Raumai No 18 Limited v Country Motors Limited and Yanjol Apin as Acting Registrar of Titles and the Independent State of Papua New Guinea (2018) N7952

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, J
• Judgment Date: 28 September 2018
• Court: National Court
• Citation: (2018) N7952
• Docket Number: OS (JR) No 13 of 2017
• Year: 2018
• Judgement Number: N7952

Full Title: OS (JR) No 13 of 2017; Raumai No 18 Limited v Country Motors Limited and Yanjol Apin as Acting Registrar of Titles and the Independent State of Papua New Guinea (2018) N7952

National Court: Gavara-Nanu, J

Judgment Delivered: 28 September 2018

N7952

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 13 OF 2017

BETWEEN:

RAUMAI NO.18 LIMITED

Plaintiff

AND:

COUNTRY MOTORS LIMITED

First Defendant

AND:

YANJOL APIN AS ACTING REGISTRAR OF TITLES

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Gavara-Nanu, J

2018: 30th June & 28th September

JUDICIAL REVIEW – Cancellation of Title – Land Registration Act, Chapter No. 191; ss. 160 and 161 – Power of Registrar of Title – Types of powers to be exercised by the Registrar of Titles – Procedure for cancellation of title.

Cases Cited:

Papua New Guinea Cases

Aipa v. Samson, Deputy Registrar of Titles (2012) N4777

Betty Palaso v. Dr Phillip Kereme & Ors (2016) N6638

Joe Parakas v. The State [1989] PNGLR 224

Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122

NCDIC v. Crusoe Pty Ltd [1991] PNGLR 138

Raga Kavana, Registrar of Titles, Department of Lands and Physical Planning v. Colin Edwin Hunter (2007) N3208

Overseas Cases Cited:

Associated Provincial Picture House v Wednesbury Corporation [1974] 2 ALL ER 680

Counsel:

I. Molloy, for the Plaintiff

N. Yano, for the Defendants

28th September, 2018

1. GAVARA-NANU J: Pursuant to a Notice of Motion filed under Order 16 r 5 (1) of the National Court Rules, the plaintiff seeks review of the decision of the Registrar of Titles (the second defendant) made on 16 August 2016, to cancel the following previous entries on the duplicate certificate of the title to Allotments 2 and 16, Section 88, Lae, Morobe Province, being the whole of the land contained in State Lease Vol. 36 Fol.64, (land) held by the plaintiff viz; Entry Nos. 13163; 13990; 19955 and 19956, resulting in the cancellation of the title held by the plaintiff over the land.

2. The plaintiff seeks restoration of the above entries to its State Lease. In other words, the plaintiff seeks restoration of its title.

3. The plaintiff also seeks damages for economic loss resulting from the cancellation of its title.

4. The plaintiff is a local company, duly incorporated under the laws of Papua New Guinea on 1 February 1988.

5. It is not disputed that the plaintiff was the registered proprietor of the land. What is disputed is the validity of its title. As a result of the dispute, the first defendant through its Managing Director commenced National Court proceedings challenging the sale of the land to the plaintiff. The first defendant alleged fraud in the transfer of the land. According to the affidavit of Damien Chow, the Managing Director of the plaintiff company, the National Court proceeding referenced WS No. 18 of 2016, was withdrawn in its entirety on 7 January 2015.

6. On 12 July 2016, the plaintiff received a letter from the second defendant demanding that it deliver up its title within 14 days (for possible cancellation), because of the claim that fraud was involved in the transfer of the land to the plaintiff. The second defendant treated his letter of demand as a "summons" to the plaintiff under s.160 of the Land Registration Act, Chapter No.191 to deliver up its title, which the plaintiff failed to do. The second defendant as a result went ahead and cancelled the plaintiff’s title.

7. The defendants argued that the second defendant acted within his powers when cancelling the plaintiff’s title. The plaintiff on the other hand argued that the actions of the second defendant were ultra vires,

8. Mr. Ian Molloy, counsel for the plaintiff argued that there was a process which the second defendant failed to follow before cancelling the plaintiff’s title. He submitted that the second defendant also breached principles of natural justice by not giving the plaintiff an opportunity to be heard before cancelling its title.

9. The determinative issue before the Court is whether the cancellation of the plaintiff’s title was legal.

10. Mr Molloy argued that the procedure the second defendant was supposed to follow is set out under ss.160 and 161 of the Land Registration Act. It is instructive that these two provisions be reproduced for ease of reference.

11. Section 160 is in these terms:

160. Production of instruments wrongly issued, etc.

(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.

12. Section 161 is in these terms:

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 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.

13. Mr Molloy argued that as part of the procedure s.161 confers two general powers on the Registrar. First is substantive, and is conferred by s.161 (1) (a). The Registrar exercises this power when cancelling instruments such as State Leases and issuing new ones. The exercise of this power affects rights, such as the title holder’s right to hold title. There are inherent safeguards in the procedure to protect the title holder’s right to be heard and to prevent abuse of power by the Registrar. The safeguards are prescribed by both ss. 160 and 161. Second is limited in scope and is conferred by s. 161(1) (b). The exercise of this power is limited to correcting minor errors and or omissions in the Register or in a certificate of title. The exercise of this power may not affect rights.

14. It was argued that proper and valid exercise of anyone of the two powers by the Registrar can only occur after a summons or a direction had been issued to a title holder to deliver up his title, and that the title had been delivered up.

15. Mr Molloy argued that the word ‘may’ in s.160 (1) relates to the decision the Registrar may make to issue a summons to a title holder to deliver up his title, either for cancellation or to correct an error. It was...