First Defendant transferred title of the aforesaid land to the Fourth, Fifth, Sixth and Seventh Defendants.

6.	The Eight Defendant’s interest in this matter arises out of its assertion that it is a bona fide purchaser of two (2) allotments arising out of the subdivision of Allotment 3, Section 35, Boroko, NCD, by the Sixth Defendant.

7.	Leave to review the decision of the First Defendant to cancel the Plaintiff’s title was granted on the 12th of August, 2019.

8.	The substantive judicial review, seeks, inter alia, to review the following decisions:

1)	The First Defendant’s decision of 24 September 2018, made under s.161 of Land Registration Act Chapter 191 to:

a)	Cancel entry no. S.57402, which entry is registered 21 April 2011, on the State Lease comprising land formally described as Section 35, Allotment 3, Boroko, National Capital District Volume 45 Folio 224 (hereafter referred to as the State Lease), being entry of decision to vest the State Lease in National Housing Estate Limited; and
b)	Cancel entry no. S.73305, which entry is registered 25 February 2016, on the State Lease, being entry of transfer of State Lease from National Housing Estate Limited to JV PNG Investment Construction Limited.

2)	The First Defendant’s decision, as registered on State Lease on 2 October 2018, to issue an Official Copy of State Lease pursuant to s.162 of the Land Registration Act Chapter 191.

3)	The First Defendant’s decision, as registered on State Lease 2 October 2018, to transfer State Lease to “Polraven No. 48 Limited as to one half share and Sanamo Construction Limited as to one half share both trading as Hotel Pacific Inn Limited”.

9.	The Fourth, Fifth, Sixth, Seventh and Eighth Defendants contend that the Plaintiff proceedings are liable to be dismissed because the NEC Decision No. 96/2022 effectively wiped out the Plaintiff’s standing, as it no longer had title to the property.

10.	On 22nd March 2022, the National Executive Council in its Decision No. 96/2022 and Meeting No. 04/2022 held on 21 March 2022, resolved that:
“2.	Approved transfer of all State Leases belonging to National Housing Corporation that were vested in National Housing Estates Limited in accordance with NEC Decision NG70/2007 back to NHC forthwith;
3.	approved rescission of its previous Decision No. 304/2006, particularly item (4) which created National Housing Estates Limited and resolve its shareholders to abolish and/or voluntarily wind up the company for not achieving its intended purposes; and
4.	directed the current Board of Directors of NHEL to commence the winding up of NHEL after the transfer of all NHC titles vested in NHEL back to NHC” (emphasis mine).

11.	The Fourth, Fifth, Sixth, Seventh and Eighth Defendants contend that the effect of the NEC Decision No. 96/2022, is that:
a)	Allotment 3, Section 35, Boroko, NCD is affected by the decision.
b)	State Lease Volume 45 Folio 224 in respect of Allotment 3, Section 35, Boroko, to which the Plaintiff claims to have, is affected by the decision.
c)	The decision does not provide exceptions. The decision is in respect of all titles vested in NHEL, irrespective/regardless.
d)	The decision has retrospective effect in so far as “vested” titles are concerned.
e)	NHEL is required to transfer back the affected/vested title to NHC.

f)	As a consequence of it all, the Plaintiff lost its title and hence its standing to continue to seek judicial review.

12.	The above Defendants also argue that the title to which the Plaintiff claims to have is void ab initio on account of the 2022, NEC decision.

13.	The Plaintiff on the other hand argues that there is no merit to the application by the Defendants on at least three (3) grounds, namely, that the matter is not properly before the Court for determination; that the application has not raised a valid competency ground for dismissal under Order 16, Rule 13(13) (2)(a) of the National Court Rules, and that the application is an abuse of Court process in that term one (1) seeks an order that is substantive in nature in an interlocutory application.

14.	It is not necessary to consider and discuss all the grounds of the Plaintiff’s opposition to this application.

15.	I have carefully considered the submissions of the parties as summarized above. I do not consider that this application should succeed for a number of reasons. 

16.	Firstly, the issue of Plaintiff’s standing in challenging the decisions referred to in paragraph 8 of this Ruling has already been considered and determined by Thompson J when her Honour granted Plaintiff leave to review on 12 August, 2019 (Court doc. No. 11). 

17.	Secondly, it is instructive that at the time the decision of NEC was taken this matter was sub-judice. 

18.	Thirdly, it is not competent to seek, as the Defendants have done in this case, relief that is substantive in nature in an interlocutory application.

19.	Fourthly, it seems to me that if the Defendants consider that the Decision of the NEC has any relevance to this matter, they may raise the matter at the hearing of substantive judicial review.

20.	The Plaintiff has argued that in the event this application is dismissed, the Fourth, Fifth, Sixth and Seventh Defendants must be ordered to pay costs on a solicitor – client full indemnity basis as against the firm Wariniki Lawyers and or Diwenis Lawyers as they ignored its warning that the application was an abuse of process and should be withdrawn.

21.	It is trite learning that costs are a matter of the discretion by the Court, and whilst I have sympathy with the submissions of the Plaintiff on costs, I do not think that there are compelling reasons to award costs at the scale prayed as the Defendants may have entertained a bona fide belief that there is merit in their application.

22.	In the result:
a)	The application is dismissed.
b)	The Fourth, Fifth, Sixth, Seventh and Eighth Defendants shall pay the Plaintiff costs at a party to party scale, jointly and severally, and one paying the other to be absolved - such costs to be taxed if not agreed.
_______________________________________________________________
Mel & Hennry Lawyers: Lawyer for the Plaintif		
Diveni Lawyers: Lawyer for the Defendants   
Bradshaw Lawyers: Lawyer for the Eighth Defendant