N11686

    PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO.  642 OF 2019

BETWEEN:
FABIAN CHOW as the Executor of the Estate of late Sir Henry Francis Chow
Applicant

AND:
BENJAMIN SAMSON as the Registrar of Titles 
First Respondent

AND:
CHRIS MANDA as the Surveyor General  
Second Respondent 

AND:
OLSWALD TALOPA as the Secretary for the Department for Lands and Physical Planning  
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Fourth Respondent

AND:
VENNY ARUMOT, DELMA ARUMOT & NOEL ARUMOT 
Fifth Respondents

PAIBOON WETWATTANA 
Sixth Respondent 

AND 
HOMESTATE CO-OPERATION LIMITED
Seventh Respondent

&

OS (JR) 295 OF 2021

BETWEEN
VENNY ARUMOT, DELMA ARUMOT AND KELVIN ARUMOT
First Plaintiffs/Applicants

AND
FABIAN CHOW as the Executor of the Estate of late Sir Henry Francis Chow
Second Plaintiff/Applicant

AND
KUTT POANGA in his capacity as Acting Lands Titles Commissioner
First Defendant/Respondent

AND
BENJAMIN SAMSON as the Registrar of Titles
Second Defendant/Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Respondent

AND 
PAIBOON WETWATTANA
Fourth Defendant/Respondent 

LAE: DOWA J
3 JUNE 2024; 30 JANUARY 2026
JUDICIAL REVIEW –application in certiorari for review and the nullification of Surveyor Generals decision, to cancel and replace applicants survey plans,  the Registrar General’s decision to cancel applicants’ SABLs in two Portions of land, Land Titles Commissioner’s decision in the grant Freehold Title of the subject lands- Whether Surveyor General’s decision was erroneous in the light of existing SABL in the name of the applicants-whether the Registrar of Title complied with Section 160 and 161 of the Land Registration Act in cancelling the SABLs-Whether the Land Titles Commissioner’s decision reasonable in the light of serious and meritorious objections raised by the applicants-Whether it was equitable to set aside the Registrar of Title’s decision to cancel the SABL
Held:
 A.  Surveyor General’s decision was erroneous and was quashed.
 B. Land Title Commissioner’s decision was unreasonable and was quashed.
 C. Although the decision of the Registrar of Tiles was erroneous it was not equitable to grant the orders sought and was refused.

Cases cited

Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122
Vaki v Baki (2012) N4809
VNA Security Services Ltd v BUP Development Co. Ltd (2020) N8315 
Sam Koim v Hon Peter O’Neill (2014) PGNC 147; N5694
Kunjil No.19 Ltd v Samson (2024) SC2677
 H.Q.H Enterprises Ltd v Wangbao Trading Ltd (2023) SC2419
Jaro Investment Ltd v Ane (2022) SC2192
Aipa v Samson (2012) N4777 
Raumai No 18 Ltd v Country Motors (2018) N7952
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Mao Zeming v Hinchiffe (2006) N2998
Tau Mavaru Kamuta v David Sode (2006) N3067
Sabako v Commissioner for Police (2006) N2975 
Ombudsman Commission v Yama (2004) SC747 
Isaac Lupari v Sir Michael Somare (2008) N3476
Mudge v Secretary for Lands (1985) PNGLR 387
Tikili v Home Base Real Estate Ltd (2017) SC1563
Jaro Investment Ltd v Ane (2022) SC2192 
Camilus v Mota (2022) SC2210
Timothy v Timothy (2022) SC2282
 Emas v Mea (1993) PNGLR 21

Counsel

J. Aku for the first applicant, Fabian Chow
A Inia for the applicants, the Arumots
S Maliaki for the State respondents
E Sasingian for respondents, Wetwattana & Homestate 

DECISION 

1.	DOWA J:	 This is a decision on two applications for judicial review, OS(JR) 642 of 2019 and OS(JR) 295 of 2021. By agreement, the proceedings are consolidated because the parties and issues raised are the same and this judgment is on the consolidated proceedings. 

	Background Facts

2.	The applications for judicial review concern various decisions by State Respondents over parcels of land known as Malac Mambu, formerly Portions 683C and 684C, now consolidated and described as Portion 812C, Lae, Morobe Province. 

3.	 The Applicants, Venny Arumot, Delma Arumot, Noel Arumot and Kelvin Arumot, (hereinafter referred to as the Arumots) are customary landowners of Portions 683C and 684C. In August 2008, the land was acquired by the State under a Lease/Lease Back Agreement dated 23rd August 2008. On February 2009, the Arumots were granted Special Agricultural Business Leases (SABL) over the two Portions. The two Portions were then sold by the Arumots to late Henry Chow who registered the Transfers in June 2009.

4.	In June 2011, the Arumots and the Sixth Respondent, Homestate Co-operation filed proceedings against late Henry Chow and the Lands Department in proceedings WS No 333 of 2011 pleading that late Henry Chow failed to deliver the Portions of land to Homestate as per an agreement made in 2008 where late Henry Chow was acting as their agent to acquire the customary land from the Arumots and transfer it to Homestate Co-operation Limited.

