N10470

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 249 OF 2012

BETWEEN:
HENRY LOSIMI – Board Chairman of Kepi Vocational Centre
First Plaintiff

AND:
PASTOR MARTIN BOSO, AOG Church of Ialibu, SHP,
Second Plaintiff

AND:
PAUL BOSO
First Defendant

AND:
SOUTHS COFFEE LIMITED
Second Defendant

AND:

WS NO. 250 OF 2012

BETWEEN:
DANIEL NAKANOL
First Plaintiff

AND:
TOKOPI WAREA
Second Plaintiff

AND:
NICK TURI
First Defendant

AND:
FRANCIS TANGA, Chairman, Land Board of Papua New Guinea
Third Defendant

AND:
LAND BOARD OF PAPUA NEW GUINEA
Fourth Defendant

AND:
JOHN OFOI, Acting Chairman of Physical Planning Board of Papua New Guinea, Fifth Defendant

AND:
PHYSICAL PLANNING BOARD OF PAPUA NEW GUINEA
Sixth Defendant

AND:
PEPI KIMAS, Former Secretary, Department of Lands & Physical Planning
Seventh Defendant

AND:
DR PUKA TEMU, Former Minister for Lands & Physical Planning
Eight Defendant

AND:
HENRY WASA, Registrar of Land Titles
Ninth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendant

Ialibu/Waigani: Kassman J
2015:  13th May
2016: 9th August
2023: 8th September

LAND LAW – Land Registration Act c.191 – section 33(1)(a) – indefeasibility of title – fraud - actual fraud by the registered proprietor or their agent - not constructive or equitable fraud

Facts

The plaintiffs claimed there were irregularities in the process and issue of state leases to the principal defendants. The plaintiffs failed to establish a claim in fraud on the part of the registered proprietors or their agents in the issue of the state leases. It was conceded the claims or allegations are about non-compliance by State officers and offices in the process that led to the issue of the state leases.      

Held:

1.	There is no claim or evidence directly connecting the registered proprietors to any wrongful conduct that resulted in their registration as owners on the State Leases.  
2.	In s.33 (1) (a) of the Land Registration Act c191, “fraud” means fraud committed by the registered proprietor or actual fraud.  That is the only ground upon which a registered proprietor’s title can be rendered invalid.
3.	The fraud concerned must be actual fraud by the registered proprietor or their agent.  It cannot be constructive or equitable fraud.
4.	The law provides that “fraud” will be established where there is wrongful conduct or criminal deception intended to result in registration of the proprietor as owner on title.  Fraud will be established where there is conduct that is dishonest and morally wrong.  Furthermore, in the context of theft of property, “fraud” means that the taking is done intentionally, under no mistake and with knowledge that the thing taken is the property of another person.  
5.	The plaintiffs have all failed in their claims challenging the validity of the state leases and the plaintiffs’ claims are dismissed.

Cases Cited:

The Papua Club Inc v Nusuam Holdings Ltd (No.2) (2004) N2603
Albert Camilus & Akami Oil Palm Limited -v- David Mota and Others SC2210
Koitachi Ltd v Walter Schnaubelt (2007) SC870 
Eric Kiso v Bennie Otoa and Ken Watnalom (2013) SC1222
Sali Tagau & Selon Limited v Vitus Kais [2018] PGSC 97 SC1755
Elisha Timothy, Romily Kila-Pat, Benjamin Samson & The Independent State of Papua New Guinea -v- Joshinta Tomothy (2022) SC2282
H.Q.H Enterprises Limited v Wangbao Trading Limited, Ala Ane as Registrar of Titles, Department of Lands and Physical Planning, Benjamin Samson as Secretary for Lands & Physical Planning, Hon. John Ross as Minister for Lands & Physical Planning and The Independent State of Papua New Guinea (2023) SC2419

Legislation Cited:

Land Registration Act ss 33, 160 and 161 
National Court Rules Order 22 Rule 11 

Counsel:

P. Kunai, for the First and Second Plaintiffs
J. Tonge, for the First and Second Defendants
J. Bamin and S. Hoa, for the Third to the Tenth Defendants 

DECISION 

8th September 2023

1.	KASSMAN J:  These two proceedings WS 249 of 2012 and WS 250 of 2012 were consolidated and heard together.  Both proceedings concern separate but adjacent blocks of land located in Ialibu Town in the Southern Highlands Province.  The plaintiffs are independent of the other but they both engaged the same lawyer.  The principal defendants are also independent of the other and they also engaged the same lawyer.  The challenges to title held respectively by the principal defendants raise identical issues alleging irregularities and fraud in the process towards the grant of title and the issue of title.  Both proceedings seek declarations that the respective titles issued are null and void.  Other consequential orders are also sought. 

