Keimbun Keindip v The Independent State of Papua New Guinea, Hugo Berghuser, Minister for Lands and Physical Planning, Paul Bengo, Secretary, Department of Lands and Physical Planning, Ismael Manikot, Chairman, Papua New Guinea Land Board, Gaudi Dadi, Papua New Guinea Government Printer, Furewe Isep and Wasu Kabwum Coffee Mill Pty Ltd [1993] PNGLR 28

• Jurisdiction: Papua New Guinea
• Judge: Newell AJ
• Judgment Date: 29 June 1992
• Court: National Court
• Citation: [1993] PNGLR 28
• Year: 1993
• Judgement Number: N1170

Full Title: Keimbun Keindip v The Independent State of Papua New Guinea, Hugo Berghuser, Minister for Lands and Physical Planning, Paul Bengo, Secretary, Department of Lands and Physical Planning, Ismael Manikot, Chairman, Papua New Guinea Land Board, Gaudi Dadi, Papua New Guinea Government Printer, Furewe Isep and Wasu Kabwum Coffee Mill Pty Ltd [1993] PNGLR 28

National Court: Newell AJ

Judgment Delivered: 29 June 1992

N1170

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KEIMBUN KEINDIP

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA;

HUGO BERGHUSER, MINISTER FOR LANDS & PHYSICAL PLANNING;

PAUL BENGO, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING;

ISMAEL MANIKOT, CHAIRMAN/PAPUA NEW GUINEA LAND BOARD;

GAUDI DADI, PAPUA NEW GUINEA GOVERNMENT PRINTER;

FUREWE ISEP;

AND WASU KABWUM COFFEE MILL PTY LTD

Lae

Newell AJ

21 February 1992

29 June 1992

REAL PROPERTY — Torrens system — Indefeasibility of title — Leasehold property — Land Registration Act.

REAL PROPERTY — Claim from Assurance Fund.

Facts

A lease was issued and registered. Later, the Department of Lands subdivided the land and, without forfeiting the lease, granted new leases over the same land. Only one of the new leases was registered.

Held

1. The decision of the Supreme Court in Mudge v Secretary for Lands [1985] PNGLR 387 that registration of title gives indefeasibility of title is followed.

2. Applying Mudge v Secretary for Lands together with Miller v Davy (1889) 7 NZLR 515 and Russell v Registrar-General of Land (1906) 26 NZLR 1223, any later title registered over the whole or part of land for which an earlier title had been registered, and which had not been forfeited, gave the claimant a possible claim against the Assurance Fund under the provisions of the Land Registration Act Ch 191, subject to any negligence by the claimant in not making proper search of the title.

3. Obiter: the subsequent unregistered lessee might have a claim against the registered lessee or the State for an award from the Assurance Fund.

Cases Cited

Papua New Guinea cases cited

Mudge v Secretary for Lands [1985] PNGLR 387.

Novau v Mark [1992] PNGLR 229.

Other cases cited

Breskvar v Wall (1971) 126 CLR 376.

Clements v Ellis (1934) 51 CLR 217.

Frazer v Walker [1967] 1 AC 569.

Luxmoore-May v Baverstock [1990] 1 WLR 1009.

Mayer v Coe [1968] 2 NSWR 747.

Miller v Davy (1889) 7 NZLR 515.

Russell v Registrar-General of Land (1906) 26 NZLR 1223.

Counsel

K Gamoga, for the plaintiff.

T Manoa, for the first and fifth defendants.

L A Dacre, for the sixth and seventh defendants.

29 June 1992

NEWELL AJ: On 5 March 1981 the plaintiff was granted a business lease in respect of allotment 2, section 5, Wasu Government Station, containing an area of 0.1462 hectares. A state lease was granted under volume 91 folio 145. The plaintiff built a trade store on the land and traded until 1984. After that, the building was used for storage purposes. It was stated in evidence that the brother of the plaintiff rented the building and used it as the base for an ice block business. The evidence was rather vague with respect to what usage the land had after 1984.

In 1985, the land was subdivided into allotments 16, 17 and 18, section 5, Wasu Government Station. The plaintiff said in evidence that he was not aware of this occurring, despite there having been a survey, and with relatives supposedly using the land. The plaintiff in 1989 found that the sixth defendant was building a shop on allotment 17, and he refused to stop building when requested by the plaintiff as he thought that he had the title. The manager of the seventh defendant was advised by the plaintiff not to build on allotment 16, and he did not. The land was allotted by notice in the National Gazette, and the plaintiff was allotted allotment 18, though he never made any formal application.

