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Tapako v PNG Tonner & Ink Supplies Ltd [2019] PGSC 118; SC1890 (19 December 2019)

SC1890

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 21 OF 2018

BETWEEN:
JIM TAPAKO
Appellant

AND:
PNG TONNER & INK SUPPLIES LIMITED
First Respondent

AND:
GEORGE IPI
Second Respondent

Waigani: Batari, Manuhu, Polume-Kiele, JJ
2019: 28^th August & 19^th December

JUDICIAL REVIEW – Cancellation of State Lease –Invoking a wrong provision – Consequences of.

Cases Cited

Nil

Counsel:

L. Aigilo, for the Appellant
S. Japson, for the Respondents

19^thDecember, 2019

1. BY THE COURT: The cause of action in the court below was a dispute over interest in a State Lease. The original lease was granted to the National Housing Corporation (NHC) in 1993. The dwelling on the land was destroyed by fire in 1999 and the land became vacant.The land was subsequently sold to Jim Tapako for K50,000 on 10 October 2001. On 4 November 2002, however, the Department of Lands and Physical Planning (DLPP) gave notice of forfeiture to Mr.Tapako due to outstanding land rates. The notice was not served on Mr.Tapako and the lease was forfeited through a gazettal notice of 28 May 2004.Representatives of PNG Toner & Ink Supplies Ltd (PNG Toner) then successfully applied for and a new lease was awarded to PNG Toner in August 2005. PNG Toner then commenced works on the land. Mr. Tapako issued a stop work notice and was subsequently informed about the change in proprietorship of the lease in May 2006.

2. Mr.Tapako then commenced judicial review proceedings which was dismissed for want of prosecution. Mr.Tapako sought to reverse the decision to dismiss but that proceeding was also dismissed by Thompson AJ. An appeal against the ruling of Thompson AJ was filed but the appeal was dismissed on 27 February 2015 for want of prosecution.

3. The Department of Lands and Physical Planning got involved to administratively resolve the dispute. In December 2016, the department through the Acting Registrar of Titles cancelled the registration of the lease in favour of PNG Toner and restored the registration in favour of Mr.Tapako on 5 December 2016.

4. PNG Toner then filed the proceeding in the court below, which is the subject of this appeal, seeking to set aside and to reverse the decision by Shirley Pohei, Acting Registrar of Titles, to cancel the registration of State Lease under PNG Toner. Higgins, J. ruled in favour of PNG Toner when his Honour found that the cancellation of registration on Acting Registrar on 5 December 2016 “was not lawfully made and has no force or effect”.

5. The appeal is against the decision of Higgins, J.The grounds of Mr. Tapako’s appeal are:

• The learned Judge erred in law and fact when he ruled or declared that the decision of the Acting Registrar was not lawfully made and has no force or effect when the Acting Registrar lawfully invoked her powers under sections 160 and 161 of the Act and complied with all the requirements therein and not under section 89 of the Act as ruled.
  
• Secondly, the learned Judge erred in law and in fact when he ruled or declared that the decision of the Acting Registrar was not lawfully made on the basis of previous proceedings when there was no specific court order(s) preventing the department to exercise their lawful administrative functions and further, the cause of action in the previous proceedings were not the same.
• Thirdly, the learned Judge erred in fact and in law when he ruled or declared that the decision of the Acting Registrar was not lawfully made and has no force or effect when Mr.Tapako had acquired interest in the land first in time and the department had erroneously or mistakenly issued a duplicate title over the land without properly cancelling Jim Trading’s title.
  

6. The only issue arising from these grounds of appeal is whether the Acting Registrar properly and lawfully cancelled the registration of State Lease.

7. The argument by Mr.Tapako is that the Acting Registrar had the power to cancel registration of title and correct any error made. These powers are found under sections 160 and 161 of the Act which are set out below.

8. Section 160 reads:

“(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) 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.

9. Section 161 provides:

(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 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) 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.

10. The problem with Mr. Tapako’s reliance on sections 160 and 161 is that the Acting Registrar did not invoke those provisions in the cancellation of registration. It is not disputed that in her letter of 5 December 2016, she relied on section 89 of the Act to cancel registration of title. Section 89 provides:

(1) Where it is proved to the Registrar’s satisfaction–

(a) that the estate, interest or claim of the caveator has ceased or been abandoned or withdrawn; or

(b) that the caveator’s rights are satisfied or arranged; or

(c) subject to Subsection (2), that the nature of the caveator’s estate, interest or claim does not entitle him to forbid the sale or mortgage or other dealing with the land, estate or interest referred to in the caveat,

the Registrar may cancel the caveat.

(2) At least seven days before cancelling a caveat on the ground specified in Subsection (1)(c), the Registrar shall cause notice to be served, in accordance with Section 94, on the person who lodged the caveat.

11. The Acting Registrar clearly invoked the wrong provision to cancel the Lease. She should have invoked her powers under sections 160 and 161, not section 89. Indeed, the trial judge found that the process under section 160 and 161 were not followed. Therefore, the cancellation of PNG Toner’s State Lease purportedly under section 89 was improper and unlawful.
We find no error in the findings of the trial judge. The appeal has to be dismissed for that reason and we so order with costs.

Orders accordingly.
________________________________________________________________
Gibson Bon Lawyers: Lawyer for the Appellant
Japson & Associates Lawyers: Lawyer for the Respondents