5.	Pending the trial of matter in WS No 333 of 2011: 

a.	On 25th February 2014, the Surveyor General cancelled the Survey Plan No 31/1375 and replaced it with Survey Plan No 31/1557 consolidating Portions 683C and 684C and created a new description of the consolidated portion of land as Portion 812C. 

b.	On 30th May 2018, the SABLs in Portions 683C and 684C were cancelled by the Registrar of Titles. The reasons for cancellation were that the Survey Plan No 31/1375 that registered and delineated Portions 683C and 684C does not exist as it was cancelled by the Surveyor General due to numerous superseding surveys being carried out in the subject land.

c. 	After the cancellation of the two titles, the Respondents Paiboon Wetwattana and Homestate withdrew proceedings against the State Defendants in WS 333/2011 but pursed the matter against Henry Chow.

6.	On 14th October 2019, the National Court, per Makail J, entered judgment for Homestate and awarded K 4,682,162.80 in damages in WS No 333 of 2011. Henry Chow appealed the decision to the Supreme Court.

7.	Meanwhile on 20th December 2020, the Respondent, Kutt Poanga, the Acting Land Titles Commissioner, issued a new Certificate of Title in Portion 812C to Paiboon Wetwattana of Homestate Co-operation Limited.

8.	On 23rd February 2023 the Supreme Court set aside the National Court decision of 14th October 2019 and dismissed the entire National Court proceedings in WS 333 of 2011.

The Decisions sought to be reviewed in the two applications 

9.	The Applicants seek judicial review of the following decisions:

a.	The Surveyor General’s decision to cancel Survey Cat. Plan No 31/1375 which created Portions 683C and 684C and the registration of replacement Survey Cat. Plan No 31/1557 which created Portion 812C (consolidating Portions 683C & 684C).

b.	The Registrar of Title’s decision of 30th May 2018 cancelling the SABL Titles in Portions 683C and 684C. 

c.	The Respondent, Kutt Poanga, Acting Lands Title Commissioner’s decision of 20th December 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Tony Paiboon Wetwattana.

The grounds for review

10.	The main grounds for review for both matters set out in the Statements filed under Order 16 Rule 3 of the National Court Rules are:

a.	The Surveyor General’s decision to cancel Survey Cat. Plan No 31/1375 which created Portions 683C and 684C and the registration of replacement Survey Cat. Plan No 31/1557 which created Portion 812C (consolidating Portions 683C & 684C) was wrong, illegal and ultra virus his powers under Section 38 of the Survey Act 1969.

b.	The Registrar of Title’s decision to cancel the SABL Titles in Portions 683C and 684C, made on 30th May 2018 was wrong, illegal and ultra virus his powers under Sections 160 and 161 of the Land Registration Act. 

c.	The Respondent, Kutt Poanga, Acting Lands Title Commissioner’s decision of 20th December 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana was wrong, illegal and ultra virus his powers under Sections 8,9,10 and 11 of the Land (Tenure Conversion) Act and Section 133 of the Land Act 

Hearing and evidence

11.	The parties by agreement tendered their respective affidavits followed by written and oral submissions. For evidence the respective parties rely on the following affidavits which the Court considered in this judgment.

a.	Applicant, Fabian Chow, relies on:
	     i. Affidavit of Fabian Chow filed 17 /09/2019 Exhibit P1
	    ii. Supplementary Affidavit of Fabian Chow filed 19/10/2023-Exhibit P2

b.	The Arumots rely on:
i.	Affidavit of Delma Arumot filed 8/10/2021-Exhibit 5D1
ii.	Affidavit of Delma Arumot filed 29/092021-Exhibit 5D2
	
c.	The Surveyor General and Registrar of Titles rely on:
i.	Affidavit of Jack Bakus filed 7/6/2022-Exhibit 1D1
ii.	Affidavit of Kutt Paonga filed 16/08/2022-Exhibit 1D2
iii.	Affidavit of Boio Rarua filed 30/03/2022-Exhibit 1D3
iv.	Affidavit of Molean Kilepak filed 05/07/2022-Exhibit 1D4

d.	Respondent, Paiboon Wetwattana relies on:
i.	Affidavit of Paiboon Wetwattana filed 12/10/2021-Exhibit 6D1
ii.	Affidavit of Paiboon Wetwattana filed 17/04/ 2023-Exhibit 6D2
iii.	Affidavit of Paiboon Wetwattana filed 17/04/2023-Exhibit 6D3
iv.	Affidavit of Paiboon Wetwattana filed 23/08/2023-Exhibit 6D4

Law on judicial Review 

12.	The relevant law for judicial review is Order 16 of National Court Rules. Order 16 Rule 1 of the National Court Rules caters for cases appropriate for application for judicial review and provides in this manner:

(1)	An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2)	An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that, having regard to:

(a)	the nature of the matters in respect to which relief may be granted by way of an order of mandamus, prohibition or certiorari; and 

(b)	the nature of the persons and bodies against whom relief may be granted by way of such an order; and

(c)	all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

13.	In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:

“The circumstances under which judicial review may be available are 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”.

14.	The Supreme Court in that case further stated that:

“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion.  Judicial review is concerned not with the decision but with the decision-making process.

