N10073

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 597 OF 2019

BETWEEN:
JOE KOI NIKENTS
Plaintiff

AND:
SHIELA AISI
First Defendant

AND:
NATIONAL HOUSING CORPORATION
Second Defendant

AND:
BENJAMIN SAMSON
Third Defendant

Waigani: Tamade AJ
2022: 14th September, 21st November

LAND LAW – state lease title – title of the Plaintiff cancelled without Plaintiff’s knowledge – First Defendant illegally living on land without title – cancellation of title fraudulent– Land Registration Act – Sections 160, 161 ––

Cases Cited:
Papua New Guinean Cases

Amiau v Yalbees [2020] PGSC 133
Tagau v Selon Ltd [2018] PGSC 97; SC1755 
Agen v Dege [2020] PGSC 100; SC2020 
Koti v Susame [2015] PGNC 6; N5860
Ready Mixed Concrete Pty Ltd v The State and Ors[1981] PNGLR 396

Overseas Cases:

Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223

Counsel:	

Ms Karen Nugi, for the Plaintiff 
Mr Bernard Koae, for the First Defendant
No appearance for the Second and Third Defendants

22nd November, 2022

1. 	TAMADE, AJ: The trial of this matter was heard on 14 September 2022, and this is the decision on the matter.

2. 	This is a dispute over a land in the National Capital District. The Plaintiff claims in his Statement of Claim that he has the legal interest to this land however the First Defendant also says that she has legal interest and has expanded funds to build a structure of a dwelling house on this land and has been residing on this land.

3. 	The subject land is described as Section 16, Allotment 59, Hohola, National Capital District in Volume 12 Folio 2957.

4. 	The Plaintiff claims that the subject land was a vacant allotment owned by the National Housing Commission at the material time and the Plaintiff applied to purchase the land on 19 August 2015. The Plaintiff states that he had physically attended and saw that it was a vacant land and afterwards, made arrangements to purchase the land in 2015 however the title could not be transferred to the Plaintiff as the original Title Deed was misplaced and or lost and a new title had to be reissued in order for the Plaintiff to be granted the title. The Plaintiff alleges that two months after the property was transferred to him, the First Defendant expressed an interest to the NHC to purchase the land and without any title or legal interest, the First Defendant moved on to the property. At this time in 2016, the Plaintiff left for Mt Hagen only to return and find that the First Defendant was in occupation of the property. 

5. 	The Plaintiff proceeded to file eviction proceedings in the District Court and obtained restraining orders against the First Defendant however the Plaintiff states that the First Defendant in defiance of the Orders of the Court kept on developing the land. The First Defendant then filed National Court proceedings in WS 1663 of 2016 staying the eviction proceedings and challenged the titled held by the Plaintiff alleging fraud.

6. 	It is the Plaintiff’s allegation that whilst proceedings WS 1663 of 2016 was still on foot, the Second Defendant on behalf of the First Defendant cancelled the titled registered to the Plaintiff. The Plaintiff claims non-compliance of the Land Registration Act for the cancellation of his title. After the Plaintiff’s title was cancelled, the National Housing Commission entered into a Contract of Sale with the First Defendant for the transfer of the property to the First Defendant.

7. 	WS 1634 of 2016 was dismissed by the Court on 2 November 2018 and the Plaintiff proceeded with eviction proceedings in the District Court. It was in the proceedings in the District Court that the Plaintiff states that he found out by affidavits filed by the First Defendant that his title was cancelled by the Registrar of Titles. The Plaintiff then commenced these proceedings. The First Defendant is currently residing on the subject property and states in evidence that she has completed building a house much to the frustration of the Plaintiff who states that he was granted a title. The Plaintiff never got to enjoy possession of the title and subsequently, his title was cancelled without his knowledge.

8. 	The National Housing Commission and the Registrar of Titles named herein have not defended the matter nor have they put any evidence forth in this matter in which most of the allegations of fraud and cancellation of the Plaintiff’s title stem from. What is before the Court to analyse in terms of the evidence is between the Plaintiff and the First Defendant. The First Defendant has also not filed a Defence to this claim but has only filed Affidavits. 

Title held by the Plaintiff 

9. 	The evidence by the Plaintiff is clear that he had expressed an intention to purchase the subject property in a letter dated 19 August 2015 to the NHC. The NHC then offered the property to the Plaintiff for sale. From the Affidavit of the Plaintiff filed on 23 May 2019, the Plaintiff had attended at the location of the subject property and observed that the property was a vacant land. He had no knowledge, nor was he advised by the NHC that there was a caretaker of the subject property. 