2.	In both proceedings, there is no dispute to the fact the principal defendants hold registered State Leases.  In both proceedings, State agencies are named as defendants including the PNG Land Board and PNG Physical Planning Board, the Secretary and Minister of the Department of Lands & Physical Planning, the Registrar of Titles and the State.  Together, they are referred to as “the State”.  There is also no dispute to the fact the respective boundaries and survey details for the various blocks of land are specified in the Surveyor General's Cadastral Plan No. 29/539 which was approved by the Physical Planner.  

WS 249 of 2012
Henry Losimi & Martin Boso -v- Paul Boso & Souths Coffee Limited & Others

3.	The first proceeding is WS 249 of 2012.  Henry Losimi is the First Plaintiff ("Losimi") and Martin Boso is the Second Plaintiff ("Martin").  Paul Boso ("Boso") is the First Defendant and Souths Coffee Limited ("Souths") is the Second Defendant.  It was claimed Boso is the sole shareholder and sole director of Souths.  Certain agencies of the State and the State are the third to the tenth defendants respectively (together “the State”). 

4.	Losimi and Martin claim they duly provided notice to the State, of their intention to commence this proceeding against the State, pursuant to section 5 of the Claims By & Against the State Act 1996.  That was not refuted by the State defendants.  Despite the contentions of Boso and Souths at paragraph 9 of their defence, this contention was not raised as an issue at trial so I will not address that contention any further.    

5.	Losimi and Martin relied on their Statement of Claim filed with the Writ of Summons on 21 March 2012.  At trial, they both gave evidence.  Losimi’s affidavit filed 21 March 2012 was marked Exhibit P1 and Martin’s affidavit filed 21 March 2012 was marked Exhibit P2.  They filed submissions on 12 May 2015 and 15 July 2015.  Boso and Souths relied on their Defence filed 18 May 2012.  Boso gave evidence and his two affidavits filed 31 July 2012 were marked Exhibit D1 and D2.  Their submission was filed 13 October 2015.  The State's Defence was filed 31 October 2014.  The only witness called for the State was Romily Kila-Pat, the then Secretary of the Department of Lands & Physical Planning whose affidavit filed 31 October 2014 was marked Exhibit D3.  The State's submissions were filed 9 December 2015.

State Lease issued to Souths - Allotment 14 Section 9 Ialibu

6.	On 18 March 2009, Souths was issued a State Lease for business (light industrial) purposes to Allotment 14 Section 9 Ialibu (“the land”) which is more particularly described in State Lease Volume 15 Folio 106 (“Souths title”).  This was conceded by Losimi and Martin who claimed that, long before the issue of Souths title to the land, distinct or separate parts of the land were occupied by the respective institutions they represent in this proceeding. 

Kepi Vocational Centre - Allotment 13 Section 25 Ialibu  

7.	Losimi claimed he was the Board Chairman of Kepi Vocational Centre (“Kepi”).  Losimi claimed that Kepi has always been an educational institution established and operated by the State and Kepi occupied a part of the land since 1993 and that part of the land was described previously as Allotment 13 Section 25 Ialibu.  Losimi also claimed that Kepi developed the land erecting improvements on the land in the form of buildings which were used by Kepi as a vocational school with students from all over the SHP.  Further, all staff and teachers employed at Kepi were all formally engaged, employed and paid by the State.  That was not refuted by Boso, Souths and the State parties but they refuted the claim that Kepi held any title or other lawful interest over that part of the land they occupied.    