15.	 In the case Vaki v Baki (2012) N4809, His Honour Kirriwom J said:

“The circumstances under which Judicial Review is available are where the decision- making authority:

(a) Lacks power to make the decision;
(b) Exceeds or abuses its power;
(c) Commits an error of law;
(d) Breaches the principles of natural justice;
(e) Arrives at a decision which no reasonable tribunal would have reached;
(f) Takes into account irrelevant considerations in its decision making process;
(g) Failed to take into account relevant considerations in its decision- making process."  

The Issues

	Preliminary Issue

16.	Counsel for Homestate and Wetwattana submitted that the substantive Notice of Motion filed 23rd May 2022 in OS (JR) 642 of 2019 does not refer to the relevant jurisdictional basis of the Court. Counsel submitted that Applicant should have but failed to cite Order 16 Rule 5 of the National Court Rules in the Notice of Motion. 

17.	Order 16 of the National Court Rules provides for applications for judicial review. It is a separate mode of proceedings to that of Order 4. It starts with an application for leave under Rules 1 & 3 and once leave is granted, the substantive application is filed by way of Notice of Motion under Rule 5 (1).  It is to trigger the process of the hearing of the application for judicial review. Whilst the mode (by Notice of Motion) of applying for judicial review is mandatory under Rule 5(1), and not subject to dispensation, the same cannot be said that the jurisdictional basis or reference should be cited in the substantive Notice of Motion. For analogy, litigants do not necessarily cite Order 4 Rule 2 when filing a Writ of Summons nor do they cite Order 4 Rule 3 (2) when seeking declarations in Originating Summons. I find the Notice of Motion is competent.

18.	Even if I am wrong, in my view, the Court has a discretion to dispense with the requirement for the filing the Notice of Motion under Rule 5 (1) without citing the specific reference to the Rule giving jurisdiction, by invoking the powers given under Order16 Rule 13 (14) of the National Court Rules.

19.	 In my view, the application of the Rules should be flexible to do justice in the circumstances of each case. I adopt what I stated in VNA Security Services Ltd v BUP Development Co. Ltd (2020) N8315  at Paragraph 10 of my Judgment:

“10. The Court has the discretion to grant the orders sought, or refuse same and make such other orders to do justice in the circumstances. Under Order 1 Rule 7, of the National Court Rules the Court has a discretion to dispense with the requirements of the rules of court. The Court can also give extension of time to comply with the rules under order 1, Rule 15 of the National Court Rules. However, the exercise of the discretion has to be a judicial exercise taking into account the conduct of parties, the interest of justice, the smooth flow of justice administration by the Court, and the impact it would have on the parties. The rules of the National Court are not an end to themselves, but a means to achieving a just resolution of the dispute between parties. Refer; Niugini Mining v Bumbandy (2005) SC804”
20.	 In Sam Koim v Hon Peter O’Neill (2014) N5694, Gavara-Nanu J, when addressing the competency of Notice of Motion in judicial review said the application of the Rules should be flexible to do justice. At paragraph 53 of the judgment, His Honour said:
“53. Judicial review involves the exercise of equitable supervisory jurisdiction thus, the application of the Rules by the Court should not be rigid: Les Curlewis and Ors v. David Yuapa (2008) SC1274. The Rules should be flexible in their application and be the means to do justice, so that where there is a defect or irregularity in the pleadings, or an omission or a non-compliance with the requirements of the Rules, if such defect, omission, irregularity or non-compliance do not result in the prejudice to the opposing side, then such defect, omission, irregularity or non-compliance should be remedied with amendments. In Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (OS JR. 64 of 2014) 17 March, 2014), this Court in the exercise of its discretion under Order 1 rr. 7 and 8 of NCR, allowed the plaintiff to amend the originating summons to plead the subject decision which had not been pleaded. The amendment was allowed because the subject decision was pleaded in the Statement in Support. The Court was of the view that this was substantial compliance with the Rules. Furthermore, the amendments did not prejudice the opposing party. “

21.	In the present case, the Respondents have not been disadvantaged or suffered any prejudice by the absence of the citation of the relevant Rule. In addition, the proceedings in OS (JR) 642 of 2019 are now consolidated or jointly heard with proceedings in OS(JR) 296 of 2021 as the parties and the issues raised in the two proceedings are the same.  It is not in the interest of justice to dismiss the proceedings in OS(JR) 642 of 2019 on competency grounds.

Substantive issues

22.	 The main issues for consideration are:
	
a.	Whether the Surveyor General’s decision to cancel Survey Cat. Plan No 31/1375 which created Portions 683C and 684C and the registration of replacement Survey Cat. Plan No 31/1557 which created Portion 812C (consolidating Portions 683C & 684C) was wrong, illegal and ultra virus his powers under Section 38 of the Survey Act 1969.

b.	Whether the Registrar of Title’s decision to cancel the SABL Titles in Portions 683C and 684C, made on 30th May 2018 was wrong, illegal and ultra virus his powers under Sections 160 and 161 of the Land Registration Act. 

c.	Whether the Respondent, Kutt Paonga, Acting Lands Title Commissioner’s decision of 20th December 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana was wrong, illegal and ultra virus his powers under Sections 8,9,10 and 11 of the Land (Tenure Conversion) Act and Section 133 of the Land Act 

d.	What orders should the Court make to do justice in the circumstances of this case. 

a.	Whether the Surveyor General’s decision to cancel Survey Cat. Plan No 31/1375 which created Portions 683C and 684C and the registration of replacement Survey Cat. Plan No 31/1557 which created Portion 812C (consolidating Portions 683C & 684C) was wrong, illegal and ultra virus his powers under Section 38 of the Survey Act 1969.

