Document content

• N8298
  PAPUA NEW GUINEA
  [IN THE NATIONAL COURT OF JUSTICE]

  OS (JR) NO. 648 OF 2017

  BETWEEN
  TST HOLDINGS LIMITED
  Plaintiff

  AND
  RUSSELL WAVIK
  First Defendant

  AND
  SIMON WAVIK & FAMILY (WGATAP) PTY LTD
  Second Defendant

  AND
  HENRY WASA as the REGISTRAR OF TITLES
  Third Defendant

  AND
  TIRI WANGA as the ACTING SECRETARY FOR THE DEPARTMENT
  OF LANDS & PHYSICAL PLANNING
  Fourth Defendant

  AND
  THE INDEPENDENT STATE OF PAPUA NEW GUINEA
  Fifth Defendant

  Waigani: Makail, J
  2019: 15th May
  2020: 28th April

  JUDICIAL REVIEW – Review of Registrar of Title’s decision to issue
  replacement titles – State leases – Exercise of power – Reasonableness of
  exercise of power – Duty to publish notice – Duty to act reasonably and fairly
  – Breach of natural justice – Right to be heard – Prior interest – Registered
  proprietor – Constitution – Section 59 – Land Registration Act – Sections
  33(1)(a)&(c) & 162(4)

• Page 2 of 12

• Cases Cited:

  TST Holdings Limited v. Russell Wavik & Ors: OS (JR) No 160 of 2014
  (Unnumbered & Unreported Judgment of 6th October 2016)
  Henry Fragili v. Gabriel Karup (2011) N4200

  Counsel:

  Mr. M. Goodwin with Mr. B. Nutley, for Plaintiff
  Mr. H. Kevau, for First & Second Defendants
  No appearance, for Third, Fourth & Fifth Defendants

  JUDGMENT
  28th April, 2020

  1. MAKAIL, J: On 16th October 2016 the National Court upheld the
  plaintiff’s application for judicial review in OS (JR) No 160 of 2014 and
  quashed the decision of the Registrar of Titles (Registrar) to issue a replacement
  titles to the second defendant for Allotments 16, 17, 18, 19, 20, 21, 22, 23, 24,
  25, 26 and 27 Section 39, Hohola, National Capital District. Further, it ordered
  the second defendant’s application for replacement of titles to be remitted to the
  Registrar for rehearing on a date and time to be fixed for publication of notice
  pursuant to Section 162(4) of the Land Registration Act. Conversely, the order
  sought by the plaintiff that as the previous title holder its titles be upheld and
  restored was refused: see full judgment of the Court in TST Holdings Limited v.
  Russell Wavik & Ors: OS (JR) No 160 of 2014 (Unnumbered & Unreported
  Judgment of 6th October 2016).

  2. The reason was that there was no evidence to prove that the Registrar had
  complied with the requirement to publish the notice in the National Gazette and
  Newspaper prior to issuing the replacement titles to the second defendant under
  Section 162(4) of the Land Registration Act. Section 162(4) states:

  “(4) When an application under this section relates to a
  lost or destroyed instrument of title the Registrar shall give at
  least 14 days’ notice of his intention to make a new instrument of
  title or official copy by advertisement in the National Gazette
  and in at least one newspaper circulating in the country”.

  3. The Court’s difficulty in finding that the Registrar complied with this
  requirement was compounded by the Department of Lands and Physical
  Planning (Lands Department’s) file which contained all of the documents for
  the substantive hearing was lost and the plaintiff was not given the opportunity

• Page 3 of 12

• to produce documents from the Lands Department to prove its claim as title
  holder to the subject land.

  4. It is significant to mention this at the outset because after the Court
  decision, the lost file was fortuitously located by the plaintiff with the assistance
  of an officer at the Lands Department. The file included the stamped Contracts
  of Sale of Land for each parcel of land and also with Ministerial approval,
  together with registered transfer instruments and documents confirming
  registration of the purchase to the plaintiff. These documents are now available
  to the current Registrar to thoroughly consider and are annexed to the affidavit
  of Leonard Kwong Yew Tan sworn 28th July 2017.

  5. The plaintiff submits that its subsequent discovery of the Lands
  Department’s lost file which contained all the relevant and requisite documents
  for the transfer of titles for the parcels of land to it infer that the registration of
  the second defendant’s titles was procured by fraud. The inference is made
  much stronger and the Court can safely conclude that the second defendant
  colluded with the Registrar to procure the titles by fraud because there is further
  uncontroverted evidence by Richter Habuka, the lawyer who acted for both
  parties on the conveyance in his affidavit filed 8th August 2017 that the
  documents annexed to the affidavit of Mr Tan are correct conveyance
  documents.

