N11727
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO 178 OF 2025 (CCI)  

BETWEEN
JOHN EKA as the Executor of the Estate of Late Tom Matralihk Nidop (Deceased)
  Plaintiff

AND
ALA ANE AS THE REGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSCIAL PLANNING
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

 WAIGANI: MAKAIL J
22 DECEMBER 2025; 2 , 6 MARCH 2026    

STATE LEASES –   Business (Commercial) Lease – Conflicting claims to State Lease – Declaratory order sought to affirm interest – Indefeasible title – Forfeiture of State Lease – Conditions of State Lease – Failure or default in complying with improvement covenant and payment of annual rent – Surrender of State Lease – Grant of new State Lease to third party – Whether no controversy in title to land – Proof of – Relief sought refused – Proceedings dismissed – Land Act – Sections 121, 122, & 124 

Cases cited
 Mudge v Secretary for Lands [1985] PNGLR 387
Awaincorp Limited v The Honourable Jim Kas MP (2013) N5862
Norman G. Oma & Ors v Gurahi ILG & The State (2025) N11644

Counsel

Ms E Wurr-Totsia, for plaintiff
Ms S Nisimi, for defendants 
JUDGMENT

1.     MAKAIL J:  The plaintiff sues as the executor of the estate of one late Tom Matralinhk Nidop (deceased) in this with proceedings to seek a declaratory order that he is the legal proprietor of the land described as Section 21 Allotments 4 and 5 (consolidated), contained in the State Lease (Business (Commercial) Lease Volume No. 55, Folio 170, Mt. Hagen, Western Highlands Province.  This order is being sought based on the replacement title (State Lease) issued to the deceased on 23rd November 2010 by the defendants.

2.      I have read the affidavits tendered by the parties which were marked exhibits “P1”, “P2” and “D”, and written submissions of the parties and heard their respective counsel’s oral submissions.  It is common ground between the parties that the  dispute has a long history dating back to 1970’s where on 13th November 1972 the deceased was granted the State Lease for the subject land which comprised of Allotments 4 and 5 for a term of 99 years and was next to Allotment 6 which was allocated to a company owned by the Western Highlands Provincial Government called Western Highlands Development Corporation (“WHDC”).  The Allotments 4, 5 and 6 houses the building known as the “Hagen Plaza”.

3.   It was one of the conditions of the State Lease that the deceased put up improvements up to a minimum of $15,000.00 within one year of its grant and the other was to pay an annual rent of $270.00 to the defendants.  By 1974, the deceased failed or defaulted in complying within these conditions.  

4.    A delegate of the Minister for Lands then gave a notice to the deceased, to show cause why the State Lease should not be forfeited for failure or default in complying with the improvement covenant and annual rent payment under Section 54 of the Land Act of 1969.

5.	In his letter to the Director, Department of Lands dated 7th May 1975, the deceased admitted that “(A) The land has no progress since granted (B) Due to lack of finance.”  The letter further stated that “And with the reasons I’ve stated it is requested, that the said land be surrendered and returned to the land title commission.  Your further advise as to whether or not the land have been declared forfeited will be greatly received.”

6.	According to the defendants pursuant to the notice to show cause and the admission by the deceased that he had failed or defaulted in complying with the improvement covenant and payment of annual rent, the State Lease was deemed to have been forfeited.  This then paved the way for the land to be made available for leasing and a new State Lease over Allotments 4 and 5 was granted to WHDC.  
7.	On the other hand, the plaintiff submitted that he has clear title to the land because it has not been set aside under any of the grounds under Section 33(1) of the Land Registration Act or forfeited under Section 122 of the Land Act 1996.  Moreover, it has not been showed by the defendants that he has procured the replacement title (State Lease) by fraud or that there is notice of forfeiture served on him to confirm that the State Lease has been forfeited. On the contrary the computer records held by the defendants showed that the deceased is the registered title holder but was deprived of the use of the land when the WHDC was granted a new State Lease over the land since 1977. 

8.	It has long been recognised that the doctrine of indefeasibility of title confers on a registered proprietor of a State Lease an indefeasible title unless any of the exceptions under Section 33(1) of the Land Registration Act is proven: Mudge v Secretary for Lands [1985] PNGLR 387.  It is also suggested that a defendant contesting a claim for declaration of interest in land may file a crossclaim and prove fraud against the claimant: Awaincorp Limited v The Honourable Jim Kas MP (2013) N5862.

9.	While it is acknowledged that no fraud has been proved against the plaintiff’s title (replacement title) of 10th November 2010, nor a crossclaim has been filed by the defendants alleging fraud against the plaintiff, and that the records (Annual Rent Statement of Accounts) held by the defendants showed that the deceased is the registered title holder of the land, there has been admission by the deceased that he has failed or defaulted in complying with the improvement covenant and payment of annual rent in response to the notice to show cause and was willing to surrender and return the State Lease to the defendants way back in 1974.  

10.	However, as correctly noted by the parties, the defendants failed to complete the process of forfeiture by cancelling the State Lease on the document and recording it in the Register of State Leases that it has been cancelled.  Without attending to this, the defendants went ahead to have the land advertised and the WHDC applied for it and was recommended to be granted the State Lease by the Land Board.  