23.	 The evidence presented in these proceedings is by Affidavits. The deponents were not cross examined. I will therefore apply commonsense and logic where the evidence is at variance and draw inferences where there are gaps.

24.	 The Arumot family are the original customary landowners of land known as    “Malak Mambu” previously Portion 652 C Survey Plan No 31/1213, situated at Speedway, City of Lae. Portion 652 C had a total area of 5.675 hectares.  In June 2008 Arumot family entered a Memorandum of Agreement (MOA) with Homestate Co-operation Limited offering to sell four (4) hectares of the land to Homestate for K1million. (Homestate says they eventually paid K 1.375 million). Under the MOA, Homestate was to organise surveys and subdivisions, where Homestate will have one Portion containing four hectares while Arumots will retain the other portion containing 1.675 hectares.

25.	Late Sir Henry Chow, a naturalized citizen, and owner of Lae Biscuits Co Limited was appointed to facilitate the acquisitions, conversion of the land and eventual transfer of the four hectares to Homestate. It was agreed that Late Henry Chow would be paid for his services by Homestate. It is important to note that late Henry Chow was not a party to the MOA. According to Mr. Wetwattana, Henry Chow was engaged because he was a citizen and he agreed to act as his agent, as Mr Wetwattana wasn’t a citizen then and required his services for the conversion of customary land into freehold land.

26.	The land was subdivided into Portions 683C containing 1.68 hectares and 684C containing 4.00 hectares under Survey Plan Cat. No 31/1375. 

27.	On 23rd January 2009, the land was acquired by the State under Lease/Leaseback arrangement and were issued Special Agricultural Business Leases (SABL). Portion 683C Volume 16 Folio 61 was registered in the name of Venny Arumot while Portion 684C Volume 16 Folio 60 was registered in the name of Venny, Kelvin & Delma Arumot as joint tenants.

28.	Around June 2009, the Arumots sold Portions 683C & 684C to Sir Henry Chow for K 2.5 million. 

29.	None of the properties were transferred to Homestate.

30.	Homestate becoming aware of the transfers from Arumots to Chow, commenced proceedings against Henry Chow for breach of contract and the Department of Lands for fraudulent dealings in the subdivisions in proceedings WS No 333 of 2011.

31.	On 25th February 2014, pending the trial of matter in WS No 333 of 2011, the Surveyor General cancelled the Survey Plan No. 31/1375 and replaced it with Survey Plan No. 31/1557 consolidating Portions 683C and 684C and created a new description of the consolidated portion of land as Portion 812C.

32.	Chow contends that Wetwattana and Homestate colluded and collaborated with the Surveyor General to illegally cancel the Survey Plan Cat No 31/1375 which created Portions 683C and 684C without justification. The only motive was to create Survey Plan Cat No 31/1557 consolidating the two Portions in favour of Wetwattana and Homestate.

33.	Mr. Wetwattana did not refute the allegations of collusion. Mr. Jack Bakus, the Surveyor General who filed an affidavit in the proceedings explained that the reasons for cancelling the Survey Plan No 31/1375 was because the signatures for approving authority in Survey Cat No 31/1375 creating Portions 683C & 684C were forged. His evidence is brief and he was not cross examined. 

34.	I place little weight on Bakus’ testimony. He did not state if the Survey Plan No 31/1375 contained any errors other than the forged signature. He gave no details of the signature that was forged. He gave no reasons why they considered it necessary to consolidate the two portions of the land in a new Survey Plan. He gave no evidence on the source of their instructions for the consolidation.

35.	I find the decision and action of the Surveyor General unreasonable. He did not consider the existence of the two SABLs granted and registered for Portions 683C & 684C in Survey Plan No 31/1375 existing at the time of cancellation.

36.	 The existing survey plans and subdivisions under Survey Plan No 31/1375 are consistent with the instructions and intentions of both the Arumots, Homestate and Chow. It was part of the MOA that the original Portion 652C under Survey Plan No 31/1213 was to be subdivided so a portion of the land containing 4.00 hectares could be created and transferred to Homestate. Despite the existing understanding and instructions, the Surveyor General proceeded to cancel them and created new Survey Plan No 31/1557.

37.	The forged signature is not an error for correction, let alone a correction by cancellation, as envisaged by Section 38 of the Survey Act 1969. 

38.	The Portions of land in Survey Plan No 31/1375 were subject of two registered SABLs. The cancellations were not done at the request of the Title holders, for the purpose of any application for consolidation under Section 131 of the Land Act 1996. Neither was it done for any purpose under Section 157 of the Land Registration Act.

39.	The Applicants, who were the Lessees at the material time, were not consulted before the Survey Plans were cancelled which amounts to a breach of natural justice and fairness under Section 59 of the Constitution. 

