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Kunjil No.19 Ltd v Jaminan [2023] PGNC 74; N10200 (31 March 2023)

N10200

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 167 OF 2021


BETWEEN:
KUNJIL NO.19 LIMITED
Plaintiff


AND:
JOHN JAMINAN
First Defendant


AND:
BENJAMIN SAMSON
AS DEPUTY REGISTRAR OF TITLES,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant


AND:
HARRY WASA
REGISTRAR OF TITLES,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant


AND:
PEPI KIMAS
SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUIUNEA
Fifth Defendant


AND:
CHRISTOPHER I.W JAMINAN
AS ADMINISTRATOR OF THE ESTATE OF LATE JOHN JAMINAN
Sixth Defendant


Waigani: Tamade AJ
2022: 23rd September
2023: 31st March


FRAUD – property transferred by fraudulent means – actual or constructive fraud – Land Registration Act – Sections 33, 160 and 161 – fraud in the process of transferring title to Plaintiff –Plaintiff does not represent estate of deceased– finding of collusion and fraud by Plaintiff to obtain First Defendant’s property- title cancelled by Registrar in order- title correctly reverts to first defendant


Cases Cited


Agen v Dege [2020] PGSC 100; SC2020
Koitachi Ltd v Zhang [2007] PGSC 11; SC870
Tagau v Selon Ltd [2018] PGSC 97; SC1755
The Papua Club Inc. v. Nusaum Holdings Ltd. (No.2) (2004) N2603


Legislation Cited


Land Registration Act


Counsel

Mr Moses Philip,for the Plaintiff
Mr Desmond Peter Aigilo, for the First and Sixth Defendants
Mr Robbie Kebaya, for the Second, Third, Fourth and Fifth Defendants


31st March, 2023


  1. TAMADE, AJ: The trial of this matter was heard on 23 September 2022 and this is the decision on the matter on liability.
  2. The Plaintiff claims in this case that it purchased a property described as Allotment 8 Section 25, Boroko, National Capital District from the First Defendant on or about 31 July 2000 for the purchase price of K150, 000. At that time, the Plaintiff alleges that the First Defendant was represented by Henao Lawyers.
  3. After the purchase of the subject property by the Plaintiff, the Plaintiff claims that it was registered on the title deed as the registered proprietor of the property. The Plaintiff claims that some 10 years later after it had purchased the property, the First Defendant fraudulently represented to the Second and Third Defendants disputing the transfer and registration to the Plaintiff and the Second and Third Defendants allegedly conspired and fraudulently cancelled the registration of the property from the Plaintiff and reissued the title to the name of the First Defendant.
  4. It is the First Defendant’s case that he did not sell the property to the Plaintiff for the purchase price of K150, 000.00; and that the Plaintiff or Mr Patrick Kolta still owes him the balance of the purchase price of K500, 000.00; which he says was the agreed price.
  5. The Plaintiff states that it only became aware that its title was revoked or cancelled when proceedings were filed in the District Court by the First Defendant. These proceedings were subsequently filed by the Plaintiff challenging the actions of the Registrar of Titles to revoke and or cancel its title to the subject land and the Plaintiff seeks that the subject State Lease be registered back to its name.
  6. The First Defendant is deceased and therefore his interest is litigated by the Sixth Defendant as the Administrator of his estate.

Did the First Defendant sell the subject property to the Plaintiff for the purchase price of K150 000?


Plaintiff’s evidence


  1. In the evidence marked as P1 of the Plaintiff which is an Affidavit of Clemence Kanau, he states that he is the Secretary General of the Police Association of PNG Inc (PAPNG) and he is also the Secretary to the Trustees of the Police Association Welfare Fund (PAWF).
  2. Mr Kanau states that on or around 3rd July 2000, the First Defendant entered into a Contract of Sale with the Plaintiff for the land described as Allotment 8, Section 25, Boroko, NCD contained in Volume 15 Folio 02. Mr Kanau attached a Contract of Sale of Land between the Plaintiff and the First Defendant. There is a signature of the First Defendant without a witness signature and there is a signature of a Director of the Plaintiff company Swapna De, witnessed by a Jill Kolta. The purchase price in that transaction is K150, 000.00; for the subject property and the transaction was carried out by Henao’s Lawyers.
  3. Annexure CK2 of Exhibit P1 annexes a copy of the Title Deed to the property however the endorsement of the registered proprietor on the title deed is missing in the Affidavit.
  4. Mr Kanau states the following in his affidavit that:

7. Between 2004 and 2005, Kolta and Associate Chartered Accountants were fund managers of the PAWF and during the course of Kolta & Associates managing the funds of PAWF; Kolta & Associates did use funds belonging to the PAWF to purchase some properties in Lae and engaged services of KN Mapa Management agents to manage the properties in Lae.


8. After the death of Late Patrick Kolta, the Principle of Kolta & Associates, it came to light that the properties in Lae were purchased by Kolta & Associates using funds from PAWF.


9. The PAWF then held a discussion with the Trustee of the Estate of Late Patrick Kolta with a view to have a property in Port Moresby with K300, 000.00; to be transferred to PAWF.


10. At this Trustees Meeting between the Officers of PAWF and the Trustees of the Estate of Late Patrick Kolta on 26 July 2006, it was agreed that the property now in question be transferred to PAWF to cover for the PAWF funds used by Kolta & Associates to acquire the Lae property. It was a “Trade off”.

11. After the agreement was reached, the property was to be transferred to PAWF and PAWF is now in the process of having the Title Deed transferred to its name through the Office of the Registrar of Titles.


  1. Annexure CK5 in the Affidavit of Mr Manau contains a newspaper Public Notice by Henao’s Lawyers that states, that they acted for a Mr Deb Kurma De and they lodged the Contract of Sale and Transfer Instrument between the First Defendant and the Plaintiff at IRC for Stamping and at Lands Department to conclude the sale as well as stating that the First Defendant himself signed the Contract of Sale and Transfer Instrument.
  2. In the second Contract of Sale and Transfer Instrument from the Plaintiff to PAWF, the consideration is stated as K204, 000.00.
  3. In the second Affidavit of Clemence Kanau as Exhibit P2, he states that he is a director of the Plaintiff company. He attaches a complete copy of the subject State Lease, marked as annexure C. The endorsement of this title deed shows that the Plaintiff was registered on 29 September 2000 as the proprietor of the subject property. There is also a Company Extract of the Plaintiff which shows the Police Association of PNG Inc as the sole shareholder of the Plaintiff company and Clemence Kanau as the sole Director of the Plaintiff.

