Mamun Investments Pty Ltd and Noa Warekia, President of National Council of the Young Men's Christian Association Inc v Paul Ponda [Pondo] and Elias Kombo, representing the Association known as the Mount Hagen Young Men's Christian Association Inc [1995] PNGLR 1

• Jurisdiction: Papua New Guinea
• Judge: Brown J:
• Judgment Date: 31 August 1995
• Court: Supreme Court
• Citation: [1995] PNGLR 1
• Year: 1995
• Judgement Number: SC490

Full Title: Mamun Investments Pty Ltd and Noa Warekia, President of National Council of the Young Men's Christian Association Inc v Paul Ponda [Pondo] and Elias Kombo, representing the Association known as the Mount Hagen Young Men's Christian Association Inc [1995] PNGLR 1

Supreme Court: Kapi DCJ, Brown J, Injia J

Judgment Delivered: 31 August 1995

1 Practice and procedure—declaratory orders—locus standi—whether YMCA branch had sufficient interest in the occupation and use of land to intervene and prevent its sale

2 Real property—State lease—special purposes lease—whether property available for sale to private company—Land Act (Ch185), s6(1)(b)(l)(ii); s39(3)(d); s40; s63; s69

3 Real property—indefeasibility of title—Land Registration Act (Ch191), s33

4 Mudge v Secretary for Lands [1985] PNGLR 387, NCDIC v Crusoe Pty Ltd [1993] PNGLR 139, Papua New Guinea Air Pilots Association v Director of Civil Aviation and National Airline Commission, trading as Air Niugini [1983] PNGLR 1 and SCR No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265 referred to

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Kapi DCJ and Injia J:

The appellants appeal against the decision of the National Court held at Mt Hagen in which the trial judge made certain declaratory orders which are set out at page 6 of his judgment (Pondo v Mamun Investments Pty Ltd [1991] PNGLR 337 Appeal Book—page 115) which are as follows:

1. That the property situated at Allotment 1 and 2, Section 13, Mt Hagen is a Special Purposes Lease specifically for a youth centre and is not eligible for sale or for use for commercial or business purposes whilst such special purpose exists.

2. That the purchase by Mamun Investments Pty Ltd of the land is subject to the Special Purpose designated in the lease as "The Lease shall be used bona fide for Youth Centre Purposes".

3. That the said lease is thus subject to the interest of the applicants as representing the Mt Hagen Young Men's Christian Association YMCA) Incorporated being operators of an organisation for youth and sporting purposes.

The grounds of appeal and orders sought are as follows:

"(a) The trial Judge erred in law in declaring that the property Allotments 1 and 2 (Consolidated) Section 13, Mt Hagen being a Special Purposes Lease was not eligible for sale purpose exists as there is nothing illegal about the transferring a special purposes lease for commercial use under the provisions of the Land Act or anywhere else.

(b) That the trial Judge erred both in law and fact in finding that the Lands Minister's decision to approve the transfer of a special purposes lease to a Commercial Enterprise was improper as there was no evidence of impropriety or malpractice in the Minister's decision nor was there any good reason to support such a finding.

(c) That the trial Judge erred in fact in holding that the Respondents had locus standi in the proceedings against the weight of evidence in support of such finding.

(d) That the trial Judge erred in fact in declaring that the purchase by the First Appellant of the said property is subject to the interest of the Respondents because there are no sufficient evidence to support a finding that the Respondents has any or any valid interest.

(e) Further, even if the Respondent had an interest in the subject property, the trial Judge erred in law in recognising it, as that interest, if at all, was extinguished at the instance of registration of title in the name of the First Appellant under s33 of the Land Registration Act (Ch191).

(f) That the trial Judge fell in error in not considering the issue of indefeasibility of title by registration which conclusively extinguished any interest that may have been held by the Respondents, and clearly vested title in the First Appellant.

(g) And such other that may become available after receipt of Transcript of Evidence.

ORDERS SOUGHT

The Appellants seek in lieu of Judgment appealed from the following orders:

(a) that the whole of the judgment be quashed.

(b) that the Purchase of Allotments 1 and 2, Section 13, Mt Hagen by the First Appellant is free from all encumbrances.

(c) that upon registration of transfer the First Appellant obtained an indefeasible title."

The brief facts of the case are as follows. Prior to 13 December 1990, the National Council of Young Men's Christian Association of Papua New Guinea Incorporated, the second appellant, was the registered State leaseholder of a Special Purposes Lease of the subject property. Pursuant to contract of sale approved by the Minister for Lands on 27 August 1990 and transfer registered on the State Lease title on 13 December 1990, Mamun Investments Pty Ltd, the first appellant, acquired a registered title over the property. The Special Purposes Lease status of the land was not changed to a Lease for commercial or business purposes before the property was sold to the first appellant. The second appellant sold the property without the knowledge and consent of the Mount Hagen branch of the YMCA. On 17 December 1990, the Mount Hagen branch of YMCA was incorporated under provisions of the Associations Incorporation Act (Ch142). On 9 April 1991, Messrs Paul Ponda and Elias Kombo in their capacity as President and Secretary of the Mt Hagen YMCA Incorporated respectively filed proceedings in Originating Summons No 61 of 1991 at Mt Hagen National Court in which they sought declarations to the effect that the property being a Special Purposes Lease was not eligible for sale for use for business purposes and that the purported sale of the property to the respondent was invalid. On 6 October 1991, the trial judge made the declaratory orders referred to. This appeal arises out of that decision.

At the hearing of the appeal, the respondent did not appear to oppose the appeal. In fact there is evidence that both Mr Paul Pomba and Elias Kombo informed the appellant's lawyer that they would not oppose the appeal. Also at the hearing, Mr A Kawi of the Solicitor–General's office appeared on behalf of the Minister for Lands and the Independent State of Papua New Guinea and made submissions in support of the first appellant's appeal. Even though the Minister for Lands and the Independent State of Papua New Guinea were defendants in the original proceedings commenced in the National Court, they did not appeal against the decision, however, they appeared as interested parties at the hearing of this appeal and were allowed to make their submissions.

We will deal with ground (c) first. The applicant must have sufficient interest to which the application relates. Such interest may be a property interest or propriety interest, legal or equitable, or even a social or political interest. As Andrew J said in PNG Pilots Association v Director of Civil Aviation and Air Niugini [1983] PNGLR 1 at 3:

"[D]epending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or propriety rights, to his business or economic interests and perhaps to his social or political interests (per Mason J in Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493, 54 ALJR 176)"

The trial judge appears to have conceded the point that the first appellant did not have any or sufficient property or propriety interest in the property. However, he said the plaintiffs clearly had "social interest in the operation of the property as a youth centre." Further on the trial judge went on to say:

"Thus any person or organisation in Mt Hagen whose concern is for youth must have an interest in dealing with the land specifically if any dealing would appear to defeat the purpose of the lease. So whilst the applicants may not have been properly established or recognised the original lessee of the lease namely the National Council of the YMCA, they have shown to this Court that they are persons who are concerned and affected by the intent and purpose of the lease and are in the position of a body and persons who have attempted to operate the property for the purposes for which the property is...