8.	Losimi also claimed Kepi’s occupation of that portion of the land was lawful and in accordance with a Certificate Authorizing Occupancy (“CAO”) issued on 26 August 1994 by Joseph Aoae, Secretary, Department of Lands to the Department of Education with details “#27/94 (H), plan #29/299, Portion 256 Milinch Mendi, F/M Kutubu, Southern Highlands Province”. Unfortunately, Losimi failed to produce in court a copy of the CAO. Losimi said the CAO document was destroyed in a fire in 2002 when the Southern Highlands Provincial Office Building was destroyed completely in a fire with all contents including important government records totally burnt and destroyed.  Boso, Souths and the State parties denied any knowledge of this and refuted this aspect of Losimi’s claim.    

9.	Losimi also claimed that on the strength of the CAO, Kepi developed the land erecting improvements on the land in the form of buildings which were used by Kepi as a vocational school with students from all over the SHP.  Losimi said improvements on their land included two permanent buildings used by the school, thirteen staff houses, drainage of one kilometer around the perimeter of the land and food and vegetable gardens. 

10.	In his affidavit, Losimi describes communications with and from the Department of Lands in the SHP and the main State department as to attempts by many other people to take or occupy the land which were successfully thwarted.  Those communications confirm or corroborate Losimi’s claims to Kepi having a serious interest in the land as an occupant of the land and being an important institution of the State serving the needs and interests of the people of the Southern Highlands Province particularly in Ialibu and surrounding districts of Kagua, Erave, Pangia and Imbongu, hence the acronym “KEPI”.  I refer specifically to the letter from George Bani, Assistant Secretary, Education to Pawa Kombea dated 26 June 1995, the letter from Romily Kila-Pat to Robin Tamu, Acting Town Manager, Ialibu LLG dated 5 April 2006 and the letter from John Yawii, a/Advisor Lands, SHP Administration to Losimi’s lawyer Paulus Kunai dated 31 August 2009.
           
AOG Church, Ialibu - Allotment 12 Section 25 Ialibu

11.	Martin claimed he was a Pastor with the AOG Church. Martin claimed another part of the land was occupied by the AOG Church and that part of the land was previously described as Allotment 12 Section 25 Ialibu.  Martin claimed the AOG Church building was located on that part of the land.  The occupation of that part of the land by the AOG Church was not refuted by Boso, Souths and the State parties but they refuted the claim that the AOG Church held any title or other lawful interest over that part of the land they occupied. 

12.	In his affidavit, he also supports the statements of Losimi.  He also confirms his church has actively sought to obtain legal title over the land they occupied to be held by the church.  

No notice of formal steps to issue title to Souths 

13.	Losimi for Kepi and Martin for the AOG church make their allegations of non-compliance with requirements of certain statutory provisions in paragraphs 3 to 10 of the Statement of Claim.  They say they were never notified of the intentions or actions of the Department of Lands & Physical Planning to rezone the land and offer the land for tender or expressions of interest to acquire the land.  They say if there ever was an investigation properly conducted especially an actual physical inspection of the land by appropriate qualified and experienced technical officers of the State, the Department of Lands & Physical Planning would have found that they were occupying the land where they had developed substantial improvements.  For those reasons they had a genuine interest in the land and deserved to be notified and consulted prior to any process formally conducted that led to the issue of the title or State Lease to Souths. 

14.	The State did not refute the fact Kepi and the AOG Church had certain improvements on the parts of the land which they occupy.  Boso and Souths flatly refute the claims of Losimi and Martin in this regard, but I am satisfied the evidence is overwhelming and in favor of Losimi and Martin on this. 

Allegations of fraud 

15.	Losimi and Boso make their allegations and provide particulars of fraud in paragraphs 11 and 12 of the Statement of Claim which I recite in full here:

“11.	The actions of the Third, Fourth, Fifth, Sixth, Seventh and Eight Defendants to rezone the land and grant a registered lease to the Second Defendant without advertising for public tenders was done willfully and intentionally against both the letter and the spirit of the Physical Planning Act and the Land Act of 1996 and this amounted to a fraud against the said two Statutes.”   

Particulars of Fraud

(a)	The First Defendant failed to consider the fact that the land was already zoned as Section 25, Allotments 12 & 13, Ialibu, SHP and occupied by the Plaintiffs who were and yet secretly arranged to rezone the land and changed its description to section 9, Allotment 14, Ialibu, SHP without the knowledge of the Plaintiffs.

