Jonathan Tonny v Bill Hua and Others
| Jurisdiction | Papua New Guinea |
| Judge | Dowa J |
| Judgment Date | 12 January 2023 |
| Neutral Citation | N10099 |
| Citation | N10099, 2023-01-12 |
| Counsel | K. Kevere, for the Plaintiff,S. Simon, for the First Defendants,S. Maliaki, for Second & Fourth Defendants,M. Limu, for the Third Defendant |
| Hearing Date | 05 October 2023,12 January 2023,05 October 2021 |
| Docket Number | W.S NO. 880 OF 2015 |
| Court | National Court |
PAPUA NEW GUINEA
[IN NATIONAL COURTOF JUSTICE]
W.S NO. 880 OF 2015
Between:
Jonathan Tonny
Plaintiff
v.
Bill Hua
First Defendant
and
Department of Lands & Physical Planning
Second Defendant
and
National Housing Corporation
Third Defendant
and
The Independent State of Papua New Guinea
Fourth Defendant
Lae: Dowa J
2021: 05th October
2023: 12th January
REAL PROPERTY — Indefeasibility of title-plaintiff seeking declaratory orders that the grant of State lease and registration of title to land be declared null and void and of no effect, and other consequential orders — plaintiff an approved tenant of NHC property the subject of proceedings — a property improved by Plaintiff on a Self-help Housing Scheme managed by NHC — plaintiff alleges he was not given opportunity pursuant to sections 37 and 38 of the National Housing Corporation Act — NHC holder of Undeveloped Lease granted under Part X1 of Land Act not being made aware of the application for state lease by the first defendant
FRAUD-ACTUAL AND CONSTRUCTIVE FRAUD — Whether grant of state lease to the First Defendant by the Second Defendant is fraudulent — first and second defendants actions amounted to constructive fraud — grant of state lease declared null and void and of no effect and be quashed
Cases Cited:
Mota v Camilus (2009) N3851
Pius Tikili v Home Base Real Estate (2017) SC 1563
PNG Bible Church Inc v Carol Mandi (2018) SC1724
Toki v Helai (2016) SC1558
Vaki Vailala v NHC (2017) N6598
Rosemary John v James Nomenda (2010) N3851
Counsel:
K. Kevere, for the Plaintiff
S. Simon, for the First Defendants
S. Maliaki, for Second & Fourth Defendants
M. Limu, for the Third Defendant
Public Solicitor: Lawyers for the Plaintiff
Simon S. Sengi & Associates: Lawyers for the First Defendant
Mathew Limu (inhouse): Lawyer for the Third Defendant
Solicitor General: Lawyers for the Second & Fourth Defendants
JUDGMENT
12th January, 2023
1. Dowa J. This is a decision on the substantive proceedings. The Plaintiff seeks amongst others the following orders in the statement of claim:
(a) The title issued to Bill Hua over property, Allotment 6 Section 320 Lae, Morobe Province be declared null and void and of no effect
(b) An order that the Department of Lands and Physical Planning issue the Title to him (the Plaintiff).
(c) right to immediate possession.
(d) Alternatively, payment of K86, 000.00 in damages for value of improvement.
Background Facts
2. The Plaintiff is a Senior Security Officer attached to Bank of South Pacific Limited at Lae Top Town Branch. The Plaintiff is until recently the legal tenant of the property described as Section 320 Allotment 06, Four (4) Mile, City of Lae. The property is managed by and under the custody of the National Housing Corporation, the Third Defendant. The Plaintiff and his late brother built a house on the said land. After the passing of the brother, the Plaintiff later entered into Tenancy Agreement with the National Housing Corporation in 2008 until he was evicted by the first defendant through an ejectment order issued by the District Court on 14th January 2014.
3. It is alleged that whilst the property was still in the custody of the National Housing Commission, the first defendant who is a stranger applied to the Department of Lands and Physical Planning and obtained a state lease to the said land in breach of both the National Housing Corporation Act and the Land Act. It is alleged that the title was obtained by fraud.
4. The First Defendant denies the claim and filed a defence. In his defence the First Defendant pleads that he has an indefeasible title to the property pursuant to section 33 of the Land Registration Act. The second, third and fourth defendants did not file any defence.
Issues
5. The issues for consideration are:
a) Whether the State lease granted to the first defendant be set aside on grounds of fraud.
b) Whether the Plaintiff is entitled to all the reliefs sought in the statement of claim.
Trial
6. The trial was conducted by affidavits only without cross-examination of the deponents of the various affidavits of the parties.