11.	That omission was detected by the Minister for Lands when he was about to approve the grant to the WHDC and only approved the grant of the State Lease over Allotment 6 to the WHDC.  However, that omission did not absolve the deceased from his failure or default in complying with the improvement covenant and payment of annual rent.  Rather than correcting the State Lease and Register, the case took a different turn when in 1988, an attempt was made by a David Awaita of Kirks Lawyers pursuant to a Power of Attorney from the deceased requesting for surrender of the title (State Lease) of the land.  Presumably, this was done pursuant to Section 121 of the Land Act 1996.  However, the Registrar of Titles rejected this request.  

12.	The Registrar of Titles’ rejection of the State Lease surrender gave the deceased the impression that he could return to the land based on the title (State Lease) that was granted to him in 1972.  By then the WHDC had commenced work on the construction of the Hagen Plaza Building on Allotment 6 including Allotments 4 and 5.  

13.	On 3rd October 1988, the deceased commenced National Court proceedings against WHDC to seek an order to stop it from dealing with the land comprising of Allotments 4 and 5 but in 1992 an ex parte order was made for the title (State Lease) over Allotments 4 and 5 to be surrendered backdated to 24th August 1977.  The deceased was not aware of this order because he was away in his home province in East Sepik at that material time.  When he came to know about it, he strongly objected to it and confronted the Registrar of Titles but did not apply to the National Court to have it set aside or appeal it to the Supreme Court to have it set aside.  

14.	By then, this order paved the way for WHDC to occupy Allotments 4 and 5 and complete construction of the Hagen Plaza Building.  Because the deceased’s title (State Lease) was destroyed by fire, the title was not surrendered until a replacement title (State Lease) was issued by the Registrar of Titles on 23rd November 2010.  After that, the deceased continued to pay annual rent for the land until he passed away in 2022.  

15.	By then and after eight years, on 3rd April 2018 the State Lease for WHDC was registered by the Registrar of Titles.  A public ceremony was held in the office of the Department of Lands and Physical Planning to present the title to the Western Highlands Province Governor.  While there is a difference in the Volume and Folio Numbers of the State Lease for the deceased and State Lease for WHDC over Allotments 4 and 5, one being Volume 55, Folio 170 and other Volume 18, Folio 243, it is an insignificant discrepancy because the Survey Plan Cat Number on both State Leases is the same, it being 12/122.  According to Section 37 of the Survey Act, there can be no dealings in land unless there is a Survey Plan. Norman G. Oma & Ors v Gurahi ILG & The State (2025) N11644 at [21]-[23].  Here there is a common Survey Plan as indicated in both State Leases, and it settles any questions in relation to the accuracy or description of the land comprised in Allotments 4 and 5.

 16.	While the grant of the new State Lease to the WHDC should have settled the confusion in relation to the deceased’s title (State Lease) over the same land, the deceased pressed on with his complaint, this time by investigating the ownership/shareholding of WHDC and filing of two separate National Court proceedings alleging fraud against WHDC only for these proceedings to be dismissed for want of duplicity/multiplicity of proceedings and an abuse of process with liberty to refile proceedings on 14th July 2022.

17.	Then in 2022, the deceased passed away and the within proceedings was filed after the plaintiff who is a brother in-law of the deceased, obtained Letters of Probate from the National Court on 9th March 2023 to pursue the deceased’s claim to the land.  The defendants, in response, on 12th August 2025 slapped the plaintiff with a notice of fee for rental arrears exceeding K58,000.00 pursuant to Section 124 of the Land Act 1996.

18.	However, all these toing and froing must stop here because it has not been demonstrated on the balance of probabilities that the deceased has clear title (State Lease) to the land or that there is no controversy in the title to the land.  On the contrary, there are conflicting claims to the State Lease.  On the one hand, the question of whether the deceased’s title (State Lease) was forfeited due to non-compliance with the improvement covenant and payment of annual rent should have settled the deceased’s claim to the land in favour of the defendants because of the deceased’s own admission to defaulting in complying with the improvement covenant and payment of annual rent.  On the other hand, there was no forfeiture of the deceased’s State Lease, and it may be necessary for the defendants to complete that process.  Moreover, the surrender of the deceased’s title (State Lease), rightly or wrongly, and grant of a new State Lease to WHDC stands in the way of the deceased and the plaintiff.  

19.	Any annual rental arrears by the deceased should be cancelled and directed to WHDC to settle as the new registered proprietor or title holder.  Any rental payments made by the deceased should be reimbursed to the estate of the deceased for redistribution to the beneficiaries of the deceased.  The parties are to work out the sum to be reimbursed to the estate of the deceased and the defendants shall accordingly, reimburse.

20.	This being the findings, it is not necessary to address the jurisdiction argument raised by the defendants.  

21.	In the final analysis, the order sought by the plaintiff is refused and the within proceedings is dismissed with costs to the defendants, to be taxed, if not agreed.

Judgment and orders accordingly.
________________________________________________________________
Lawyers for plaintiff: S. Ifina Lawyers	 		
Lawyers for defendants: Solicitor General