(b)	The First Defendant is a local form Ialibu and he was aware that the Plaintiffs’ occupation of the land and yet failed to inform the Third, Fourth, Fifth, Sixth, Seventh and Eight Defendants of the Plaintiffs’ interest in the subject land before it was rezoned and awarded to the Second Defendant. 

(c)	The Seventh Defendant failed to consider the Plaintiffs’ initial application when the land was zoned as Section 25, Allotments 12 & 13, Ialibu, SHP.

(d)	The Seventh Defendant failed in his duty under Section 60 of the Land Act to conduct a proper investigation and verify that the subject land was in fact not waste and vacant land.

(e)	There was no investigation done by the Seventh Defendant to identify the fact that the land was already zoned as Section 25, Allotments 12 & 13 Ialibu, SHP and the subsequent rezoning done was inconsistent with the previous zoning and town planning.

(f)	There was no authority and approval given by the Ialibu Town Planning Authority or Southern Highlands Provincial Lands Office for the rezoning and allocation of the State Leases.

(g)	No notice was given to the Plaintiffs for rezoning of the land because they were the person who applied first for the State lease in respect of the said land described as Section 25, Allotments 12 & 13, Ialibu, SHP.

(h)	There was no advertisement for public tenders for the subject land for any interest persons to object to the zoning or for grant of the lease as required by the Land Act of 1996 and the Physical Planning Act.

(i)	The Seventh and Eight Defendants’ action to exempt the land from public tender just to accommodate the interest of the Second Defendant is against public policy and the provisions of the Land Act of 1996 in relation to the administration and grant of government land in the country.

“12.	The actions of the Third, Fourth, Fifth, Sixth, Seventh and Eight Defendants have caused the Plaintiffs to suffer loss and damages for which the Tenth Defendant is vicariously liable.”

16.	In their defence, Boso and Souths deny the claims of fraud and say the initial portion of land Portion 379 was ascertained to be vacant and unoccupied.  Boso annexed to his affidavit a letter from Simon Peter, Advisor Lands, Southern Highlands Provincial Administration dated 9 December 2002 where it is stated Portion 379 is vacant.  There is also a letter from Registered Surveyor Paul McKup dated 25 November 2003 which describes a bush material church building and bush material dwelling house and some food gardens and trade store erected on Lot 13 Section 25 Ialibu.  Boso and Souths say the land was then “rezoned” to create Allotment 14 Section 9 Ialibu over which they applied for and secured the State Lease described above.  

17.	The State confirms Souths title to the land at Allotment 14 Section 9 Ialibu.  The State denied any title or other instrument was ever issued to Kepi and the AOG Church in respect of land claimed as Allotments 12 and 13 Section 25 Ialibu.  The State said Allotments 12 and 13 Section 25 Ialibu were not registered and not legally recognized by the Surveyor General.  The State said survey plans 29/485 and 29/475 providing for Allotments 12 and 13, Section 25 Ialibu were submitted to the Surveyor General but were not approved and were formally cancelled on 10 February 2011. 

18.	The State also said the National Physical Planning Board on 21 October 2004 approved the subdivision and rezoning of Portion 379 to Allotments 13 and 14 Section 9 Ialibu and Allotments 1, 2 and 3 Section 14 Ialibu.  

19.	The State also denied knowledge of the issue of a Certificate Authorizing Occupancy over any land to Kepi or any other such or related State institution in Ialibu as claimed by Losimi and Kepi.  The basis of this assertion by the State is the non-existence of Allotments 12 and 13, Section 25 Ialibu. 

20.	Romily Kila-Pat was the Secretary, Department of Lands and Physical Planning when the matter went to trial.  In his affidavit filed 31 October 2014, he reaffirmed what was stated in the Defence of the State and which I describe in part above.  In his affidavit, he says Portion 379 was subdivided to create five separate plots being Allotments 13 and 14 Section 9 Ialibu and Allotments 1, 2 and 3, Section 14 Ialibu.   

21.	Souths lawfully applied for and was granted State Leases over Allotments 13 and 14 Section 9 Ialibu on 18 March 2009.  This evidence was not disputed with any direct evidence to the contrary in response from Losimi and Martin and neither was the evidence seriously challenged in cross-examination of Romily Kila-Pat by counsel for Losimi and Martin.                