  6. Added to that, after the Court decision on 15th December 2016 the
  Registrar published in the National Gazette a notice purported to be pursuant to
  Section 162(4) of the Land Registration Act and/or pursuant to the Court
  decision. The Registrar also published a notice in the National Newspaper on
  20th December 2016.

  7. The plaintiff says that it had no notice of the publication of the notice in
  the National Gazette or the National Newspaper. Unbeknown to it, it had
  written to the Registrar on 21st December 2016 lodging an objection and
  requesting the Court order of 6th October 2016, petition notice and conducts a
  rehearing. The plaintiff’s agent Mrs Sallyanne Mokis, was not able to deliver
  the letter to the Registrar and until 4th January 2017, as the office was closed
  from 8th December 2016 until this date for Christmas and New Year’s holidays.
  Her first attempts at service of the letter were 23rd and 24th December 2016, as
  noted from Mrs Mokis’ affidavit filed 8th August 2017 and Public Notice by the
  Registrar’s Office.

• Page 4 of 12

• 8. The Registrar failed to reply to the plaintiff’s letter of 21st December
  2017. Furthermore, despite the plaintiff’s officers and agents continuous
  attendance at the Registrar’s Office to enquire on the status of the matter. Even
  the Registrar’s Office officers did not assist or respond.

  9. On 7th April 2017, the plaintiff sent another letter to the Registrar, from
  its lawyers, O’Briens Lawyers, but the Registrar failed to respond and ignored
  the letter. This letter is important because it referred to documents from the
  Lands Department’s own file which had been deposited with the Registrar by
  the plaintiff’s agent Mrs Mokis on 4th January 2017. These documents
  included copies of the signed Contracts of Sale of Land, duly stamped and
  endorsed with Ministerial approval, on which the plaintiff was registered as
  proprietor of the subject land, which were not available at the substantive
  hearing in OS (JR) No 160 of 2014.

  10. On 22nd May 2017 a meeting was held between Mrs Mokis, Mr Bobby
  Nutley of O’Briens Lawyers with Ms Shirley Pohei, a Legal Manager at the
  Lands Department at the Office of the Registrar to discuss the progress of the
  rehearing and find out why there was no response to the plaintiff’s letters to the
  Registrar. They were informed that the notices under Section 162(4) of the
  Land Registration Act had been published and that on 9th January 2017,
  replacement titles were issued to the second defendant. The Register had also
  been updated to remove the plaintiff as the registered proprietor of the subject
  land.

  11. No explanation was provided as to why no reply was given to the
  plaintiff’s letters and no rehearing was conducted in accordance with the Court
  order of 6th October 2016. Even after this proceeding was filed, the Registrar
  has not provided an explanation for this.

  12. Furthermore, the Registrar or an officer from the Registrar’s Office well
  versed with the matter did not file an affidavit in response to the factual matters
  deposed to by the plaintiff’s witnesses. What this means is that, there is no
  evidence from the Registrar to deny the existence or dispute the authenticity of
  the documents found in the Lands Department’s lost file which included the
  stamped Contracts of Sale of Land for each parcel of land and also with
  Ministerial approval, together with registered transfer instruments and
  documents confirming registration of the purchase to the plaintiff.

  13. The first defendant Mr Russell Wavik deposes to two affidavits, one filed
  21st November 2018 and the other, 28th March 2019. With the exception of

• Page 5 of 12

• one or two assertions, much of what he deposed in the first affidavit is irrelevant
  or a restatement of facts in the previous proceeding OS (JR) No160 of 2014. He
  confirms that after the Court decision of 6th October 2016, fourteen days after
  the date of publication of notice in the National Newspaper on 20th December
  2016 excluding 25th and 26th December 2016 and 1st January 2017 as being
  public holidays, and after receiving no objections from any interested parties
  including the plaintiff, the Registrar Ms Shirley Pohei issued to the second
  defendant twelve titles for the parcels of land on 9th January 2017.

  14. In his second affidavit, he restates the facts of the previous proceeding for
  the second time. What is relevant is that, his lawyers sent two letters to the
  Solicitor General as lawyers for the Registrar, one on 14th October 2016 and the
  other on 1st November 2016 to get the Registrar to get the rehearing going and
  received no response and one letter to the Registrar on 15th November 2016
  urging him to do likewise.