There is no notice of a forfeiture by the Minister under s 46 of the Land Act Ch 185, nor does the plaintiff recall being served with any notice that the Minister intended forfeiting allotment 2, section 5.

There was, according to the plaintiff, never any formal gazettal of the entitlement of the sixth defendant to the land, nor did the sixth defendant ever get a title document. The plaintiff states that a search of the title still shows that he is the sole owner of the title to the land. This appears to show a defect in the computer system used by the Department of Lands, which appears not to formally remove old descriptions of land and up-date them.

The plaintiff submits that he complied with the improvement conditions of the lease and there is no ground for any forfeiture of the lease. He contends that, as he had no notice of any attempt to forfeit the land, any attempt at sub-division of the land was improper and that any title given to the sixth and seventh defendants was improper and should be revoked.

It is alleged that the sixth defendant has irregularly built his shop across the boundary between allotments 17 and 18.

The plaintiff says that he made various approaches to the Lands Department in Lae, but there was no satisfactory resolution of the dispute. It is not clear if the Registrar of Titles was informed at all of the dispute, or whether he has been informed yet. I note that he is not named as a defendant in these proceedings.

SUBMISSION BY THE PARTIES

The plaintiff argues that Mudge v Secretary for Lands [1985] PNGLR 387 (hereafter Mudge) is a clear statement of the principles of indefeasible title under the Land Registration Act Ch 191 and that, following that decision, I must find in his favour. If I do not find in his favour as to title, he argues that I should award compensation pursuant to ss 84, 87 and 88 of the Land Act Ch 185, together with his costs.

The State contends that, pursuant to s 33 of the Land Registration Act Ch 191, the plaintiff holds an indefeasible title unless one of the clauses in s 33 (1) applies, and that the decision in Mudge is a clear statement of indefeasibility, but indefeasibility is subject to s 33. Both the plaintiff and the State agree that the decision in Mudge is different from the facts in this case.

The State concedes that it cannot contest the indefeasibility of this title, and this prevails over the title of the seventh defendant. It also concedes that the sixth defendant has no legal interest in the land.

The State concedes that I should give the following:

1. a declaration that the plaintiff is the registered proprietor of the land known and described as allotment 2, section 5, Wasu Government Station, Morobe Province, containing an area of 0.1462 hectares;

2. a declaration that the purported sub-division of the land by the State and its agents and/or servants, first, second, and third defendants into three new allotments, namely allotments 16, 17 and 18, section 5, Town of Wasu, be declared null, illegal, void and of no effect;

3. a declaration that the re-allocation and grant of the new allotment described as allotment 16, section 5, Wasu Government Station, by the Morobe Provincial Land Board and by the agents and/or servants of the third defendant to the Wasu Kabwum Coffee Mill Pty Ltd be declared null, void and of no effect; and

4. a declaration that the grant of allotment 17 to Furewe Isep be declared null, void and of no effect.

It also concedes that costs are discretionary.

The State also contends that, if the sixth and seventh defendants wish to make any claim in the matter against the State, they should bring fresh proceedings.

The sixth and seventh defendants claim that the orders claimed by the plaintiff must fail, but they concede that an order for costs may be made against the first to the fifth defendants. They appear to be making a submission in equity that they have acted in good faith in their dealings with the State and that, on the balance of convenience, the orders should not be granted.

In essence, they argue that the plaintiff's use and occupation of the land is such that compensation for the plaintiff is the appropriate course that should be taken in dealing with this matter.

The seventh defendant says that the decision in Mudge is distinguishable and that, as he holds the title latest in time, the prior registration in favour of the plaintiff cannot go unchallenged. He claims his title gets the benefit of indefeasibility, as none of the exceptions apply to it.

The sixth defendant says that, as a matter of public policy, his rights in the land must be acknowledged and that, as he has encroached on the adjoining allotment, he should be given title to that as well.

In effect, the sixth and seventh defendants contend that they have acted in all good faith and that the plaintiff, by his conduct in managing the land, should be held to have lost his title and merely be given an award of compensation for his loss.

The lease of allotment 2, section 5, Wasu Government Station, to the plaintiff was issued on 14 November 1984 as State Lease Volume 91 Folio 145. The seventh defendant's lawyer enquired about the status of the land in a letter to the Department of Lands dated 7 April 1987. The lawyer acted in the belief that the purchase was from customary landowners. (That lawyer represents the plaintiff in this action, a conflict not brought to my...