WS 250 of 2012 
Daniel Nakanol & Tokopi Warea -v- Nick Turi & Others

22.	The second proceeding is WS 250 of 2012. Daniel Nakanol ("Nakanol") is the First Plaintiff and Tokopi Warea ("Warea") is the Second Plaintiff.   Nick Turi ("Turi") is the First Defendant. Certain agencies of the State and the State are the second to the nineth defendants respectively. 
 
23.	Nakanol and Warea relied on their Statement of Claim filed with the Writ of Summons on 21 March 2012. At trial, Nakanol and Warea gave evidence and Nakanol’s affidavit filed 21 March 2012 was marked Exhibit P2 and Warea’s affidavit filed 21 March 2012 was marked Exhibit P3.  They filed a Statement of Case on 1 May 2015, an Outline of Submissions on 12 May 2015 and a Submission on 15 July 2015.  Turi relied on his Defence filed 18 May 2012 and gave evidence and his affidavit filed 31 July 2012 was marked Exhibit D1.  His submission was filed on 13 October 2015.  The State's Defence was filed on 31 October 2014. The only witness called for the State was Romily Kila-Pat, the then Secretary of the Department of Lands & Physical Planning whose affidavit filed 31 October 2014 was marked Exhibit D2.  The State's submission was filed on 5 May 2016.   

24.	Nakanol claimed he is the lawful occupant of Allotment 3 Section 25 Ialibu. Warea claimed he is the lawful occupant of Allotment 2 Section 25 Ialibu. Nakanol and Warea say Portion 256 was subdivided to create thirteen plots in Allotments 1 to 13 Section 25 Ialibu.  Nakanol and Warea claimed that in about 1998, they applied to the Lands Department for titles to Allotments 2 and 3 Section 25 Ialibu but they never received advice as to the public tender of those allotments for expressions of interest.  This was all denied by Turi and also the State who say Allotments 1 to 13 Section 25 Ialibu was never formally registered.       

25.	Turi was issued title to Allotments 1, 2 and 3 Section 14 Ialibu. Title to Allotment 1 is described in State Lease Volume 15 Folio 109, title to Allotment 2 is described in State Lease Volume 15 Folio 110 and title to Allotment 3 is described in State Lease Volume 15 Folio 108, copies of which were annexed to Turi’s affidavit filed 31 July 2012.  That was all conceded by Nakanol and Warea. 

Allegations of fraud 

26.	Nakanol and Warea make their allegations and provide particulars of fraud in paragraphs 9, 10 and 11 of the Statement of Claim which I recite in full here:

“10.	The actions of the Second, Third, Fourth, Fifth, Sixth and Seventh Defendants to rezone the said land and grant a registered State Lease to the First Defendant was done willfully and intentionally against both the letter and the spirit of the Physical Planning Act and the Land Act of 1996 thereby constituting a fraud against the two said legislations.”  

PARTICULARS OF FRAUD

(a)	The First Defendants failed to consider the fact that the land was already zoned as Section 25, Allotment 1, 2 & 3, Ialibu, SHP which was already occupied by the Plaintiffs and yet secretly arranged to rezone the land and changed the description to Section 14, Allotments 1, 2 & 3 without the Plaintiffs’ knowledge.
(b)	The First Defendant is from Ialibu and he was aware of the Plaintiffs’ 	occupation of the land and yet failed to inform the Second, Third, Fourth, Fifth, Sixth and Seventh Defendants of the Plaintiffs’ interest in the subject land before it was re-zoned and awarded to the First Defendant.
(c)	The Sixth Defendant failed to consider the Plaintiffs’ initial application when the land was zoned as Section 25, Allotments 1, 2 & 3, Ialibu, SHP.
(d)	The Sixth Defendant failed to consider the Plaintiffs’ initial application when the land was zoned as Section 25, Allotments 1, 2 & 3, Ialibu, SHP.
(d)	The Sixth Defendant failed in his duty under Section 60 of the Land Act of 1996 to conduct a proper investigation and verify that Section 14, Allotments 1, 2 & 3 were in fact waste and vacant land.
(e)	There was no investigation done by the Sixth Defendant to establish the fact that the land was already zoned and described as Section 25, Allotment 1, 2 & 3, Ialibu, SHP and the subsequent rezoning was inconsistent with the previous zoning and town planning.  
	(f)	There was no authority and approval given the Ialibu Town Planning 	Authority or The Southern Highlands Provincial Lands Office for the rezoning and allocation of the State Leases.
(g)	No notice was given to the Plaintiffs for rezoning of the said land because they were the persons who applied first for the State lease for Section 25, Allotments 2 & 3 and are currently occupying the subject land.
(h)	The land was not advertised for public tenders as required by the Land Act of 1996.
	(i)	The Sixth and Seventh Defendants’ action to exempt the land from public 	tender to accommodate the interests of the First Defendant is in breach of the Land Act of 1996 and against government policy in relation to grant of government land in the country.
“11.	The actions of the Second, Third, Fourth, Fifth, Sixth, Seventh and Eight Defendants have caused the Plaintiffs to suffer loss and damages for which the Ninth Defendant is vicariously liable.”
 