  15. However, Mr Wavik does not specifically refer to and deny or dispute the
  existence of the letter from the plaintiff’s lawyers dated 21st December 2016.
  He also does not refer to and deny or dispute the existence or authenticity of the
  stamped Contracts of Sale of Land for each parcel of land and also with
  Ministerial approval, together with registered transfer instruments and
  documents confirming registration of the purchase to the plaintiff.

  16. It is noted from his lawyers’ letter to the Registrar dated 15th November
  2016 that they made it clear to him that “the publications are made and
  subsequent rehearing (ifs any, in the light of any legitimate objections that may
  arise) at the earliest so that the relevant physical certificate titles can be
  lawfully replaced and/or the relevant allotments can be correlated to the proper
  and lawful registered proprietor respectively”.

  Proof of Fraud

  17. Proving fraud can be broken down to four different grounds.

  Discovery of lost Lands Department file

  18. First, I uphold that the plaintiff’s submission that the Lands Department’s
  file or otherwise the relevant and requisite documents such as the stamped
  Contracts of Sale of Land for each parcel of land and also with Ministerial
  approval with registered transfer instruments should have been produced at the
  substantive hearing on OS (JR) No 160 of 2014. Its subsequent discovery with

• Page 6 of 12

• all the relevant and requisite documents for the transfer of titles for the parcels
  of land infers that the registration of the second defendant’s titles was procured
  by fraud.

  Evidence of lawyer Richter Habuka

  19. Second, I uphold the plaintiff’s submission that an inference can be
  drawn that the first and second defendants procured the titles by fraud because
  there is further uncontroverted evidence by Richter Habuka, the lawyer who
  acted for both parties on the conveyance in his affidavit filed 8th August 2017
  that the documents annexed to the affidavit of Mr Tan are correct conveyance
  documents.

  Publication of Notice

  20. Third, the written judgment and orders of the Court of 6th October 2016
  are unequivocally clear in relation to the rehearing before the Registrar under
  Section 162(4) of the Land Registration Act. First, the Registrar must publish a
  notice in the National Gazette and another in the Newspaper. There is no
  dispute that he has attended to them. I find as a fact that the Registrar has
  published a notice in the National Gazette on 15th December 2016 and another
  in the National Newspaper on 20th December 2016.

  21. The period of fourteen days stated in the notice is consistent with Section
  162(4) (supra) and the National Court decision in Henry Fragili v. Gabriel
  Karup (2011) N4200 which stated:

  “Section 162 prescribes what must be done if a certificate of title
  has been lost, destroyed or defaced…………It was necessary for
  an application to be made to the Registrar for a replacement
  certificate of title. It was also necessary for the Registrar to give
  at least 14 days notice of his intention to make a new instrument
  of title or official copy by advertisement in the National Gazette
  and in at least one newspaper circulating in the country”.

  22. However, the plaintiff submits that the actions by the Registrar to publish
  a notice during the holiday period when the Office was closed for the Christmas
  and New Year’s holidays was unreasonable because it deprived it of the
  opportunity to respond to the notice. It was also in breach of the Court order of
  6th October 2016.

• Page 7 of 12

• 23. I uphold this submission. I find as a fact that the Office of the Registrar
  was closed between December 2016 and 4th January 2017. Further, I find that
  the timing of the publication of the notices was not right. It is unreasonable and
  unfair to expect the plaintiff to response or object to the application for
  replacement of titles when the Registrar closed his office for Christmas and
  New Year’s holidays. Furthermore, I find that the plaintiff was adversely
  prejudiced and denied a right to be heard under Section 162(4) of the Land
  Registration Act and Section 59 of the Constitution when he was unable to
  deliver its letter dated 21st December 2016 to the Registrar due to its office
  closure.

  24. I also find that this letter was sent to the Registrar without the plaintiff
  being aware of the notice published in the National Gazette on 15th December
  2016 and the other in the National Newspaper on 20th December 2016. This is
  apparent from its content which reads in part:

  “We enclose a copy of the decision of His Honour Makail J, dated 6
  October 2016 concerning the above proceeding.

  You will note that Order No. 5 states:

  ‘4. The Second Defendant’s application for replacement of titles
  is remitted for re-hearing before the Fifth Defendant on a date and
  time to be fixed following publication of notice pursuant to section
  162 (4) of the Land Registration Act’.

  Pursuant to His Honour’s decision, we now request the Registrar to do
  the following:

  1. issue a Notice for Issue of Official Copy in respect of the properties
  the subject of application for replacement titles.

  2. arrange publication of the Notice in one of the daily newspapers
  and the National Gazette.