10. 	The Plaintiff purchased the subject vacant land for K16 843.75 with a cheque number 1198014 written to the NHC and a Contract of Sale and Transfer Instrument was written up to process the transaction. From the evidence, the registration of the subject property to the Plaintiff was delayed as the original owner’s title copy of the property could not be located by NHC. On the copy of the title deed, the title was issued to NHC on 21st May 1992. A new owner’s copy of the title was granted in April of 2016.  The Plaintiff was registered as the registered title owner of the subject property on 31 May 2016. 

12. 	The Plaintiff is a usual resident of Mt Hagen however his children are in school here in Port Moresby. He, therefore, travelled to Mt Hagen to secure funds to construct a house on this property however on his return to Port Moresby on 27 October 2016, he attended at the property to find out that there was a building being constructed on his land. When he enquired at the property on 28 October 2016, the First Defendant was there on the property, and she asserted that she was the owner of the said property. She told the Plaintiff that she was on the phone with NHC when she saw the Plaintiff taking pictures of the construction work on the land. The Plaintiff informed the First Defendant that he had title to the subject land and that the First Defendant was building house illegally on the land.

13. 	There were meetings held at the NHC offices between the officers of the NHC and the parties to attempt to resolve the matter however the First Defendant kept possession of the land without any title and the Plaintiff’s attempts to get possession of the land were in vain. The Plaintiff then lodged eviction proceedings in the District Court in proceedings DC 892 of 2016. The proceedings in the District Court were however stayed when the First Defendant filed proceedings in the National Court challenging the title held by the Plaintiff. 

14. 	I note in particular that the Managing Director of the NHC in a letter dated 28 February 2017 wrote to the Registrar of Titles to cancel the Plaintiff’s title on allegations of fraud however I find that the contents of the letter in no way describe the fraud perpetrated however the NHC leaned towards the First Defendant as being the care-taker of the property and therefore the title held by the Plaintiff should be cancelled and a new title issued to the First Defendant.

15. 	On 2 March 2017, the Acting Registrar of Titles, Ms Shirley Pohei summoned the Plaintiff pursuant to section 160 of the Land Registration Act to deliver up a copy of the owner’s copy of the title deed for cancellation. The Plaintiff in a letter dated 11 April 2017 responded to the letter by the Registrar denying any allegation of fraud and requesting the Registrar to carefully go through her records on the Land’s Department file on the transfer to himself. 

16. 	In a letter dated 14 April 2017, Ms Shirley Pohei being the Acting Registrar of Titles responded to the Plaintiff stating that she had read the Plaintiff’s letter and that she had in fact reviewed the respective land’s department file in regard to the subject land and was satisfied that the transfer of the subject property from NHC to the Plaintiff was in order and was legitimate and therefore no further action was to be done. She also stated that any person aggrieved by her decision can pursue the matter in Court.

17. 	On 12 November 2018, National Court proceedings instituted by the First Defendant in WS 1663 of 2016 was dismissed by the National Court for non-compliance of the Rules of Court. The Plaintiff then went back to the District Court to obtain eviction proceedings against the First Defendant however it was then that the First Defendant filed and served him her Affidavit which came to the Plaintiff’s knowledge that his title was cancelled by the Registrar of Titles and that the process was underway to have the subject property transferred to the First Defendant. 

Evidence by Shiela Aisi

18. 	On the Affidavit of the First Defendant filed in the District Court proceedings in DC 892 of 2016, the First Defendant states that the Plaintiff was summoned by the Registrar of Titles to give up his copy of the title on allegations of fraud and that subsequently, on 23 February 2018, the Plaintiff’s title was cancelled. She, therefore, produced a copy of the Plaintiff’s title as being cancelled. I am less inclined to believe this evidence from Ms Shiela Aisi, the first Defendant, as this is entirely her evidence, and it is not corroborated by any person of authority in the Lands Department. I find this evidence as entirely hearsay and uncorroborated and it raises doubts in my mind as to its veracity.