40.	The decision and actions of the Surveyor General was sub judice as the issues concerning Portions 683C and 684C were before the Court in proceedings WS No 333 of 2011 between the parties. Homestate was the principal Plaintiff in WS No 333 of 2011.In that case, amongst other reliefs, Homestate was seeking an order for the transfer of Portion 684C from Henry Chow to Homestate. Homestate was also seeking orders for cancellation of subdivisions made in Portion 684C. Conveniently, Homestate withdrew the proceedings against the State Defendants soon after the cancellation of the Survey Plans and the SABL in Portions 683C & 684C and pursued the claim for damages only against Henry Chow.

41.	I infer from the evidence presented that Paiboon Wetwattana and Homestate were directly involved in the cancellation of the Survey Plan No 31/1375 and the registration of the new Survey Plan No 31/ 1557 which created Portion 812C, consolidating Portions 683C and 684C.

42.	In the end, I find the Surveyor General’s decision to cancel Survey Cat. Plan No 31/1375 which created Portions 683C and 684C and the registration of replacement Survey Cat. Plan No 31/1557 which created Portion 812C (consolidating Portions 683C & 684C) was wrong, illegal and ultra virus his powers under Section 38 of the Survey Act 1969. The decision is also unreasonable and was made in breach of the principles of natural justice.

b.	Whether the Registrar of Title’s decision to cancel the SABL Titles in Portions 683C and 684C, made on 30th May 2018 was wrong, illegal and ultra virus his powers under Sections 160 and 161 of the Land Registration Act. 

43.	Counsel for Chow submitted that the Registrar for Titles did not have power to cancel the SABLs and the decision was in breach of Sections 160 and 161 of the Land Registration Act.

44.	On 11th April 2017, Notice was published in the Post Courier summonsing Henry Chow to deliver up the Original Owner’s copies of the SABLs for Portions 683C & 684C for cancellation. The reasons for cancellation were that the Survey Plan No 13/1375 that registered and delineated Portions 683C and 684C does not exist as they were cancelled by the Surveyor General due to numerous superseding surveys being carried out in the subject lands.

45.	On 12th April 2018, Chow’s lawyers wrote to the Registrar of Titles advising him not to deal with the two SABLs as the issues concerning the two SABLs was before the National Court in proceedings WS No 333 of 2011.

46.	Despite the advice from Chow’s lawyers, the Registrar of Titles proceeded to cancel the SABLs in Portions 683C & 684C on 30th May 2018 for the reasons set out in the Notice.

47.	The process and procedure for production and cancellation of State Leases is set out Sections 160 and 161 of the Land Registration Act. Sections 160 & 161 read:

“160. Production of instruments wrongly issued, etc.

(I)	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 58 Prepared for inclusion as at 1/111982. Land Registration Ch. No. 191 
(d) an instrument held by a person contains an entry or endorsement 
(i) made in error; or
 (ii) fraudulently or wrongly obtained; or
(d)	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 Book 
(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) in any other case, on such evidence as appears to him sufficient, correct errors or omissions in-
 (i) the Register Book or an entry in the Register Book; 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 Book 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 Book 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.”

48.	Sections 160 and 161 are clear. Where it appears that an instrument has been issued to a person in error or fraudulently obtained or contains misdescription or entries made in error, the Registrar of Titles may summons that person to deliver up the instrument. Where a person fails or refuses to comply with the summons, 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. After an order is obtained from the National Court and the instrument is delivered up, the Registrar shall administratively   cancel the instrument following an order of the Court under Section 160 of the Act.

49.	The law is now settled by numerous Supreme and National Court decisions in no uncertain terms that the Registrar of Titles does not have power to cancel the titles without following the process under Section 160. Refer: Kunjil No.19 Ltd v Samson (2024) SC 2677, H.Q.H Enterprises Ltd v Wangbao Trading Ltd (2023) SC 2419, Jaro Investment Ltd v Ane (2022) SC 2192, Aipa v Samson (2012) N4777 and Raumai No 18 Ltd v Country Motors (2018) N7952.

50.	In the present case, the Registrar of Titles published a Notice in the Post Courier summonsing Chow. When Chow refused to deliver up the titles for the reason that the matter was already in Court in proceedings WS No 333 of 2011. Instead of applying to the Court to summons Chow, he proceeded to cancel the two SABLs.

51.	I find the Registrar of Title’s decision to cancel the SABL Titles in Portions 863C and 864C, made on 30th May 2018 was wrong, illegal and ultra virus his powers under Sections 160 and 161 of the Land Registration Act.

52.	There is another reason I find the Registrar’s decision unreasonable. The Registrar of Titles was a party to the proceedings WS No 333 of 2011. The proceedings concern the subject SABLs over Portions 683C & 684C and the matter was pending hearing. Despite being a party and being advised to await the outcome of the proceedings, he proceeded to administratively deal with the subject land. His actions were contemptuous. I find the decision unreasonable under the Wednesbury principles.  

c.	Whether the Respondent, Kutt Paonga, Acting Lands Titles Commissioner’s decision of 20th December 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana was wrong, illegal and ultra virus his powers under Sections 8,9,10 and 11 of the Tenure Conversion Act and Section 133 of the Land Act 