27.	In his defence, Turi denied the claims of fraud and says the allegations do not constitute fraud. The State also denied the allegations of fraud.  They all say the titles secured or issued to Turi were lawfully issued following all statutory processes.  

Section 33 Land Registration Act and “fraud” 

28.	In the Supreme Court case of Albert Camilus & Akami Oil Palm Limited -v- David Mota and Others SC2210 delivered on 4 March 2022, where I was in the minority, I discussed the word “fraud” in the context of section 33 of the Land Registration Act where I said “fraud” “is defined in the Concise Oxford English Dictionary as “wrongful or criminal deception intended to result in financial or personal gain”.  In Stroud’s Judicial Dictionary of Words and Phrases, Fifth Edition, the word “fraud” is defined as being “a term that should be reserved for something dishonest and morally wrong” and further in the context of theft of property “means that the taking is done intentionally, under no mistake and with knowledge that the thing taken is the property of another person (R v Williams [1953] 1 Q.B. 660).” I then referred to an authoritative statement of the law in The Papua Club Inc v Nusuam Holdings Ltd (No.2) (2004) N2603 where Gavara-Nanu J said “The word ‘fraud’ in s. 33 (1) (a) of the Land Registration Act, is not defined anywhere in the Act, but s.45 (1) makes it clear that fraud means more than constructive or equitable fraud.  In this regard, it is noted that s. 146 (d) and (e) also provide for the ejectment of a registered proprietor from land if the title is obtained through fraud.  Section 146 (4) makes it even more clear although not specifically expressed, that fraud in that section does not refer to fraud by the person from whom the registered proprietor acquired the title or the estate; rather, it is fraud by the registered proprietor himself or herself when acquiring title.  Thus, it is implicit from these provisions that “fraud” in s.33 (1) (a) means fraud committed by the registered proprietor or actual fraud.  That is the only ground upon which a registered proprietor’s title can be rendered invalid.”  

29.	I went further to say in Camilus “That view of the word “fraud” was adopted by the Supreme Court in Koitachi Ltd v Walter Schnaubelt (2007) SC870 and was followed again by the Supreme Court in Eric Kiso v Bennie Otoa and Ken Watnalom (2013) SC1222 where the court also discussed in detail the Torrens system of title by registration which exists under the Land Registration Act.  With respect, I adopt that discussion and statement of the law.”  I also said in Camilus “In Koitachi, the Supreme Court said fraud in Section 33 of the Land Registration Act means actual fraud by the registered proprietor and “,,, once the land is registered, the owner obtains indefeasibility of title which cannot be invalidated by any unregistered interests or mere irregularities except fraud by the registered proprietor or actual fraud”.”  I also said in Camilus “the Supreme Court in Sali Tagau & Selon Limited v Vitus Kais [2018] PGSC 97 SC1755… noted the differing views of the Supreme Court and declined to discuss the issue and said “We do not intend or wish to discuss which of the two is the correct view.  We would leave that to an appropriately constituted bench of the Supreme Court to decide.”

30.	I have recently enquired with senior colleague judges and conducted brief research of my own and note the issue with the differing views of the Supreme Court has yet to be addressed by a bench of five or more judges of the Supreme Court.  In my research, I have come across two recent judgments of the Supreme Court constituted by three judges which have discussed the issue and delved deep into the origins of the Torrens System of title by registration.  Both judgments resoundingly state the law that “fraud” in Section 33(1)(a) of the Land Registration Act means actual, not constructive or equitable, fraud. 