19. 	The First Defendant therefore conveniently states in her evidence that after the title to the Plaintiff was cancelled, it reverted to the NHC and was re-offered to the First Defendant for her to purchase. All this time, the First Defendant was in occupation of the property without a lawful title under the guise that she was the title owner when she was not, she never had a title, not even at the time she moved in and built the house in 2016 and not even today. The First Defendant has been illegally living on the subject land asserting herself as a title owner, she is really a squatter with no legal rights. I find no evidence from NHC authorising her to remain on the property as a care-taker, she simply says that her family has been living on the adjacent property for years and that somehow gives her a right to be a care-taker of a State Lease held by the NHC is misconceived, her assertions are wrong in law and this Court cannot sustain her arguments as she has taken it upon herself to exert and occupy a land which she has no legal right to begin with. A person moves on to a land when they have acquired actual legitimate title to the land. What she has done is illegal and should be condemned by this Court. Legitimising an unlawful occupation of land whilst a legitimate title holder is deprived of the right of possession of that very land is where the injustice is in this case.

20. 	The First Defendant gives evidence on behalf of the Third Defendant and the Second Defendant, and I find all these hearsays. These evidences are not corroborated and there is no representation from the NHC or the Registrar of Titles nor is there any evidence from these Defendants to corroborate and assist the Court as to the truth of the First Defendant’s claims.

21. 	The evidence in the Affidavit of Ms Aisi in her Affidavit filed on 22 June 2022 as to a Mediation Report conducted by a Martin Tau from NHC is hearsay and uncorroborated. Ms Aisi is not the author of this document and I refuse to believe the authenticity of this document as it is hearsay. 

22. 	I find that a letter by Mr Benjamin Samson, the Registrar of Titles dated 23 February 2018 notifying the NHC of the cancellation of the Title to the Plaintiff as being inconsistent with the letter from the Acting Registrar of Titles Ms Shirley Pohei of 14 April 2017 which was written directly to the Plaintiff. I am bemused that the Plaintiff is not the author of this letter nor is she the recipient of this letter however she produces this letter in her evidence uncorroborated by Mr Benjamin Samson and or the NHC. I refuse to believe the accuracy of this letter and find that it raises elements of fraud on the part of the First Defendant first and foremost and on the NHC and Mr Benjamin Samson whom I note are not represented in these proceedings.

Fraud and section 160 and 161 of the Land Registration Act

23. 	Section 160 and 161 of the Land Registration Act is in the following terms with appropriate parts underlined:

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)[100] 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 instrument delivered up under Section 160; and

(b)[101] 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)[102] 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.

24. 	I am satisfied that the Acting Registrar of Titles, Ms Shirley Pohei had summoned the Plaintiff to produce his copy of his title and upon review of the Lands Department file, Ms Pohei was satisfied that the transaction with NHC and the Plaintiff was in order and therefore accepted the title and stated that if any person had any grievances with the title, they should challenge it in Court. The subsequent letter by Mr Benjamin Samson cancelling the title held by the Plaintiff as produced by the First Defendant is inconsistent with the letter by the Acting Registrar, Ms Shirley Pohei. Perhaps Mr Benjamin Samson is not aware of the Letter by Ms Shirley Pohei. If indeed Mr Samson is aware of the letter by Ms Shirley Pohei, I am of the view that Mr Samson’s letter has no basis and is ultra vires his powers.

25. 	Fraud in the transfer of title can be actual fraud or constructive fraud. In Tagau v Selon Ltd, the Supreme Court considered a long line of cases that deal with constructive fraud. 

26. 	The Supreme Court said this:

“Second, we note that the many case authorities that have applied the principle of constructive fraud since the Emas case mostly concern non-compliance with the statutory provisions relating to the process and procedures in respect of the grant of state leases, such that the circumstances of the grant of the State Lease are “so unsatisfactory and irregular that it is tantamount to fraud”. Some of the cases were cited by the primary Judge:

o	Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215
State lease was forfeited and granted to a new lessor in dubious circumstances involving breaches of the Land Act 1996.
Steamships Trading Company Ltd v Garamut Enterprises Ltd (2000) N1959
Errors and breaches of the Physical Planning Act 1989 in the rezoning of the disputed land and in the issue of a state lease under the Land Act 1996.
•	Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80
Irregularities and breaches of statutory provisions in the issue of a business/state lease previously zoned public institution.
•	Yakananda Business Group Inc v Minister for Lands (2001) N2159
The state lease was unlawfully forfeited contrary to the mandatory requirements of the Land Act 1996.
•	Lae Rental Homes Ltd v Viviso Seravo (2003) N2483
The state lease was unlawfully forfeited and then granted to another party contrary to the Land Act 1996.
•	Ramu Nickel Ltd v Temu (2007) N3252
A State Agriculture & Business Lease (SABL) was issued in respect of land over which a special mining lease already existed.
•	Elizabeth Kanari v Augustine Wiakar (2009) N3589
Irregularities and breaches of statutory procedures in the transfer and registration of the title.
•	West New Britain Provincial Government v Kimas (2009) N3834
Land was unlawfully exempted from advertisement under Section 69(2) Land Act 1996.
•	Mosoro v Kingswell Ltd (2011) N4450
Land was unlawfully exempted from advertisement under Section 69(2) Land Act 1996.
•	Kapiura Trading Ltd v Bullen (2012) N4903
Appeal from the Land Board was decided in breach of the principles of natural justice and the state lease was irregularly and unlawfully granted to a non-legal entity.
•	Open Bay Timber Ltd v Minister for Lands & Physical Planning (2013) N5109
The state lease was granted contrary to the Forestry Act 1991 and in breach of the Land Act 1996 and the Land Registration Act (Chapter 191).
•	Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Title was issued following flagrant abuse and breaches of the relevant mandatory procedures set out in the Land Act 1996.”

27. 	I am of the view that the decision by the Registrar Mr Benjamin Samson is unreasonable, and that no reasonable decision maker would have made the decision after being made aware of the decision by the Acting Registrar Ms Shirley Pohei.

28. 	In the Supreme Court case of Agen v Dege  , the Court said:

“Fraud cannot be mere suspicion or innuendo. There must be evidence of gross breaches of the procedures and processes for registration of the title tantamount to fraud, or actual fraud.”

29. 	I find that the conduct of the Registrar of  Titles Mr Benjamin Samson in cancelling the title held by the Plaintiff contrary to the letter by the Acting Registrar, Ms Shirely Pohei amounts to fraud as I find that the fact that the First Defendant is privy to this information, the  First Defendant was involved in this process to ensure the Plaintiff’s title is cancelled and that the title of the subject land would subsequently be transferred to her. This is evident in the subsequent Contract of Sale and Transfer Instruction signed by the NHC and the First Defendant however the transaction stands incomplete as the title was never transferred to the First Defendant. I find that there is a reasonable suspicion of collusion between the NHC, Ms Aisi and Mr Benjamin Samson, the Registrar of Titles for the cancellation of the title held by the Plaintiff and the subsequent attempt to transfer to Ms Aisi.

30. 	I state for the record that fraud is a serious matter, it is criminal, and perpetrators should face the full force of the law. I will therefore order that the Plaintiff’s title shall be restored, and Ms Aisi and her family and agents should vacate the property accordingly as they have been illegally squatting on someone else’s land, the Plaintiff’s land. The right of the First Defendant as a squatter on the land is one in equity and not in law, she only has to be given sufficient time to deconstruct any structure and vacate the land and give up possession to the Plaintiff as in the case of Ready Mixed Concrete Pty Ltd v The State and Ors and in the case of Amiau v Yalbees.

31. 	The Court therefore makes the following orders:

i)	The cancellation of the Plaintiff’s title in the land described as Section 16, Allotment 59, Hohola, National Capital District in Volume 12 Folio 2957 by Mr Benjamin Samson as Registrar of Titles is declared null and void.
ii)	The Registrar of Titles shall restore the Plaintiff’s title in Section 16, Allotment 59, Hohola, National Capital District in Volume 12 Folio 2957 forthwith and the Plaintiff’s title shall take effect from the date of its forfeiture. 
iii)	The Registrar of Titles, Mr Benjamin Samson shall update the Register of Titles in accordance with this judgement within seven (7) days from the date of these Orders.
iv)	The First Defendant and her family, servants and agents shall give up vacant possession of the subject land to the Plaintiff within two months from the date of these Orders by the end of 31 January 2023 failing which a Writ of Possession of Property shall be issued to the Plaintiff to take possession of the land with the assistance of police.
v)	The First Defendant shall meet the Plaintiff’s costs on a solicitor client basis as punitive for her conduct in this matter.

Orders accordingly.
________________________________________________________________
PANG Legal Services: Lawyers for the Plaintiff
Eda Legal Services: Lawyers for the First Defendant
No appearance by the Second and Third Defendants