Timothy Alex Aipa v Benjamin Samson

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 August 2012
• Citation: (2012) N4777
• Court: National Court
• Year: 2012
• Judgement Number: N4777

Full : OS (JR) NO 269 of 2010; Timothy Alex Aipa, trading as Waltece Service Station (Waigani) Limited and Waltece Service Station (Waigani) Limited v Benjamin Samson, Deputy Registrar of Titles and Raga Kavana, Registrar of Titles and Pepi S Kimas, Secretary, Department of Lands & Physical Planning and Hon Dr Puka Temu MP, Minister for Lands & Physical Planning and The Independent State of Papua New Guinea (2012) N4777

National Court: Cannings J

Judgment Delivered: 31 August 2012

N4777

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 269 OF 2010

TIMOTHY ALEX AIPA, TRADING AS

WALTECE SERVICE STATION (WAIGANI) LIMITED

First Plaintiff

WALTECE SERVICE STATION (WAIGANI) LIMITED

Second Plaintiff

V

BENJAMIN SAMSON, DEPUTY REGISTRAR OF TITLES

First Defendant

RAGA KAVANA, REGISTRAR OF TITLES

Second Defendant

PEPI S KIMAS, SECRETARY,

DEPARTMENT OF LANDS & PHYSICAL PLANNING

Third Defendant

HON DR PUKA TEMU MP,

MINISTER FOR LANDS & PHYSICAL PLANNING

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Cannings J

2012: 18 June, 31 August

JUDICIAL REVIEW – decision of Deputy Registrar of Titles to cancel title of grantee of State Lease – whether procedure for cancellation in Land Registration Act, Sections 160 and 161, followed – natural justice

The Deputy Registrar of Titles wrote to the lawyers for the registered proprietor of a State Lease to advise that he had established a number of anomalies in the issuance of title to the lawyers’ client (the plaintiffs) and decided to cancel the title. The plaintiffs applied for judicial review of the decision to cancel the title on various grounds including error of law constituted by failure to follow statutory procedures for cancellation of an instrument and denial of natural justice.

Held:

(1) The Land Registration Act Chapter No 191, Sections 160 and 161, prescribes a procedure for cancellation of title: the Registrar of Titles, upon being satisfied that an instrument has been issued to a person in error, must first “summon that person to deliver that instrument”; and only after a summons has been issued can the instrument be cancelled. Here, no summons was issued prior to the decision to cancel title. This was an error of law.

(2) An administrative decision that interferes with or removes a person’s interests in property is subject to the principles of natural justice: the decision-maker must before interfering or removing the person’s interests give that person notice of the proposed decision and a right to be heard and act in an impartial and unbiased manner. Here, no prior notice and no right to be heard was given to the plaintiffs. There was a denial of natural justice.

(3) The plaintiffs thus established an excess of jurisdiction and the court exercised its discretion to quash the decision to cancel title. Other relief sought by the plaintiffs, including an order in the nature of mandamus that would require the defendants to correct the title in favour of the plaintiff and damages, was refused.

Cases cited

The following cases are cited in the judgment:

Bougainville Copper Foundation v Minister for Trade and Industry [1988-89] PNGLR 110

Dale Christopher Smith v Minister for Lands (2009) SC973

Kavana v Hunter (2007) N3208

Mision Asiki v Manasupe Zurenuoc (2005) SC797

NCDIC v Crusoe Pty Ltd [1993] PNGLR 139

Counsel

I Molloy & D Mel, for the plaintiff

E Geita, for the defendants

31 August, 2012

1. CANNINGS J: This is a ruling on an application for judicial review of a decision of the Deputy Registrar of Titles to cancel title to a small but valuable piece of land next to the Kone Tigers Rugby League Ground on Waigani Drive in the National Capital District, formally described as Section 468, Lot 1, Hohola.

2. The first plaintiff, Timothy Alex Aipa, has for the last 14 years been attempting to develop the site as a service station, using the second plaintiff, Waltece Service Station (Waigani) Ltd, a company that he owns and controls, as the vehicle for doing so. For many years Mr Aipa could not find out whether he or his company had actually been granted title to the land. It was only in 2009 that it was discovered that, in fact, on 2 March 2000 a 99-year State Lease over the land had been granted to “Waltece Service Station” by the then Minister for Lands and Physical Planning, Hon Viviso Seravo MP. This was good news for Mr Aipa and he reinvigorated his attempts to develop the land. In May 2010, however, he received bad news when his lawyers, Steeles, who had been liaising on his behalf with the Department of Lands and Physical Planning, received a letter dated 10 May 2010 from the Deputy Registrar of Titles, the first defendant, Benjamin Samson, notifying his decision to “cancel the title” of Waltece Service Station.

3. The Deputy Registrar stated that he had discovered various anomalies in the issuance of title: there were two titles over the same parcel of land and the volume and folio reference on the State Lease granted to Waltece Service Station was incorrect. He stated that “two titles cannot exist over the same parcel of land and former (first) title always takes precedence over the latest (second) title”. Therefore his office would recognise the title held by another company, as it was granted prior to 2 March 2000.

4. The plaintiffs are applying for judicial review of the Deputy Registrar’s decision to cancel title on two main grounds (numerous other grounds set out in the originating statement have not been pursued): (1) error of law constituted by failure to follow procedures for cancellation of title in the Land Registration Act; and (2) denial of natural justice.

(1) ERROR OF LAW: LAND REGISTRATION ACT

5. Mr Molloy for the plaintiffs submitted that the Deputy Registrar (presuming that he was delegated the powers of the Registrar) was obliged to “summon” the plaintiffs to deliver up the “instrument” (in this case the plaintiffs’ copy of the State Lease) under Section 160 (production of instruments wrongly issued, etc) of the Land Registration Act before exercising the power under Section 161 (cancellation and correction of instruments and entries) of that Act to cancel title. Those provisions are set out below, with emphasis added to the parts of each provision said to support the plaintiffs’ argument:

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.

161. Cancellation and correction of instruments and entries

(1) Subject to Subsection (2), the Registrar may—

(a) cancel or correct an...