53.	 The Arumots, supported by Chow, submitted that the Acting Land Titles Commissioner was wrong in awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana in his decision made on 28th September 2020 and certified on 20th December 2020 for the following reasons:

a.	Portions 683C & 684C (illegally) converted into Portion 812C was not a customary land for conversion 
b.	The Arumots did not agree to the application
c.	There was no proper compensation
d.	 Decision was sub judice as disputes concerning legality of cancellation of the Survey Plans for Portion 683C & 684C and creation of new Portion 812C was pending before the Court in proceedings OS (JR) 642/2019, and SCA No 184 of 2019.
e.	Commissioner failed to consider the objections raised by the applicants
f.	Commissioner failed to provide reasons for decision

54.	In opposing the applications, counsel for Homestate and Wetwattana submitted that:

i.	After cancellation of the SABLs in Portions 683C & 684C, land has reverted to customary land under Portion 812C
ii.	Due process was followed in the tenure application
iii.	Applicants delayed the application 
iv.	Grant of relief would be detrimental to good administration
v.	Applicants have not come with clean hands 

55.	Paiboon Wetwanna applied to be granted a Freehold Title over land described as Portion 812C, Lae. He said he is a citizen and owner of customary of the subject land after buying same from the Arumots, the original owners, for K 1.375 million in 2008. 

56.	The application was opposed by the Arumots on grounds that; a) the land was not sold to the applicant, Paiboon Wetwattana, b) the land was not free but a subject of existing SABLs in Portions 683C & 684C and c) there were Court proceedings pending determination over the subject lands. The objections were made both in writing and oral presentations by the Arumots.

57.	Despite objections from the Arumots, the Commissioner granted the application, and a Freehold Title, Volume 38 Folio 243 was issued and registered in the name of Paiboon Wetwattana on 22nd December 2020.
 
58.	I have considered the evidence and submissions of the parties and make the following findings. 

59.	The land under the description Portion 812C, containing an area of 5.47 hectares was not a customary land available for the purpose of conversion of land tenure under Part II of the Land (Tenure Conversion) Act in September 2020. The land was subject to existing SABLs under land descriptions Portions 683C and 684C. The survey plans for Portions 683C & 684C were illegally cancelled and replaced with a new Survey Plan creating Portion 812C by the Surveyor General. The SABL Titles in Portions 683C and 684C were also wrongfully cancelled by the Registrar of Titles.  The Land Titles Commissioner was advised of the cancellations, but he found that Mr Paiboon Wetwattana voluntarily surrendered the SABLs and had them cancelled to obtain Freehold Title in Portion 812C. 

60.	The Commissioners finding is against the evidence in the objections. Paiboon Wetwattana was not the title holder of the SABLs in Portions 683C & 684C. He did not surrender the SABLs for cancellation. He was only involved in the wrongful cancellation of the Survey Plan No 31/1375 and the cancellation of the two SABLs. He arranged for the creation of the new Survey Plan No 31/1557 in Portion 812C.

61.	Paiboon Wetwattana did not pay for the subject land. The evidence shows his company Homestate Limited entered a MOA with the Arumots to purchase 4.00 hectares. The payment was made by Homestate Co-corporation Limited. Under Section 16 of the Companies Act, Homestate Co-corporation Limited is an entity distinct from Paiboon Wetwattana. The Commissioner erred in concluding that Paiboon Wetwattana was the buyer.

62.	The area for the sale to Homestate was only 4 hectares. Paiboon Wetwattana was given a title over land containing an area of 5.47 hectares. There is no evidence of the Arumots selling a land containing an area of 5.47 hectares to Wetwattana. On the contrary, the Arumots denied such a sale. There was a clear dispute over ownership of the subject land and the Commissioner failed to consider that. The Commissioner made an error in the granting the title without evidence, especially in the light of the objections.

63.	The Commissioner was told that the issues relating to the illegal cancellation of the Survey plans and the SABLs were pending in Court in proceedings OS (JR) 642 of 2019 and SCA No.184 of 2019.  He brushed that aside saying the land was purchased transparently and that Wetwattana was awarded compensation by the National Court in proceedings WS No 333 of 2011 and the issues raised by the Arumots did not affect the substance of the transaction. 

64.	With due respect, the Commissioner’s decision was sub judice in that there were two proceedings in Court pending determination when the Commissioner conducted the proceedings. First the proceedings in OS(JR) No 642 of 2019 which challenged the cancellation of the Survey Plans and SABLs and the creation of the new Survey Plan and the creation of Portion 812C was still pending hearing. Secondly, the Supreme Court Appeal in SCA 184 of 2019 was pending hearing. The Supreme Court made its decision on 23rd February 2023, upholding the appeal, and dismissed the decision of the National Court which awarded compensation. The Supreme Court dismissed Homestate’s proceedings in the National Court in WS No 333 of 2011 entirely. There was a clear dispute over ownership of the subject land. Clearly, the Commissioner was hasty and did not consider the possibility of the Courts reversing the various decisions in the review application and the appeal which would have a direct impact on his decision. I find the Commissioner’s decision was unreasonable.

65.	In the end I find the Respondent, Kutt Paonga, Acting Lands Titles Commissioner’s decision of 20th December 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana was wrong, illegal and ultra virus his powers under Sections 8,9,10 and 11 of the Land (Tenure Conversion) Act and Section 133 of the Land Act 

d. What orders should the Court make to do justice in the circumstances of this case. 