  3. pursuant to the individual Contract of Sale of Land dated 20
  February 1995 for each of the Allotments 16-27 Section 39, Hohola,
  NCD, and the previous journals entries made in September 1999, the
  Registrar forthwith restore titles in respect of each of the allotments to
  TST Holdings Limited

• Page 8 of 12

• 4. issue a letter to the applicant Simon Wavik & Family (Wgatap Ltd)
  advising that the titles for each of the Allotments 16-27 have been
  restored in favour of TST Holdings Limited on the basis that the
  Allotments were sold to TST pursuant to valid contracts for sale of
  land dated 20th February 1995 and the transfers for each of the
  allotments were registered on 23 September 1999

  Please keep us informed of developments”.

  25. In addition, the letter can be viewed as an exhortation by the plaintiff to
  the Registrar to take steps to organise a rehearing of the application for
  replacement of titles after a delay of more than two months since the Court
  decision of 6th October 2016. Furthermore, at item no. 3 of the letter, the
  plaintiff drew the Registrar’s attention to the individual Contract of Sale of
  Land dated 20th February 1995 for each allotment from 16 to 27 Section 39 and
  requested him to restore its titles to these parcels of land. There is no evidence
  from the Registrar that he gave consideration to this submission by the plaintiff.
  In the absence of this evidence, I am satisfied that the plaintiff did what was
  required of it to comply with Section 162(4) of the Land Registration Act and
  the Court order of 6th October 2016 but was denied a right to be heard when it
  did not receive a response to its letter. Equally, the decision to issue
  replacement titles to the second defendant was illogical and unreasonable
  because it was contrary to the overwhelming evidence supporting the plaintiff’s
  claim, a consideration which will be touched on a little later.

  26. For now, I discuss the circumstances after the Court decision on 6th
  October 2016 to date of the first notice in the National Gazette on 15th
  December 2016. The conduct and manner in which the Registrar applied his
  duty between these dates, in my view, is unsatisfactory, but not sufficient to
  establish fraud against the first and second defendants. I reach this conclusion
  because I am not satisfied that the first and second defendant had a hand in
  delaying the publication of the notice in that, they colluded with the Registrar to
  get the Registrar disregard or ignore the requirement to publish the notice or not
  to inform the plaintiff of his intention to proceed with the rehearing.

  27. On the other hand, the evidence from the first and second defendants’
  lawyers show that they have done what was required of them by writing to the
  Solicitor General on two occasions and received no response and on the third
  occasion, to the Registrar to get him to conduct a rehearing. Before doing so, he
  must publish a notice in the National Gazette and the Newspaper. At the
  highest, I find that the failure was on the part of the Registrar, and in the
  absence of an explanation from him, his conduct can be best described as

• Page 9 of 12

• dilatory of his duty and criticised as being unsatisfactory and appalling.

  Relevant and Requisite Documents for Registration of Titles

  28. I return to the question of reasonableness of the Registrar’s decision.
  When there is uncontroverted and overwhelming evidence in relation to
  stamped Contracts of Sale of Land for each parcel of land and also with
  Ministerial approval, together with registered transfer instruments and
  documents confirming registration of the purchase to the plaintiff in 1995, it is
  illogical and suspicious that any reasonable decision-maker or a public official
  vested with a decision-making power will arrive at the decision to issue
  replacement titles to the second defendant.

  29. It is quite extraordinary to say the least. Add the Lands Department lost
  file and the uncontroverted evidence of Mr Habuka, the conveyance lawyer for
  the plaintiff at that time, I must agree with the plaintiff’s submission that there is
  a strong case of fraud being perpetrated by the first and second defendants. It is
  inferred from the file being lost deliberately in collusion between the first and
  second defendants and the Registrar to conceal the evidence in order to destroy
  the plaintiff’s case in the previous proceeding. When the file was found and
  despite the strong evidence favouring the plaintiff, the Registrar ruled to the
  contrary. It does not make sense at all.

  30. What the Registrar had done was effectively given an instrument of title
  to a vendor (second defendant) who has already disposed of its interest in the
  subject land by transfer to the plaintiff under a Contract of Sale for valuable
  consideration. The second defendant has been paid for the land he sold and
  now is attempting to get a double benefit by fraudulently stealing the subject
  land back, relying on a previous lack of records at the Lands Department. The
  location of the documents has uncovered the lie and the theft if the land and it is
  in the interests of justice that the plaintiff now has its registered indefeasible
  titles under Section 33(1)(a) of the Land Registration Act restored.