31.	In Elisha Timothy, Romily Kila-Pat, Benjamin Samson & The Independent State of Papua New Guinea -v- Joshinta Tomothy SC 2282 delivered on 1 September 2022, the Supreme Court by majority held (Batari and Logan JJ and Anis J dissenting) Section 33(1)(a) of the Land Registration Act 1981 provides a limited exception to indefeasibility of title in circumstances where the relevant registration was affected by fraud.  The fraud concerned must be actual fraud by the registered proprietor or their agent.  It cannot be construct or equitable fraud.”  The Supreme Court also held: “Where an allegation of fraud, whether actual or equitable, has been made in a civil case, that conduct will not be proved by inexact proofs or indirect references.”  

32.	In H.Q.H Enterprises Limited v Wangbao Trading Limited, Ala Ane as Registrar of Titles, Department of Lands and Physical Planning, Benjamin Samson as Secretary for Lands & Physical Planning, Hon. John Ross as Minister for Lands & Physical Planning and The Independent State of Papua New Guinea SC2491 delivered on 28 April 2023, the Supreme Court was unanimous (Gavara-Nanu, Collier and Frank JJ) in stating that “Constructive or equitable fraud is not an exception under s.33(1)(a) of the Land Registration Act to vitiate a title.” The court cited the major parts of the Elisha Timothy decision and expressly adopted the discussion and outcome of that case. 

33.	I also note and adopt what Justice Gavara-Nanu said “9. Regarding ss. 160 and 161 of the Land Registration Act, the provisions lay out a process under which the Registrar of Titles may cancel a title, including a title which had been issued in error or fraudulently or wrongly obtained.  The process includes the Registrar issuing a summons to the person holding title to deliver up the title for cancellation.  But, before issuing the summons, it must appear to the satisfaction of the Registrar that the title had been issued in error or issued fraudulently or obtained wrongly.  Thus, the power to cancel a title is vested in the Registrar of Titles, the exercise of such power must be made on proper grounds.”      

34.	From the discussions above, “fraud” in s.33 (1) (a) means fraud committed by the registered proprietor or actual fraud.  That is the only ground upon which a registered proprietor’s title can be rendered invalid. Further, “fraud” will be established where there is wrongful conduct or criminal deception intended to result in registration of the proprietor as owner on title.  Fraud will be established where there is conduct that is dishonest and morally wrong.  Furthermore, in the context of theft of property, “fraud” means that the taking is done intentionally, under no mistake and with knowledge that the thing taken is the property of another person.  Further, where an allegation of fraud, whether actual or equitable, has been made in a civil case, that conduct will not be established by indirect references or inferences.  A claimant must produce direct evidence in support of the allegation of fraud connecting the registered proprietor. 

35.	In my analysis of the allegations made which I have restated above, there is no claim or evidence directly connecting the registered proprietors to any wrongful conduct that resulted in their registration as owners on the State Leases.  It was conceded the claims or allegations are about non-compliance by State officers and offices in the process that led to the issue of the State Leases.  The result is the Plaintiffs have all failed in their claims challenging the validity of the State Leases. The claims of the Plaintiffs are dismissed. 

36.	By Order 22 Rule 11 of the National Court Rules, costs follow the event except where it appears that some other order should be made.  I have no reason to exercise my discretion in any other manner.  The Plaintiffs shall pay the defendants costs of the proceedings. Costs shall be assessed on a party and party basis and shall be taxed if not agreed.  

37.	The formal orders of the court are:

1)	The Plaintiffs’ claims are dismissed.

2)	The Plaintiffs shall pay the defendants’ costs of the proceedings which shall be assessed on a party and party basis and shall be taxed if not agreed. 

Judgment and orders accordingly:
____________________________________________________________________

WS 249 of 2012:
Kunai & Co: Lawyers for Henry Losimi and Martin Boso
Tonges Lawyers: Lawyers for Paul Boso and Souths Coffee Limited
Solicitor-General: Lawyers for the State 

WS 250 of 2012:
Kunai & Co: Lawyers for Daniel Nakanol and Tokopi Warea
Tonges Lawyers: Lawyers for Nick Turi				
Solicitor-General: Lawyers for the State