Defendants evidence


  1. In Exhibit D1, Mr Christopher Jaminan deposes to several correspondences from the Late Mr John Jaminan concerning the subject property until his passing in 2015.
  2. The First Defendant was the registered proprietor of the subject property after purchasing the property from the National Housing Corporation in or around January 1997. Mr Christopher Jaminan states that his late father in or around January 2000, entered into a verbal agreement with one Patrick Kolta, an Accountant and a businessman for the purchase of his property in the sum of K500, 000.00; The evidence is unclear as to whether Henao’s Lawyers at the time acted for both the purchaser and the vendor as Mr Jaminan states that at that time, his father was living in the village in West Yangoru in East Sepik Province.
  3. Mr Jaminan states that his late father only received K150, 000.00; from Mr Patrick Kolta however he never received the balance of the K500, 000.00; agreed purchase price as Mr Patrick Kolta passed away sometime between 2000 and 2003. Mr Jaminan states that the alleged purchase price of K150, 000.00; is unreasonable as the property is a fully developed property in a prime location in Boroko, NCD.
  4. Mr Jaminan states that the last page or the execution page of the purported contract of sale between the First Defendant and the Plaintiff was sent to the First Defendant in the village in East Sepik Province without the First Defendant sighting the full contract and as a lay person, he signed without realizing that the contract price as put forth by the Plaintiff was K150, 000.00. In the letters from the late Mr Jaminan himself, he alleges that his signature was forged on the contract.
  5. There are letters dated 10th April 2000 and 20th December 2000 from the late Mr John Jaminan to Mr Patrick Kolta following up on the balance of K350, 000.00; as the balance of the transaction. The letter dated 10 April 2000 was addressed to Mr Patrick Kolta and attention to Mr Deb Kumar De. The second letter again is to Mr Patrick Kolta. There are no correspondence in evidence between the Plaintiff company and Mr John Jaminan.
  6. Mr Jaminan’s evidence states that Mr John Jaminan discovered that his property was illegally transferred to the Plaintiff company in 2000 and the Police Association of PNG had prevented Mr John Jaminan from moving into his property and from collecting rentals on his property as the property was fully tenanted at that time. In the letters dated 4 August 2009, Late Mr John Jaminan wrote to the Ombudsman Commission lodging a formal complaint against the Police Association of PNG Inc. From this letter, it can be seen that Mr Jaminan reaffirms that the dealings on the land was between him and Patrick Kolta, there is no mention of the Plaintiff company. Apparently, Late Mr Jaminan was under the belief that Late Patrick Kolta had used funds belonging to Police Association Welfare Fund under the name of the Plaintiff company to pay the K150, 000.00; as deposit but never completed the transaction.
  7. There are other letters by the Late Mr John Jaminan. There is a letter dated 9th July 2009 from Late Mr Jaminan to the Industrial Registrar in which Late Mr Jaminan sets out the circumstances of his agreement with the Late Mr Kolta to purchase his house for the price of K500, 000. Mr Jaminan states that as Mr Kolta was borrowing money from Police Association to buy the house, it was agreed that he would be paid K150, 000.00; and should receive the balance of K350, 000.00; later.
  8. There is also a letter dated 25 August 2009 in which the Late Mr Jaminan wrote to the Registrar of Titles. He informs the Registrar of Titles that he had found out that Late Mr Kolta had borrowed funds from Police Association Welfare Fund to pay him the deposit of K150, 000.00; and therefore Police Association Welfare Fund were interfering in his property and that he had no knowledge of the funds Mr Kolta took from Police Association Welfare Fund. In this letter, Late Mr Jaminan also applies for a replacement copy of his Title Deed stating that his title was lost sometime in March of 2000. He also encloses copies of his letters to the Ombudsman Commission, his letter to Mr Kolta to pay him the remaining K350, 000,00. and amongst other documents, a newspaper article dated 26 August 2009 in which the Late Mr Jaminan accused the Police Association of illegally taking over his house and refers to the agreement that he was to receive the balance of the purchase price of K500, 000.00; after only being paid K150, 000.00; but that it was not forthcoming. He also refers to the occupation of his house by a Mr Robert Ali who was the President of the Police Association and had lived in the house for about 6 years until he was evicted. In the newspaper article, the General Manager of the Police Association Credit (Welfare) Fund also stated that Mr Kolta had used the Association’s Funds to pay Mr Jaminan.
  9. There is also an Affidavit of Benjamin Samson as Exhibit D2. Mr Samson who was the Registrar of Titles confirms from the Lands Department records that the subject property was a National Housing Corporation property and was transferred to the First Defendant Late Mr John Jaminan on 31 January 1997. He also states that from the records at the Lands Department, the property was transferred to Kunji No.19 Limited for the purchase price of K150, 000.00; and the transfer was registered on 29 September 2000. Mr Samson confirms receiving complaints from Mr Jaminan that he did not sell his property for K150, 000.00; and that Mr Jaminan claims that his signature was forged to execute the transfer documents. Mr Samson also states that upon receiving the complaints and documents from Mr Jaminan, his office conducted an investigation into the matter.
  10. Mr Samson states that his investigation revealed the following:
    1. “That Mr John Jaminan did not consent and was not aware of the sale of the property to Kunjil No.19 Ltd and;
    2. That Mr Jaminan only made a verbal agreement with a Patrick Kolta for an agreed purchase price of K500, 000.00; and not with Kunjil No.19 Ltd for K150, 000.00; and;
    1. That the process and procedures for a replacement title under section 162 of the Land Registration Act were not followed prior to the transfer to Kunjil No. 19 Ltd where a notice for the replacement title was not published in the National Gazette and the daily newspapers as a mandatory requirement under the Land Registration Act.”
  11. In a letter dated 20 November 2009, Mr Samson wrote to the Police Association of PNG Inc and Kunjil No. 19 Ltd regarding the findings of the investigations and summoned for the cancellation of the title to the Plaintiff unless reasonable cause was shown in 14 days. In another letter dated 19 May 2010, Mr Samson again writes to the Police Association of PNG and states that after receiving no response from the Association and the Plaintiff regarding the investigations on the complaints lodged by Mr Jaminan, he was compelled to believe that the Association and the Plaintiff had no interest in the matter and therefore he notified the Association that he had proceeded to cancel the registration to the Plaintiff and if the Plaintiff is aggrieved by his decision, they can seek redress in Court. Mr Samson states in his letter that after confirming that the Plaintiff company was under the control and management of the Police Association of PNG, he sent a letter dated 20 November 2009 to Moses Paim who was the Acting President of the Police Association of PNG.
  12. In Mr Samson’s Affidavit, he annexes a copy of the subject State Lease. The endorsements show that on 6 April 2000, a replacement copy of the State Lease was issued pursuant to section 162 of the Land Registration Act as the registered proprietor’s copy was lost or destroyed. This endorsement and the subsequent transfer to the Plaintiff on 29 September 2000 was cancelled by the Registrar of Titles after his investigations into the matter. The Registrar had also found that the Plaintiff had not followed due process in applying for a replacement copy of the Title prior to the registration to the Plaintiff.