  31. I am further satisfied that Section 33(1)(c) of the Land Registration Act
  has been established..….“The estate or interest of a proprietor claiming the
  same land under a prior instrument of title”. That is, the plaintiff has
  established that it has a prior interest in the subject land and the title to each
  parcel of land must be restored to it.

  Conclusion

  32. The application for judicial review will be upheld on the grounds of fraud
  and plaintiff’s prior interest under Section 33(1)(a)&(c) of the Land
  Registration Act but not all the relief sought in the Notice of Motion filed

• Page 10 of 12

• pursuant to Order 16, rule 5 of the National Court Rules will be granted. This is
  because not all of them have been proved or are relevant. For avoidance of
  doubt, where they are not stated in the final order, they are not granted.

  Order

  33. The orders are:

  1. Fraud is proven and the application for judicial review is
  upheld.

  2. The plaintiff has a prior interest as the registered proprietor
  of the subject land and the application for judicial review is
  upheld.

  3. An order in the nature of Declaration that the third
  defendant’s decision to publish a Notice under Section 162(4) of
  the Land Registration Act in the National Gazette on 15th
  December 2016, and in the National Newspaper on 20th
  December 2016, when the government offices including the third
  defendant’s office were closing for Christmas and New Year’s
  holidays and no objection or response could be lodged until 4th
  January 2017 was a breach of natural justice under Section 59 of
  the Constitution and was unreasonable and unfair under the
  Wednesbury principle, and constituted a decision which no
  reasonable person in that capacity would have made.

  4. An order in the nature of Declaration that the third
  defendant’s decision in failing to consider a respond to the
  plaintiff’s letters of 21st December 2016 through Wariniki
  Lawyers and 7th April 2017 through O’Briens Lawyers was a
  breach of legal duty, and a breach of natural justice under
  Section 59 of the Constitution and was unreasonable and unfair
  under the Wednesbury principle, and constituted a decision
  which no reasonable person in that capacity would have made.

  5. An order in the nature of Declaration that the third
  defendant’s decision not to comply with the order of the National
  Court dated 6th October 2016 requiring the third defendant to
  conduct a rehearing into the issue of any replacement of
  instrument of title was unlawful and in breach of the Court order

• Page 11 of 12

• of 6th October 2016, a breach of legal duty, and a breach of
  natural justice under Section 59 of the Constitution and was
  unreasonable and unfair under the Wednesbury principle, and
  constituted a decision which no reasonable person in that
  capacity would have made.

  6. An order in the nature of Declaration that the third
  defendant’s decision on 9th January 2017, to cancel and remove
  the entries in the Register of Lands rescoring the plaintiff as the
  proprietor of the subject land was unlawful and in breach of the
  Court order of 6th October 2016, and a breach of his legal duty,
  and a breach of natural justice under Section 59 of the
  Constitution and was unreasonable and unfair under the
  Wednesbury principle, and constituted a decision which no
  reasonable person in that capacity would have made.

  7. An order in the nature of Declaration that the third
  defendant’s decision on 9th January 2017, to replace and issue a
  new title deed instrument to each parcels of the subject land to
  the second defendant without giving any opportunity to the
  plaintiff to be heard or to conduct a rehearing was unlawful and
  in breach of the Court order of 6th October 2016, a breach of his
  legal duty, and a breach of natural justice under Section 59 of the
  Constitution and was unreasonable and unfair under the
  Wednesbury principle, and constituted a decision which no
  reasonable person in that capacity would have made.

  8. An order in the nature of Certiorari to remove into this Court
  and quash the decision of the third defendant of 9th January
  2017 to issue replacement titles to the second defendant for
  parcels of land identified as Allotments 16, 17, 18, 19, 20, 21,
  22, 23, 24, 25, 26 and 27 Section 39, Hohola, National Capital
  District forthwith.

  9. An order in the nature of Certiorari to remove into this Court
  and quash the decision of the third defendant of 9th January
  2017 to cancel and remove the entries in the Register of Lands
  recording the second defendant as the proprietor at the subject
  land forthwith.

  10. An order in the nature of Mandamus to cancel and remove

• Page 12 of 12

• the entries in the Register of Lands recording the second
  defendant as the proprietor at the subject land forthwith.

  11. An order that the defendants pay the plaintiff’s costs of the
  proceeding, to be taxed, if not agreed.

  12. Time for entry of these orders shall be abridged to the date
  of settlement by the Registrar, which shall take place, forthwith.
  ________________________________________________________________
  O’Briens Lawyers: Lawyers for Plaintiff
  Rageau Manua & Kikira Lawyers: Lawyers for First and Second Defendants
  Solicitor General: Lawyers for Third, Fourth and Fifth Defendants