66.	 The Applicants are basically seeking grant of Certiorari, that is quashing the decisions of the Surveyor General, the Registrar of Titles and the Land Titles Commissioner and for the reinstatement of the original survey plans and the SABLs.

67.	In an application for judicial review, there are stages of decision-making process. First, the Applicant must establish the grounds of review. If he succeeds, then the second stage is to convince the Court to grant the orders or remedy as sought (Mision Asiki -v- Manasupe Zurenuoc (2005) SC797). 
 
68.	The question of whether the Respondents decision ought to be quashed by way of judicial review of certiorari is discretionary. See:  Mao Zeming v Hinchiffe (2006) N2998, Tau Mavaru Kamuta v David Sode (2006) N3067.  Sabako v Commissioner for Police (2006) N2975, Ombudsman Commission v Yama (2004) SC747 and Isaac Lupari v Sir Michael Somare (2008) N3476

69.	Where the relief involves the grant of certiorari, the principles of equity apply. In Lupari v Somare (supra), Injia DCJ, as he then was, said this at page 52 of the judgment:

“52. In determining whether or not to grant certiorari, apart from considering the nature and seriousness of the error of law, it is important to consider the conduct of the parties. Certiorari is an equitable remedy and it is only issued in favour of a person who comes to Court with clean hands: Tau Mavara Kamuta v David Sode and IRC (2006) N3067.”

70.	 I will apply the principles of equity when considering the appropriate orders in these proceedings.

Whether the Respondent, Kutt Paonga, Acting Lands Titles Commissioner’s decision of 28th September 2020 and certified on 20th December 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana be brought up to this Court and quashed. 

71.	I am mindful that Paiboon Wetwattana has a registered Freehold Title in his name. It has been held in Mudge v Secretary for Lands (1985) PNGLR 387 that under Section 33 of the Land Registration Act a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud by the title holder and other exceptions set out in (1)(a) to (f). 

72.	In Emas v Mea (1993) PNGLR 215 the Supreme Court extended fraud to include constructive fraud based on irregularities which was followed by other cases like Tikili v Home Base Real Estate Ltd (2017) SC 1563, Jaro Investment Ltd v Ane (2022) SC2192 and Camilus v Mota (2022) SC2210. 

73.	In the recent Supreme Court decision in Timothy v Timothy (2022) SC2282, the Court departed from the decisions in Emas v Mea (1993) PNGLR 21, Tikili v Home Base Real Estate Ltd (2017) SC1563 and other cases and held that “fraud” under Section 33 (1) of the Land Registration Act means actual fraud and proof of actual fraud is required to set aside registration of Title. 

74.	While the Timothy v Timothy decision is said to have overruled Emas v Mea, the diverging views would be best resolved by a five-men panel bench of the Supreme Court.

75.	Turning to the present case, the Respondent, Paiboon Wetwattana is not innocent. He colluded with the Respondent, Surveyor General for the cancellation of the Survey Plans 31/1375 which created Portions 683C & 684C and replaced them with a new description in Portion 812C. Despite being aware of the matter concerning the cancellation of the SABLs over Portion 683C & 684C was before the Court in proceedings OS(JR) No 642 of 2019 pending determination, he   proceeded with the application for the grant of Freehold Title regardless. He was also aware that the National Court decision of 14th October 2019 in proceedings WS No 333 of 2011 was appealed to the Supreme Court and was pending determination but exercised no restraint. 

76.	For these reasons, I am inclined to grant judicial review of the decision of Kutt Paonga, the Land Titles Commissioner of 28th September 2020 and certified on 20th December 2020, awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana and order that the decision be quashed.

Whether decision for cancellation of SABLs in Portions 683C & 684C be quashed

77.  	Although I have found the cancellation of the two SABLs in Portions 683C & 684C, by the Registrar of Titles wrongful, I am not inclined to grant  the reliefs sought by the applicant, Ian Chow.

78.	The Applicant, Ian Chow, Executor of late Sir Henry Chow, did not come with clean hands. There is over whelming evidence that in early 2008 late Henry Chow and Paiboon Wetwattana approached the Arumots to buy their customary land described as Portion 652C.  On 20th June 2008, Homestate Corporation Ltd signed a Memorandum of Agreement (MOA) to buy four (4) hectares of the customary land. As a foreign company then, it was noted that it could not acquire customary land. Late Henry Chow, a naturalised citizen, was then appointed as Homestate’s agent and trustee.  Late Henry Chow was to arrange for the purchase, and conversion of the customary land and eventually to transfer the land to Homestate. It was agreed that Homestate would pay a commission to Henry Chow apart from meeting all expenses for conversion, like Survey and other related fees. There is undisputed evidence that Homestate paid for the land, Henry Chow’s commission, and all survey and related fees.

79.	In February 2009, Arumots were granted the SABLs in Portions 683C & 684C. After the conversion and grant of the SABLs, Henry Chow was to arrange for the transfer of Portion 684C, containing four (4) hectares to Homestate. That was communicated to Homestate in a letter by Henry Chow on 17th July 2009. Despite the promise, Henry Chow did not transfer Portion 684C to Homestate.  Instead, it appears, Henry Chow, through Lae Biscuit Company Limited, entered a separate agreement with the Arumots and bought the two Portions for K 2. 5million.The evidence on the terms of the sale agreement between Arumots and Henry Chow are not clear. What is clear though is Lae Biscuit Company paid K 2.5 million between November 2015 and March 2016. 

