Hi Lift Company Pty Limited v Miri Setae, MBE, Secretary Department of Agriculture and Livestock and The Independent State of Papua New Guinea (2000) N2004

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 17 November 2000
• Court: National Court
• Citation: [2000] PNGLR 80
• Year: 2000
• Judgement Number: N2004

Full Title: Hi Lift Company Pty Limited v Miri Setae, MBE, Secretary Department of Agriculture and Livestock and The Independent State of Papua New Guinea (2000) N2004

National Court: Sevua J

Judgment Delivered: 17 November 2000

N2004

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 329 of 2000

BETWEEN

HI LIFT COMPANY PTY LIMITED

Plaintiff

AND

MIRI SETAE, MBE, SECRETARY

DEPARTMENT OF AGRICULTURE & LIVESTOCK

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Sevua, J

16th August & 17th November, 2000

Real Property — Indefeasibility of title — Effect of Statutory breach and irregularities on registered title — Tantamount to fraud — Affects indefeasible title.

Cases cited:

1. Mudge & Mudge v. Secretary for Lands [1985] PNGLR 387.

2. Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215 (majority view applied).

3. Steamships Trading Company Limited v. Minister for Lands & Physical Planning, Garamut Enterprises Limited & Ors, unreported, N.1959, 10th May, 2000.

S. Kassman for Plaintiff

J. Kais for Defendants

SEVUA, J : This is an action for possession of land which was transferred to this Court from the Port Moresby District Court.

A brief factual background is necessary for limited purpose only. The plaintiff had filed a complaint in the Port Moresby District Court on 18th October, 1999 (Complaint No. 2745/1999) seeking an order for possession of land described as Portion 2413 Milinch Granville, Fourmil Moresby, Volume 20, Folio 85, which land is located at Konedobu in National Capital District.

By order of Senior Magistrate, Iova Geita, this proceeding was transferred to this Court on 9th June, 2000 because the title to that land was in dispute. The order for transfer of proceedings was made pursuant to s.24 of the District Courts Act. The issue in respect of title is therefore to be determined by the National Court as the District Court lacks jurisdiction, and the presiding magistrate quite correctly referred to s.21 (4) (f) of the District Courts Act.

By way of historical background, the Department of Agriculture and Livestock (hereinafter referred to as DAL) had occupied part of Portion 2413 since 1985. On 27th August, 1993, the Department of Lands granted a Business (Light Industrial) Lease to the plaintiff at Waigani described as Section 38, Allotment 14, Hohola. Unbeknown to the Department of Lands, that lease had previously been issued to Tabudubu Pty Limited. The grant to the plaintiff created a double allocation or grant of the one lease. The Lands Department subsequently revoked the grant of Section 38, Allotment 14, Hohola to the plaintiff.

On 8th July, 1998, the plaintiff was granted a lease over Portion 2413, which was originally zoned Public Institutions, and was previously, and up to-date, occupied by Department of Agriculture and Livestock. There is no dispute that DAL has always occupied this property even up to and including the date of grant of the lease to the plaintiff. On 11th June, 1999, the plaintiff issued a notice to quit and served it on the first defendant. Since then the first defendant has objected to the rezoning of this property by the National Capital District Commission Physical Planning Board. On 18th October, 1999, the plaintiff commenced proceedings in the District Court which was eventually transferred to this Court.

A number of submissions in law have been raised by both counsel, however, I do not propose to canvass all those arguments, even though, I have heard and considered all of them.

The plaintiff argued that it has indefeasible title to the land which cannot be nullified unless there is fraud. Mr Kassman for the plaintiff relied on Mudge and Mudge v. Secretary for Lands [1985] PNGLR 382, a decision of the Supreme Court which upheld the principle of indefeasibility of title, protected by s.33 of the Land Registration Act, Ch. 191.

The defendants relied on Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215, another decision of the Supreme Court, which also considered and acknowledged the principle of indefeasibility of title, but did not apply the principle for the reasons stated therein.

I do not think that the defendants really dispute the fact that title to Portion 2413 was granted to the plaintiff. So I am entitled to find as a fact that the title to Portion 2413 was issued to the plaintiff on 8th July, 1998.

However, there are several issues that concern this Court and it...