The Law


  1. A registered proprietor to a land can lose its title if fraud is proven against the title holder in acquiring that property. Section 33 of the Land Registration Act is in the following terms:

33. PROTECTION OF REGISTERED PROPRIETOR.


(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud; and

(b)[30] the encumbrances notified by entry or memorial on the relevant folio of the Register; and88

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.


(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.


  1. Fraud is either equitable fraud also referred to as constructive fraud or actual fraud. In Tagau v Selon Ltd[1], the Supreme Court considered a long line of cases dealing with constructive fraud. This is what the Supreme Court said:

“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:


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.

Irregularities and breaches of statutory provisions in the issue of a business/state lease previously zoned public institution.

The state lease was unlawfully forfeited contrary to the mandatory requirements of the Land Act 1996.

The state lease was unlawfully forfeited and then granted to another party contrary to the Land Act 1996.

A State Agriculture & Business Lease (SABL) was issued in respect of land over which a special mining lease already existed.

Irregularities and breaches of statutory procedures in the transfer and registration of the title.

Land was unlawfully exempted from advertisement under Section 69(2) Land Act 1996.

Land was unlawfully exempted from advertisement under Section 69(2) Land Act 1996.

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.

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).

Title was issued following flagrant abuse and breaches of the relevant mandatory procedures set out in the Land Act 1996.”


  1. In Agen v Dege[2], the Supreme 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. In Koitachi Ltd v Zhang[3], the Supreme Court discussed at length the definition of fraud in terms of the indefeasibility of title held by a registered proprietor and in relation to constructive fraud where there are non-compliance and or breaches of statutory provisions in the grant of a title to a registered proprietor and or actual fraud where the Court referred to the decision of Gavara Nanu J in The Papua Club Inc. v. Nusaum Holdings Ltd. (No.2) (2004) N2603 that:

“All these cases affirm the principle or the view that fraud means fraud committed in the act of acquiring the title by the registered proprietor or actual fraud.
It can therefore be deduced from these principles that once the land is registered, the owner attains indefeasibility of title which cannot be invalidated by any unregistered interests or mere irregularities except fraud by the registered proprietor or actual fraud...”


30. The Supreme Court has a divergent view, one taking on a more liberal view on the definition of fraud and one a more restrictive approach to actual fraud over constructive fraud in terms of section 33 of the Land Registration Act. Until this is settled, a party must either prove actual fraud or constructive fraud for the purpose of section 33 of the Land Registration Act.