80.	It is clear, Chow did not keep his part of the agreement. He has not come to Court with clean hands. Certiorari is an equitable remedy, and it is only issued in favour of a person who comes to Court with clean hands.

The Arumots

81.	Delma Arumot deposed in her affidavit that they have not yet received a fair value for their land. The Arumots by their conduct show they are either gullible or deceitful. First, they agreed to sell to the land to the Respondent, Homestate Co-operation Limited for K 1 million. They then received K2.5 million from late Henry Chow for the same land. Yet they hold onto this belief that they still own the land to be disposed of for a fair value. There is a lot of uncertainty and mistrust. The Arumots have not come to Court with clean hands. The best and equitable way out is for the Arumots to retain their land and refund all monies paid to them by Homestate and late Henry Chow. The Court shall order that the Arumots be restrained from dealing with the land until they settle all the money paid to them by Homestate and Henry Chow.

82.	The application for nullifying the cancellation of the SABL in Portions 683C & 684C and the reinstatement of the Applicant’s interests in the SABLs shall be refused. The effect of this decision is that the land in Portions 683C and Portion 684 C shall remain with the Arumots. That is the cancellation of the SABLs will not be set aside. The Arumots shall remain customary owners.

 	Whether the Survey General’s decision for cancellation of Survey Plans 31/1375 in Portions 683C & 684C and creation of Portion 812C in new Survey Plan No 31/1557 be quashed.

83. 	As I have found, the Surveyor General’s decision was wrong and unreasonable, I will order that the Survey General’s decision made on 25th February 2014 cancelling   Survey Plans 31/1375 in Portions 683C & 684C and creating of Portion 812C in new Survey Plan No 31/1557 be quashed. The Surveyor General shall be ordered to restore the original Survey Plans for Portions 683C & 684C.

 	Costs

84.	Generally, costs follow the event, that is the winning party is entitled to the costs. Who won in the present case? It’s not easy to identify the winners and the losers.  All the parties have been at fault and contributed to the matters in dispute. That said in my considered view, the State Respondents made the major errors the subject of the review applications for the reasons given in the judgment. I will order that the State Respondents, shall pay 50 % costs of the applicants, the Arumots and Chows’ costs after taxation. 

Orders 

85.      The Court orders:

1.	By way of Declaration that the Respondent, Kutt Paonga, Acting Land Title Commissioner’s decision of 28th September 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), to Paiboon Wetwattana was wrong, illegal and ultra virus his powers under Sections 8,9,10 and 11 of the Land (Tenure Conversion) Act and Section 133 of the Land Act. 

2.	That the Respondent, Kutt Paonga, Acting Land Title Commissioner’s decision of 28th September 2020 and certified on 20th December 2020 awarding Freehold Lease of Portion 812C, (formerly Portions 683C & 684C), in Certificate of Title Volume 38 Folio 243 to Paiboon Wetwattana is quashed. 

3.	The Registrar of Titles shall forthwith cancel the registration of Certificate of Title in Portion 812C, Volume 38 Folio 243, in the name of Paiboon Wetwattana.

4.	By way of Declaration that the Surveyor General’s decision made on 25th February 2014 to cancel Survey Plan No 31/1375 which created Portions 863C and 864C and the registration of replacement Survey Cat. Plan No 31/1557 which created Portion 812C (consolidating Portions 683C & 684C) was wrong, illegal and ultra virus his powers under Section 38 of the Survey Act 1969.

5.	 That the Surveyor General’s decision of 25th February 2014 cancelling Survey Plans 31/1375 in Portions 683C & 684C and creating Portion 812C (consolidating Portions 683C & 684C) in new Survey Plan No 31/1557 is quashed.

6.	The Surveyor General shall take all steps to restore and amend its records to give effect to the terms of these orders.

7.	The application for the grant of Certiorari of the Registrar of Titles’ decision cancelling the two SABLs in Portions 683C & 684C and an order for the reinstatement of the said SABLs is refused.  

8.	The subject land in Portions 683C and 684C under Survey Plan No 31/1375 shall be returned to the Arumots and remain customary land.

9.	The Arumots, namely Venny Arumot, Kelvin Arumot, Delma Arumot and Noel Arumot shall refund all monies paid by Homestate Co-operation Limited and Henry Chow.

10.	The Arumots, namely Venny Arumot, Kelvin Arumot, Delma Arumot and Noel Arumot, their children, relatives and agents are restrained from selling, transferring or dealing with the subject land until full payment is made as per Order 9. 
11.	The State Respondents, including the Surveyor General, the Registrar of Titles and the Land Titles Commissioner, shall pay 50 % of the Applicants, Ian Chow and Arumots’ costs of both proceedings after taxation.

12.	Time is abridged.

Lawyers for the applicant, Ian Chow: Jaku Lawyers
Lawyers for applicant, the Arumots:  Emergent Lawyers
Lawyers for respondents, Wetwattana & Homestate: Sasingian Lawyers
Lawyers for the State respondents: Solicitor General