Plaintiff's Evidence
7. The Plaintiff relies on the following affidavits:
1. Affidavit in support of Jonathon Tonny sworn and filed 03/07/2015 -EXHIBIT P4
2. Affidavit in support of Jonathon Tonny sworn 03/11/2015 and filed 05/11/2015 [Doc. No.08] — EXHIBIT P5
3. Affidavit in support of Jonathon Tonny sworn 01/02/2016 and filed 16/02/2016 [Doc. No.13] — EXHIBIT P1
4. Affidavit in support of Jonathon Tonny sworn 27/07/2017 and filed 13/10/2017 [Doc. No.25] – EXHIBIT P2
5. Affidavit in support of Jonathon Tonny sworn and filed 29/06/2018 [Doc. No.32] — EXHIBIT P3
6. Affidavit in support of Jonathon Tonny sworn 17/01/2019 and filed 22/01/2019 [Doc. No.36] – EXHIBIT P6
8. The summary of the Plaintiff's evidence is that some years earlier in the 1990s the Plaintiffs late cousin brother, Camilus Maim, was granted the Tenancy Agreement by National Housing Corporation for property Section 320 Allotment 06, Four Mile Urban settlement. It was under the National Housing Commission's Self-Help Housing Scheme. The Plaintiff and his cousin brother built a permanent house on the property. After the passing of his brother, the Plaintiff entered a second tenancy Agreement with the National Housing Commission on 7th May 2008.
9. He has connected water and power to the property under his own name. The improvements done to the property was valued more than K86,000.00 in a valuation report done in May 2015. He also pays periodic rental payments to the National Housing Commission. He has since been waiting for the National Housing Corporation to prepare and transfer the title to the property to him. He has been a long-time resident until 2014 when he was forcefully ejected from the property by the first defendant because of a District Court summary ejectment order.
10. The Plaintiff deposes that the first defendant resides on a portion of customary land adjacent to the land in dispute. He is not a tenant to the land and has obtained the title in secrecy and through fraud without the knowledge and approval of the National Housing Commission. The first defendant lied to the Lands Department that he did improvements to the property in his application form which is incorrect. The Plaintiff wants the title to the property to be cancelled and the status quo restored.
Bill Hua — First Defendant's Evidence
11. The first defendant relies on his own affidavit sworn and filed on the 06/11/2017 (Doc. No. 27) — EXHIBIT 1D1.
12. The First Defendant did not give direct evidence on the issue before the Court. However, the evidence he relies on is a previous affidavit sworn 10th September 2010 he filed in a District Court proceeding Summons No 937 of 2010-Bill Hua v Jonathan Tony, which he annexed to the current affidavit as annexure “G”. This is the summary of the first defendant's evidence. That he resides on a customary land adjacent to Section 320 Allotment 06 at Four Mile Urban settlement. He deposes he bought the disputed land from a Kabwum lady, Mankieu for K400 in 1987 with the intention of moving onto the property anytime. He deposes he invited Camilus Maim to come and build a temporary house on the subject land. In 2006, he gave consent to Camilus Maim to build a permanent house using Camilus Maim's own money. Camilus Maim built and lived on the property until his death in July 2006.
13. He deposes that it was only after late Camillus' death that the Plaintiff moved onto the property, claiming ownership. He has ongoing disputes with the Plaintiff including Court proceedings. He then applied to the Lands Department for a state lease over the property. He was granted the title in July 2013. He therefore has an indefeasible title under section 33 of the Land Registration Act. He has successfully obtained a summary ejectment order on I4 January 2014 which is in force.
SECOND DEFENDANT'S EVIDENCE
14. The second defendant, the Department of Lands and Physical Planning, relies on the Affidavit of Benjamin Samson, sworn and filed 30/09/2020 [Doc. No. 69] and referred to as EXHIBIT 2D1. He is the Secretary and Departmental head.
15. This is the summary of Mr. Samson's evidence. According to their records, a physical site inspection on the subject property was done on 21 July 2008. The report shows the land was fully developed with a three-bedroom residential dwelling. However, the report does not state the name of the developer or the occupant of the land. The report has other discrepancies as well in that (a) No letterhead of Morobe—Division of Lands was used on the site inspection report (b) The report was signed by some unknown person on behalf of Lawrence Billy – Provincial Program Advisor. The authorized officer, the Provincial Lands officer or Advisor did not sign the report. (c) The inspection report did not state that the property was under the custodian of the third Defendant, NHC. The report misled the Head office, Department of Lands & Physical Planning, that the subject land was deemed to be unregistered State land.
16. Mr. Samson deposes that based on the misleading inspection report the subject land became available for leasing under public tender No. 020/2011 of 29th June 2011 in accordance with Section 68 of the Lands Act. It then went before the PNG Land Board Meeting No. 04/2011 and recommended the First Defendant as the successful applicant and was gazetted on 04th June 2012 in National Gazette No. G207 in accordance with Section 74 of the Land Act. On the 07th of June 2013 a letter of grant was issued, and Lease Acceptance Form was forwarded to the First Defendant and a State Lease was eventually issued on the 15th of June 2013.
17. The PNG Land Board and the Registrar of Titles were misled into believing that the First Defendant had developed the land resulting in the State Lease being granted to him accordingly.
THIRD DEFENDANT'S EVIDENCE
18. The Third...
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