Findings of the Court in relation to the transfer of the subject property to the Plaintiff.


  1. Firstly, let me state that the evidence by the Plaintiff through its’ director Mr Clemence Kanau is uncorroborated. His interest I find is on behalf of the Police Association of PNG Inc, the shareholder of the Plaintiff but it does not go to speak for the Late Mr Patrick Kolta or his deceased estate representative regarding the sale and or the conversations or agreement between the Late Mr Jaminan and the Late Mr Kolta.
  2. I find the following discrepancies in the alleged transaction between the Plaintiff and the Late Mr Jaminan:
    1. The purported contract of sale between the Plaintiff and the Late Mr Jaminan is not dated and though it has a signature purportedly that of Mr John Jaminan, it does not have a witness signature.
    2. There is no copy of a Transfer Instrument from Mr John Jaminan to the Plaintiff company in evidence.
    1. There is a letter dated 11 July 2000 to a Mr Deb Kumar De care of Kolta KPK regarding a Settlement Statement of the transaction to the Plaintiff. Settlement of the transaction was therefore scheduled to be on 31 July 2000. There is no evidence as to who acted for the Late Mr Jaminan in the conveyance. I conclude that Henao’s Lawyers acted for the purchaser Kunjil No.19 Limited.
    1. In a publication dated 24 June 2010, Henaos Lawyers published in the newspaper a statement refuting the claims in the newspaper that the subject property was fraudulently transferred to Kunjil No.19 Limited. I take notice that this newspaper publication was signed for Mr Loani Ravu Henao on behalf of Henaos Lawyers but was not signed by Mr Henao himself. A couple of conclusions can be reasonably arrived at here, that the entire transaction was done through the agents and servants of the Plaintiff company and or its shareholder being the Police Association and without Late Mr Jaminan being personally involved to sign or receive any document or attend the Settlement of the matter etc. Also, that Henao’s Lawyers acting for the purchaser alone did not verify nor did they confirm in their media publication who acted for the vendor being Mr John Jaminan. They only refer to a signed Contract of Sale by Mr Jaminan. Lawyers in a conveyance have a duty to ensure the opposing party transacting is represented or is given the liberty to engage legal representation. Henaos Lawyers did not say who represented Mr John Jaminan and neither do they say they represented him.
    2. The letters from the Late Mr John Jaminan to Mr Patrick Kolta in 2000 and 2002, letter to the Industrial Registrar in July 2009, letter to the Ombudsman Commission, Letter to the Registrar of Titles all consistently maintain that Mr Jaminan had an agreement with Mr Patrick Kolta and not the Plaintiff. It also maintained that Mr Jaminan agreed to sell his property to Mr Kolta for the purchase price of K500, 000.00; and not K150, 000.00; to the Plaintiff.
    3. From the evidence, the Court reasonably concludes that Mr Kolta’s associates or servants and agents who may represent the Plaintiff company conspired and colluded to have the subject property transferred to the Plaintiff for the price of K150, 000.00; as the deposit in which Mr Jaminan received.
    4. There is evidence the Plaintiff applied for a replacement copy of the Title Deed as being lost or destroyed and on being issued a new title, the transfer to the Plaintiff was registered in the same year in 2000.
    5. It was only in 2009 that when the Late Mr John Jaminan wrote to the Registrar of Titles raising his complaints on the subject property that he applied for a replacement copy of his title deed. There is a Statutory Declaration signed on 4 April 2000 that Mr John Jaminan states that his land title was stolen from him in March 2000.
    6. I also find that the findings by the Registrar of Titles Mr Benjamin Samson is consistent with the reasonable conclusions the Court draws from the evidence now presented. Unfortunately, Late Mr Kolta is deceased, there is no evidence from him concerning the transaction with the Late Mr Jaminan.
  3. I find that there is questionable evidence put forth by the Plaintiff that raises reasonable suspicions of fraud in the transfer of the property to the Plaintiff. What is clear is that the Late Mr Jaminan intended to sell the property to Mr Patrick Kolta for the purchase price of K500 000 and there was never any intention to transfer to the Plaintiff company, not even for the price of K150, 000.
  4. I uphold the submissions by Mr Christopher Jaminan which is persuasive that the evidence by Mr Clement Kanau on behalf of the Plaintiff and on behalf of the Police Association Inc as uncorroborated as it is, it leaves a lot wanting as to the representation of the estate of the Late Patrick Kolta, whether he did take funds belonging to the Police Association to purchase the subject property in the alleged sum of K150, 000. If this is the case that Mr Kolta used funds belonging to the Police Association Inc to pay Mr Jaminan K150, 000. for the subject property as deposit, it ties in with the narrative that because there was some impropriety on Mr Kolta dealing with the funds of the Police Association, the Police Association or its’ agents and servants would be instrumental in colluding for the transfer of the subject property from the Late Mr Jaminan to the Plaintiff company and then a subsequent transfer on to the Police Association Inc in order to recoup their funds as stated in evidence by Mr Kanau. The manner in which the Plaintiff and its shareholder and director being the Police Association have gone about dealing with the subject property is to my mind using heavy handed manipulation in an attempt to recover funds from the estate of Late Patrick Kolta which is clearly unlawful, if they are going to transfer a property that was bought using funds from the Police Association Inc and registered under the Plaintiff’s name. The Plaintiff is not a representative of the Estate of Late Patrick Kolta.
  5. I therefore find that there is evidence as to actual fraud in the transfer and registration of the subject property to the Plaintiff company. The title held by the Plaintiff cannot therefore stand pursuant to section 33 of the Land Registration Act.
  6. The Claim by the Plaintiff is premised on the cancellation of the title held by the Plaintiff based on the Registrar’s failure to comply with section 161 of the Land Registration Act as pleaded in the Amended Statement of Claim filed on 30 October 2014. Section 160 and 161 of the Land Registration Act is as follows with relevant provisions underlined for emphasis:

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.


  1. From finding that there was fraud involved in the transfer of the subject property to the Plaintiff, the Registrar of Titles under section 161 was entitled to cancel the registration in the name of the Plaintiff after his summons by way of letters to the Plaintiff Company through the address as stated at the Company Extract at IPA where there was no response from the Plaintiff. Section 161 (2) of the Land Registration is not in mandatory terms, it leaves it to the discretion of the Registrar to seek from the Court an order to summon the person in possession of the title to deliver the title. The Registrar was not bound to go to Court and obtain a summons, the Registrar in my view was entitled to take the steps he did, and I see no breach of section 161 in this regard. Even if the Plaintiff argues that it never did receive any of the Registrar’s letter summoning it to deliver up the copy of the subject title, the Court will exercise its discretion under section 155(4) of the Constitution in declaring that the registration to the Plaintiff can not stand as it is tainted with actual fraud.
  2. It follows that the Plaintiff has failed in its claim against the Defendants and the Plaintiff’s claim is refused accordingly.
  3. I therefore make the following orders:
    1. Pursuant to section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, this Court declares that the registration of the subject property being Allotment 8 Section 25, Boroko, National Capital District was transferred and registered to the Plaintiff through fraudulent means contrary to section 33 of the Land Registration Act.
    2. The subject property registered under the Plaintiff’s name was properly cancelled by the Registrar of Titles and correctly reverts to the First Defendant.
    3. The Plaintiff’s claim is therefore refused.
    4. The Plaintiff shall meet the costs of the Defendants to be taxed if not agreed.

Orders accordingly.
________________________________________________________________
Korerua & Associate Lawyers: Lawyers for the Plaintiff
Jaminan & Partners Lawyers: Lawyers for the First and Sixth Defendants
Office of the Solicitor General: Lawyers for the Second, Third, Fourth and Fifth Defendants

[1] [2018] PGSC 97; SC1755 (19 December 2018)
[2] [2020] PGSC 100; SC2020 (30 October 2020)

[3] [2007] PGSC 11; SC870 (11 September 2007)

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